“Docket No. 77-3964 SECRETARY OF LABOR,Complainant, v.SEABOARD FOUNDRY, INC., Respondent.OSHRC Docket No. 77-3964DECISIONBefore:\u00a0 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), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 JudgeFurcolo vacated one subitem and affirmed the remaining four subitems of a serious citationissued by the Secretary of Labor alleging that Seaboard Foundry, Inc. failed to complywith occupational safety and health standards concerning exposure to excessive levels ofsilica dust, implementation of engineering controls, and use of respirators.\u00a0 For thefollowing reasons, we modify the judge’s decision as follows.IDuring a 1977 inspection of Seaboard’s gray iron foundry in Johnston, Rhode Island, anindustrial hygienist employed by the U.S. Department of Labor, Occupational Safety andHealth Administration (\”OSHA\”), measured Seaboard employees’ exposure to silicadust in the \”snagging and grinding room.\”\u00a0 Samples obtained revealed thatfive employees were exposed to silica levels ranging from as much as three to fifteentimes permissible limits, as provided in 29 C.F.R. ? 1910.1000, see note 1 infra.\u00a0 Certain engineering controls which Seaboard had implemented in the room were not inoperation or not being properly used on the day that the silica dust level measurementswere made.\u00a0 Also, the industrial hygienist and an OSHA compliance officer whoaccompanied him believed that there were additional feasible engineering controls. \u00a0Various employees were not wearing respirators, used worn and defective respirators, orused a type of respirator which was incapable of protecting against exposure to silicadust.\u00a0 Accordingly, OSHA issued the 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.\u00a0 At the hearing, Seaboard didnot dispute that the five employees were exposed to excessive silica dust levels on theday the OSHA industrial hygienist took samples.\u00a0 However, Seaboard presented evidenceto show that the measured levels were not representative of typical exposure.\u00a0 Theevidence concerned problems with an employee’s conduct and with the operation of certainengineering controls or devices for minimizing the amount of airborne silica dust.In Seaboard’s snagging and grinding room where the exposure to excessivelevels was found, the employees were engaged in cleaning castings–removing sand which hadfused with the castings when the molten iron was poured into the molds, which were made ofsand.\u00a0 Generally, the castings were first cleaned in \”wheelabrators,\”large, box-like pieces of equipment in which sand was shaken from the castings. \u00a0Seaboard had two wheelabrators, one which tumbled castings around and another whichinstead rotated the castings while they were bombarded with steel shot.\u00a0 After thecastings had been cleaned in the wheelabrators, employees used chipping and grindingequipment to remove extraneous ridges or protrusions of iron from the castings and toremove a final, thin layer of the sand fused with the iron.\u00a0 Small castings whichcould be lifted were placed on pedestal or stand grinders for this final cleaning.\u00a0 Larger castings were cleaned with hand grinders or chippers in booths.\u00a0 Thelargest castings were cleaned with these tools on the floor.According to the OSHA industrial hygienist and compliance officer, thewheelabrators were the primary source of the excessive levels of silica dust detected onthe day of sampling.\u00a0 The hand grinding or chipping operations for the largercastings, Seaboard’s practice of dry-sweeping, and the pedestal grinder operations on thesmaller castings were all secondary or, as in the instance of the pedestal grinding, minorsources.Seaboard had been aware for several years that there was a hazard of exposureto excessive silica dust in its snagging and grinding operations.\u00a0 Accordingly,Seaboard had installed a ventilation system, consisting of two devices called \”smokeeaters,\” in the ceiling near the hand grinding floor areas.\u00a0 Also, thewheelabrators were equipped with internal ventilation systems to exhaust sand to baghouses outside the foundry, and wheelabrator operators were instructed to leave thewheelabrator doors shut for two or three minutes after the end of a cleaning cycle topermit the exhaust systems to exhaust the sand.\u00a0 According to Seaboard’s assistantmanager, when this instruction was obeyed, there were no silica dust clouds like the onesobserved by the OSHA industrial hygienist and compliance officer on the day of sampling.