“Docket No. 88-611 SECRETARY OF LABOR,Complainant,v.ERIE COKE CORPORATION,Respondent,UNITED STEELWORKERS OF AMERICA,AFL-C10-CLC, LOCAL 8415, DISTRICT 20,Authorized Employee Representative.OSHRC Docket No. 88-0611DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:At issue in this case is whether, by requiring its employees topay for the flame resistant gloves that it makes available to them, Erie Coke Corporation(\”‘Erie\”) has failed to \”provide\” the gloves as required by the cokeoven emissions standard at 29 C.F.R. ? 1910.1029(h)(1)(ii), which states:(h) Protective clothing and equipment–(1) Provision and use. The employer shallprovide and assure the use of appropriate protective clothing and equipment, such as butnot limited to:(ii) Flame resistant gloves ….(Emphasis added.)Based on the stipulated record,[[1]] former CommissionAdministrative Law Judge David J. Knight held that the Secretary’s interpretation of\”provide\” in the standard to mean that the employer must pay for the gloves isreasonable and entitled to deference. He rejected Erie’s argument that the Secretary isestopped from maintaining that interpretation in this case, and he found that Erie hadviolated the standard.I. BackgroundErie produces coke at its plant in Erie, Pennsylvania, wherethe company has its principal office. About 35 employees who regularly work in the areasof the coke oven batteries, and 50 to 55 employees who potentially could work in thoseareas, wear flame resistant gloves purchased from Erie, as do most of the remaining 130employees at the plant.The flame resistant gloves, also known as \”hot mill\”gloves, are not individually sized. Most of the affected employees wear the long gauntlet(six- inch cuff) style, but the gloves also come in a short gauntlet (two-inch cuff)style. Erie purchases the gloves and then sells them to its employees at cost, which was,at the time of the stipulations, $1.70 a pair for the long gauntlet and $1.30 a pair forthe short gauntlet. In exceptional circumstances, such as when the gloves become damagedthrough no fault of the employee, Erie supplies replacement gloves at no cost. Asstipulated, the gloves \”last on the average between three and four weeks when used by[Erie’s] oven workers.\”In response to a complaint filed by the president of Local8415, United Steelworkers of America, AFL-CIO-CLC, Local 8415, District 20 (\”theunion\”), concerning Erie’s failure to pay for the gloves, the Occupational Safety andHealth Administration (\”OSHA\”) conducted an inspection of the plant in January1988. As a result, OSHA issued a citation to Erie alleging that it violated theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”) byfailing to \”provide\” flame resistant gloves as required by section1910.1029(h)(1)(ii).[[2]] No penalty was proposed. Based on the stipulated record, thejudge affirmed the other-than-serious citation and assessed no penalty.Erie contends that the Secretary’s interpretation of\”provide\” to require it to bear the costs of the gloves is unreasonable because,among other reasons, it is contrary to the objectives of the Act, Commission and courtprecedent, and the collective bargaining process. Erie also contends that the Secretary isestopped from enforcing the standard in this case because of previous administrativeactions that she took involving other coke- producing companies having the same principalowner as Erie. We first consider whether the Secretary’s interpretation is reasonable. Ourinquiry is limited, by Erie’s arguments and the language of the citation, to theSecretary’s interpretation of \”provide\” only as it relates to flame resistantgloves under this standard.[[3]] The test for assessing the reasonableness of theSecretary’s interpretation is set out in Martin v. OSHRC (CF & I Steel Corp.), 111 S.Ct. 1171, 1178-80 (1991) (\”CF & I Steel\”). In CF & I Steel, the SupremeCourt held that reviewing courts must defer to the Secretary’s interpretation of her ownregulations where that interpretation is reasonable, taking into account such factors asthe consistency with which the interpretation has been applied, \”the adequacy ofnotice to regulated parties,\” and \”the quality of the Secretary’s elaboration ofpertinent policy considerations.\” Id. at 1179-80. The Court further noted that\”when embodied in a citation, the Secretary’s interpretation assumes a form expresslyprovided for by Congress.\” Id. at 1179.II. Reasonableness of the Secretary’s Interpretation of\”Provide\”Neither the legislative history of section 1910.1029(h)(1) norany Commission or court decision has addressed the issue of whether \”provide\”means \”pay for\” under this standard. Among the dictionary definitions of\”provide\” is \”to supply what is needed for sustenance or support.\”Webster’s Third New International Dictionary 1827 (1971). That definition suggests, asdoes the written interpretation of the cited standard introduced by the Secretary, that\”provide\” encompasses more than merely making items available.A. Secretary’s Written InterpretationOSHA Instruction STD 1-6.4 (March 12, 1979) (\”theInstruction\”) establishes that the Secretary had, prior to the citation here,interpreted \”provide\” as meaning \”pay for.\” The Instruction is aninternal directive to OSHA’s field staff designed to facilitate uniform enforcement ofspecific coke oven emissions standards and to establish internal OSHA policies. Itprovides:A. Purpose.\u00a0 This instruction clarifies the OSHA inspection procedure forthe protective clothing requirement in the Coke Oven Emissions Standard, 29 CFR1910.1029(h)(2)(i)-(iii).C. Action.\u00a0 OSHA will interpret and enforce the standard as follows:1. The clothing provision and cleaning service are obligations of the employer at nocost to the employee.E. Background.\u00a0 Recently, we have received questions concerning theOSHA’s inspection procedure for the protective clothing requirement in … 29 CFR1910.1029(h)(2)(i)-(iii). Paragraph (h)(2)(i) states \”The employer shall provide theprotective clothing required by paragraphs (h)(1)(i) and (ii) of this section in a cleanand dry condition at least weekly.\” Additionally, paragraph (h)(2)(iii) states\”‘The employer shall repair or replace the protective clothing and equipment asneeded to maintain their effectiveness.\”(Emphasis added.)The Instruction applies by its own terms to section1910.1029(h)(1)(ii), the cited standard. As Judge Knight noted in his decision, thestandards mentioned in the \”‘Purpose\” portion of the Instruction, 29 C.F.R. ?1910.1029(h)(2)(i)-(iii), which set forth cleaning and maintenance requirements, bynecessity incorporate by reference sections 1910.1029(h)(1)(i) (flame resistant jacketsand pants, see supra note 3) and (ii) (flame resistant gloves). The Instruction clarifiesthat \”‘provision\” and \”cleaning\” of the protective clothing undersection 1910.1029(h) are separate obligations to be borne by the employer at no cost tothe employee.[[4]]Erie contends that the Commission cannot consider this writteninterpretation because, when OSHA issued the Instruction, it was taking\”legislative\” action in violation of the notice-and-comment procedures of theAdministrative Procedure Act, 5 U.S.C. ? 553 (1976)(\”APA\”), [[5]] (citingChamber of Commerce of the United States v. OSHA, 636 F.2d 464 (D.C. Cir. 1980)). Wedisagree.In Chamber of Commerce, the court invalidated, based on itsdetermination that it constituted \”legislative\” action, a regulation issuedwithout notice and comment that sought to impose a new requirement, that employers mustpay employees for time spent accompanying OSHA compliance officers on walkaroundinspections. The regulation was based on the language in section II (c) of the Act, thatemployees have \”an opportunity\” to participate in such inspections. The courtdistinguished a \”legislative\” rule from an \”interpretive\” rule bystating that an \”interpretive\” rule need not follow the procedures in section553 of the APA because it is \”no more than an expression of [the agency’s]construction of a statute or rule.\” 636 F.2d a.468.We agree with the judge that the OSHA Instruction here is\”interpretive\” rather than \”legislative\” It merely clarifies andexplains which meaning, among several ordinary uses, to give the ambiguous term\”provide\” as it is used in the regulation. It does not set forth a newregulatory requirement. See, e.g., American Hospital Ass’n v. Bowen, 834 F.2d 1037, 1045(D.C. Cir. 1987); United Technologies Corp. v. EPA, 821 F.2d 714, 718-19 (D.C. Cir. 1987).Accord Bendix Forest Prods Corp. v. Division of Occupational Safety and Health, 600 P.2d1339 (Cal. Sup. Ct. 1979) (California Division of Industrial Safety’s order interpreting\”provide\” and \”furnish\” in CalOSHA provisions to require employers topay for gloves or mittens for lumber movers was specific application of existingregulation, not promulgation of new standard). See also Animal Legal Defense Fund v.Quigg, 932 F.2d 920, 927-29 (Fed. Cir.1991). We therefore conclude that in issuing thiswritten interpretation the Secretary did not violate section 553 of the APA. [[6]]B. Purposes of the ActErie contends that it is irrelevant under the Act who pays forthe requisite protective clothing and equipment, and, therefore, the Secretary’sinterpretation of \”provide\” as requiring imposition of the cost of the gloves onemployers is contrary to the objectives of the Act. However, as the judge noted in hisdecision, several courts have examined the relevant legislative history of the Act anddetermined that for employers to bear the costs of protective measures is in accordancewith the Act’s purposes.1. Legislative HistoryIn United Steelworkers of America v. Marshall(\”USWA\”), 647 F.2d 1189,1231 (D.C. Cir. 1980), cert. denied, 453 U.S. 913(1981), the court concluded that the cost of medical removal protection benefits under thelead standard at 29 C.F.R. ? 