“SECRETARY OF LABOR,Complainant,v.SEABOARD FOUNDRY, INC.,Respondent.OSHRC Docket No. 77-3964_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Foster Furcolo is before theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(i), ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”). Judge Furcolo vacated one subitem and affirmed theremaining four subitems of a serious citation issued by the Secretary ofLabor alleging that Seaboard Foundry, Inc. failed to comply withoccupational safety and health standards concerning exposure toexcessive levels of silica dust, implementation of engineering controls,and use of respirators. For the following reasons, we modify thejudge’s decision as follows.IDuring a 1977 inspection of Seaboard’s gray iron foundry in Johnston,Rhode Island, an industrial hygienist employed by the U.S. Department ofLabor, Occupational Safety and Health Administration (\”OSHA\”), measuredSeaboard employees’ exposure to silica dust in the \”snagging andgrinding room.\” Samples obtained revealed that five employees wereexposed to silica levels ranging from as much as three to fifteen timespermissible limits, as provided in 29 C.F.R. ? 1910.1000, see note 1infra. Certain engineering controls which Seaboard had implemented inthe room were not in operation or not being properly used on the daythat the silica dust level measurements were made. Also, the industrialhygienist and an OSHA compliance officer who accompanied him believedthat there were additional feasible engineering controls. Variousemployees were not wearing respirators, used worn and defectiverespirators, or used a type of respirator which was incapable ofprotecting against exposure to silica dust. Accordingly, OSHA issuedthe serious citation alleging violations of 29 C.F.R. ?? 1910.1000(c),1910.1000(e), 1910.134(a)(2), 1910.134(b)(2), and 1910.134(b)(7). [[1]]Seaboard contested the citation and a hearing was held. At the hearing,Seaboard did not dispute that the five employees were exposed toexcessive silica dust levels on the day the OSHA industrial hygienisttook samples. However, Seaboard presented evidence to show that themeasured levels were not representative of typical exposure. Theevidence concerned problems with an employee’s conduct and with theoperation of certain engineering controls or devices for minimizing theamount of airborne silica dust.In Seaboard’s snagging and grinding room where the exposure to excessivelevels was found, the employees were engaged in cleaningcastings–removing sand which had fused with the castings when themolten iron was poured into the molds, which were made of sand. Generally, the castings were first cleaned in \”wheelabrators,\” large,box-like pieces of equipment in which sand was shaken from the castings. Seaboard had two wheelabrators, one which tumbled castings around andanother which instead rotated the castings while they were bombardedwith steel shot. After the castings had been cleaned in thewheelabrators, employees used chipping and grinding equipment to removeextraneous ridges or protrusions of iron from the castings and to removea final, thin layer of the sand fused with the iron. Small castingswhich could be lifted were placed on pedestal or stand grinders for thisfinal cleaning. Larger castings were cleaned with hand grinders orchippers in booths. The largest castings were cleaned with these toolson the floor.According to the OSHA industrial hygienist and compliance officer, thewheelabrators were the primary source of the excessive levels of silicadust detected on the day of sampling. The hand grinding or chippingoperations for the larger castings, Seaboard’s practice of dry-sweeping,and the pedestal grinder operations on the smaller castings were allsecondary or, as in the instance of the pedestal grinding, minor sources.Seaboard had been aware for several years that there was a hazard ofexposure to excessive silica dust in its snagging and grindingoperations. Accordingly, Seaboard had installed a ventilation system,consisting of two devices called \”smoke eaters,\” in the ceiling near thehand grinding floor areas. Also, the wheelabrators were equipped withinternal ventilation systems to exhaust sand to bag houses outside thefoundry, and wheelabrator operators were instructed to leave thewheelabrator doors shut for two or three minutes after the end of acleaning cycle to permit the exhaust systems to exhaust the sand. According to Seaboard’s assistant manager, when this instruction wasobeyed, there were no silica dust clouds like the ones observed by theOSHA industrial hygienist and compliance officer on the day of sampling. Finally, Seaboard inspected and maintained the wheelabrators on aweekly schedule to