\u00a0 Finally, Seaboard inspected and maintained the wheelabrators on a weekly scheduleto minimize silica dust leakage through holes and cracks caused by heavy wear and tear.\u00a0Seaboard also replaced badly damaged parts, such as doors too badly warped to bestraightened and used.However, on the sampling day there were substantial deficiencies inSeaboard’s precautions.\u00a0 The wheelabrator operator was opening the wheelabrator doorstoo soon, contrary to Seaboard’s instruction.\u00a0 Seaboard had communicated theinstruction to him but, for several months prior to the sampling day, the employee hadbeen failing to obey this and other instructions because of preoccupation with personalproblems.\u00a0 Seaboard management employees knew of this and had talked several times tothe employee about rectifying his conduct.\u00a0 Finally, Seaboard disciplined theemployee by laying him off, first for one day and then for two weeks.\u00a0 The secondlay-off occurred after the inspection, and the employee was not rehired as a wheelabratoroperator when he returned to work.\u00a0 There was no evidence as to when the firstlay-off occurred.Additionally, silica dust was leaking from one of the wheelabrators through awarped door.\u00a0 Seaboard management employees did not know how long this condition hadexisted.\u00a0 They only testified in general that delivery of a replacement door couldtake weeks or months.\u00a0 A canvas barrier had been installed in front of the opening inthis instance to keep steel shot from coming out and hitting employees.Also, the smoke eaters were not working on the sampling day and Seaboard’sassistant manager, who oversaw the snagging and grinding room operations, did not know howlong they had been out of operation.\u00a0 The smoke eaters were supposed to be repairedby an outside maintenance contractor, not Seaboard personnel.According to Seaboard’s assistant manager, the overexposure found on the sampling day wasnot typical because of the problems with the wheelabrators and the smoke eaters. \u00a0However, the company did not present any evidence showing what the silica dust levels werewhen the existing controls were operating properly.\u00a0 Again according to the assistantmanager, Seaboard never made any measurements.In addition to properly maintaining and using the existing controls, theSecretary proposed that Seaboard use local ventilation involving exhaust vents in boothsand tables, as well as portable tubes called \”elephant trunks\” which could beplaced at the point where the hand grinders were being used on the largest castings.\u00a0The parties presented evidence bearing on the feasibility of these controls. \u00a0 Theirevidence concerned technological feasibility and some costs.\u00a0 The evidence as to costconsisted mainly of very general estimates or guesses and there was no evidence about thecosts of some controls and about indirect costs.\u00a0 Also, there was no evidencerelating to Seaboard’s financial capacity to implement the proposed controls.IIJudge Furcolo vacated the alleged violation of section 1910.1000(c) because he determinedthat, as Seaboard argued, the overexposure detected by OSHA was only \”a temporarycondition.\”\u00a0 The judge determined that Seaboard had taken all reasonablynecessary and appropriate steps against overexposure to silica dust.\u00a0 However, thejudge also determined that Seaboard’s \”equipment and ventilation system need repairsand maintenance to prevent leakage; and the work practices should have included a systemof ‘wetting down’ before sweeping.\”\u00a0 Therefore the judge affirmed the allegedviolation of section 1910.1000(e), even though he also determined that the Secretary hadnot established the feasibility of the proposed additional local ventilation.\u00a0Finally, on the basis of evidence about noncompliance with the cited requirements forrespirators, Judge Furcolo affirmed the alleged violations of sections 1910.134(a)(2),(b)(2), and (b)(7).The Secretary filed a petition for review.\u00a0 He argued that the judge wasinconsistent in vacating the alleged violation of section 1910.1000(c) for overexposure tosilica dust while affirming the alleged violations of sections 1910.1000(e) and1910.134(a)(2), (b)(2), and (b)(7) requiring engineering controls and personal protectiveequipment for protection against overexposure.\u00a0 The Secretary also argued that thejudge erred in failing to find the additional ventilation feasible. Commissioner Clearygranted the Secretary’s petition and stated the following 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 those measures as infeasible?Seaboard argues on review that the judge’s decision should be upheld because,among other things, the detected exposures were atypical and the additional engineeringcontrols proposed by the Secretary were infeasible.