1910.1025(k) can be borne by the employer. It relied heavilyon three statements in the legislative history of the Act. First, the Report from SenatorWilliams, Chairman of the Subcommittee on Labor, Committee on Labor and Public Welfare,stated:[M]any employers–particularly smaller ones–simply cannot make the necessaryinvestment in health and safety, and survive competitively, unless all are compelled to doso. The competitive disadvantage of the more conscientious employer is especially evidentwhere there is a long period between exposure to a hazard and manifestation of an illness.In such instances a particular employer has no economic incentive to invest in currentprecautions, not even in the reduction of workmen’s compensation costs, because he willseldom have to pay for the consequences of his own neglect.S. Rep. No. 91-1282, 91st Cong. 2d Sess. 4 (1970), reprinted inSenate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of theOccupational Safety and Health Act of 1970, at 144 (1971) (\”LegislativeHistory\”).Second, Senator Yarborough, Chairman of the Committee on Laborand Public Welfare, told the Senate during the debate:We need a Federal statute, not to try to federalize things, but to equalize the costin one industry vis-a-vis another. We know the costs would be put into consumer goods butthat is the price we should pay for the 80 million workers in America.Legislative History at 444. In addition, Senator Eagleton, amember of the Subcommittee on Labor, stated in consideration of the Conference Report that\”the costs that will be incurred by employers in meeting the standards of health andsafety to be established under this bill are … reasonable and necessary costs of doingbusiness.\” Id. at 1150. The Report from Senator Williams also stated that\”[f]inal responsibility for compliance with the requirements of this act remains withthe employer.\” Id. at 151.In Forging Indus. Ass’n v. Secretary of Labor (\”ForgingIndus.\”), 773 F.2d 1436, 1451 (4th Cir. 1985) (en banc), the court concluded that theSecretary can, under the Act, require employers to pay for hearing protectors under thenoise standard at 29 C.F.R. ? 1910.95(i)(1), stating:The legislative history clearly indicates \”that Congress understood that the Actwould create substantial costs for employers, yet intended to impose such costs whennecessary to create a safe and healthful working environment.\” \u00a0 AmericanTextile Manufacturers Institute v. Donovan, 452 U.S. 490 at 519-20 (1981). In view of thisclear statement, it is only logical that OSHA may require employers to absorb such costs.We agree with these courts of appeals that, based on thelegislative history, Congress intended that the cost of compliance with OSHA would beuniformly reflected in the price of goods and services, so as not to place thesafety-conscious employer at a competitive disadvantage. The Secretary’s interpretation of\”provide\” in this case to require employers to bear the cost of the gloves iscertainly not inconsistent with this intent nor with the stated purposes of the Act.2. Decisions Relied Upon by Erie DistinguishableAs support for its view that the Secretary’s interpretation iscontrary to the purposes of the Act Erie relies on the decisions by the Commission and theThird Circuit[[7]] in The Budd Co., 1 BNA OSHC 1548, 1973-74 CCH OSHD ? 17,387 (No. 199,1974), aff’d, 513 F.2d 201 (3d Cir. 1975) (\”Budd\”). In Budd, the Commissiondetermined that the employer need not pay for safety shoes under the general industrypersonal protective standard at 29 C.F.R.? 1910.132(a), requiring that \”[p]rotectiveequipment … shall be provided,\” in light of the language in the next subsection, 29C.F.R. ? 1910.132(b), specifically addressing \”employee-owned [personal protective]equipment.\” The Commission concluded:Our interpretation comports, not only with settled rules of statutory construction,but, also, with the basic objective of the Act. The purpose of the Act is \”to assureso far as possible every working man and woman in the Nation safe and healthful workingconditions\” (Act, sec. 2(b)). Unlike other labor statutes with essentially economicpurposes (e.g. Fair Labor Standards Act), the Act is concerned solely with safety andhealth in the work situation. Prescription of cost allocations is not essential to theeffectuation of the Act’s objectives. It is irrelevant for the purposes of the Act whoprovides and pays for the equipment. Either employer or employee provision is consistentwith the purpose of the Act.1 BNA OSHC at 1550, 1973-84 CCH OSHD at p. 21,915 (footnotesomitted). See Budd, 513 F.2d 201, 205-06 (3d Cir. 1975). Erie places particular relianceon this language.However, neither this language, which is essentiallydicta,[[8]] nor the rest of the Commission or court decisions In Budd actually supportErie’s claim that the Secretary’s interpretation is unreasonable.In Budd, the Third Circuit found that the Commission’sinterpretation of the standard did not conflict with \”the provisions of the Actitself\” or \”the attainment of the congressional purpose.\” 513 F.2d at205-06. But, as the D.C. Circuit noted in USWA, 647 F.2d at 1231-32 n.66, \”the courtthere [in Budd] failed to address the relevant parts of the legislative history of the OSHAct.\” Another critical factor distinguishing Budd from this case is that in Budd, itwas not the Secretary, whose interpretation is usually afforded considerable weight, butthe union that maintained that employers are required to pay for protective footwear. TheSecretary agreed with the Commission that employers did not need to pay for safety shoesunder section 1910.132(a). 513 F.2d at 205 and n.12; 1 BNA OSHC at 1549, 1973-74 CCH OSHDat p. 21,914.The language of section 1910.132(a), the standard at issue inBudd, and its neighboring subsection also distinguish that case from this one. Section1910.132(a) requires that protective clothing and equipment \”shall be provided.\”It does not specify who is to do the providing, only that it be accomplished. Budd, 513F.2d at 206.[[9]] In contrast, the standard here states clearly that \”[t]he employershall provide.\” In addition, in finding that the employer was not required to providesafety shoes, the Commission and the Third Circuit in Budd relied heavily on the languageof section 1910.132(b) which requires employers to assure the adequacy of\”’employee-owned equipment.\” There is no corresponding provision in section1910.1029(h) involving employee-owned clothing and equipment.The safety shoes themselves are also distinguishable from thegloves at issue here because they were, in the Commission’s words. \”uniquely personaland may be used by the employee when he is away from the job.\” Budd, 1 BNA OSHC at1550 n.5, 1973-74 CCH OSHD at p. 21,915 n.5. See USWA, 647 F.2d at 1231 n. 66 (specialcharacter of shoes an Issue in Budd because they could be worn off as well as on the job).Erie asserts that the gloves at issue here can be safely worn outside the plant so long asthey have been cleaned.[[10]] However, the Secretary and the union maintain that once thegloves have been used in the workplace they have become contaminated and \”are nolonger reasonably usable outside the workplace.\” Because the gloves are notindividually sized and have a relatively brief (three-to-four week) work life, we agreewith the judge that the gloves do not have a 46 uniquely personal\” use such as thesafety shoes in Budd.For the reasons given above we conclude that Budd isdistinguishable from this case, and we find that the Secretary’s interpretation of\”provide\” as requiring employer payment for the gloves is in accordance with thepurposes of the Act.[[11]]C. Cost Allocation as Subject of Collective BargainingPrior to the citation, Erie and the union had participated incollective bargaining negotiations on the issue of who pays for the gloves. The union hadrequested that Erie provide flame resistant gloves at no cost to the employees, but Erierefused.[[12]] The resultant language in the bargaining agreement stated that protectiveclothing and equipment \”shall be provided by the Company.\”[[13]]Erie contends that the Commission in Budd and two federalcourts of appeals have acknowledged that, unless there is specific language to thecontrary in the applicable standard, allocation of costs of personal protective equipmentand clothing is best resolved through collective bargaining, citing United Parcel Serviceof Ohio v. OSHRC (\”UPS\”), 570 F.2d 806 (8th Cir. 1978); Leone v. Mobil Oil Corp.