“Docket No. 80-2069_80-2322 \u00a0SECRETARY OF LABOR, Complainant, v. SMITH STEEL CASTING COMPANY, Respondent.OSHRC Docket Nos. 80-2069 & 80-2322DECISION BEFORE:\u00a0 FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:These consolidated cases involve issues under the Secretary’s standard governing exposureto air contaminants, 29 C.F.R. ? 1910.1000.\u00a0 The Secretary alleges in item 2F ofcitation 1 and item 2 of citation 2 that Smith Steel Casting Company (\”SmithSteel\”) violated the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-78 (\”the Act\”), because its employees were exposed, respectively, to silicadust and copper fume in excess of the limits set forth in that standard.\u00a0 In item 2Gof citation 1 the Secretary alleges that Smith Steel had not implemented feasibleengineering or administrative controls required by the standard to reduce the excessivesilica dust exposure.\u00a0 The questions before us are whether ? 1910.1000 isunenforceable for having been invalidity promulgated and whether the record supports thejudge’s finding on the economic feasibility of the engineering controls sought by theSecretary. [[1\/]]In his initial decision on the merits of the alleged violations, Administrative Law JudgeEdwin G. Salyers affirmed the Secretary’s citations.\u00a0 Smith Steel Casting Co.,83 OSAHRC 1\/A2 (ALJ, 1982).\u00a0 Following subsequent decisions by both the Commissionand the Court of Appeals for the Fifth Circuit on an issue no longer before us relating tothe Secretary’s inspection warrant, the Fifth Circuit issued a further decision remandingthese cases for consideration of Smith Steel’s argument that ? 1910.1000 was invaliditypromulgated.\u00a0 The court also set aside Judge Salyers’ decision ordering Smith Steelto implement engineering controls.\u00a0 Finding the evidence on economic feasibility tobe insufficient to support the judge’s conclusion that controls were economicallyfeasible, the court remanded for additional evidence.\u00a0 Smith Steel Casting Co. v.Brock, 800 F.2d 1329 (5th Cir. 1986).\u00a0 The Commission in turn remanded thesecases to the judge for action in accordance with the court’s remand.\u00a0 Smith SteelCasting Co., 12 BNA OSHC 2200, 1986-87 CCH OSHD ? 27,758 (Nos. 80-2069 & 80-2322,1986).\u00a0 In his decision now before us, Judge Salyers found the standard valid and,after receiving additional evidence on economic feasibility, found that \”withoutfurther input from respondent [the financial data in the record does] not establish thatimplementation of the proposed controls [is] beyond respondent’s financial reach or wouldresult in forcing respondent into bankruptcy.\”\u00a0 For the reasons that follow, weaffirm the judge’s decision.I. BackgroundThe standard at issue in these cases is a generic standard setting forth permissibleexposure limits (\”PEL’s\”) for a large number of substances.\u00a0 At the timethese cases arose, [[2\/]] the standard included three separate listings designated asTables Z-1, Z-2, and Z-3. Table Z-1 prescribed short-term exposure limits (\”ceilingvalues\”) for some substances and 8-hour time-weighted average exposure limits forother substances.\u00a0 The PEL for copper fume was an 8-hour time-weighted average of .1mg\/m3. Table Z-3, entitled \”Mineral Dusts,\” prescribed exposure limits forsilica dust that varied depending upon the amount of quartz present in the dust inquestion.\u00a0 That table also contained separate limits on total airborne silica dustand on respirable silica dust.[[3\/]]\u00a0 For respirable dust, which is at issue here,the formula for determining the PEL for silica was 10mg\/M3 divided by \”SiO2+ 2,\” that is, 10 milligrams per cubic meter of air divided by the sum of two plusthe percentage of all respirable dust that is silica.\u00a0 To achieve the specifiedexposure limits, the standard also required the employer to implement administrative orengineering controls \”whenever feasible.\”[[4\/]]Industrial Hygiene Compliance Officer Jack M. Matthews, Jr., testified, and it isundisputed, that silica dust emanates from the sand which Smith Steel uses to form\”cores\” that it places in the molds from which it makes castings.\u00a0 Sand ismixed in three machines known as \”sand mullers,\” which are essentially metaltanks about 3 1\/2 feet in diameter, open at the top, and unventilated. Employees referredto as \”sand bin attendants\” use wheelbarrows to bring the sand from the bins inwhich it is stored and then load the sand into the mullers.\u00a0 Matthews also observedan employee operating the electric arc-welder, or \”arc air gouger,\” whichremoves flaws from finished castings.