minimize silica dust leakage through holes and crackscaused by heavy wear and tear. Seaboard also replaced badly damagedparts, such as doors too badly warped to be straightened and used.However, on the sampling day there were substantial deficiencies inSeaboard’s precautions. The wheelabrator operator was opening thewheelabrator doors too soon, contrary to Seaboard’s instruction. Seaboard had communicated the instruction to him but, for several monthsprior to the sampling day, the employee had been failing to obey thisand other instructions because of preoccupation with personal problems. Seaboard management employees knew of this and had talked several timesto the employee about rectifying his conduct. Finally, Seaboarddisciplined the employee by laying him off, first for one day and thenfor two weeks. The second lay-off occurred after the inspection, andthe employee was not rehired as a wheelabrator operator when he returnedto work. There was no evidence as to when the first lay-off occurred.Additionally, silica dust was leaking from one of the wheelabratorsthrough a warped door. Seaboard management employees did not know howlong this condition had existed. They only testified in general thatdelivery of a replacement door could take weeks or months. A canvasbarrier had been installed in front of the opening in this instance tokeep steel shot from coming out and hitting employees.Also, the smoke eaters were not working on the sampling day andSeaboard’s assistant manager, who oversaw the snagging and grinding roomoperations, did not know how long they had been out of operation. Thesmoke eaters were supposed to be repaired by an outside maintenancecontractor, not Seaboard personnel.According to Seaboard’s assistant manager, the overexposure found on thesampling day was not typical because of the problems with thewheelabrators and the smoke eaters. However, the company did notpresent any evidence showing what the silica dust levels were when theexisting controls were operating properly. Again according to theassistant manager, Seaboard never made any measurements.In addition to properly maintaining and using the existing controls, theSecretary proposed that Seaboard use local ventilation involving exhaustvents in booths and tables, as well as portable tubes called \”elephanttrunks\” which could be placed at the point where the hand grinders werebeing used on the largest castings. The parties presented evidencebearing on the feasibility of these controls. Their evidence concernedtechnological feasibility and some costs. The evidence as to costconsisted mainly of very general estimates or guesses and there was noevidence about the costs of some controls and about indirect costs. Also, there was no evidence relating to Seaboard’s financial capacity toimplement the proposed controls.IIJudge Furcolo vacated the alleged violation of section 1910.1000(c)because he determined that, as Seaboard argued, the overexposuredetected by OSHA was only \”a temporary condition.\” The judge determinedthat Seaboard had taken all reasonably necessary and appropriate stepsagainst overexposure to silica dust. However, the judge also determinedthat Seaboard’s \”equipment and ventilation system need repairs andmaintenance to prevent leakage; and the work practices should haveincluded a system of ‘wetting down’ before sweeping.\” Therefore thejudge affirmed the alleged violation of section 1910.1000(e), eventhough he also determined that the Secretary had not established thefeasibility of the proposed additional local ventilation. Finally, onthe basis of evidence about noncompliance with the cited requirementsfor respirators, Judge Furcolo affirmed the alleged violations ofsections 1910.134(a)(2), (b)(2), and (b)(7).The Secretary filed a petition for review. He argued that the judge wasinconsistent in vacating the alleged violation of section 1910.1000(c)for overexposure to silica dust while affirming the alleged violationsof sections 1910.1000(e) and 1910.134(a)(2), (b)(2), and (b)(7)requiring engineering controls and personal protective equipment forprotection against overexposure. The Secretary also argued that thejudge erred in failing to find the additional ventilation feasible.Commissioner Cleary granted the Secretary’s petition and stated thefollowing issues:1) Whether the Judge erred in vacating the alleged violation of 29 CFR ?1910.1000(c)?2) Having vacated the above item, whether the Judge erred in affirmingviolations of the standards at 29 CFR ? 1910.1000(e), 29 CFR ??1910.134(a)[(2)], 134(b)(2), and 134(b)(7)?3) Whether the Judge erred by failing to order respondent to implementcertain abatement measures, and in his characterization of thosemeasures as infeasible?Seaboard argues on review that the judge’s decision should be upheldbecause, among other things, the detected exposures were atypical andthe additional engineering controls proposed by the Secretary wereinfeasible.