” SECRETARY OF LABOR,Complainant,v.SMITH STEEL CASTING COMPANY,Respondent.OSHRC Docket Nos. 80-2069 & 80-2322_DECISION_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:These consolidated cases involve issues under the Secretary’s standardgoverning exposure to air contaminants, 29 C.F.R. ? 1910.1000. TheSecretary alleges in item 2F of citation 1 and item 2 of citation 2 thatSmith Steel Casting Company (\”Smith Steel\”) violated the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”), becauseits employees were exposed, respectively, to silica dust and copper fumein excess of the limits set forth in that standard. In item 2G ofcitation 1 the Secretary alleges that Smith Steel had not implementedfeasible engineering or administrative controls required by the standardto reduce the excessive silica dust exposure. The questions before usare whether ? 1910.1000 is unenforceable for having been invaliditypromulgated and whether the record supports the judge’s finding on theeconomic feasibility of the engineering controls sought by theSecretary. [[1\/]]In his initial decision on the merits of the alleged violations,Administrative Law Judge Edwin G. Salyers affirmed the Secretary’scitations. _Smith Steel Casting Co._, 83 OSAHRC 1\/A2 (ALJ, 1982). Following subsequent decisions by both the Commission and the Court ofAppeals for the Fifth Circuit on an issue no longer before us relatingto the Secretary’s inspection warrant, the Fifth Circuit issued afurther decision remanding these cases for consideration of SmithSteel’s argument that ? 1910.1000 was invalidity promulgated. The courtalso set aside Judge Salyers’ decision ordering Smith Steel to implementengineering controls. Finding the evidence on economic feasibility tobe insufficient to support the judge’s conclusion that controls wereeconomically feasible, the court remanded for additional evidence. _Smith Steel Casting Co. v. Brock_, 800 F.2d 1329 (5th Cir. 1986). TheCommission in turn remanded these cases to the judge for action inaccordance with the court’s remand. _Smith Steel Casting Co_., 12 BNAOSHC 2200, 1986-87 CCH OSHD ? 27,758 (Nos. 80-2069 & 80-2322, 1986). Inhis decision now before us, Judge Salyers found the standard valid and,after receiving additional evidence on economic feasibility, found that\”without further input from respondent [the financial data in the recorddoes] not establish that implementation of the proposed controls [is]beyond respondent’s financial reach or would result in forcingrespondent into bankruptcy.\” For the reasons that follow, we affirm thejudge’s decision.I. _Background_The standard at issue in these cases is a generic standard setting forthpermissible exposure limits (\”PEL’s\”) for a large number of substances. At the time these cases arose, [[2\/]] the standard included threeseparate listings designated as Tables Z-1, Z-2, and Z-3. Table Z-1prescribed short-term exposure limits (\”ceiling values\”) for somesubstances and 8-hour time-weighted average exposure limits for othersubstances. The PEL for copper fume was an 8-hour time-weighted averageof .1 mg\/m3. Table Z-3, entitled \”Mineral Dusts,\” prescribed exposurelimits for silica dust that varied depending upon the amount of quartzpresent in the dust in question. That table also contained separatelimits on total airborne silica dust and on respirable silicadust.[[3\/]] For respirable dust, which is at issue here, the formulafor determining the PEL for silica was 10mg\/M^3 divided by \”SiO_2 + 2,\”that is, 10 milligrams per cubic meter of air divided by the sum of twoplus the percentage of all respirable dust that is silica. To achievethe specified exposure limits, the standard also required the employerto implement administrative or engineering controls \”wheneverfeasible.\”[[4\/]]Industrial Hygiene Compliance Officer Jack M. Matthews, Jr., testified,and it is undisputed, that silica dust emanates from the sand whichSmith Steel uses to form \”cores\” that it places in the molds from whichit makes castings. Sand is mixed in three machines known as \”sandmullers,\” which are essentially metal tanks about 3 1\/2 feet indiameter, open at the top, and unventilated. Employees referred to as\”sand bin attendants\” use wheelbarrows to bring the sand from the binsin which it is stored and then load the sand into the mullers. Matthewsalso observed an employee operating the electric arc-welder, or \”arc airgouger,\” which removes flaws from finished castings. Because theelectrode of this welder was coated with copper to improve conductivity,operation of the welder produced copper fume.Matthews conducted personal sampling of six employees for exposure torespirable dust, using a \”cyclone separator,\” a device which employs airvelocity to separate respirable from non-respirable particles. He sentthe samples to the OSHA Laboratory in Salt Lake City for analysis of thepercentage of silica in each sample. Once the percentage of silica wasdetermined, Matthews applied the formula specified in the standard tocompute the permissible exposure limit (PEL) for each employee. He thencompared that limit to the employee’s actual time-weighted averageexposure. He determined that three employees, i.e. , two mulleroperators and one sand bin attendant, had eight-hour time-weightedaverage exposures between 1.43 and 3.24 times greater than the PELcalculated under the formula set forth in the standard for respirablesilica dust. In addition, Matthews sampled one operator of the arc airgouger for exposure to copper fume. After the OSHA lab determined theamount of copper collected in the samples, Matthews computed theemployee’s 8-hour time-weighted average exposure. The result showed thatthe employee had been exposed to .143 mg\/m^3 of copper fume, 43 percentabove the PEL of .1 mg\/m^3 .[[5\/]]II. _Validity of the Standard_Smith Steel does not deny that its employees were exposed to excessivelevels of silica dust and copper fume. Rather, Smith Steel challengesthe Secretary’s citations on a threshold legal issue-whether ? 1910.1000was properly promulgated in accordance with the requirements of theAct. It is to this issue that we now turn.The standard cited in these cases was promulgated under section 6(a) ofthe Act, 29 U.S.C. ? 655(a). That provision authorized the Secretary,during the first two years after the Act took effect (1971-73), to adoptexisting occupational safety and health standards issued by either otherFederal agencies or private standards-setting organizations. BecauseCongress presumed that these existing standards were issued inaccordance with procedures that allowed those affected by such standardsto participate in their formulation, section 6(a) authorized theSecretary to forego notice and an opportunity for comment when adoptingthese standards. [[6\/]] _General Motors Corp_., 9 BNA OSHC 1331, 1337,1981 CCH OSHD ? 25,202, p. 31,124 (No. 79-4478, 1981). For this reason,when adopting standards under section 6(a) of the Act, the Secretary wasnot empowered to make substantive modifications in their content. Whilethe Secretary did not have to promulgate the source standard literallyword-for-word, Simplex Time Recorder Co., 12 BNA OSHC 1591, 1593 n.4,1984-85 CCH OSHD ? 27,456, p. 35,569 n.4 (No. 82-12, 1985), she couldnot make any material alteration from the source document in adoptingthe standard under section 6 (a). _Senco Products, Inc_., 10 BNA OSHC2091, 2093, 1982 CCH OSHD ? 26,304, p. 33,269 (No. 79-3291, 1982). Changes from a source standard that did not affect or heighten theemployer’s duties or obligations were permissible. _Deering Milliken,Inc_., 6 BNA OSHC 2143, 2146, 1978 CCH OSHD ? 23,191, p. 28,039 (No.12597, 1978), _aff’d_, 630 F.2d 1094, 1100 (5th Cir. 1980); _AmericanCan Co_. 10 BNA OSHC 1305, 1311-13, 1982 CCH OSHD ? 25,899, pp.32,414-15 (Nos. 76-5162 _et al_., 1982).Smith Steel contends that the cited standard is invalid because itslanguage differs from that of its source. Smith Steel also argues thatthe standard is invalid for additional reasons not associated withspecific language variations. We reject these contentions.A. _History of the Cited Standard_The Secretary’s air contaminant standard was originally promulgated onMay 29, 1971, when it was codified as 29 C.F.R. ? 1910.93. 36 Fed. Reg.10466, 10503 (1971). The source for ? 1910.93 was 41 C.F.R. ?50-204.50, a standard entitled \”Gases, vapors, fumes, dusts, and mists,\”which the Secretary had previously adopted under the Walsh-Healey PublicContracts Act, 41 U.S.C. ?? 35-45, on May 20, 1969. 34 Fed. Reg. 7953(1971). _See Senco Products_, 10 BNA OSHC at 2092-93, 1982 CCH OSHD atpp. 33,268-69.The Walsh-Healey source standard limited exposure to hazardoussubstances according to the following provision:(a) Exposures by inhalation, ingestion, skin absorption, or contact toany material or substance (1) at a concentration above those specifiedin the \”Threshold Limit Values of Airborne Contaminants for 1968\” of theAmerican Conference of Governmental Industrial Hygienists, except forthe USASI Standards listed in Table I of this section and except for thevalues of mineral dusts listed in Table II of this section, and (2)concentrations above those specified in Table I and II of this section,shall be avoided, or protective equipment shall be provided and used.41 C.F.R. ? 50-204.50(a). Thus, the Walsh-Healey standard, in part,required that an employer comply with the exposure levels set forth in ahealth code developed by a private standards-setting organization, theAmerican Conference of Governmental Industrial Hygienists (\”ACGIH\”). The 0.1 mg\/m3 exposure limit for copper fume appeared in thispublication, whereas an exposure limit for silica was set forth in TableII, entitled \”Mineral Dusts.\”The Walsh-Healey standard also imposed a requirement that \”feasible\”controls be used to bring exposure to within the limits prescribed inparagraph (a):(b) To achieve compliance with paragraph (a), feasible administrative orengineering controls must first be determined and implemented in allcases. In cases where protective equipment, or protective equipment inaddition to other measures[,] is used as the method of protecting theemployee, such protection must be approved for each specific applicationby a competent industrial hygienist or other technically qualified source.41 C.F.R. ? 50-204.50(b).When the Walsh-Healey standard was adopted as ? 