\u00a0 Because the electrode of this welder wascoated with copper to improve conductivity, operation of the welder produced copper fume.Matthews conducted personal sampling of six employees for exposure to respirable dust,using a \”cyclone separator,\” a device which employs air velocity to separaterespirable from non-respirable particles.\u00a0 He sent the samples to the OSHA Laboratoryin Salt Lake City for analysis of the percentage of silica in each sample.\u00a0 Once thepercentage of silica was determined, Matthews applied the formula specified in thestandard to compute the permissible exposure limit (PEL) for each employee.\u00a0 He thencompared that limit to the employee’s actual time-weighted average exposure.\u00a0 Hedetermined that three employees, i.e. , two muller operators and one sand bin attendant,had eight-hour time-weighted average exposures between 1.43 and 3.24 times greater thanthe PEL calculated under the formula set forth in the standard for respirable silica dust.\u00a0 In addition, Matthews sampled one operator of the arc air gouger for exposure tocopper fume.\u00a0 After the OSHA lab determined the amount of copper collected in thesamples, Matthews computed the employee’s 8-hour time-weighted average exposure. Theresult showed that the employee had been exposed to .143 mg\/m3 of copper fume,43 percent above the PEL of .1 mg\/m3.[[5\/]]II. Validity of the StandardSmith Steel does not deny that its employees were exposed to excessive levels of silicadust and copper fume.\u00a0 Rather, Smith Steel challenges the Secretary’s citations on athreshold legal issue-whether ? 1910.1000 was properly promulgated in accordance with therequirements of the Act.\u00a0 It is to this issue that we now turn.The standard cited in these cases was promulgated under section 6(a) of the Act, 29 U.S.C.? 655(a).\u00a0 That provision authorized the Secretary, during the first two years afterthe Act took effect (1971-73), to adopt existing occupational safety and health standardsissued by either other Federal agencies or private standards-setting organizations. \u00a0Because Congress presumed that these existing standards were issued in accordance withprocedures that allowed those affected by such standards to participate in theirformulation, section 6(a) authorized the Secretary to forego notice and an opportunity forcomment when adopting these\u00a0standards. [[6\/]]\u00a0 General Motors Corp., 9BNA OSHC 1331, 1337, 1981 CCH OSHD ? 25,202, p. 31,124 (No. 79-4478, 1981).\u00a0 Forthis reason, when adopting standards under section 6(a) of the Act, the Secretary was notempowered to make substantive modifications in their content.\u00a0 While the Secretarydid not have to promulgate the source standard literally word-for-word, Simplex TimeRecorder Co., 12 BNA OSHC 1591, 1593 n.4, 1984-85 CCH OSHD ? 27,456, p. 35,569 n.4 (No.82-12, 1985), she could not make any material alteration from the source document inadopting the standard under section 6 (a).\u00a0 Senco Products, Inc., 10 BNA OSHC2091, 2093, 1982 CCH OSHD ? 26,304, p. 33,269 (No. 79-3291, 1982).\u00a0 Changes from asource standard that did not affect or heighten the employer’s duties or obligations werepermissible.\u00a0 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 its language differs fromthat of its source.\u00a0 Smith Steel also argues that the standard is invalid foradditional reasons not associated with specific language variations.\u00a0 We reject thesecontentions.A. History of the Cited StandardThe Secretary’s air contaminant standard was originally promulgated on May 29, 1971, whenit was codified as 29 C.F.R. ? 1910.93.\u00a0 36 Fed. Reg. 10466, 10503 (1971).\u00a0 Thesource 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 theWalsh-Healey Public Contracts Act, 41 U.S.C. ?? 35-45, on May 20, 1969.\u00a0 34 Fed.Reg. 7953 (1971).\u00a0 See Senco Products, 10 BNA OSHC at 2092-93, 1982 CCH OSHDat pp. 33,268-69.The Walsh-Healey source standard limited exposure to hazardous substances according to thefollowing provision:(a) Exposures by inhalation, ingestion, skin absorption, or contact to any material orsubstance (1) at a concentration above those specified in the \”Threshold Limit Valuesof Airborne Contaminants for 1968\” of the American Conference of GovernmentalIndustrial Hygienists, except for the USASI Standards listed in Table I of this sectionand except for the values 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).\u00a0 Thus, the Walsh-Healey standard, in part, required thatan employer comply with the exposure levels set forth in a health code developed by aprivate standards-setting organization, the American Conference of Governmental IndustrialHygienists (\”ACGIH\”).