[[2]] The Secretary argues that, because the one-timeexposures were excessive and Seaboard knew of the need for precautionsand controls, there was a violation. The Secretary maintains thatSeaboard failed to establish any defense with its evidence relating tothe possibility of atypical conditions. [[3]]IIIThe first matter for consideration is whether the judge correctlydetermined that the one day of overexposure was a temporary condition. Section 1910.1000(c) proscribes the exposure of employees to excessivelevels of air contaminants such as silica dust \”in any 8-hour work shiftof a 40-hour work week.\” See note 1 supra. Therefore, as an elementof his proof of a violation, the Secretary need only show overexposureon one day. See Anaconda Aluminum Co., 81 OSAHRC 27\/A2, 9 BNA OSHC1460, 1473 n.34, 1981 CCH OSHD ? 25,300, p. 31,346 n.34 (No. 13102,1981); see also General Electric Co., 81 OSAHRC 42\/A2, 9 BNA OSHC 1722,1981 CCH OSHD ? 25,345 (No. 13732, 1981) (OSHA measurements on one dayare probative of levels in the same operations performed on other days);cf. Hermitage Concrete Pipe Co., 82 OSAHRC 14\/A2, 10 BNA OSHC 1517, 1982CCH OSHD ? 25,975 (No. 4678, 1982), on remand from 584 F.2d 127 (6thCir. 1978) (where a serious characterization is in question, theemployer may rebut the presumption which arises that one-time exposuresare representative of typical exposures). Where, as in this case, theemployer claims that the levels detected on the one day wereunrepresentative of typical levels, it is the employer who mustestablish, as a matter of rebuttal to the Secretary’s case, that thetypical dust levels complied with the requirements of the standard. Toestablish this, the employer must ordinarily present evidence consistingof measurements. See Anaconda Aluminum Co., 9 BNA OSHC at 1464-66, 1981CCH OSHD at pp. 31,337-31,338. Because Seaboard did not present thistype of evidence in this case, Seaboard has not rebutted the Secretary’sevidence of overexposure based on the one day’s exposures. We thereforeconclude that the Secretary has established employee exposure toexcessive levels of silica dust.We turn now to the issues involving protection of the employees from theoverexposure to the silica dust. Because Seaboard has never disputedthat it committed violations of the cited respirator standards, see note1 supra, and the record supports the Secretary’s allegations, we affirmthose violations. Also, because the record demonstrates and Seaboardhas never disputed the feasibility of its existing control measures, wefind that these controls were feasible. [[4]] The focus of the parties’arguments on review is the feasibility of the additional controlsproposed by the Secretary–the local ventilation. In view of anintervening change in law concerning proof of feasibility, see note 4supra, we set aside the judge’s decision insofar as it concerns theadditional controls proposed by the Secretary and we remand this casefor further proceedings regarding their feasibility. See Harmony BlueGranite Co., OSHRC Docket No. 14189 (March 24, 1983). [[5]]In addition to establishing the existence of noncomplying conditions,the Secretary must show that the employer knew or, with the exercise ofreasonable diligence, could have known of the noncomplying conditions. Delta Field Erection, Inc., 82 OSAHRC 10\/A2, 10 BNA OSHC 1391, 1982 CCHOSHD ? 25,939 (No. 76-4153, 1982); General Electric Co., supra (majorityand separate opinions) In this case, the question is whether Seaboardknew or could have known of the one instance of overexposure and theproblems with the existing controls and personal protective equipment.When an employer knows that an air contaminant covered by section1910.1000 is generated in the workplace, reasonable diligence requiresthe employer to make measurements to determine whether and how much theemployees are overexposed. See General Electric Co., supra; see alsoMahone Grain Corp., 81 OSAHRC 108\/B8, 10 BNA OSHC 1275, 1982 CCH OSHD ?25,836 (No. 77-3041, 1981); GAF Corp., 81 OSAHRC 29\/A2, 9 BNA OSHC 1451,1981 CCH OSHD ? 25,281 (No. 77-1811, 1981), appeal withdrawn, No.81-4091 (2d Cir. Sept. 30, 1981). When an employer who knows of aproblem with excessive amounts of a regulated air contaminant takesmeasures to reduce the overexposure, reasonable diligence also requiresmeasurements to determine whether and how much the employees are stilloverexposed. See General Electric Co., supra. The employer must alsoinspect and maintain the engineering controls. See Union Boiler Co., 83OSAHRC , 11 BNA OSHC 1241, 1983 CCH OSHD ? 