1910.93 on May 29, 1971,its reference to the 1968 edition of the ACGIH Threshold Limit Values(\”TLV\”) pamphlet was changed to refer to the 1970 edition. Furthermore,while the Walsh-Healey standard simply incorporated by reference the TLVvalues contained in the ACGIH publication, ? 1910.93 expressly set forththe 1970 TLV’s in a new list labeled \”Table G-1.\” Tables I and II asthey appeared in the Walsh-Healey standard were renumbered as Tables G-2and G-3. Table G-1 included the same numerical limit for copper fume(0.1 mg\/m^3 ) that appeared in the 1968 ACGIH TLV publication to whichthe Walsh-Healey standard referred. As in the 1968 ACGIH list, thisfigure was _not_ preceded by the letter \”C,\” indicating that the limitwas an 8-hour time-weighted average exposure limit and not a ceilingvalue. The formula for determining the limit value for respirablesilica also was identical in Tables II (Walsh-Healey standard) and G-3(29 C.F.R. ? 1910.93).On August 13, 1971, the Secretary revised ? 1910.93. 36 Fed. Reg. 15101(1971). She eliminated the phrase \”by inhalation, ingestion, skinabsorption, or contact\” that modified \”exposures\” in paragraph (a) ofthe Walsh-Healey standard and the first version of ? 1910.93 and alsodeleted the phrase \”or protective equipment shall be provided and used\”from the standard’s initial paragraph. Furthermore, the references tothe various tables were considerably revised, and the provision relatingto administrative and engineering controls was slightly rewritten. However, the exposure limits themselves for copper fume and respirablesilica dust were not changed. When the Secretary subsequentlyrecodified ? 1910.93 as ? 1910.1000, she redesignated Tables G-1, G-2,and G-3 as Tables Z-1, Z-2, and Z-3, respectively. 40 Fed. Reg. 23073(1975).B. _Summary of Smith Steel’s Arguments_Smith Steel challenges the change in reference from the 1968 edition ofthe ACGIH code in the original Walsh-Healey standard to the 1970 editionof the ACGIH code in the first version of ? 1910.93 and also argues thatthe changes in phrasing between the May and August versions of ? 1910.93render it invalid. Smith Steel has the burden to demonstrate thatmodifications to the standard on which it relies are substantive innature. _George C. Christopher & Sons_, 10 BNA OSHC 1436, 1443, 1982CCH OSHD ? 25,956, p. 32,531 (No. 76-647, 1982). In examining whetherSmith Steel has sustained this burden, we will address the specificdifferences Smith Steel cites only as they bear on the issues in thiscase.[[7\/]]In essence, there are four major themes to Smith Steel’s argument:1) The Secretary impermissibly substituted the 1970 ACGIH TLV values forthe 1968 version;2) The Secretary improperly deleted an \”option,\” available to employersunder the Walsh-Healey standard and the original version of ? 1910.93,to protect employees by respirators alone, without first implementingengineering or administrative controls;3) The Secretary improperly converted the TLV’S of the ACGIH intopermissible exposure limits (\”PEL’s\”); and4) The Secretary added time-weighted average limits for copper fume andsilica dust that did not appear in the source standard.Judge Salyers rejected Smith Steel’s arguments without discussing themindividually. The judge summarily concluded that the validity of ?1910.1000 had previously been upheld both by the Fifth Circuit, wherethese cases arise, in _Deering Milliken, Inc. v._ _OSHRC_, 630 F.2d 1094(5th Cir. 1980) and by the Commission in several decisions. SmithSteel disputes the judge’s reliance on these cases, and we agree.In a prior decision in these cases, the Fifth Circuit plainly statedthat its precedents are binding on the Commission in cases arising inthat circuit. _Smith Steel Casting Co. v. Donovan_, 725 F.2d 1032, 1035(5th Cir. 1984). _Deering Milliken_, however, disposes only of some andnot all of Smith Steel’s arguments. As for the Commission decisionsJudge Salyers cites, they do not address any of the particularcontentions Smith Steel raises.[[8\/]]Accordingly, we affirm the judge’s decision that ? 1910.1000 is valid,but for the reasons that follow.C. _Analysis of Smith Steel’s Claims___1. _Change from 1968 to 1970 TLV’s_There are two aspects to this argument. First, Smith Steel contendsthat the substitution of the 1970 ACGIH TLV’s for the 1968 values was asubstantive change because the 1970 values differ from those the ACGIHadopted in 1968.We reject this claim. As Smith Steel asserts, a comparison of the 1968edition of the ACGIH publication with Table G-1 of ?1910.93 does revealdifferences in exposure limits for some substances. However, aspreviously indicated, the limit for copper fume is the same in both the1968 ACGIH list and Table G-1. Therefore, insofar as the cited exposurelimit is concerned, no substantive change was made to Smith Steel’sobligation to protect its employees against copper fume.[[9\/]] Otherchanges in uncited exposure limits are simply not relevant to theseproceedings. _See Senco Products_, 10 BNA OSHC at 2095, 1982 CCH OSHDat p. 33,271 (if employer’s compliance responsibilities are not altered,the standard is valid as to that employer).The second facet of Smith Steel’s argument is not based on anysubstantive differences between ? 1910.93 and its Walsh-Healey sourcebut rather on perceived irregularities in the promulgation of theWalsh-Healey standard. Smith Steel argues that even if the OSHAstandard had set forth the 1968 ACGIH TLV’s rather than the 1970 limits,the standard would still have been invalid. In Smith Steel’s view, theSecretary could not have merely republished the 1968 values withoutnotice-and-comment rulemaking because the incorporation by reference ofthe 1968 TLV’s in the Walsh-Healey standard did not conform to therequirements for incorporation by reference prescribed by the office ofthe Federal Register.[[10\/]] In other words, Smith Steel in effectcontends that the Secretary could not have adopted _any_ ACGIH list ofTLV’s under section 6(a) because she could not have properly used theWalsh-Healey standard as the source for such a list. Smith Steelalludes to section 3(10) of the Act, which defines an \”establishedFederal standard\” as any \”operative occupational safety and healthstandard established by any agency of the United States and presently ineffect, or contained in any Act of Congress in force on the date ofenactment of this Act.\” Because the Walsh-Healey standard did notvalidly incorporate the ACGIH table, Smith Steel contends that there wasno \”operative\” source for Table G-1 that was \”in effect\” when theSecretary promulgated ? 1910.93.The Commission has previously ruled that the procedural validity of thepromulgation of a standard under the Walsh-Healey Act may not bechallenged in an enforcement proceeding before the Commission. _GeneralMotors_, 9 BNA OSHC at 1337, 1981 CCH OSHD at p. 31,124. BecauseCongress made an explicit determination that established Federalstandards, including standards issued under the Walsh-Healey Act, arevalid and enforceable occupational safety and health standards under theAct, the Commission reasoned that reviewing the promulgation processoccurring under another Federal statute would be tantamount toquestioning the judgment of Congress. In the same vein, the Commissionconcluded that to regard a Walsh-Healey standard as not \”operative\”under section 3(10) because of some defect in its promulgation under theWalsh-Healey Act would likewise disregard the plain intent of Congress. _Id_. at 1335 & n.11, 1981 CCH OSHD at p. 31,122 & n.11. _See AmericanCan_, 10 BNA OSHC at 1310, 1982 CCH OSHD at p. 32,413 (Commission willnot consider argument that a source standard lacked a statement of basisand purpose when it was adopted under the Walsh-Healey Act). [[11\/]] Accordingly, we reject this portion of Smith Steel’s argument.2. _Deletion of Protective Equipment \”Option\” as a Means of Compliance_Smith Steel contends that when the standard was originally promulgated,it allowed personal protective equipment (respirators) as an equallyacceptable alternative to engineering or administrative controls as ameans of compliance. Thus, in Smith Steel’s view, the Secretarysubstantively modified the standard by removing the phrase \”orprotective equipment shall be provided and used\” from paragraph (a) whenshe revised ? 1910.93 in August 1971. See Part II.A, _supra_. Similarly, Smith Steel asserts that the substitution of the phrase \”anemployee’s exposure to any material listed in [the tables] shall be_limited_ in accordance with the requirements of [paragraphs (a), (b),and (c)]\” for the phrase exposures by inhalation, ingestion, skinabsorption or contact to any material or substance above [the specifiedconcentration] shall be avoided\” (emphasis added) also improperlyeliminated respirators as an alternative means of compliance.In _Deering Milliken_, the Commission rejected a similar argument basedon the premise that the original version of ? 1910.93 did not requireadministrative or engineering controls as the preferred means ofcompliance with exposure limits. While conceding that paragraph (a) ofthat version might have been ambiguous, the Commission ruled that anyambiguity was cured by the specific requirement of paragraph (b) that\”feasible administrative or engineering controls must first bedetermined and implemented in all cases.\” The Commission found thislanguage indistinguishable from the requirement of paragraph (e) of theAugust 1971 amended version that controls are to be determined andimplemented \”whenever feasible.\” Therefore, the Commission held thatwhen read in its entirety, the original ?1910.93 imposed the same dutyon employers to comply by using controls to the extent possible as doesthe August 1971 standard. 6 BNA OSHC at 2145-46, 1978 CCH OSHD at p.28,039.The court of appeals affirmed the Commission. In rejecting the sameargument made here, that the deletion of the disjunctive \”or protectiveequipment shall be provided and used\” was a substantive change, thecourt specifically held that \”feasible engineering and administrativecontrols were mandatory under Walsh-Healey; protective equipment, whenused, was not a substitute for feasible alternative means of aircontaminant control, but rather a means of compliance available whenengineering or administrative controls were infeasible, or onlypartially effective.