[[2]]\u00a0 The Secretary argues that,because the one-time exposures were excessive and Seaboard knew of the need forprecautions and controls, there was a violation.\u00a0 The Secretary maintains thatSeaboard failed to establish any defense with its evidence relating to the possibility ofatypical conditions. [[3]]III The first matter for consideration is whether the judge correctly determined that the oneday of overexposure was a temporary condition.\u00a0 Section 1910.1000(c) proscribes theexposure of employees to excessive levels of air contaminants such as silica dust \”inany 8-hour work shift of a 40-hour work week.\”\u00a0 See note 1 supra. \u00a0Therefore, as an element of his proof of a violation, the Secretary need only showoverexposure on one day.\u00a0 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 alsoGeneral Electric Co., 81 OSAHRC 42\/A2, 9 BNA OSHC 1722, 1981 CCH OSHD ? 25,345 (No.13732, 1981) (OSHA measurements on one day are probative of levels in the same operationsperformed on other days); cf. Hermitage Concrete Pipe Co., 82 OSAHRC 14\/A2, 10 BNA OSHC1517, 1982 CCH OSHD ? 25,975 (No. 4678, 1982), on remand from 584 F.2d 127 (6th Cir.1978) (where a serious characterization is in question, the employer may rebut thepresumption which arises that one-time exposures are representative of typical exposures).Where, as in this case, the employer claims that the levels detected on the one day wereunrepresentative of typical levels, it is the employer who must establish, as a matter ofrebuttal to the Secretary’s case, that the typical dust levels complied with therequirements of the standard.\u00a0 To establish this, the employer must ordinarilypresent evidence consisting of measurements. See Anaconda Aluminum Co., 9 BNA OSHC at1464-66, 1981 CCH OSHD at pp. 31,337-31,338.\u00a0 Because Seaboard did not present thistype of evidence in this case, Seaboard has not rebutted the Secretary’s evidence ofoverexposure based on the one day’s exposures.\u00a0 We therefore conclude that theSecretary has established employee exposure to excessive levels of silica dust.We turn now to the issues involving protection of the employees from theoverexposure to the silica dust.\u00a0 Because Seaboard has never disputed that itcommitted violations of the cited respirator standards, see note 1 supra, and the recordsupports the Secretary’s allegations, we affirm those violations.\u00a0 Also, because therecord demonstrates and Seaboard has never disputed the feasibility of its existingcontrol measures, we find that these controls were feasible. [[4]] The focus of theparties’ arguments on review is the feasibility of the additional controls proposed by theSecretary–the local ventilation.\u00a0 In view of an intervening change in law concerningproof of feasibility, see note 4 supra, we set aside the judge’s decision insofar as itconcerns the additional controls proposed by the Secretary and we remand this case forfurther proceedings regarding their feasibility.\u00a0 See Harmony Blue Granite Co., OSHRCDocket No. 14189 (March 24, 1983). [[5]]In addition to establishing the existence of noncomplying conditions, theSecretary must show that the employer knew or, with the exercise of reasonable diligence,could have known of the noncomplying conditions.\u00a0 Delta Field Erection, Inc., 82OSAHRC 10\/A2, 10 BNA OSHC 1391, 1982 CCH OSHD ? 25,939 (No. 76-4153, 1982); GeneralElectric Co., supra (majority and separate opinions)\u00a0 In this case, the question iswhether Seaboard knew 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 section 1910.1000is generated in the workplace, reasonable diligence requires the employer to makemeasurements to determine whether and how much the employees are overexposed.\u00a0 SeeGeneral Electric Co., supra; see also Mahone Grain Corp., 81 OSAHRC 108\/B8, 10 BNA OSHC1275, 1982 CCH OSHD ? 25,836 (No. 77-3041, 1981); GAF Corp., 81 OSAHRC 29\/A2, 9 BNA OSHC1451, 1981 CCH OSHD ? 25,281 (No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2d Cir.Sept. 30, 1981).\u00a0 When an employer who knows of a problem with excessive amounts of aregulated air contaminant takes measures to reduce the overexposure, reasonable diligencealso requires measurements to determine whether and how much the employees are stilloverexposed. See General Electric Co., supra.