(\”Leone\”), 523 F-2d 1153 (D.C. Cir. 1975). Erie notes that, after concludingthat section 1910.132(a) did not require employers to pay for the gloves in light ofsection 1910.132(b), the Commission stated in Budd:The question of cost allocation . . . is a question to be resolved between employerand employee. In our judgment, it is an appropriate subject for collective bargaining. Cf.Fiberboard Paper Products Corp. v. NLRB (concurring opinion), 379 U.S. 212, 227\”(1964); NLRB v. Miller Brewing Co., 408 F.2d 12, 14 (9th Cir. 1969); NLRB v. Gulf PowerCo., 384 F.2d 822, 824-25 (5th Cir. 1967).1 BNA OSHC at 1550, 1973-74 CCH OSHD at p. 21,915. Erie alsorelies on the Third Circuit’s only words on this issue in its decision affirming theCommission’s decision in Budd: \”Moreover, the cost of the shoes may be compensated byother items in the collective bargaining settlement.\” 513 F.2d at 208 n.20. Erieasserts that its negotiations with the union involved the type of trade-off described bythe Third Circuit.We would first note that the portion of the Commission decisionin Budd quoted by Erie was not dispositive of that case and is therefore dicta. However,the issue of cost allocation under the Act has been more thoroughly discussed by othercourts. In Forging Indus., the Fourth Circuit stated:FIA’s argument that this [provision of hearing protectors at no charge] is atraditional area of collective bargaining is unpersuasive. . . . \”In passing amassive worker health and safety statute. Congress certainly knew it was laying a basisfor agency regulations that would replace or obviate worker safety provisions of manycollective bargaining agreements. Congress may have viewed collective bargainingagreements along with state worker’s compensation laws as part of the status quo that hadfailed to provide worker’s sufficient protection.\”773 F.2d at 1451-52 (quoting USWA, 647 F.2d at 1236 (D.C. Cir.1980)).The decisions upon which Erie relies are distinguishable fromthis case. In UPS, the issue was not who should pay for safety shoes, but rather whattypes of shoes at what cost would be adequate under the circumstances. The Eighth Circuitfound that, in light of such factors as the nature of the business, the small size of theparcels, the low injury rate, and the high turnover rate of employees, it was\”unreasonable and an abuse of discretion [for the Commission] to require that all ofthe unloaders and sorters be equipped, either at their expense or at the expense ofpetitioner, with steel-toed safety shoes.\” 570 F.2d at 812 (emphasis added). Leoneinvolved a charge initiated by employees, not the Secretary, requesting payment for timespent participating in a walkaround inspection. 523 F.2d at 1154. In Leone, the D.C.Circuit noted that the plaintiffs argued that the 44 policies of OSHA,\” not the laboragreement or the language of the Act, require payment for those \”hours worked\”that are compensable under the Fair Labor Standards Act. Id. at 1159.We agree with the reasoning of the courts in Forging Indus. andUSWA. We therefore conclude that the Secretary’s interpretation of this standard torequire coke producing employers to pay for flame resistant gloves is reasonable under theAct, and that it is not affected by the collective bargaining agreement.We do not base our conclusion on the Secretary’s assertion thatErie and the union cannot bargain on the issue of the cost of the gloves because itrelates to the \”creation of a safety disincentive.\” Where the record hassupported it, the role of safety incentives or disincentives has been found significant inseveral cases. Cf. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d314, 322 (5th Cir. 1987) (employer’s failure to maintain premium payments would provideeconomic disincentive to voluntary employee cooperation in medical surveillance program);Phelps Dodge Corp., 11 BNA OSHC 1441, 1443, 1983-84 CCH OSHD ? 26,552 p. 33,919 (No.80-3203, 1983), aff’d, 725 F.2d 1237 (9th Cir. 1984) (in finding violation of standardrequiring that medical examinations be \”provided without cost to the employee.\”Commission noted that 42 percent of employees failed to go for follow up examinations whenrequired to bear own transportation costs and use own personal time).However, the Secretary’s safety disincentive argument is notsupported by the record. The Secretary, who has the burden of proving the violation,acknowledged at the oral argument that there is nothing in this stipulated record thatestablishes that Eric’s employees were in fact wearing their gloves past their protectivelife in order to save themselves money. Common sense dictates that Eric’s employees havethe incentive to wear fully protective gloves because they know burns could otherwiseresult. The Secretary acknowledged at the oral argument that there is a certain point ofdiscomfort at which an employee would change gloves to avoid burns. Moreover, the recordindicates that employees do wear the gloves.D. Work Rule to Address Practical ConcernsEric asserts that its motive for charging its employees for thegloves is to prevent waste. It claims that its employees do not use as many pairs ofgloves when they pay for the gloves themselves. Eric contends that the gloves may be usedfor a number of non-work purposes outside the plant, but the record is silent as towhether its employees were doing this. Eric argues that its interpretation of the standardis therefore more economically feasible than the Secretary’s interpretation because itsaved money by the reduction in glove purchases compared to its predecessor, the KoppersCorporation. However, the only statistics Erie has introduced to support that claiminvolve glove use during a seven-week strike that occurred prior to the collectivebargaining. Even if those figures had shown that Erie could save money by not bearing thecosts of the gloves, that does not mean that the Secretary’s interpretation here isunreasonable. Based on the rulemaking record, OSHA found that \”compliance with thestandard (even if the higher cost estimate were used) is well within the financialcapability at the coking industry.\” Exposure to Coke Oven Emissions: Final Rule, 41Fed. Reg. 46,742, 46,751 (1976).The Secretary and the union express their concern that glovesworn in the regulated areas of Erie’s facility would be contaminated with coke ovenemissions and therefore should not be used by employees outside of work. The union aversthat most of the coke-producing, employers it has negotiated collective bargainingagreements with have work rules prohibiting employees from taking personal protectiveclothing and equipment away from the workplace. We conclude that, if such a work rule wereadopted in this case, it would address the health concerns of the Secretary and the union,as well as the economic concerns of Eric.Based on the discussions above, we conclude that theSecretary’s interpretation of \”provide\” in section 1910.1029(h)(1) to requireemployers to pay for flame resistant gloves is reasonable and entitled to deference.Ill. Estoppel DefenseErie contends that, based on prior OSHA positions in twosettlement agreements and a discussion with an OSHA regional official involving two othercoke-producing corporations owned by J.D. Crane, Erie’s principal owner, the Secretary haswaived her right to interpret the standard to require employer payment for the gloves andis therefore estopped from enforcing the standard in this case.The first settlement that Eric points to involved CarondeletCoke Corporation (\”Carondelet\”) of St. Louis, Missouri. In April 1985, theSecretary cited Carondelet for an other-than-serious violation of section1910.1029(h)(1)(ii), the same standard at issue here. During the settlement discussions,the parties deadlocked only on the issue of payment for the gloves. The Secretary andCarondelet finally agreed to a settlement that merely affirmed the item, without anymention of who must bear the cost of the gloves. For the next two years, until the plantclosed, OSHA did not challenge Carondelet’s practice of selling the gloves to itsemployees.The other settlement upon which Erie relies resulted from acitation issued in August 1987, to Toledo Coke Corporation (\”Toledo\”) of Toledo,Ohio, for violating the standard at issue here. The parties agreed that the citation item,along with several others, would be vacated on the basis that \”there is insufficientevidence to establish violations of the standards cited at the times and placesalleged.\”In addition, Erie contends that, at a meeting in December 1986with Carondelet representatives, the OSHA Area Director for St. Louis, Warren Hargreaves,advised them that he interpreted section 1910.1029(h)(1)(ii) to not require an employer toprovide flame resistant gloves at no cost to the employees. The basis for this averment byErie is an unsigned letter to the company’s vice president from one of Carondelet’srepresentatives who attended the meeting.To establish a traditional estopped defense against a litigant,a party must prove: \”(1) a misrepresentation by another party; (2) which hereasonably relied upon; (3) to his detriment.