\” 630 F.2d at 1101.However, _Deering Milliken_ is not dispositive of the issue before usnow because it focuses only on the \”or protective equipment . . . \”language. Neither the court nor the Commission decisions explicitlyaddress Smith Steel’s additional contention that the Walsh-Healey phrase\”shall be avoided\” and the modifier \”by inhalation, ingestion. . . \”also provide an option to comply by using protective equipment alonethat was deleted when this language was changed in the August 1971revision of ? 1910.93. We reject the argument because there is nothingin this terminology that is inconsistent with a preference forengineering controls as the primary method of compliance. In any event,Smith Steel’s argument that this language allowed an employer to complyby using respirators alone would render superfluous the explicitstatement in paragraph (b) of the Walsh-Healey standard and the firstversion of ? 1910.93 that controls must be implemented \”first.\” It is abasic rule of construction that a standard must be read as a harmoniouswhole, with every word or phrase given meaning to the extent possible. _Simplex_, 12 BNA OSHC at 1594 n.6, 1984-85 CCH OSHD at p. 35,569 n.6. Accordingly, we conclude that the specific language changes Smith Steelcites did not alter the employer’s basic duties of compliance under thestandard.3. _Conversion of TLV’s Into PEL’s_Smith Steel contends that the threshold limit values established in theWalsh-Healey standard through its adoption of the ACGIH TLV list do notconstitute legally binding and enforceable exposure limits. Smith Steelacknowledges that in _Deering Milliken_ the Fifth Circuit characterizedthe TLV’s adopted in the Walsh-Healey standard as \”specified exposurelimits,\” 630 F.2d at 1101, but asserts that the court erred. SmithSteel claims that the Commission subsequently distinguished a TLV from aPEL in _Bunge_ _Corporation_, 12 BNA OSHC 1785, 1986-87 CCH OSHD ?27,565 (Nos. 77-1622 _et al_., 1986) and therefore contends that theCommission should not follow _Deering Milliken_.Smith Steel plainly misreads _Bunge_. The Commission simply observed inthat case that the phrase \”threshold limit value\” has no specificmeaning in law but rather is an industrial hygienist’s term referring tothe concentration of an airborne contaminant to which an employee may beexposed without adverse effect. The decision does not in any waysuggest that the Secretary was required to provide notice and anopportunity for comment in order to promulgate a TLV as an enforceableexposure limit in a section 6(a) standard. On the contrary, theCommission specifically held that when the Secretary incorporated theACGIH TLV’s into ? 1910.1000, she \”thereby transformed the TLV’s intolegally enforceable PEL’s.\” 12 BNA OSHC at 1788 n.10, 1986-87 CCH OSHDat p. 35,803 n.10. Accordingly, Smith Steel’s argument that theSecretary could not properly adopt a TLV as a PEL is contrary toCommission precedent, as well as the case law in the Fifth Circuit.4. _Addition of Time-Weighted Average Limits for Copper Fume and Silica___The ACGIH publication incorporated by reference in the Walsh-Healeystandard distinguishes exposure levels measured over the period of anentire day (time-weighted average concentrations) from immediate,short-term exposures (ceiling values). As the preface to the 1968 TLVlist states:The values not given a \”C\” listing refer to time-weighted averageconcentrations for a conventional 7 or 8 hour workday.Time-weighted average concentrations permit excursions above the limit,provided they are compensated by equivalent excursions below the limitduring the work day…._Ceiling vs. Time-Weighted Average Limits_. Although the time-weightedaverage concentration provides the most satisfactory, practical way ofmonitoring air-borne agents for compliance with the limits, there arecertain substances for which it is inappropriate. In the latter groupare substances which are predominantly fast acting and whose thresholdlimit is more appropriately based on this response. Substances withthis type of response are best controlled by a ceiling \”C\” limit thatshould not be exceeded.Smith Steel contends that the Walsh-Healey standard did not establish atime-weighted average limit for either copper fume or silica dust andthat the Secretary therefore substantively amended the Walsh-Healeystandard when she adopted such exposure limits in ? 1910.93.We conclude, however, that because the entry in the ACGIH list forcopper fume is not accompanied by a \”C\” notation, it thereforeestablishes an 8-hour time-weighted average limit. Smith Steel does notexpressly dispute that the ACGIH listing prescribes a time-weightedaverage limit for exposure to copper fume but asserts that because theWalsh-Healey source standard did not properly incorporate the ACGIHlimits, it failed to set forth the time weighted average limit forcopper fume that appears in the ACGIH list. Since this argumentchallenges the procedural validity of the Walsh-Healey standard, wedecline to address it for the reasons given previously.Smith Steel’s contention that the Walsh-Healey standard did notestablish a time-weighted average limit for silica dust presents a moresubstantial issue. As previously indicated, the silica dust limit inTable II of the Walsh-Healey standard is not taken from the ACGIH TLVlist. And as Smith Steel correctly points out, the term \”time-weightedaverage\” or any other words indicating a time limitation do not appearin Table II. Thus, the question before us is whether the silica TLVformula is a time-weighted average limit even though the standard lacksspecific language to that effect.A review of the history of the Walsh-Healey standards reveals that theWalsh-Healey exposure limit for silica dust has always been atime-weighted average limit. When the Walsh-Healey standards wereoriginally promulgated on December 28, 1960, they included a provisionthen codified at ? 50-204.275, which required employees to userespirators when exposed to air contaminants above the limits specifiedin another provision, ? 50-204.276, \”on an average basis for aneight-hour workday.\” Exposures exceeding such limits \”temporarily,without exceeding them on a daily average basis\” required an industrialhygienist’s approval in lieu of respirators. Section 50-204.276prescribed limits for mineral dust containing various percentages ofsilica. 25 Fed. Reg. 13809, 13823-24 (1960). Therefore, at the veryoutset the Walsh-Healey standards distinguished time-weighted averagefrom ceiling limits and provided a time-weighted average limit for silica.On September 20, 1968, the Secretary proposed to revise Part 50-204,adding a new section, ? 50-204.50, consisting of two tables, Table Ilabeled \”Threshold Limit Values\” and Table II labeled \”Ceiling Values.\” A portion of Table I entitled \”Respirable Dusts Evaluated by Count\”included a formula for determining the limit for silica dust. Asproposed, ? 50-204.50(b) described the limits prescribed in Table I as8-hour time-weighted averages:Excursion of concentration above these levels may be permitted providedthat they are compensated by equal excursions below the listed levelsand that in any one day the sum of all the products of concentrationmultiplied by time in minutes does not exceed the product of the listedconcentration multiplied by 480.33 Fed. Reg. 14258, 14268-70 (1968). When ? 50-204.50 was adopted inits final form, it was restructured, and the portion of Table I thatincluded the respirable silica dust exposure limit was redesignated asTable II, entitled \”Mineral Dusts.\” Therefore, while Table II did notexpressly state that its exposure limits were time-weighted averagelimits, it originated from a provision of the proposed ? 50-204.50 thatclearly did set forth time-weighted average limits. There is nothing inthe preamble accompanying the adoption of ? 50-204.50 to indicate thatthe Secretary intended to change the nature of the exposure limits asset forth in the proposal. Accordingly, we conclude that thesliding-scale PEL for respirable silica dust is and always was atime-weighted average limit. We therefore reject Smith Steel’scontention that the Walsh-Healey standard did not establish atime-weighted average limit for exposure to silica dust.Having disposed of Smith Steel’s challenges to the validity of thestandard, we turn to the remaining issue before us.III. _Feasibility of controls for Silica Dust_A. _Background_The Secretary’s witness, Robert A. Ressl, an environmental engineeringconsulting firm engineer with experience designing ventilation controlsystems, testified regarding feasible engineering and administrativecontrols based on his inspection of Smith Steel’s plant and on hissubsequent report. Essentially, he proposed two alternative methods ofengineering controls: a fairly comprehensive modification of SmithSteel’s entire system for storing and handling sand and a less complexaddition of only a ventilation system. Since Ressl regarded the mullersand sand-handling system to be the major source of the dust in theplant, he testified that his first proposal would decrease the amount ofambient dust to \”very, very low levels.\” He also stated that either ofhis proposals would be able to reduce the employees’ exposure to a levelwithin the PEL for silica dust.Because Ressl’s first proposal would allow Smith Steel to move sand bymechanical means, he testified that Smith Steel could eliminate theposition of sand bin attendant and operate the mullers with only 5rather than the 10 workers it then employed in those duties. Heestimated the capital cost of this system at $281,300, which heamortized over a period of 20 years, the life span customarily assumedfor this type of equipment. The total annual cost, including theamortized portion of the initial capital expense, would be $74,100. Factoring in the reduction in payroll costs, he projected annual savingsof $66,300. This system would therefore have a net annual cost of $7800.Ressl’ s less elaborate alternative proposal would have an installationcost of $145,300, again amortized over 20 years, with a total annualcost of $41,100. This proposal would not reduce the number of employeesand therefore would not provide any savings in labor costs.Ressl stated that although he was neither an economist nor an accountantby profession, he had received some training in \”economic evaluation,\”as is customary for engineers. He had also performed a \”fair amount ofcosting type work to develop costs of systems.