\u00a0 The employer must also inspect andmaintain the engineering controls.\u00a0 See Union Boiler Co., 83 OSAHRC , 11 BNA OSHC1241, 1983 CCH OSHD ? 26,453 (No. 79-232, 1983); Automatic Sprinkler Corp. of America, 80OSAHRC 47\/E4, 8 BNA OSHC 1384, 1980 CCH OSHD ? 24,495 (No. 76-5089, 1980). Where theemployer relies on employee adherence to a workrule for the efficacy of engineeringcontrols, the employer must adequately supervise the employees to assure that the workruleis properly implemented.\u00a0 Cf. United States Steel Corp., 81 OSAHRC 28\/C2, 9 BNA OSHC1641, 1981 CCH OSHD ? 25,282 (No. 76-5007, 1981), and Ulysses Irrigation Pipe Co., OSHRCDocket No. 78-0799 (March 24, 1983) (an employer who implements a workrule to free theworkplace of a recognized hazard must adequately implement the workrule).\u00a0 The sameis true with respect to reliance on respirators.The record in this case reveals that Seaboard knew that its operations forcleaning sand off castings generated excessive levels of silica dust and as a consequencehad instituted certain control measures to reduce the levels.\u00a0 However, Seaboardadmittedly never monitored to determine either the initial levels or the levels whichresulted after the control measures were implemented.\u00a0 Thus, Seaboard did notexercise reasonable diligence to learn how effective the controls were and how critical itmight be to assure their continued efficacy.\u00a0 The record further reveals that, on theday that the OSHA measurements were made, problems had developed with the smoke eaters andthe wheelabrator operation, the company did not know how long the smoke eaters had beeninoperable and how long the wheelabrator door had been warped, and the company had notdisciplined the wheelabrator operator to enforce compliance with the workrule even thoughthe company knew of the employee’s continued misconduct.\u00a0 The record also revealsobvious misuse or nonuse of respirators.\u00a0 All of this evidences lack of reasonablediligence to prevent overexposure to silica dust and demonstrates that Seaboard could haveknown of the noncomplying conditions on the one day during the inspection.The Secretary characterized the violations as serious.\u00a0 Because thecompliance level specified in section 1910.1000 for silica dust was set with the object ofpreventing the contraction of a life-threatening disease, these violations involvingemployee exposure to excessive levels are serious as alleged.\u00a0 See Hermitage ConcretePipe Co., 10 BNA OSHC at 1520, 1982 CCH OSHD at p. 32,575. The judge assessed a penalty of$100 for the four subitems which he affirmed.\u00a0 Having considered the record relatingto Seaboard’s size, prior history, and good faith, and the evidence concerning the gravityof the four violations which we affirm in this decision, we assess a penalty of $100.IVIn summary, we reverse the judge’s decision and affirm the subitem alleging that Seaboardviolated section 1910.1000(c).\u00a0 We affirm the judge’s decision affirming the subitemsalleging violations of sections 1910.134(a)(2), (b)(2) and (b)(7) involving respirators.\u00a0 We classify the violations as serious and assess $100 in penalty.\u00a0 Withrespect to the subitem alleging a violation of section 1910.1000(e), we conclude that theengineering controls which Seaboard had implemented were feasible and we remand the caseto the judge for further proceedings consistent with this opinion regarding the additionalengineering controls consisting of local ventilation proposed by the Secretary.\u00a0 Accordingly, we set aside that part of the judge’s decision which holds that theadditional controls were infeasible.\u00a0 SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDATED:\u00a0 APR 27 1983The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 provide in pertinentpart:? 1910.1000 Air contaminants.***(c) Table Z-3:\u00a0 An employee’s exposure to any material listed in table Z-3,in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weightedaverage limit given for that material in the table.***(e) To achieve compliance with paragraph (a) through (d) of this section,administrative or engineering controls must first be determined and implemented wheneverfeasible.\u00a0 When such controls are not feasible to achieve full compliance, protectiveequipment or any other protective measures shall be used to keep the exposure of employeesto air contaminants within the limits prescribed in this section.\u00a0 Any equipmentand\/or technical measures used for this purpose must be approved for each particular useby a competent industrial hygienist or other technically qualified person.