\” United State Asmar (\” Asmar\”), 827 F-2d 907, 912 (3d Cir. 1987); see Heckler v. Community Health Service ofCrawford County (\”Crawford\”), 467 U.S. 51, 59 (1984). The Supreme Courtrecognized in Crawford that the Government may not be estopped on the same terms as anyother litigant. Id. at 60. Because the Supreme Court found that the traditional estoppedelements had not been proven, it did not reach the issue, which was before the ThirdCircuit in Crawford, of what more a party must show to estop the Government. Id. at 60-61.The Third Circuit, to which this case can be appealed, see supra note 7, and several otherfederal circuit courts have determined that for the Government to be estopped there mustbe a showing of a fourth element called \”affirmative misconduct.\” Asmar, 827F.2d at 911 n.4, 912. See Miami Industries, Inc., 15 BNA OSHC 1258, 1264-66, 1991 CCH OSHD? 29,465, pp. 39,742-43 (No. 88-671, 1991), appeal filed, No. 91-4045 (6th Cir. Nov. 7,1991)Judge Knight concluded in his decision that Erie had failed toestablish the estopped defense because it did not show that OSHA had mademisrepresentations upon which Eric could have reasonably relied, nor did it proveaffirmative misconduct. The judge noted that the Carondelet settlement was silent as tothe cost issue and the Toledo settlement had no information in it that could lead anemployer to believe that cost allocation was a factor influencing the Secretary’sagreement to vacate. Relying on Crawford, 467 US. at 65-66, the judge concluded that thefact that Hargreaves’ advice was oral instead of written undermined the reasonableness ofany reliance on it. He found that a subsequent letter by the Carondelet representative\”confirming\” Hargreaves’ statement at the informal conference did not transformthat statement into an authority upon which Erie could reasonably rely. The judge alsonoted, quoting Long Beach Container Terminal Inc. v. OSHRC, 811 F.2d 477, 479 (9th Cir.1987), that an internal staff memorandum written by the employee who drafted the standard\”expresses the view of a particular staff member, not the official view of theSecretary….It is the Secretary who promulgates the standards, and the Secretary’sofficial statements must be the guide as to their meaning.\”We agree with the judge’s reasoning. We would add that thesettlements and the alleged misrepresentations in the discussion with Hargreaves were notmade to Erie itself, but rather to other subsidiaries of Its principal owner. Furthermore,as the Secretary suggests, settlement agreements by their nature reflect the give andtake, or trading off, particular to a case, and in both the Carondelet and Toledosettlements, numerous citation items were at issue. Those two settlement agreementsreflect the results of the bargaining process with regard to those particular companiesand those particular citations. They are therefore not \”misrepresentations\” thatEric could have \”reasonably relied upon.\” Moreover, the Secretary’s exercise ofher discretion not to issue a citation for a particular condition, as she did againstCarondelet, does not immunize an employer from being cited for the same or a similarcondition in a future enforcement action. E.g., Donovan v. Daniel Marr & Son Co., 763F.2d 477, 484 (1st Cir. 1985); Cardinal Indus., 14 BNA OSHC 1008,1013,1987-90 CCH OSHD ?28,510, p. 37,803 (No. 82-427,1989), rev’d on other grounds, 828 F.2d 373 (6th Cir. 1987);Columbian Art Works, Inc., 10 BNA OSHC 1132 1133,1981 CCH OSHD ? 125,737, p. 37,102 (No.78-29, 1981). See also United States v. City of Menominee, 727 F.Supp. 1110, 1121 (W.D.Mich. 1989) (mere inaction by EPA in face of violations not affirmative misconduct uponwhich estopped will lie). The Toledo settlement provides even less support for Erie’scase. OSHA’s decision there to agree to have the judge vacate for \”insufficientevidence\” indicates only the deficiency in OSHA’s evidentiary case, not its legalposition. See Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1104-05 (5th Cir. 1980)(where Secretary’s failure to proceed due to evidentiary reasons, employer should havebeen aware that Secretary’s position would be litigated in future).Concerning the alleged statement by Hargreaves, we note thatthe Secretary did not stipulate that Hargreaves made the statement. She only stipulatedthat \”Respondent [Erie] avers\” that he made the statement. Therefore, the recorddoes not establish that there was any actual representation, and thus no\”misrepresentation.\” Although the Secretary acknowledged at the oral argumentthat there could have been some reasonable reliance on Hargreaves’ statement, assuming itwas a misrepresentation, we note, as the judge did, that a party is less justified inrelying on oral rather than written advice. See Crawford, 467 US. at 65-66; Henry v.United States, 870 F-2d 634, 637 (Fed. Cir. 1989). See generally Schweiker v. Hansen, 450U.S. 785, 790 (1981) (erroneous information from Social Security field representative\”fall[s] far short\” of conduct that would raise an estopped question against thegovernment); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir.1984) (to extent company relied on interpretation of regulations by MSHA officials, it\”assumed the risk\” that interpretation in error). The reasonableness of Erie’sreliance on Hargreaves’ alleged statement is further diminished by the fact that, eightmonths after Hargreaves’ statement, the Secretary issued a citation to Toledo, whichresulted in the 1987 settlement discussed above, that alleged a violation of the citedstandard for failure to pay for gloves, an enforcement position contrary to Hargreaves’statement.Even assuming that Hargreaves had made a misrepresentation uponwhich Erie reasonably relied, there is no evidence that Erie instituted or changed itspolicy of charging for gloves in reliance on what Hargreaves allegedly told it. Instead,as shown by the averment of J.D. Crane, Erie’s principal, \”[d]uring his entire careerin the industry [over 40 years], no plant under his operation or control has provided hotmill or name resistant gloves at no cost to the employees.\”Even if Erie had established that there was a misrepresentationby the Secretary that it had reasonably relied upon to its detriment, Erie has the burdenof additionally proving that the misrepresentation rose to the level of \”affirmativemisconduct.\” Asmar, 827 F.2d at 912. It is clear that the record here does notsupport a finding of the sort of \”active\” misrepresentations and resultantinjustice to the estoppel claimant necessary to establish this element. See MiamiIndustries, 15 BNA OSHC at 1266,1991 CCH OSHD at pp. 39,743-44 (several reinforcing\”active\” misrepresentations constitute \”affirmative misconduct\” whereemployer suffered unfairness and estoppel would not unduly damage the public interest).Based on the discussion above, we conclude that Erie failed toprove that the Secretary made misrepresentations to it that it reasonably relied upon toits detriment. We therefore reject Erie’s estoppel defense.Having found that the Secretary is not estopped from applyingher reasonable interpretation of \”provide\” under this standard with regard tothe flame resistant gloves, we conclude that, based on the stipulated record, Erie failedto comply with the terms of section 1910-1029(h)(1)(ii).IV. Classification of ViolationUnder section 10(c) of the Act, 29 U.S.C ? 659(c), theCommission has the authority to issue an order \”affirming, modifying, or vacating theSecretary’s citation or proposed penalty, or directing other appropriate relief.\”Section 9(a) of the Act, 29 U.S.C ? 658(a), provides that \”de minimis\”violations \”have no direct or immediate relationship to safety and health.\”Based on these sections of the Act, the Commission has the authority to classify aviolation as de minimis where it, has no direct or immediate relationship to employeesafety and health. Super Excavators, Inc., 15 BNA OSHC 1313, 1314, 1991 CCH OSHD ?29,498, p. 39,802 (No. 89- 2253,1991).Violations have been classified as de minimis where the levelof protection that the employer afforded employees was not significantly different fromthat required by technical compliance with the standard. See Super Excavators, 15 BNA OSHCat 1313-14, 1991 CCH OSHC at p. 39,801-02 (Commission, upon motion by the Secretary,classified violation as de minimis where employer had developed and implemented a writtenhazard communication plan but had not maintained a copy of the plan at a transientworksite); Charles H. Tompkins, 6 BNA OSHC 1045, 1047, 1976-77 CCH OSHD ? 1977-78 CCHOSHD ? 22,337, p. 26,918 (No. 15428, 1977) (violation was de minimis becauseemployees\” climbing safety was not \”appreciably diminished\” by additionaldistance between rungs on scaffold bucks). See also Phoenix Roofing, Inc. v. Dole, 874F.2d 1027, 1030-33 (5th Cir. 1989) (violation was de minimis because safety monitorsprovided protection as sufficient as prescribed warning lines for employees four feet fromedge of roof). The Commission has recognized that its decisions finding violations demininis are not intended \”to derogate from the Secretary’s rulemakingauthority,\” as, for example, where she has made a specific choice from amongdifferent protective measures. Turner Co., 4 BNA OSHC 1554, 1564, 1976-77 CCH OSHD ?21,023, p. 25,281 (No. 3635, 1976), set aside and rem’d on other grounds, 561 F.2d 82 (7thCir. 