\” Judgments as to costrecovery and interest rates are a typical part of this work. Indeveloping his cost estimates, he used figures for interest ratessimilar to those he or his company had applied on other projects. Ressl conceded that in actuality a business would not amortize capitalinvestment in \”exactly\” the way he proposed. Although he was not askedwhat the differences might be, he did say that a business might not beable to borrow money at the interest rate he projected. Furthermore, hedid not consider Internal Revenue Service rules for writing offequipment purchases. However, he emphasized that his figures are basedon the methodology normally used by engineers for estimating capitalcosts and insisted that he had established economic feasibility \”from anengineering evaluation standpoint.\”Also relevant to the issue of economic feasibility are Smith Steel’sanswers to the Secretary’s interrogatories regarding Smith Steel’sfinancial condition, which were introduced into evidence. Smith Steel’sanswers establish that it had gross revenue of $7,096,499.55 and a netprofit before taxes of $480,316.85 for 1979, the year preceding theinspection.In his first decision on the merits of the citations, Judge Salyersfound that either of the two systems Ressl proposed would \”significantlyreduce the exposure of employees to silica dust perhaps, as indicated bythe expert, to a level within the limits permitted by the standard.\” 83OSAHRC 1\/A2 at 22. Since Ressl’s testimony was undisputed, the judgeconcluded that the Secretary had shown that controls to reduce silicaexposure were technologically feasible. _See Continental Can Co_., 4BNA OSHC 1541, 1546, 1976-77 CCH OSHD ? 21, 009, p. 25,255 (Nos. 3973_et al_. , 1976) (controls are technologically feasible when thetechnology exists to accomplish a significant reduction in exposurelevels). In addition, the judge noted that in _Continental Can_ and_Samson Paper Bag Co_. 8 BNA OSHC 1515, 1980 CCH OSHD ? 24,555 (No.76-222, 1980), the Commission had ruled with respect to the Secretary’snoise exposure standard, 29 C.F.R. ? 1910.95, that feasibility alsorequires consideration of the costs of controls in relation to theexpected reduction in exposure levels. As the Commission stated in_Samson Paper Bag_, \”the cost of controls must bear a reasonablerelationship to the benefits to be achieved.\” 8 BNA OSHC at 1521, 1980CCH OSHD at p. 30,045 (lead opinion). [[12\/]]While noting that the Secretary presented no evidence to establisheconomic feasibility other than Smith Steel’s gross income and netprofit for 1979, the judge also observed that Smith Steel made noshowing that it was \”unable to afford the controls.\” The judgeconcluded that \”[i]n the absence of a showing that implementation of thecontrols [is] beyond the financial means of the Respondent and, in viewof the obvious benefits to be derived by reducing to a significantdegree the exposure of employees to toxic substances the Secretary hascarried her burden.\” 83 OSAHRC 1\/A2 at 23. In short, the judge heldboth that the costs of the controls Ressl proposed were reasonable inlight of the improvement to employee health that those controls wouldachieve and that Smith Steel could afford to pay the costs of the controls.B. _The Court’s Method for Determining Economic Feasibility _In its review of this decision, the Fifth Circuit held that theSecretary had not met her burden of proof on the economic feasibilityissue. First, the court briefly commented that the content of Ressl’sreport describing his recommendations and their costs, together with hisresponses on cross-examination, left \”doubt\” as to the accuracy of hiscost figures, which the court characterized as \”preliminaryguesstimations.\” Second, it concluded that the record did not present asufficiently \”complete\” picture of Smith Steel’s financial condition. The court stated as follows:Without a more complete picture of Smith’s financial condition, wecannot uphold Judge Salyers’s conclusion that the Secretary has proveneconomic feasibility as supported by substantial evidence. Our problemis not so much insubstantial evidence as insufficient evidence. We haveno way of knowing whether these gross income and net profit figuresrepresent a typical year for Smith. For all we know, Smith may haveoperated at a loss for the three preceding years or for the threesucceeding years. We are vitally concerned with the health of thethree out of 250 Smith employees who are over-exposed to silica dust,but we are unwilling to risk putting Smith Steel out of business or intoour overcrowded bankruptcy courts by forcing Smith to revamp its sandhandling system completely without any real idea whether Smith cansurvive such a costly renovation. If it cannot, the law as it presentlystands allows Smith to protect its employees from the harmful silicadust in the foundry by implementing an effective respirator program.Therefore, we remand Items 2F and 2G of Citation 1 to the Commission forthe receipt of additional evidence on the issue of economic feasibility.800 F.2d at 1339 & n.9. The court’s order did not dispute the judge’sconclusion that Ressl’s testimony and report met the Secretary’s burdenof proving that there were available technologically feasible controlscapable of producing significant reductions in the exposure of SmithSteel’s employees to silica dust, and that question is not before us.[[13\/]]After the Commission in turn remanded to the judge for furtherproceedings in accordance with the court’s order, the parties agreedthat a further evidentiary hearing would not be necessary. Instead, theSecretary sent Smith Steel a second set of interrogatories regarding itsgross revenue and net profit before taxes for the years 1976-1978 and1980-1982. In answering these interrogatories, Smith Steel alsosupplied the same information for three additional years, 1983-1985. The following chart summarizes Smith Steel’s answers:Year Gross Revenue Net Profit Before Taxes1976 \t$5,301,887.35 \t$89,957.161977 \t$4,842,199.76 \t$70,710.061978 \t$6,331,728.37 \t$441,864.701980 \t$9,703,537.56 \t$662,351.471981 \t$12,888,298.88 \t$1,072,935.311982 \t$6,789,075.28 \t$87,972.081983 \t$1,143,074.75 \t$(-632,581.09)1984 \t$2,678,126.86 \t$(-547,890.70)1985 \t$2,660,152.00 \t$269,352.00The judge rejected Smith Steel’s contention that he could not considerthese answers as part of the record because the Secretary had not movedto admit them into evidence. He further faulted Smith Steel for notpresenting evidence pertaining to its financial circumstances. Based onthe data presented by Smith Steel for the 1976-1985 period, JudgeSalyers concluded that without further input from respondent [thesefigures] do not establish that implementation of the proposed controls[is] beyond respondent’s financial reach or would result in forcingrespondent into bankruptcy.\” The judge did not address the court’sconcern regarding the accuracy of Ressl’s cost data. The judge’sdecision on remand is now pending before us for review.C. _The Cost of Engineering Controls___At the outset, we find Ressl’s projections for the cost of his suggestedcontrols to be adequately supported. Both his testimony and his writtenreport describe in some detail the methodology he used to arrive at hiscost estimates. While Ressl conceded on cross-examination that inpractice an employer might not apply the same cost factors he describedor might apply them in a different way, Smith Steel made no attempt toestablish how much of an effect these differences might have on the costfigures themselves. Furthermore, Smith Steel did not challenge Ressl’sbasic methodology either on cross-examination or with evidence of itsown. In our view, the Secretary did not have the burden to establishSmith Steel’s costs of compliance to a definitive degree of certainty;rather, absent rebuttal evidence, the Secretary was only obligated toadduce enough evidence to support a prima facie case. _See_ _AmericanPetroleum Inst. v. OSHA_, 581 F.2d 493, 503 (5th Cir. 1978), _aff’d subnom. on other grounds_, _Industrial Union Dep’t_, _AFL-CIO v. AmericanPetroleum Inst._, 448 U.S. 607 (1980) (court holds that Secretary’sestimate of costs based on analysis by a consulting firm adequatelyestablishes the cost of compliance with a standard regulating exposureto benzene). Considering that Ressl had training and experience indeveloping engineering cost projections and that he testified, withoutrebuttal, that he applied generally accepted principles in arriving athis estimates, we find his testimony sufficient to satisfy theSecretary’s burden of proving the cost of her suggested controls. Wefurther note that the court did not vacate the judge’s decision on theground that Ressl’s cost figures were unpersuasive; rather, the courtremanded these cases, and it limited its remand to the matter of SmithSteel’s financial condition.D. _The State of the Evidentiary Record_The only evidence adduced on remand concerning the issue of SmithSteel’s financial condition is the second set of interrogatories andanswers. We agree with Judge Salyers that these interrogatories andanswers may be considered evidence of record. As a general rule,answers to interrogatories are not evidence unless they are formallyoffered and admitted. 4A J. Moore, J. Lucas & D. Epstein, _Moore’sFederal Practice_ ? 33.29 [1.-2] (2d ed. 1988). _See Jones v. Diamond_,519 F.2d 1090, 1098 & n.13 (5th Cir. 1975). However, for all practicalpurposes, the parties have treated these interrogatories and answers aspart of the evidentiary record.[[14\/]]Smith Steel initially raised the issue of the admission into evidence ofits answers to the Secretary’s interrogatories when it objected that theSecretary’s brief before the judge on remand improperly relied on thoseanswers.