\u00a0 Wheneverrespirators 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.\u00a0 The employer shall provide therespirators which are applicable and suitable for the purpose intended.\u00a0 The employershall be responsible for the establishment and maintenance of a respiratory protectiveprogram which shall 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 the worker isexposed.***(7) Respirators used routinely shall be inspected during cleaning.\u00a0 Worn ordeteriorated parts shall be replaced.\u00a0 Respirators for emergency use such asself-contained devices shall be thoroughly inspected at least once a month and after eachuse.[[2]] Seaboard presents some argument in support of the judge’s decision onall of the items, as affirmed and vacated, but also maintains that, if the Commissiondetermines that the company is not responsible for the overexposure detected by OSHA onthe ground that the one day’s overexposure was atypical, then the respirator andengineering control violations should be vacated. Seaboard additionally argues that thelocal ventilation proposed by the Secretary was infeasible.\u00a0 Seaboard also contends that the Secretary’s petition for review wasinsufficient in that it did not state proper bases for review. Seaboard argues that thepetition did not urge that any material factual finding was unsupported, that the judge’sdecision was contrary to law or Commission precedent, that the case involves a substantialquestion of law or policy or that the judge abused his discretion, or that a prejudicialprocedural error was committed. See 29 C.F.R. ? 2200.92(b).\u00a0 However, the Commissionhas held that issues stated in a direction for review are properly before the Commissiondespite any possible noncompliance with requirements for a petition for review. \u00a0United States Steel Corp., 81 OSAHRC 28\/C2, 9 BNA OSHC 1641, 1981 CCH OSHD ? 25,282 (No.76-5007, 1981).\u00a0 In addition, Seaboard does not allege that it suffered any prejudicefrom the claimed noncompliance. See Little Beaver Creek Ranches, Inc., 82 OSAHRC 36\/A2, 10BNA OSHC 1806, 1809-10 n.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 of the additionalcontrols.[[4]] Controls are feasible within the meaning of 29 C.F.R. ? 1910.1000(e) if they aretechnologically and economically achievable or capable of being done.\u00a0 Harmony BlueGranite Co., OSHRC Docket No. 14189 (March 24, 1983), relying on Sun Ship Inc., 82 OSAHRC, 11 BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982), appeal filed, No. 83-3081(3rd Cir. Feb. 14, 1983), which overruled the cost-benefit test of feasibility stated inContinental Can Co., 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ? 21,009 (No.3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir., April 26, 1977).\u00a0 Moreover,controls which are capable of achieving a significant reduction in air contaminant levelswill be considered technologically feasible, even if they are or may prove to be incapableof achieving permissible levels.\u00a0 Harmony Blue Granite Co., supra; Sun Ship, Inc.supra; 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). On review, Seaboard argues in support of the judge’s decision to orderrepairs to the existing ventilation system.\u00a0 Also, by arguing throughout the casethat the OSHA measurements were atypical, Seaboard has maintained that the levels on theone day were excessive only because of temporary deficiencies in the existing controls.\u00a0 This is tantamount to an admission that the existing controls were at least capableof achieving a significant reduction in the silica dust levels.\u00a0 And the recordindicates that this was the case.\u00a0 The primary source of excessive silica dust wasthe wheelabrators and, although there were problems with the wheelabrators on the day ofthe OSHA measurements, the silica dust clouds were significantly reduced or eliminatedwhen the wheelabrators were operated properly.\u00a0 Because these controls were alsoclearly technologically capable of being implemented and economically achievable, theirfeasibility has been established.[[5]] We emphasize that Seaboard is required to determine and implementfeasible controls of any type and in whatever combination is necessary to achievecompliance levels.\u00a0 See Kelly Springfield Tire Co., 82 OSAHRC 47\/B6, 10 BNA OSHC1970, 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).\u00a0 If the existing controls are actually capableof achieving compliance, then it will be unnecessary to try the feasibility of theproposed additional controls.\u00a0″