1977).In this case, the protective measures required by the standardare that gloves be made available to employees and that employees wear them. It isundisputed that Erie did make flame resistant gloves available to its employees, and thatthe employees wore the gloves. However, as we noted above in dismissing the Secretary’ssafety disincentive argument, there is nothing in the stipulated record indicating thatemployees were wearing torn or otherwise ineffective gloves beyond their useful life inorder to save money, thereby exposing their hands to possible burns and coke ovenemissions in the work environment.Cf. Anoplate Corp., 12 BNA OSHC 1678, 1688, 1986-87 CCH,OSHD ? 27,519, p. 35,686 (No. 80-4109, 1986) (de minimis violation of 29 C.F.R. ?1904.2(a) where no evidence that employer’s failure to list injured employees’ job titlesand departments, hindered OSHA investigation, and all employees knew details anyway). Hadthe Secretary introduced any evidence that Erie’s employees were not adequately protectedby the gloves they wore, she could have established that Erie’s practice of charging itsemployees for the gloves did have a direct relationship to the safety and health of theemployees.In the absence of such evidence, we conclude that, based onthis particular stipulated record, including the collective bargaining agreement betweenErie and the union, Erie’s employees have not been shown to have suffered any directimpairment of their safety and health as a result of having to pay for the gloves. Wetherefore characterize Erie’s violation as de minimis with regard to these particularemployees. A de minimis violation carries no penalty and requires no abatement. See SuperExcavators, 15 BNA OSHC at 1315, 1991 CCH OSHD at p. 39,803.V. OrderWe therefore affirm the citation insofar as it alleged thatEric violated section 1910.1029(h)(1)(ii) by requiring its employees to pay for the flameresistant gloves, and we find that the violation is de minimis.Edwin G. Foulke, Jr.ChairmanDonald G.Wiseman CommissionerVelma Montoya CommissionerDated: April 10, 1992ANN McLAUGHLIN, SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant, v.ERIE COKE CORPORATION,and its successors,Respondent.OSHRC Docket No. 88-0611Appearances: Mark V. Swirsky, Esq., for Complainant John J. Gazzoli, Jr., Esq., for RespondentDECISION AND ORDERThis is a proceeding brought under section 10(c) of theOccupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. ? 651 et seq.,hereinafter sometimes referred to as ‘the Act’) to review a citation issued by theSecretary of Labor pursuant to section 9(a) of the Act.Due to a complaint filed by the president of the local unionrepresenting respondent’s employees, an investigation of respondent’s Erie, Pennsylvania,coke plant facility was conducted between January 15, 1988 and January 29, 1988. Onecitation was issued on February 17, 1988, alleging an other- than-serious violation of thecoke oven emissions standard at 29 CFR ? 1910.1029 (h)(1)(ii). No penalty was assessed.Respondent timely filed with a representative of the Secretary of Labor a notification ofintent to contest the citation on March 30, 1988.The parties submitted the case on the basis of a stipulatedrecord on December 15, 1988, pursuant to Commission Rule 107, 29 CFR ?2200.107. Bothparties filed proposed conclusions of law on January 26, 1989.BackgroundRespondent, Erie Coke Corporation (\”Erie\”), is acorporation engaged in the operation of a coke plant, using coke oven batteries, with itsprincipal office and place of business located at Foot of East Avenue, Erie, Pennsylvania(Stipulation of Parties, ? 1). Respondent is an employer engaged in a business affectingcommerce within the meaning of sections 3(3) and 3(5) of the Act (Stipulation ? 3).Respondent employs approximately 130 employees at its Erie cokeplant, of which approximately 35 work in regulated areas involving coke oven batteries;there is the potential for approximately 50 to 55 employees to work in these areas(Stipulation ? 7).Respondent acquired the Erie, Pennsylvania coke oven facilityin April, 1987 (Stipulation ? 6, ? 9). The former owner and operator of the plant,Koppers Corporation, provided flame resistant gloves at no cost to employees; respondentdid not adopt Koppers’ collective bargaining agreement with the United Steelworkers ofAmerica (\”USWA\”) (Stipulation ? 6, ? 9).All of respondent’s employees who work in proximity to the cokeoven batteries are provided and wear flame resistant, or \”hot mill\” gloves asrequired by 29 CFR ?1910.1029(h)(1)(ii) (see Exhibit K) These gloves are sold byrespondent to employees at cost (Stipulation ? 8). In the event that an employee’s glovesbecome inadvertently damaged, replacement gloves are furnished by the employer at no costto the employee (Stipulation ? 8).The parties agree that OSHA considers coke oven emissions to becarcinogenic; oven workers and affected employees have been so instructed (Stipulation ?24, ? 25; see Exhibit L of Stipulation of Parties: 41 Fed. Reg. 46744 (1976)).The sole issue in this case is whether the employer must bearthe cost for provision of the flame resistant gloves required under the standard.DiscussionThe standard at 29 CFR ? 1910.1029(h)(1)(ii) provides:(h) Protective clothing and equipment – (1) Provision and use. The employer shallprovide and assure the use of appropriate protective clothing and equipment, such as butnot limited to:(ii) Flame resistant gloves; 29 CFR ? 1910.1029(h)(1)(ii).The Secretary and the employee representative, Robert M.Kostek, president of local 8415, USWA AFL- CIO, contend that the standard requires thatthe employer provide flame resistant gloves at no cost to the employee. The Respondentargues that the standard is silent on the issue of cost allocation for personal protectiveequipment, and that compliance with the standard is accomplished by providing gloves foremployees to purchase and assuring their use.The standard does not specifically assign responsibility forpayment of the cost of flame resistant gloves to either the employer or the employee. ThePreamble to the standard is equally silent on this issue. (See Exhibit L: 41 Fed. Reg.,46775 (October 22, 1976) (‘The standard requires the employer to provide and ensure thatemployees use protective clothing and equipment in order to minimize three types ofhazards’).[[1]]The Secretary contends that OSHA has consistently interpretedthe standard as requiring the employer to assume the cost of flame resistant gloves. Shesubmits two documents to buttress this assertion: OSHA Instruction STD 1-6.4, issued onMarch 12, 1979 (Exhibit M) and a memorandum from the Directorate of Compliance Programs,dated October 31, 1988, which upholds the current validity of the OSHA Instruction(Exhibit N).OSHA Instruction STD 1-6.4 clarified the OSHA inspectionprocedure for the protective clothing requirement found at 29 CFR ? 1910.1029 (h) (2) (i)(iii).[[2]] It stated that OSHA would interpret and enforce the standard as follows:1. The clothing provision and cleaning service are obligations of the employer at nocost to the employee.(see Exhibit M).This instruction was later referred to in a memorandum, datedOctober 31, 1988, written in response to a request for an interpretation of the coke ovenemissions standard, and whether or not the employer must furnish the equipment identifiedin this standard at no cost to the employee. The memorandum reiterated the interpretationgiven in the OSHA Instruction by stating that the clothing provision and cleaningrequirements of that section were obligations of the employer at no cost to the employee(see Exhibit N).Joseph Hopkins, author of this memorandum, is a MechanicalEngineer with OSHA’s Directorate of Compliance Programs Office of Health ComplianceAssistance. Since 1980, he has had principal oversight responsibility for coke ovenemissions standard compliance and enforcement for OSHA. He avers that during his tenure atOSHA, it has been \”OSHA’s national enforcement policy that all protective clothingand equipment listed in 29 CFR ?1910.1029(h)(1) in an obligation of the employer toprovide at no cost to the employee.\” (Stipulation ? 33).Erie contends that these agency interpretations, by imposingsuch costs on employers, are an attempt at \”legislating\” rather than\”interpretation\” and must, therefore, be vacated for failure to comply with thenotice-and-comment rulemaking requirements of the Administrative Procedure Act, 5 U.S.C.?553. See, Chamber of Commerce of the United States v. OSHA, 636 F.2d 464 (D.C.Cir. 1980).In Chamber of Commerce, an \”interpretive rule andgeneral statement of policy\” promulgated by the Assistant Secretary of Labor declaredthat \”an employer’s failure to pay employees for time during which they are engagedin walkaround inspections is discriminatory under section 11(c)\” of the Act. 646 F.2d464, 467. This regulation was codified at 29 CFR ? 1977.21 (1979) (42 Fed.Reg.47344-47345 (1978)) without public proceedings. The D.C. Circuit held this action tosupplement rather than to construe the Act, and was thus a legislative rather than aninterpretive rule. The regulation was vacated as improperly promulgated in absence of fullpublic notice-and-comment procedures under the Administrative Procedure Act.The D.C. Circuit distinguished an interpretive from alegislative rule: \”A rule is interpretive, rather than legislative, if it is not’issued pursuant to legislatively delegated power to make rules having the force of law’or if the agency intends the rule to be no more than an expression of its construction ofa statute or rule.