26,453 (No. 79-232, 1983);Automatic Sprinkler Corp. of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1384,1980 CCH OSHD ? 24,495 (No. 76-5089, 1980). Where the employer relies onemployee adherence to a workrule for the efficacy of engineeringcontrols, the employer must adequately supervise the employees to assurethat the workrule is properly implemented. Cf. United States SteelCorp., 81 OSAHRC 28\/C2, 9 BNA OSHC 1641, 1981 CCH OSHD ? 25,282 (No.76-5007, 1981), and Ulysses Irrigation Pipe Co., OSHRC Docket No.78-0799 (March 24, 1983) (an employer who implements a workrule to freethe workplace of a recognized hazard must adequately implement theworkrule). The same is true with respect to reliance on respirators.The record in this case reveals that Seaboard knew that its operationsfor cleaning sand off castings generated excessive levels of silica dustand as a consequence had instituted certain control measures to reducethe levels. However, Seaboard admittedly never monitored to determineeither the initial levels or the levels which resulted after the controlmeasures were implemented. Thus, Seaboard did not exercise reasonablediligence to learn how effective the controls were and how critical itmight be to assure their continued efficacy. The record further revealsthat, on the day that the OSHA measurements were made, problems haddeveloped with the smoke eaters and the wheelabrator operation, thecompany did not know how long the smoke eaters had been inoperable andhow long the wheelabrator door had been warped, and the company had notdisciplined the wheelabrator operator to enforce compliance with theworkrule even though the company knew of the employee’s continuedmisconduct. The record also reveals obvious misuse or nonuse ofrespirators. All of this evidences lack of reasonable diligence toprevent overexposure to silica dust and demonstrates that Seaboard couldhave known of the noncomplying conditions on the one day during theinspection.The Secretary characterized the violations as serious. Because thecompliance level specified in section 1910.1000 for silica dust was setwith the object of preventing the contraction of a life-threateningdisease, these violations involving employee exposure to excessivelevels are serious as alleged. See Hermitage Concrete Pipe Co., 10 BNAOSHC at 1520, 1982 CCH OSHD at p. 32,575. The judge assessed a penaltyof $100 for the four subitems which he affirmed. Having considered therecord relating to Seaboard’s size, prior history, and good faith, andthe evidence concerning the gravity of the four violations which weaffirm in this decision, we assess a penalty of $100.IVIn summary, we reverse the judge’s decision and affirm the subitemalleging that Seaboard violated section 1910.1000(c). We affirm thejudge’s decision affirming the subitems alleging violations of sections1910.134(a)(2), (b)(2) and (b)(7) involving respirators. We classifythe violations as serious and assess $100 in penalty. With respect tothe subitem alleging a violation of section 1910.1000(e), we concludethat the engineering controls which Seaboard had implemented werefeasible and we remand the case to the judge for further proceedingsconsistent with this opinion regarding the additional engineeringcontrols consisting of local ventilation proposed by the Secretary. Accordingly, we set aside that part of the judge’s decision which holdsthat the additional controls were infeasible. SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The occupational health standards in 29 C.F.R. ? 1910.1000 providein pertinent part:? 1910.1000 Air contaminants.***(c) Table Z-3: An employee’s exposure to any material listed in tableZ-3, in any 8-hour work shift of a 40-hour work week, shall not exceedthe 8-hour time weighted average limit given for that material in the table.***(e) To achieve compliance with paragraph (a) through (d) of thissection, administrative or engineering controls must first be determinedand implemented whenever feasible. When such controls are not feasibleto achieve full compliance, protective equipment or any other protectivemeasures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. Anyequipment and\/or technical measures used for this purpose must beapproved for each particular use by a competent industrial hygienist orother technically qualified person. Whenever respirators are used,their use shall comply with ? 1910.134.The standards in 29 C.F.R. ? 1910.134 provide, in pertinent part:? 1910.134 Respiratory protection.(a) General.