[[15\/]] In response, the judge wrote to the parties as follows:After receipt of the remand, this matter was discussed with the parties,and a consensus was reached that no further hearing was needed and that_the record would be supplemented by means of interrogatories_. Thereafter, interrogatories seeking respondent’s gross sales and netprofits for the fiscal years 1976 through 1982 were propounded and havebeen answered. However, this information without further explanation ordevelopment appears inadequate to resolve the issue of economic feasibility.I Plan to conduct a further hearing in this case and will place aconference call to the parties on July 10, 1987, to determine a time,date, and place mutually convenient to the parties. [emphasis added].Nevertheless, Smith Steel opposed a further hearing, reminding the judgethat the parties had already decided to submit the remanded issues fordisposition without an additional hearing. Significantly, Smith Steelexpressed no objection to the judge’s statement that the second set ofinterrogatories would be part of the record to be considered on remand_and that the parties had so_ _agreed_. Furthermore, both theinterrogatories and answers were filed directly with the judge, at thesame time the filing party served a copy on the opposing party. Sincethe filing of interrogatories and answers with the judge is not requiredby the Commission’s rules, the fact that the parties followed thisprocedure supports our conclusion that they regarded those documents aspart of the record.E. _Compliance with the Court’s Remand Order_In view of this conclusion, the question before us is whether thelimited information presented in Smith Steel’s answers to theSecretary’s interrogatories is sufficient to satisfy the requirements ofthe court’s remand order. The court could not determine whether fiscalyear 1979 was a representative or typical year for Smith Steel; hence itcould not be sure that Smith Steel could \”survive\” the renovationsrequired. The court stated that Smith Steel \”may have operated at aloss for the three preceding years or for the three succeeding years\”and was concerned that Smith Steel not be forced into a financiallyuntenable position.While the additional figures the Secretary presented show a widevariation from year to year in Smith Steel’s gross revenue and netprofit before taxes, it is clear that Smith Steel had positive earningsfor several years preceding the inspection and that Smith Steel had itshighest earnings in 1980 and 1981, the year of the inspection and theyear immediately thereafter. Its net profit before taxes in those yearsexceeded Ressl’s cost figure for the more expensive control system by awide margin. Subsequently, in 1982, Smith Steel’s net profit droppeddramatically but still exceeded the cost of those controls. The twosucceeding years of negative profit before taxes were followed by asharp rebound to a profit of approximately $269,000 in 1985, the lastyear of the period covered by the Secretary’s interrogatories. Thatfigure is about 360 percent greater than the cost of the more expensivecontrols. Furthermore, Smith Steel’s average annual net profit over theentire 10-year period comes to approximately $250,000, only slightlyless than its net profit for 1985. In his decision on remand, JudgeSalyers examined this financial data and found that the cost of thecontrols would not exceed Smith Steel’s ability to pay for them andwould not force Smith Steel into bankruptcy. We conclude that thesefindings are supported by a preponderance of the record evidence andfully comply with the court’s remand order. We therefore affirm thejudge’s decision on the economic feasibility issue.We emphasize, however, that our holding is based on the limited scope ofthe court’s remand order. The court did not take issue with JudgeSalyers’ conclusion that the costs of controls were not unreasonable inlight of the amount of reduction in exposure they would achieve. Rather, the court focused on the question of whether the evidenceestablishes that Smith Steel could afford those costs. An employer’sability to afford the cost of controls may be among the relevant factorsfor determining economic feasibility under the air contaminant standardat issue here. However, it may be appropriate for other elements,including but not necessarily limited to the reasonableness of the costsin light of their expected benefit to be taken into consideration aswell. We need not decide now what test for economic feasibility shouldbe applied under this standard. That is because the Fifth Circuit’sremand order is binding on the Commission as the law of the case anddoes not require us to make that determination at this time. _See__Schuylkill Metals Corp_., 13 BNA OSHC 2174, 2176 n.4, 1989 CCH OSHD ?28,520, p. 37,844 n.4 (No. 81-856, 1989), _on_ _remand from UnitedSteelworkers v. Schuylkill Metals Corp._, 828 F.2d 314 (5th Cir. 1987);_Mountain States Tel. & Tel. Co_., 9 BNA OSHC 2151, 2153 n.2, 1981 CCHOSHD ? 25,597, p. 31,931 n.2 (No. 13266, 1981), _on remand from_ 623F.2d 155 (10th Cir. 1980).IV. _The Commission’s Order on Remand_We have concluded that the provisions of 29 C.F.R. ?1910.1000 at issuehere were validly promulgated and that the Secretary has demonstratedthe economic feasibility of engineering controls for silica dust,applying the test for economic feasibility stated by the court. Wetherefore affirm item 2F of citation 1 and item 2 of citation 2 allegingexcessive exposure to copper fume and silica dust, as well as item 2G ofcitation 1 alleging that feasible controls were not used to reduce thesilica dust exposure. [[16\/]]The violations alleged in citation 1 were characterized as seriousviolations, and the violations charged in citation 2 were alleged asother than serious.[[17\/]] The Secretary proposed an aggregate penaltyof $640 for the entirety of item 2 of citation 1, which also includesviolations of the respirator standard, 29 C.F.R. ? 1910.134, notinvolved in these proceedings. The Secretary did not propose anypenalty for citation 2. In his earlier decision, Judge Salyers affirmedthe other allegations of item 2 of citation 2, as well as theallegations at issue here. He accepted the Secretary’scharacterizations and penalty proposals, and no issue is presentedbefore us now with respect to either the characterization of theviolations or the amount of penalty to be assessed. Since there is nobasis on which to disturb the judge’s findings, we adopt that portion ofhis decision assessing an aggregate penalty of $640 for the seriousviolations set forth in item 2 of citation 1 and assessing no penaltyfor the other than serious violation in citation 2.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: April 24, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.SMITH STEEL CASTING COMPANY,Respondent.OSHRC Docket Nos. 80-2069 and 80-2332DECISION AND ORDERSALYERS, Judge: This case, which arises out of respondent’s contest ofcitations issued by the Secretary pursuant to the Occupational Safetyand Health Act (29 U.S.C. ? 651,_et seq_.) following a 1980 inspectionof respondent’s foundry in Marshall, Texas, is presently before thistribunal on remand from the Fifth Circuit. _Smith Steel Castings Co. v.Brock_, 800 F.2d 1329 (5th Cir. 1986). The court remanded items 2F and2G, Citation No. 1, and item 2, Citation No. 2, for consideration ofrespondent’s argument that 29 C.F.R. ? 1910.1000 is invalid andunenforceable because it was improperly promulgated. The court alsoremanded items 2F and 2G of Citation No. 1 for the receipt of additionalevidence on the issue of economic feasibility._Validity of ? 1910.1000_Respondent contends that 29 C.F.R. ? 1910.1000 was not adopted pursuantto the rulemaking procedure provided for in 29 U.S.C. ? 655(b). Thehistory of this standard is recited in _Deering-Milliken, Inc. v.OSHRC_, 630 F.2d 1094, 1097 (5th Cir. 1980):On May 29, 1971, acting pursuant to section 6(a), the Secretary of Laborpromulgated 29 C.F.R. ? 1910.1000 as an OSHA requirement. Thisregulation, dealing with permissible levels of exposure to aircontaminants . . . was based upon 41 C.F.R. ? 50-204.50, an establishedfederal standard under the Walsh-Healy Public Contracts Act. Subsequently, on August 13, 1971, the Secretary published a revision of29 C.F.R. ? 1910.1000 stating that \”Section 1910.93 (air contaminants)[presently designated as 29 C.F.R. ? 1910.1000 . . . .] has been revisedin its entirety, in the interest of greater intelligibility andaccuracy. 36 Fed. Reg., 15101 (August 13, 1971). This revision wasachieved pursuant to section 6(a) and thus without regard to theAdministrative Procedure Act or to the notice and comment procedures ofsection 6(b) of OSHA. (Footnotes omitted)In _Deering-Milliken_, _supra_, the court found that the Secretary didnot materially alter the provisions of the standard and that thestandard’s revision was not new and was not improperly promulgated. Thecourt expressly rejected the argument that respondent now makes, as didthe Review Commission in the following cases: _Fieldcrest Mills, Inc._,2 BNA OSHC 1143, 1974-75 CCH OSHD ? 18,471 (No. 5625, 1974); _HermitageConcrete Pipe Co_., 76 OSAHRC 2\/C1, 3 BNA OSHC 1920, 1975-76 CCH OSHD ?20,298 (No. 4678, 1976); _Senco Products, Inc_., 82 OSAHRC 59\/E9, 10 BNAOSHC 2091, 1982 CCH OSHD ? 26,304 (No. 79-3291, 1982).Accordingly, respondent’s argument that ? 1910.1000 was improperlypromulgated is without merit and is rejected._Economic Feasibility_Section 1910.1000(e) provides in pertinent part: \”To achieve compliancewith paragraphs (a) through (d) of this section, administrative orengineering controls must first be determined and implemented wheneverfeasible.\” This standard contemplates that exposure to excessive levelsof toxic substances will be abated primarily by administrative orengineering controls and that personal protective equipment will beemployed only in the event that such controls are not \”feasible.\” Themeaning of the term \”feasible\” has been the subject of controversy inthe Review Commission among the various circuit courts of appeal and inthe Supreme Court, but there is a consensus that this term encompassesboth technological and economic feasibility. _See United_ _Steelworkersv. Marshall_, 647 F.2d 1189, 1264 (D.C. Cir. 1980), _cert. denied_, 453U.S. 913, 101 S. Ct. 3148; _Diversified_ _Industries Division,Independent Stave Co. v. OSHRC_, 618 F.2d 30, 32 (8th Cir. 1980);_American Iron and Steel Institute v_. _OSHA_, 577 F.2d 825, 832 (3dCir. 1978).In this case the Secretary established in the initial proceeding thattwo proposed engineering plans were \”technologically feasible.