\” Chamber of Commerce, supra, at 468. They are\”‘statements as to what the administrative officer thinks the statute or regulationmeans.’\” Chamber Of Commerce, supra, at 469, citing Citizens to SaveSpencer County v. United States Environmental Protection Agency, 600 F.2d 844, 876(D.C. Cir. 1979) (quoting Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1952)).In the instant case, the OSHA Instruction was not apromulgation of a new regulation or standard, but an application of an existing standard.See Bendix Forest, Products Corp. v. Division of Occupational Safety and Health, 25Cal. 3d 465, 158 Cal.Rptr. 882, 600 P.2d 1339, (1979) (employer required to pay forprotective gloves under California law, as Division of Industrial Safety had authority toissue order which interpreted \”‘furnish\” or \”provide\” safety equipmentas requiring employer to do so at its expense). The OSHA Instruction served to provide a\”clarification of statutory language\”, and was, thus, interpretive rather thanlegislative. Chamber of Commerce, citing Joseph v. United States Civil ServiceCommissioning, 554 F.2d 1140, 1153 (1977).In this case, the Secretary must interpret, must come to aconclusion. Is the union correct: \”shall provide\” means the employer must paythe cost of the gloves? Is the respondent correct: \”shall provide\” means only tomake available? In either case, the Secretary interprets the standard. The question ofwhat \”shall provide\” means lurks in the standard itself and its answer is notsomething superimposed there but only removes a doubt.Unlike the situation in Chamber of Commerce, supra,where the employer had no role to play concerning the employees’ rights during thewalk-around inspection (see 636 F.2d at 467), here, the employer is directly andnecessarily involved. One way or another, cost-wise, the employee must wear the gloves;but for an employee to accompany the inspecting officer is only permissive[[3]] by statute[29 U.S.C. ?657(e)]. Since the Act is silent as to the employee cost of accompaniment, toforce it on the employer is a superimposition, i.e., there was no such \”existingduty\” (see 636 F.2d at 469), and such compulsion is an exercise of legislative power.But here, providing the gloves is a requirement and who bearsthe cost merely implements that requirement.\u00a0 Thus, the OSHA Instruction STD 1-6.4must qualify as \” … rule…no more than an expression of its [i.e. the Secretary’s]construction of a statute or rule\”, 636 F.2d at 468, and it is not a legislativeimplementation.Legislative History of the ActIn the Chamber of Commerce decision, the D.C. Circuitreasoned that OSHA could not have been clarifying the Act’s language in issuing itsinterpretive rule, as the Act \”neither prohibits nor compels pay for walkaroundtime.\”\u00a0 Congress had not \”‘legislated and indicated its will’\” on thequestion of walkaround pay, thus, the agency did more than \”exercise its ‘power tofill up the details.’ \”Chamber of Commerce, supra, citing United States v.Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563 (1911) (quoting Wayman v.Southard, 23 U.S. (10 Whear.) 1, 43, 6 L.Ed. 253 (1825)).As the Secretary notes, the legislative history of the Actindicates that Congress intended that \”[f]inal responsibility for compliance with therequirements of this act remains with the employer.\”\u00a0 S. Rep. No. 91-1282, 91stCong., 2d Sess. 4 (1970).\u00a0 Congress contemplated that this responsibility wouldinclude the assumption of costs by employers when necessary to create a safe and healthfulworking environment. Forging Industry Ass’n v. Secretary of Labor, 773 F.2d 1436(4th Cir. 1985) (citing American Textile Manufacturers Institute v. Donovan, 452U.S. 490 at 519-520, 101 S.Ct. 2478, 2495-96, 69 L.Ed 2d 185 (1981)).The report of the Senate subcommittee on Labor and PublicWelfare from which the Act emerged \”stressed the need to place the cost of standardson employers, noting that many employers–particularly smaller ones–simply cannot make the necessaryinvestment in health and safety, and survive competitively, unless all are compelled to doso. The competitive disadvantage of the more conscientious employer is especially evidentwhere there is a long period between exposure to a hazard and manifestation of an illness.In such instances a particular employer has no economic incentive to invest in currentprecautions, not even in the reduction of workman’s compensation costs, because he willseldom have to pay for the consequences of his own neglect.United Steelworkers of America. Etc. v. Marshall, 647 F.2d 1189, 1231 (D.C. Cir.1980), cert. denied 453 U.S. 913, 101 S.Ct. 3148 (1981), quoting S. Rep. No. 91-1282, 91stCong. 2d Sess. 4 (1970).Further indication that Congress intended to place financialresponsibility for compliance with the Act on the employer is found in the statement ofSenator Eagleton, a member of the subcommittee:[t]he costs that will be incurred by employers in meeting the standards of health andsafety to be established under this bill are… reasonable and necessary costs of doingbusiness.USWA v. Marshall, supra.Costs of Doing BusinessRespondent refers to the language of the Review Commissiondecision in Budd Co., 1 BNA OSHC 1548 (1974), to support its claim, that cost allocationis irrelevant to fulfillment of the Act’s purposes:Unlike other labor statutes with essentially economic purposes, the Act is concernedsolely with safety and health in the work situation. Prescription of cost allocations isnot essential to the effectuation of the Act’s objectives …. The question of costallocation, on the other hand, is a question to be resolved between employer and employee.In our judgment, it is an appropriate subject for collective bargaining. [footnotesomitted].Budd Co. v. Occupational Safety & Health Rev, Com’n, 513 F.2d 201, 203 (3rdCir. 1975) quoting 1 BNA OSHC 1548 (Rev. Comm. 1974).[[4]]The Review Commission in Budd Co. held that the word\”provide\” in the standard at 29 CFR ? 1910.132(a) [[5]] did not require theemployer to pay for foot protection (safety shoes) for its employees. The Secretary ofLabor had endorsed this interpretation of the standard as it applied to safety shoes.The rationale for this decision was based primarily on areading of the entire section in question, and the \”uniquely personal\” nature ofsafety shoes. Upon appeal by the union (\”UAW\”), the Third Circuit affirmed theCommission decision as \”a reasonable reading of the language of 1910.132(a).\”Budd, supra, 513 F.2d 210, 206. The Secretary distinguishes the Budd decision on the twofundamental levels which served as the basis for the Third Circuit’s decision. For thefollowing reasons, I agree with the Secretary’s analysis.Language of the StandardThe Review Commission, and later, the Third Circuit, looked tothe language of section 132. Section 132(b) stated the requirements for employee-ownedequipment. The Commission determined that to require the employer to pay for protectiveequipment under subpart (a) would render subpart (b) \”superfluous.\” Further, theregulation did not explicitly compel the employer to bear the cost of the protectiveequipment. \”The verbs — ‘provided, used and maintained’– set forth in subsection(a), are all phrased in the passive voice, without specifying who is to perform thesefunctions. At least one of the items of conduct — use — must be carried out by theemployees.\” Budd, supra, at p.206.In contrast, the standard at 1029(h) does not delineaterequirements for \”employee-owned\” equipment. Moreover, as the Secretary notes,the standard is phrased in the active voice: \”The employer shall provide andassure.\” 29 CFR ? 1910.1029(h)(1).Personal v. Capital EquipmentThe Review Commission emphasized the personal nature ofprotective devices which were characterized by their ability to be worn off-the-job aswell as at work. As it explained in footnote 5 of its decision:We do not imply that an employer is not to bear the cost of things such as capitalequipment which is ordinarily his responsibility to assume. We are here considering thecost-allocation of personal equipment…. [W]e note that the most universally used footprotective equipment is the steel-toed shoe. Thus, the most universally used type ofprotection is uniquely personal and may be used by the employee when he is away from thejob. Budd-Co., supra, at p.203, quoting 1 BNA OSHC 1548.The \”uniquely personal\” nature of safety shoes was a critical factor in theCommission’s determination. The Secretary and Erie, in the instant case, disagree on thenon-work utility and, thus, the characterization of hot mill gloves an\”personal\” equipment.Erie asserts that hot mill gloves may be used outside theworkplace both before and after having been used at the coke plant (Stipulation ? 11,12(b)). The Secretary and employee representative aver that these gloves may notreasonably be used outside the workplace after having become soiled and contaminated bycarcinogenic coke oven battery emissions (Stipulation ? 12(a)).Employees wear two types of flame resistant gloves: shortgauntlet and long gauntlet, with nearly all affected employees donning the latter(Stipulation ? 