***(2) Respirators shall be provided by the employer when such equipment isnecessary to protect the health of the employee. The employer shallprovide the respirators which are applicable and suitable for thepurpose intended. The employer shall be responsible for theestablishment and maintenance of a respiratory protective program whichshall include the requirements outlined in paragraph (b) of this section.***(b) Requirements for a minimal acceptable program.***(2) Respirators shall be selected on the basis of hazards to which theworker is exposed.***(7) Respirators used routinely shall be inspected during cleaning. Wornor deteriorated parts shall be replaced. Respirators for emergency usesuch as self-contained devices shall be thoroughly inspected at leastonce a month and after each use.[[2]] Seaboard presents some argument in support of the judge’s decisionon all of the items, as affirmed and vacated, but also maintains that,if the Commission determines that the company is not responsible for theoverexposure detected by OSHA on the ground that the one day’soverexposure was atypical, then the respirator and engineering controlviolations should be vacated. Seaboard additionally argues that thelocal ventilation proposed by the Secretary was infeasible. Seaboard also contends that the Secretary’s petition for review wasinsufficient in that it did not state proper bases for review. Seaboardargues that the petition did not urge that any material factual findingwas unsupported, that the judge’s decision was contrary to law orCommission precedent, that the case involves a substantial question oflaw or policy or that the judge abused his discretion, or that aprejudicial procedural error was committed. See 29 C.F.R. ? 2200.92(b). However, the Commission has held that issues stated in a direction forreview are properly before the Commission despite any possiblenoncompliance with requirements for a petition for review. UnitedStates Steel Corp., 81 OSAHRC 28\/C2, 9 BNA OSHC 1641, 1981 CCH OSHD ?25,282 (No. 76-5007, 1981). In addition, Seaboard does not allege thatit suffered any prejudice from the claimed noncompliance. See LittleBeaver Creek Ranches, Inc., 82 OSAHRC 36\/A2, 10 BNA OSHC 1806, 1809-10n.4, 1982 CCH OSHD ? 26,125, p. 32,878 n.4 (No. 77-2096, 1982).[[3]] The Secretary also argues that he established the feasibility ofthe additional controls.[[4]] Controls are feasible within the meaning of 29 C.F.R. ?1910.1000(e) if they are technologically and economically achievable orcapable of being done. Harmony Blue Granite Co., OSHRC Docket No. 14189(March 24, 1983), relying on Sun Ship Inc., 82 OSAHRC , 11 BNA OSHC1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982), appeal filed, No.83-3081 (3rd Cir. Feb. 14, 1983), which overruled the cost-benefit testof feasibility stated in Continental Can Co., 76 OSAHRC 109\/A2, 4 BNAOSHC 1541, 1976-77 CCH OSHD ? 21,009 (No. 3973, 1976), appeal withdrawn,No. 76-3229 (9th Cir., April 26, 1977). Moreover, controls which arecapable of achieving a significant reduction in air contaminant levelswill be considered technologically feasible, even if they are or mayprove to be incapable of achieving permissible levels. Harmony BlueGranite Co., supra; Sun Ship, Inc. supra; GAF Corp., 81 OSAHRC 29\/A2, 9BNA OSHC 1451, 1981 CCH OSHD ? 25,281 (No. 77-1811, 1981), appealwithdrawn, No. 81-4091 (2d Cir. Sept. 30, 1981).On review, Seaboard argues in support of the judge’s decision to orderrepairs to the existing ventilation system. Also, by arguing throughoutthe case that the OSHA measurements were atypical, Seaboard hasmaintained that the levels on the one day were excessive only because oftemporary deficiencies in the existing controls. This is tantamount toan admission that the existing controls were at least capable ofachieving a significant reduction in the silica dust levels. And therecord indicates that this was the case. The primary source ofexcessive silica dust was the wheelabrators and, although there wereproblems with the wheelabrators on the day of the OSHA measurements, thesilica dust clouds were significantly reduced or eliminated when thewheelabrators were operated properly. Because these controls were alsoclearly technologically capable of being implemented and economicallyachievable, their feasibility has been established.[[5]] We emphasize that Seaboard is required to determine and implementfeasible controls of any type and in whatever combination is necessaryto achieve compliance levels. See Kelly Springfield Tire Co., 82 OSAHRC47\/B6, 10 BNA OSHC 1970, 1975 n.5, 1982 CCH OSHD ? 26,223, p. 33,114 n.5(No. 78-4555, 1982), appeal filed, No. 82-4389 (5th Cir. Oct. 6, 1982). If the existing controls are actually capable of achieving compliance,then it will be unnecessary to try the feasibility of the proposedadditional controls. “