\” One ofthese plans would cost $281,300 to purchase and install with annualoperating costs of approximately $74,100. The other system would costapproximately $145,300 to install with a yearly operating costapproximating $41,100. The engineer who designed these systems wasconvinced that the implementation of these plans would significantlyreduce employee exposure to respirable quartz. It was his consideredopinion that the controls when implemented \”would reduce employeeexposure to within the OSHA permissible exposure limit for respirablequartz\” (Tr. 723-724). The testimony of the Secretary’s expert wassufficient to establish \”technological feasibility,\” was not counteredby any evidence offered by respondent, and was not challenged on reviewby the Review Commission or the Fifth Circuit.The crucial question remaining in this case is whether the engineeringcontrols recommended by the Secretary under section 6(b)(5) [[1\/]] ofthe Act are \”economically feasible\” as that term is now construed by theReview Commission and the courts. On this issue, neither party hasrendered substantial assistance to the undersigned during the remandprocess.In its remand order, the Circuit expressed its concern that the evidenceoffered in the initial proceedings [[2\/]] was insufficient to support afinding that the plans proposed by the Secretary were economicallyfeasible and commented that the \”problem is not so much insubstantialevidence as insufficient evidence.\” The Circuit further observed:We have no way of knowing whether these gross income and net profitfigures represent a typical year for Smith. For all we know, Smith mayhave operated at a loss for the three preceding years or for the threesucceeding years. We are vitally concerned with the health of the threeout of 250 Smith employees who are over-exposed to silica dust, but weare unwilling to risk putting Smith Steel out of business or into ourovercrowded bankruptcy courts by forcing Smith to revamp its sandhandling system completely without any real idea whether Smith cansurvive such costly renovation. If it cannot, the law as it presentlystands allows Smith to protect its employees from the harmful silicadust in the foundry by implementing an effective respirator program. 800 F.2d at 1339Following receipt of the remand order, this Judge conducted a conferencecall with the parties and was advised additional evidence required bythe remand order would be adduced by means of interrogatories. Therecord now contains the following information (Ex. J-41, J-45) [[3\/]]reflecting respondent’s gross sales and net profits for thecorresponding years:Year \tGross Sales \tNet Profit1976 \t$ 5,301,887 \t$ 89,9571977 \t4,842,199 \t70,7101978 \t6,331,728 \t441,8641979 \t7,096,499 \t480,3161980 \t9,703,537 \t662,3511981 \t12,888,298 \t1,072,9351982 \t6,789,075 \t87,972In addition, respondent has volunteered information for subsequent yearsas follows:Year \tGross Sales \tNet Profit1983 \t$ 1,143,074 \t$ 632,581 (Loss)1984 \t2,678,126 \t547,890 (Loss)1985 \t2,660,152 \t269,352The Secretary’s interrogatories and respondent’s answers theretoconstitute the entire effort made by the parties to comply with thedictates of the remand order. This scant information did not resolvethe questions still pending for determination and leaves the record inthis case in much the same posture as before. Accordingly, this Judge,by letter dated June 30, 1987 (Ex. J-55), advised the parties of hisintention to conduct a further hearing in the matter. Contrary toassumptions made in respondent’s reply letter of July 7, 1987 (Ex.J-56), that this action was intended to provide the Secretary anopportunity to correct deficiencies in his case, the purpose of thisletter was to afford respondent the opportunity to supplement the recordby showing the impact these proposals would have upon respondent’seconomic health, or to suggest alternative, but less expensive, methodsof abatements.In a telephone conference call conducted with the parties on July 10,1987, this Judge discussed his concern that the interrogatories andanswers did not provide an adequate basis for resolving the issue ofeconomic feasibility and specifically directed the attention of theparties to the burden of proof question as set forth in_Sherwin-Williams Company_, 84 OSAHRC 28\/A2, 11 BNA OSHC 2105, 1984-85CCH OSHD ? 26,986 (No. 14131, 1984) (which will be discussed _infra_). However, this effort was met with resistance by both parties (Ex.J-57). In view of this development, this case will be decided on therecord as presently constituted.\”Economic feasibility\” was first addressed by the Review Commission in_Continental Can Company_, 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77CCH OSHD ? 21,009 (No. 3973, 1976), wherein the Commission vacated acitation which charged an employer with failure to institute feasibleengineering controls to reduce noise levels, holding that the Secretaryfailed to prove these controls were economically feasible. This caserequired that expected benefits must be weighed against costs. Succeeding cases, all of which involved the noise standard, reachedsimilar results. _Castle & Cooke Foods_, 77 OSAHRC 87\/A2, 5 BNA OSHC1435, 1977-78 CCH OSHD ? 21,854 (No. 10925, 1977); _West PointPepperell, Inc_., 77 OSAHRC 48\/B14, 5 BNA OSHC 1257, 1977-78 CCH OSHD ?21,751 (No. 8255, 1977); _Carnation Company_, 78 OSAHRC 54\/D9, 6 BNAOSHC 1730, 1978 CCH OSHD ? 22,837 (No. 8165, 1978); _Sampson Paper BagCo_., 80 OSAHRC 60\/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ? 24,555 (No.76-222, 1980).In 1981 the Supreme Court decided _American Textile Mfgrs. Institute,Inc. v. Donovan_ (ATMI), 101 S. Ct. 2478, a case challenging thevalidity of the cotton dust standard promulgated under section 6(b)(5)of the Act on the grounds that the Act required the Secretary to show areasonable relationship between the costs of implementing therequirements of the standard and the expected benefits to employees. After reviewing the language of the Act and its legislative history, thecourt concluded that the term \”feasible,\” as used in section 6(b)(5) ofthe Act, means \”capable of being done\” or \”achievable\” and held thatCongress did not intend to require cost-benefit analysis in promulgatingstandards dealing with toxic substances or harmful physical agents. Thecourt observed:Congress specifically chose in ? 6(b)(5) to impose separate andadditional requirements for issuance of a subcategory of occupationalsafety and health standards dealing with toxic materials and harmfulphysical agents: it required that those standards be issued to preventmaterial impairment of health to the extent feasible. (Emphasis inoriginal) _Id_. at 2492* * *The congressional Reports and debates certainly confirm that Congressmeant \”feasible\” and nothing else in using that term. Congress wasconcerned that the Act might be thought to require achievement ofabsolute safety, an impossible standard, and therefore insisted thathealth and safety goals be capable of economic and technologicalaccomplishment. Perhaps most telling is the absence of any indicationwhatsoever that Congress intended OSHA to conduct its own cost-benefitanalysis before promulgating a toxic material or harmful physical agentstandard. The legislative history demonstrates conclusively thatCongress was fully aware that the Act would impose real and substantialcosts of compliance on industry, and believed that such costs were partof the cost of doing business. _Id_. at 2493Not only does the legislative history confirm that Congress meant\”feasible\” rather than \”cost-benefit\” when it used the former term, butit also shows that Congress understood that the Act would createsubstantial costs for employers, yet intended to impose such costs whennecessary to create a safe and healthful working environment. Id. at 2496* * *When Congress passed the Occupational Safety and Health Act in 1970, itchose to place pre-eminent value on assuring employees a safe andhealthful working environment, limited only by the feasibility ofachieving such an environment. We must measure the validity of theSecretary’s actions against the requirements of that Act. _Id_. at 2506Following ATMI, the Review Commission reconsidered its previous positionon cost-benefit in _Sun Ship, Inc_., 83 OSAHRC 49\/D1, 11 BNA OSHC 1775,1983 CCH OSHD ? 26,353 (No. 16118, 1983), another noise case involving astandard promulgated under section 6(a) of the Act, and adopted theposition that Congress did not intend to require cost-benefit analysisin dealing with toxic substances or harmful physical agents except inthose cases where implementation of controls \”would seriously jeopardizethe cited employer’s long-term financial profitability andcompetitiveness.\” 1983 OSHD at 33,422. It further reasoned that while\”the Supreme Court decided only the meaning of section 6(b)(5) and notwhether cost-benefit analysis might be required for standardspromulgated under other sections (of the Act),\” it would employ the samereasoning in a section 6(a) case since \”the identical question oflegislative intent is presented in interpreting the noise standard.\” _Id_. at 33,420.In the opinion of this Judge, the Supreme Court opinion in ATMI iscontrolling in the case at bar, dealing as it does with a standardpromulgated under section 6(b)(5) of the Act. I do not read the ReviewCommission decision in _Sherwin-Williams_, _supra_, as requiring acontrary result.In _Sherwin-Williams_, _supra_, the Secretary proceeded under section6(a) of the Act and 29 C.F.R. ? 