8, Exhibit K). The gloves are not individually sized, and have anapproximately three to four week work life (Stipulation ?26).As the Secretary points out, the coke oven emissions standardhas a scheme of precautionary requirements intended to separate contaminated protectiveclothing and equipment. All oven workers and other hourly employees have clean clotheslockers and dirty clothes lockers which are separated, as required by the coke ovenemissions standard, by a 15 to 20 foot hallway. From their initial use to final disposal,flame resistant gloves are kept by respondent’s employees in their dirty clothes locker,with used work clothing and other used personal protective equipment, when not in use(Stipulation 122). [[6]]While Erie alludes to the potential for outside use of hot millgloves, it does not aver that such use, in fact, occurs. [[7]]I find that hot mill gloves, unlike safety shoes under section132(a), do not have a uniquely personal use. Given the exposure of these gloves to cokeoven emissions and their relatively brief work life, it is not reasonable to assume thatthis type of protective clothing may be used outside the workplace.While the Third Circuit in Budd found that the Commission’sinterpretation of 132(a) was not unreasonable, it made clear that it expressed no opinionon cost allocation for other protective devices. \”We need not now decide whether theCommission could reasonably conclude that the employer is not obligated to bear the costof other mandatory protective equipment.\” Budd, supra, at p.206. For the foregoingreasons, I find the circumstances in the present case to fall within the specter of thosewhich the Third Circuit declined to address, and are thus distinguishable from thosepresented in the Budd decision.Deference to Agency Interpretation\”When construing a statute or regulation, the courts showgreat deference to the interpretation of the officers or administrative bodies chargedwith its administration.\” Brock v. Schwarz-Jordan. Inc., 777 F.2d 195 (5th Cir.1985); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed 2d 616 (1965). TheThird Circuit in Budd reiterated the principle expressed in Udall v. Tallman, that\”When the construction of an administrative regulation rather than a statute is inissue, deference is even more clearly in order.\” Budd, supra, at p.205.Erie contends that reasonableness is gleaned from weighing thesurrounding circumstances, and sets forth several factors in support of this determinationwhich are predominantly based on cost-efficiency. It charges that hot mill glove purchasesdecreased when employees were obligated to purchase them (Stipulation 12, 13; Exhibit C).In addition, respondent does not make a profit on gloves, and will pay to replace them ifthey are ruined by no fault of the employee. Respondent provides, free of charge, allother protective equipment, including respiratory protection and clothing, except for hotmill gloves and safety shoes, to employees (Stipulation ? 8, ? 28, ? 29 ? 31). Eriecontends that employees be required, at least, to submit the issue of payment tocollective bargaining (Respondent’s Brief, p.13). [[8]]The Secretary argues that its interpretation of the standard isreasonable and consistent with prior agency interpretation, and more likely to effectuatethe purpose of the Act. \”[A]n agency’s interpretation of a regulation ‘is deemed ofcontrolling weight as long as it is one of several reasonable interpretations … eventhough the chosen exegesis may not appear quite as reasonable as some otherconstruction.’\” Budd Co., supra, at p. 205, n.11, quoting Roy Bryant Cattle Co. v.United States, 463 F.2d 418, 420 (5th Cir. 1972). and other cases cited therein.The record reflects that the agency has interpreted thestandard to require the employer to provide safety gloves at no cost to employees. This isnot inconsistent with either prior case law or the purposes of the Act. While respondent’scost efficiency arguments are well stated, I find the Secretary’s interpretation to bereasonable and entitled to great weight.Respondent’s Affirmative Defense: Waiver andEstoppelRespondent seeks to vacate this item on the basis of two priorenforcement actions involving citations under 29 CFR ? 1910.1029(h)(1)(ii) against cokeplants operated by respondent’sreplace or obviate worker safety provisions of many collective bargaining agreements.Congress may well have viewed collective bargaining agreements along with state worker’scompensation laws as part of the status quo that had failed to provide workers sufficientprotection.Forging Industry, supra, quoting USWA v. Marshall, supra, at p.1236. principal, J.D.Crane, and a statement made by the former OSHA Area Director in St. Louis, Missouri.Respondent argues that the Secretary should be estopped from enforcing the regulationagainst it in the instant case.In the first case (OSHRC Docket No. 85-0448), Carondelet CokeCorporation was issued a citation, in part, for an other than serious violation of 29 CFR? 11910.1029(h)(1)(ii). A settlement agreement ensued in which this item was affirmed,however, Carondelet refused to pay for the gloves as a condition of settlement;Secretary’s counsel reiterated her position that the employer had the burden of paying forflame resistant gloves under this standard (Stipulation ? 14; Exhibit E).The parties, however, agreed to a settlement that affirmed thecitation without any mention of the issue of cost.The second citation, issued against Toledo Coke Corporation,(OSHRC Docket No. 87- 1388) involved, in part, an other than serious violation of thisstandard. As part of a subsequent settlement agreement, this item was vacated on thegrounds \”that there is insufficient evidence to establish violations of thestandard(s) cited at the times and places alleged.\” (Stipulation ? 16; Exhibit H).Respondent avers that St. Louis OSHA Area Director WarrenHargreaves, in a December 1986 meeting with Carondelet representatives, advised that itwas his interpretation that paragraph (h)(1)(ii) of 29 CFR ? 1910.1029 did not require anemployer to provide hot mill gloves at his expense. (Stipulation 15; Exhibit F).The Supreme Court has declined to hold that there are no casesin which the government may be estopped, but estoppel against the government requires morethan proof of the traditional elements of this affirmative defense. Montana v, Kennedy,366 U.S. 308, 81 S.Ct. 1336 (1961).To succeed in a traditional estoppel defense, a party mustprove: \”(1) a misrepresentation by another party; (2) which he reasonably reliedupon; (3) to his detriment.\” United States v. Asmar, 827 F.2d 907, 912 (3rd Cir.1987); Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 104 S.Ct.2218, 81 L.Ed 2d 42 (1984). A fourth element, \”affirmative misconduct,\” mustalso be proven to succeed in a governmental estoppel action. Wagner v. Director, FederalEmergency Management Agency, 847 F.2d 515 (9th Cir. 1988).The respondent in this case has failed to carry its burden.Erie did not show affirmative misconduct on the part of the Secretary, nor did itdemonstrate that its reliance on the aforementioned enforcement actions and the oralopinion of an OSHA Area Director was reasonable.In the first citation, the Secretary maintained its positionthat the standard required the employer to provide hot mill gloves to employees at itsexpense. The citation was sustained by the terms of the settlement agreement, and wassilent on the issue of cost.The second citation was vacated for lack of sufficient evidence. The settlement agreementis devoid of any information upon which the employer would be led to believe that theissue of cost allocation was a factor in the Secretary’s determination. Therefore,respondent did not show upon what facts it relied, and how such reliance was reasonable.As the Secretary notes, the Supreme Court in Crawford County,supra, expressed that reliance on oral opinions is not to be given much weight. AlthoughJohn Gazzoli, Jr. of Carondelet Coke Corporation confirmed Hargreaves’ statement at theinformal conference in a subsequent memo, it cannot be considered an authoritative sourceupon which Erie’s reliance could reasonably have rested. \”The memo expresses the viewof a particular staff member, not the official view of the Secretary …. It is theSecretary who promulgates the standards, and the Secretary’s official statements must bethe guide an to their meaning.\”Long Beach Container Terminal, Inc. v. O.S.H.R.C., 811F.2d 477 (9th Cir. 1987); See Secretary’s Brief, p.16.ORDER:Based on the parties’ stipulation of facts and the conclusionsof law based thereon, as stated herein, the citation issued February 17, 1988, alleging anon- serious violation of 29 CFR ?1910.1029(h)(1)(ii) be, and it is hereby affirmed.DAVID J.KNIGHT Judge, OSHRCDated: Boston, MassachusettsFOOTNOTES: [[1]] In lieu of a hearing, the parties agreed to submit thiscase to the judge based on stipulations and accompanying exhibits. See Commission Rule 61,29 C.F.R. ? 2200-61. The stipulations were signed by all the parties. including theUnited Steelworkers of America, AFL-CIO-CLC. Local 8415, District 20.[[2]] The purposes of the glove requirement in section 1910.1029(h)(1) are to protectexposed employees from: (1) repeated skin contact with coke oven emissions, which arecarcinogenic; and (2) burn hazards that may result from \”direct body contact withflame, or hot objects such as a piece of coke, or from the clothes of a coke oven workercatching fire.\” Exposure to Coke (Oven Emissions: Final Rule, 41 Fed Reg. 46,742,46,744, 46,775 (1976).[[3]]In addition to flame resistant gloves. section 1910.1029(h)(1) requires employers to\”provide\” other types of protective clothing and equipment as follows:(i) Flame resistant jacket(s) and pants;. …(iii) Face shields or vented goggles ….(iv) Footwear providing insulation from hot surfaces …. (v) Safety shoes …. and(vi) Protective helmets ….It was stipulated that Erie provides its employees, at no cost to them. with all of theprotective clothing and equipment listed in the standard. except for flame resistantgloves and safety shoes.[[4]] The instruction was specifically referred to in a memorandum issued on October 31.1988 by OSHNs Directorate of Compliance to an OSHA Regional Administrator. This memorandumresponded to the question of whether employers must furnish all the equipment listed undersection 1910.1029(h)(1)(i)-(vi) free of cost to their employees. The memorandum reiteratedand clarified the Instruction’s interpretation that the employer is obligated to providethat clothing and equipment without charge. However, because the memorandum was issuedabout eight months after the February 1988 citation in this case, we cannot consider it asrelevant in determining the reasonableness, of the Secretary’s interpretation under CF& I Steel.[[5]] That provision states that except for interpretive rules or general policystatements, notice of proposed rulemaking must be published in the Federal Register, andinterested persons must be given an opportunity to participate.[[6]] In a related matter, Erie notes that the Secretary has specifically requiredemployers to provide protective equipment \”at no cost to the employee\” in eightother standards in this Subpart: sections 1910.1001(h), 1018(j), 1025(g), 1028(h),1044(j), 10450(j), 1047(g)(4), and. 1048(h). Citing Rusello v. United States, 464 U.S. 16,23 (1983), Erie contends that the inclusion of that phrase was intentional in thosestandards, and, therefore, the absence of such language in the standard at issue must bepresumed intentional as well. Erie argues that by including the \”no cost toemployee\” language in other Subpart Z standards, the Secretary cannot assign thatmeaning to the word \”provide\” here, especially considering that there were fouropportunities to do so when the coke oven emissions standard was otherwise amended in1977, 1980, 1985, and 1989.We reject Erie’s argument. We note that, as the Secretary points out, the eight otherstandards in the Subpart were issued subsequent to the coke oven emission standard, whichwas promulgated in 1976. Erie’s contentions ignore the fact that, as discussed above inOSHA Instruction STD 1-6.4, issued in 1979, the Secretary interpreted the word\”provide\” in section 1910.1029(h)(1)(ii) to require employers to pay for thegloves. The subsequent inclusion of \”no cost to the employee\” language in theother standards clarifies the policy that had been applied with regard to those standards.[[7]] This case can be appealed to the Third Circuit because the alleged violativecondition and the principal office of the company are in Pennsylvania.[[8]] This same passage was also dicta in the decision in which it originally appeared,Ryder Truck Lines, Inc., 1 BNA OSHC 1326, 1329, 1973-74 CCH OSHD ? 16,669, p. 21,453 (No.391, 1973), aff’d 497 F.2d 230 (5th Cir. 1974) (under section 1910.132(a), employer mustrequire its employer to use protective footwear, but it need not pay for the shoes).[[9]] The Third Circuit in Budd specifically limited its decision to protective shoesunder section 1910.132(a), noting that it \”need not now decide whether the Commissioncould reasonably conclude that the employer is not obligated to bear the cost of othermandatory protective equipment.\” 513 F.2d at 205. See USWA, 647 F-2d at 1231 n.66.[[10]]On this basis, Erie also distinguishes flame resistant gloves from the followingtypes of \”special purpose gloves.\” which it does provide at no cost to itsemployees: high temperature gloves for oven maintenance workers: leather gloves forwelders; and rubber gloves for janitors.[[11]]As the Secretary notes, the phrase \”provision of readers\” in the\”reasonable accommodation\” regulations implementing section 504 of theRehabilitation Act of 1973, as amended, 29 U.S.C. ? 794, has been found to mean that theemployer must pay for readers. or their mechanical equivalent. to accommodate itsqualified blind employees, unless it can show that such costs would pose an undue burden.Nelson v. Thornburgh, 567 F. Supp. 369, 379-82 (E.D. Pa. 1993), aff’d, 732 F.2d 146 (3dCir. 1984) (unpublished), cert. denied, 469 U.S. 1188 (1985).[[12]] An agreement to provide the gloves at no cost would have been consistent with theunion’s contract with Erie’s immediate predecessor. the Koppers Corporation.[[13]]The fourteen collective bargaining agreements with other coke producers that arecontained in the record here show that. as stipulated. the union has made the issue of whopays for protective clothing and equipment (of different types) the subject of collectivebargaining. However, there is nothing in the record that shows that flame resistantgloves. in particular. are always the subject of collective bargaining, The union averredthat most employers in the industry have provided flame resistant gloves free of charge totheir employees since the promulgation of the coke oven emissions standard, and thelanguage in the respective bargaining agreements should be viewed as memorializing thepractice of those employers to provide the gloves at no cost. Erie argues that in none ofthose fourteen agreements has the Secretary’s interpretation of \”provide\” inthis case been adopted. We note that neither do any of the agreements express Erie’sinterpretation of the standard.\u00a0[[1]] The preamble to the standard noted, in a section entitled\”Economic Considerations\”, that the economic feasibility of the then-proposedstandard for coke oven emissions was the subject of extensive studies by OSHA; severaldays of hearings were held which focused primarily on issues relating to the economicimpact of coke oven emissions control. 41 Fed.Reg. 46748 (1976). OSHA concluded thatcompliance with the standard was \”well within the financial capability of the cokingindustry\” and that \”these costs are necessary in order to adequately protectemployees from the hazards associated with coke oven emissions.\” 41 Fed.Reg. 46751.[[2]] Respondent argues that the OSHA Instruction does not specifically address flameresistant gloves, but rather, discusses \”laundry requirements and other issuestotally unrelated to gloves\” and, therefore, did not intend to refer to costallocation of these items. I disagree. The Instruction applies to 1910.1029(h)(2)(i)through (iii), which necessarily incorporate paragraphs (h)(1)(i) (‘Flame resistant jacketand pants’) and (h)(1)(ii) (‘Flame resistant gloves’). Further, the Instructiondistinguishes the clothing provision and the cleaning service as separate\”obligations\” of the employer.[[3]] Absence of an employee representative requires the officer to consult with areasonable number of employees concerning health and safety. 29 U.S.C. ? 657(e).[[4]] The D.C. Circuit in United Steelworkers of America, Etc. v. Marshall, supra,criticized this decision as having \”failed to address the relevant parts of thelegislative history of the OSH Act.\” 647 F.2d 1189, 1231-1232, n. 66. [[5]] This standard provides in pertinent part, \”Protective equipment, includingpersonal protective equipment… protective clothing, respiratory devices, and protectiveshields and barriers, shall be provided, used, and maintained….\”[[6]] The employee representative further argues that most other employers operating cokeovens have work rules prohibiting employees from taking personal protective equipment outof the workplace. (see Stipulation ? 17 and Exhibit I). The USWA has agreed to thispractice because of the contamination of this equipment caused by its proximity to cokeoven batteries (Stipulation ? 19).[[7]] The Secretary notes that respondent’s answer to complainant’s Interrogatory 8states: \”Respondent does not contend that its employees use their flame resistantgloves outside the workplace.\” (Secretary’s Brief, p.10; C-1).[[8]] The USWA has made this issue the subject of collective bargaining (Stipulation ?17, Exhibit I). The employee representative avers that most employers have provided flameresistant gloves at no cost to employees at all times since the coke oven emissionsstandard was promulgated and that subsequent contract language \”merely memorializedexisting practice in this respect.\” (Stipulation ? 18).In collective bargaining negotiations with Erie, the USWA requested that it provide hotmill gloves at no cost to employees, to which it refused (See Exhibit J).But see, Forging Industry, supra:In passing a massive worker health and safety statute, Congress certainly knew it waslaying a basis for agency regulations that would”