1910.95(b)(1) to require the abatementof excessive noise levels. In overruling _Sun Ship_, _supra_, andreinstating a cost-benefit requirement for actions pursued under section6(a) of the Act, the Commission was careful not to expand its rulinginto the realm of section 6(b)(5) cases. The Commission noted itsreliance on the Ninth Circuit decision in _Castle & Cooke Foods_, 692F.2d 641 (9th Cir. 1982), which observed that the ATMI decision limitedits construction of \”feasible\” to standards promulgated under section6(b)(5)of the Act \”a distinct ‘species of the genus of standardsgoverned by the basic requirements’ of the Act,\” 692 F.2d at 648,quoting _Industrial_ _Union Department v. American Petroleum Institute_,448 U.S. 627, 642 (1980). I find nothing in either of these decisionsnor in any other decisions emanating from the Review Commission [[4\/]]or the circuit courts subsequent to ATMI which conflicts with the viewthat section 6(b)(5) cases do not require a cost-benefit test.Despite the holding in ATMI, however, it is reasonable to conclude thatneither the Secretary nor the courts would impose the implementation ofcontrols where such action would clearly result in forcing an employerout of business or into bankruptcy. This concern was articulated in thecircuit’s remand order and requires treatment in this decision.The respondent did not present any evidence bearing on its financialcircumstances during the initial hearing or on remand despite the clearadmonition in the remand order that such evidence was germane to aresolution of the issue. This passive, unresponsive approach wasmaintained even after this Judge specifically indicated a need for suchevidence in a conference call to the parties and called respondent’sattention to the following quote from _Sherwin-Williams_, _supra_:To prove a violation, therefore, the Secretary must prove that proposedengineering and administrative controls are both technologically andeconomically feasible. As the Ninth Circuit recognized in _Castle &Cooke_, \”realism and common sense should dictate how the Secretary maymeet his burden of providing substantial evidence of feasibility.\” 692F.2d at 650 [10 OSHC at 2175]. _After the Secretary proves thatcontrols are technologically feasible, the burden of producing evidenceshifts to the employer who may raise the issue of economic feasibilityand go forward with evidence of the cost of controls and personalprotective_ _equipment_. The burden of producing evidence then returnsto the Secretary \”who must establish that the benefit of the proposedengineering controls justifies their relative cost in comparison toother abatement methods.\” _Id_. The ultimate burden of persuasion onthe feasibility issue nevertheless remains with the Secretary. 11 OSHC2110. (Emphasis supplied)While the Secretary may bear \”the ultimate burden of persuasion on theissue of feasibility,\” it is clear that this burden is not foistedsolely on his shoulders even in a case brought pursuant to section6(a). This point was made clear in the Ninth Circuit’s decision in_Castle & Cooke Foods_, _supra_, cited by both parties and relied uponby the Review Commission in _Sherwin-Williams_, _supra_, as follows:We therefore hold that when the Secretary seeks enforcement of acitation alleging a violation of 29 C.F.R. ? 1910.95(b)(1), he bears aninitial burden of showing that technologically feasible engineeringcontrols are available to the cited employer. Although the Secretarywill generally have access to information on the average development andinstallation cost of the proposed controls, he will not have knowledgeof the specific economic impact implementation of the controls will haveon the cited employer. Therefore, once the Secretary meets his initialburden, the burden must shift to the employer, who may raise the issueof economic feasibility. The employer may satisfy this burden ofproduction with evidence of the relative cost to him of various methodsof noise control. That is, the employer may compare the costs ofimplementing engineering controls, administrative controls, or personalprotective equipment at a specific employment location. If the employerraises the question of economic feasibility in this manner, the burdenof proof returns to the Secretary, who must establish that the benefitof the proposed engineering controls justifies their relative cost incomparison to other abatement methods. 692 F.2d at 650.In this case the Secretary has provided information relative torespondent’s gross sales and net profits. The record now reflects grosssales for the period 1976 through 1985 approximate $59,000,000. Netprofits (after taking into account losses reflected during 1983 and1984), approximate $2,600,000. [[5\/]] The record does not containrespondent’s current sales and profits for 1986 or 1987. These figureson their face, and without further input from respondent, do notestablish that implementation of the proposed controls are beyondrespondent’s financial reach or would result in forcing respondent intobankruptcy. While the costs of effectuating controls are considerablein this case, they are not exorbitant when viewed in light of the damagethey seek to prevent.The difficulty with this case, as expressed in this Judge’s initialdecision, results from respondent’s failure to come forward with anyevidence to show a responsible recognition of, or concern for, thehazardous circumstances existing in its foundry or the steps it hastaken or proposes to take to rectify a serious, life-threateningcondition. This continued silence leads to a presumption thatrespondent has either taken no action to cope with the reality of silicaexposure or that it has no evidence to present that would be favorableto its case. Under these circumstances, items 2F and 2G of Citation No.1 are affirmed._ORDER_In keeping with the foregoing, it is hereby ORDERED:Respondent will immediately evaluate the hazard of silica dust exposureas it relates to employees working in its sand handling and mulleroperations with a view to reducing this exposure by means of engineeringcontrols to a level within the limits set by 29 C.F.R. ? 1910.1000,Table Z-1. Implementation of appropriate engineering controls will beeffectuated within a three-month period from the date of this order.EDWIN G. SALYERSJudgeDate: November 18, 1987FOOTNOTES:[[1\/]] Feasible engineering or administrative controls are only in issuewith respect to the silica dust exposure. The Secretary previouslywithdrew an allegation that Smith Steel had failed to use feasiblecontrols to reduce the levels of copper fume. Another allegation, thatthe employee exposed to copper fume was not wearing the proper kind ofrespirator, was affirmed by the Fifth Circuit and is no longer beforeus. Therefore, the only issue with respect to copper fume is whether ?1910.1000, which prescribes the exposure limit, is a valid standard.[[2\/]] The standard has since been substantially amended. 54 Fed. Reg.2332 (1989).[[3\/]] Regardless of whether the sampling is for total airborne silicadust or respirable silica dust, the sampling device will collect allkinds of airborne particulate matter, not just silica. However, if thesampling is for respirable silica dust, only particles 10 microns orless in length will be collected. _See Bunge Corp_., 12 BNA OSHC 1785,1786 n.4, 1986-87 CCH OSHD ? 27,565 at p. 35,801 n.4 (Nos. 77-1622 _etal_., 1986).[[4\/]] At the time these citations were issued, the relevant provisionsof the cited standard read as follows:? 1910.1000 *Air contaminants*.An employee’s exposure to any material listed in table Z-1, Z-2, or Z-3of this section shall be limited in accordance with the requirements ofthe following paragraphs of this section.(a) Table Z-1:(1) _Materials with names preceded by \”C\”-\”Ceiling Values_. Anemployee’s exposure to any material in table Z-1, the name of which ispreceded by a \”C\” (e.g., C Boron trifluoride), shall at no time exceedthe ceiling value given for that material in the table.(2) _Other materials–8-hour time-weighted averages_. An employee’sexposure to any material in table Z-1, the name of which is not precededby a \”C\”, in any 8-hour work shift of a 40-hour work week, shall notexceed the 8-hour time-weighted average for that material given in thetable.. . . .(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 paragraphs (a) through (d) of thiscitation, administrative or engineering controls must first bedetermined and implemented whenever feasible . . . .[[5\/]] Table Z-1 allows a higher exposure level, 1 mg\/m3, for copper\”dusts and mists.\” Matthews explained that copper \”fume\” consists ofvery small particles, less than one micron in \”size,\” whereas \”mist\”refers to a \”liquid aerosol\” or liquid medium containing copper. He didnot define copper \”dust,\” but stated that a welding operation normallywould produce fume and not dust or mist.[[6\/]] Section 6(a) provides, in pertinent part:Without regard to chapter 5 of title 5, United States Code, or to theother subsections of this section, the Secretary shall, as soon aspracticable during the period beginning with the effective date of thisAct and ending two years after such date, by rule promulgate as anoccupational safety and health standard any national consensus standard,and any established Federal standard, unless he determines that thepromulgation of such a standard would not result in improved safety orhealth for specifically designated employees. . . .Section 3 (9) of the Act defines a \”national consensus standard\” as anyoccupational safety and health standard or modification thereof which(1), has been adopted and promulgated by a nationally recognizedstandards-producing organization under procedures whereby it can bedetermined by the Secretary that persons interested and affected by thescope or provisions of the standard have reached substantial agreementon its adoption, (2) was formulated in a manner which afforded anopportunity for diverse views to be considered and (3) has beendesignated as such a standard by the Secretary, after consultation withother appropriate Federal agencies.Section 3(10) of the Act defines an \”established Federal standard\” as\”any operative occupational safety and health standard established byany agency of the United States and presently in effect, or contained inany Act of Congress in force on the date of enactment of this Act.\”[[7\/]] When review was directed, the statement of issues to beconsidered on review was expressly limited to the economic feasibilityissue discussed infra and validity challenges that are directly relatedto the facts of these cases. The direction for review itself cited_DeKalb Forge Co_., 13 BNA OSHC 1146, 1151, 1986-87 CCH OSHD ? 27,842,p. 36,449 (No. 83-299, 1987), in which the Commission indicated that itwould consider arguments that a standard is invalid only as they relateto the citation items in question. Thereafter, when it requestedbriefs, the Commission directed that briefs be filed \”with respect tothe issues stated in the direction for review.\” Despite these expresslimitations on the scope of the validity issue to be considered onreview and the explicit citation to DeKalb Forge in the direction forreview, Smith Steel’s review briefs discuss language changes to theWalsh-Healey standard that have no relationship to the allegedviolations. To the extent Smith Steel’s arguments are unrelated to thespecific violations charged in these cases, we decline to consider them.[[8\/]] The judge cited _Senco Products, Inc_., 10 BNA OSHC 2091, 1982CCH OSHD ? 26,304 (No. 79-3291, 1982); _Hermitage_ _Concrete Pipe Co_.,3 BNA OSHC 1920, 1975-76 CCH OSHD ? 20,298 (No. 4678, 1976), _rev’d andremanded on other grounds_, 584 F.2d 127 6th Cir. 1978); and _FieldcrestMills, Inc_., 2 BNA OSHC 1143, 1974-75 CCH OSHD ? 18,471 (No. 5625,1974). _Senco_ involved a provision of ? 1910.1000 concerning mixturesof air contaminants that is not in question here. In _Hermitage__Concrete Pipe Co_., 76 OSAHRC 2\/D1 (ALJ, 1974), and _Fieldcrest Mills,Inc_., 2 BNA OSHC 1143 (ALJ, 1974) (excerpt), two Commission judgesgenerally concluded that the changes made in the August 1971 revisionwere substantive in nature. However, with one exception dealing with arespirator requirement that is not at issue here, neither judgespecified the language changes he considered to be substantive. Withoutany discussion, the Commission summarily reversed the judges’ decisionsin both cases. Therefore, Smith Steel is correct that these prior casescannot be construed as stating the Commission’s position on the issuesnow before us.[[9\/]] Smith Steel’s argument that the 1970 ACGIH TLV’s differ fromthose in the 1968 list relates only to the copper fume citation. ThePEL’s for silica dust did not originate in the ACGIH TLV listincorporated by reference in the Walsh-Healey standard but rather wereset forth in a separate table both in the Walsh-Healey standard and in ?1910.93. Therefore, any changes to the TLV list the Secretary may havemade when she issued ? 1910.93 have no bearing on the silica dustallegations.[[10\/]] These regulations, which have been amended since these casesarose, now appear in 1 C.F.R. Part 51. Smith Steel contends that theWalsh-Healey standard did not contain the proper statement ofincorporation by reference, did not properly identify the referencedmaterial, and did not describe its availability. _See George C.Christopher & Sons_, 10 BNA OSHC 1436, 1441, 1982 CCH OSHD ? 25,956, p.32,529 (No. 76-647, 1982).[[11\/]] Smith Steel further challenges the validity of the incorporationof the ACGIH TLV values into the Walsh-Healey standard on the groundsthat the incorporation violates the ACGIH’s copyright and ignores anadmonition in the preface to the TLV publication that if its values areused in legislative codes, they should be kept current. It is not clearwhether these are procedural or substantive challenges to the validityof the Walsh-Healey standard. _See National Industrial Constructors,Inc. v. OSHRC_, 583 F.2d 1048, 1052 (8th Cir. 1978) (distinguishingcompliance with procedural requirements for promulgating a standard fromthe reasonableness or feasibility of the standard). Nevertheless,regardless of how they are classified, we do not consider Commissionreview of these arguments in these proceedings to be appropriate. Thegeneral proposition expressed in _General Motors_ that Congress mandatedthe adoption of Walsh-Healey standards indicates that the Commissionshould not consider the contention that the incorporation of an ACGIHTLV list in a Walsh-Healey standard was inconsistent with conditions orstipulations set forth by the ACGIH.[[12\/]] The Commission has since reaffirmed the principle that therelative costs and benefits of controls must be taken into account indetermining feasibility under the noise standard. _Sherwin WilliamsCo_., 11 BNA OSHC 2105, 1984-85 CCH OSHD ? 26,986 (No. 14131, 1984).[[13\/]] On review, Smith Steel contends that the evidence does notsupport Judge Salyers’ findings regarding the amount of reduction inexposure. The issue of the technological feasibility of Ressl’sproposed controls was not raised either in the Fifth Circuit’s remandorder to the Commission, the Commission’s subsequent remand order to thejudge, or the Commission’s direction for review of the judge’sdecision. In the absence of any compelling reason to address this issueat this stage in the proceedings, we decline to do so. _See_ CommissionRule 92(a), 29 C.F.R. ? 2200.92(a) (Commission has authority to limitthe issues considered on review).[[14\/]] This holding is strictly limited to the circumstances of thesecases. No party should assume that answers to interrogatories willautomatically be considered part of the record. Ordinarily, the partyseeking to use answers to interrogatories as evidence must formally movefor their introduction into the record. _Power Fuels, Inc._, No.85-166 (April 17, 1991).[[15\/]] Smith Steel raises and objection to the procedures that werefollowed on remand when the parties filed their briefs before thejudge. The Secretary’s opening brief addressed only the validity of thestandard and not the feasibility issue. The Secretary claimed that shewas waiting to receive Smith Steel’s answers to her interrogatoriesbefore presenting arguments on feasibility. When the Secretary failedto respond even after Smith Steel filed its answers, the judge requestedthe Secretary to state her position on the feasibility question. TheSecretary replied that she had not intended to abandon the feasibilityissue, and the judge allowed the Secretary and additional period of timeto present arguments of feasibility.We reject Smith Steel’s argument that the judge acted improperly byalerting the Secretary to the incompleteness of her opening brief andaffording the Secretary an opportunity to file a second brief. SmithSteel was partially responsible for the delay in the completion ofbriefing because it did not file its answers to the interrogatoriesuntil the very last day of the briefing period. While we do not excusethe lack of diligence on the part of the Secretary’s counsel in failingto request an extension of time to file her brief, we do not find thatthe judge demonstrated bias in favor of the Secretary, as Smith Steelclaims. In any event, Smith Steel has neither argued nor establishedthat it was prejudiced by the fact that the parties’ briefs on thefeasibility question were not simultaneous.[[16\/]] Smith Steel objects to a provision of Judge Salyers’ decisiondirecting it to \”evaluate\” the hazard and implement \”appropriate\”engineering controls within a three-month period. Smith Steel claimsthat this instruction violates the court’s remand order and deprives itof due process because the judge states no criteria for determining whatmay be \”appropriate.\” In addition, Smith Steel argues that there is noevidence to support the three-month requirement.We agree with Smith Steel that the remand order precluded the judge fromconsidering any potential abatement methods other than Ressl’s proposedcontrols. To the extent the judge instructed Smith Steel to investigateother means of reducing the silica dust exposure, we set aside hisorder. However, Smith Steel is not precluded from using other means ofengineering or administrative controls if it so chooses, so long asthose means reduce the level of silica dust at least to the same extentas Ressl’s proposed controls. We further note that the only evidence asto the time needed to accomplish abatement is Ressl’s estimate that themethods he described could be installed in six to eight weeks. Wetherefore establish an eight-week abatement period, beginning with thedate of entry of this order. Should Smith Steel require additional timeto install controls, it may file for an extension of the abatement dateunder section 10(c) of the Act.[[17\/]] Section 17(k) of the Act, 29 U.S.C. ? 666(k), defines a seriousviolation as one presenting \”a substantial probability that death orserious physical harm could result.\”[[1\/]] This section provides:(5) The Secretary, in promulgating standards dealing with toxicmaterials or harmful physical agents under this subsection, shall setthe standard which most adequately assures, to the extent feasible, onthe basis of the best available evidence, that no employee will suffermaterial impairment of health or functional capacity even if suchemployee has regular exposure to the hazard dealt with by such standardfor the period of his working life. Development of standards under thissubsection shall be based upon research, demonstrations, experiments,and such other information as may be appropriate. In addition to theattainment of the highest degree of health and safety protection for theemployee, other considerations shall be the latest available scientificdata in the field, the feasibility of the standards, and experiencegained under this and other health and safety laws. Wheneverpracticable, the standard promulgated shall be expressed in terms ofobjective criteria and of the performance desired.[[2\/]] In the initial proceedings, the only evidence bearing on thisissue was respondent’s gross income ($7,096,499.55) and net profit($480,316.85) for 1979, the year preceding the Secretary’s inspection.[[3\/]] Respondent, by letter dated June 1, 1987 (J-54), objects toconsideration of this information on the grounds that theinterrogatories and answers have not been offered or received inevidence. This tactical maneuver by respondent may be technicallycorrect but hardly serves to aid in a resolution of the issue. Accordingly, under Rule 102 of the Federal Rules of Evidence, theinterrogatories and answers are received by the court \”to the end thatthe truth may be ascertained and proceedings justly determined.\” Furthermore, the interrogatories were answered by respondent withoutobjection. Considering the fact that these answers constitute the onlynew information received by this Judge after this case was remanded withan order to receive additional evidence on the issue of economicfeasibility, respondent’s objection is disingenuous.[[4\/]] The Review Commission has held employers to a higher duty toprotect employees from the effects of toxic substances (which lead toserious or death-dealing consequences) as opposed to hazards created bynoise which do not present a life-threatening risk. _Harmony BlueGranite Co_., 83 OSAHRC 45\/A2, 11 BNA OSHC 1277, 1983-84 CCH OSHD ?26,467 (No. 14189, 1983).[[5\/]] It is significant to note that gross sales during the period 1979through 1982 (the period immediately preceding and following the 1980inspection) approximate $36,000,000 with net profits in excess of$2,000,000.”