\u00a0 The 0.1 mg\/m3 exposure limit for copper fumeappeared in this publication, whereas an exposure limit for silica was set forth in TableII, entitled \”Mineral Dusts.\”The Walsh-Healey standard also imposed arequirement that \”feasible\” controls be used to bring exposure to within thelimits prescribed in paragraph (a):(b) To achieve compliance with paragraph (a), feasible administrative or engineeringcontrols must first be determined and implemented in all cases.\u00a0 In cases whereprotective equipment, or protective equipment in addition to other measures[,] is used asthe method of protecting the employee, such protection must be approved for each specificapplication by 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 tothe 1968 edition of the ACGIH Threshold Limit Values (\”TLV\”) pamphlet waschanged to refer to the 1970 edition.\u00a0 Furthermore, while the Walsh-Healey standardsimply incorporated by reference the TLV values contained in the ACGIH publication, ?1910.93 expressly set forth the 1970 TLV’s in a new list labeled \”Table G-1.\”\u00a0 Tables I and II as they appeared in the Walsh-Healey standard were renumbered asTables G-2 and G-3.\u00a0 Table G-1 included the same numerical limit for copper fume (0.1mg\/m3) that appeared in the 1968 ACGIH TLV publication to which theWalsh-Healey standard referred.\u00a0 As in the 1968 ACGIH list, this figure was notpreceded by the letter \”C,\” indicating that the limit was an 8-hourtime-weighted average exposure limit and not a ceiling value.\u00a0 The formula fordetermining the limit value for respirable silica 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.\u00a0 36 Fed. Reg. 15101 (1971).\u00a0 She eliminated the phrase \”by inhalation, ingestion, skin absorption, orcontact\” that modified \”exposures\” in paragraph (a) of the Walsh-Healeystandard and the first version of ? 1910.93 and also deleted the phrase \”orprotective equipment shall be provided and used\” from the standard’s initialparagraph. Furthermore, the references to the various tables were considerably revised,and the provision relating to administrative and engineering controls was slightlyrewritten.\u00a0 However, the exposure limits themselves for copper fume and respirablesilica dust were not changed.\u00a0 When the Secretary subsequently recodified ? 1910.93as ? 1910.1000, she redesignated Tables G-1, G-2, and G-3 as Tables Z-1, Z-2, and Z-3,respectively.\u00a0 40 Fed. Reg. 23073 (1975).B. Summary of Smith Steel’s ArgumentsSmith Steel challenges the change in reference from the 1968 edition of the ACGIH code inthe original Walsh-Healey standard to the 1970 edition of the ACGIH code in the firstversion of ? 1910.93 and also argues that the changes in phrasing between the May andAugust versions of ? 1910.93 render it invalid.\u00a0 Smith Steel has the burden todemonstrate that modifications to the standard on which it relies are substantive innature.\u00a0 George C. Christopher & Sons, 10 BNA OSHC 1436, 1443, 1982 CCHOSHD ? 25,956, p. 32,531 (No. 76-647, 1982).\u00a0 In examining whether Smith Steel hassustained this burden, we will address the specific differences Smith Steel cites only asthey bear on the issues in this case.[[7\/]]In essence, there are four major themes to SmithSteel’s argument:1) The Secretary impermissibly substituted the1970 ACGIH TLV values for the 1968 version;2) The Secretary improperly deleted an \”option,\” available to employers underthe Walsh-Healey standard and the original version of ? 1910.93, to protect employees byrespirators alone, without first implementing engineering or administrative controls;3) The Secretary improperly converted the TLV’S of the ACGIH into permissible exposurelimits (\”PEL’s\”); and4) The Secretary added time-weighted average limits for copper fume and silica dust thatdid not appear in the source standard. Judge Salyers rejected Smith Steel’s arguments without discussing them individually.\u00a0 The judge summarily concluded that the validity of ? 1910.1000 had previously beenupheld both by the Fifth Circuit, where these cases arise, in Deering Milliken, Inc. v.OSHRC, 630 F.2d 1094 (5th Cir. 1980) and by the Commission in several decisions.\u00a0 Smith Steel disputes the judge’s reliance on these cases, and we agree.In a prior decision in these cases, the FifthCircuit plainly stated that its precedents are binding on the Commission in cases arisingin that circuit.\u00a0 Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1035 (5thCir. 1984).\u00a0 Deering Milliken, however, disposes only of some and not all ofSmith Steel’s arguments.\u00a0 As for the Commission decisions Judge Salyers cites, theydo not address any of the particular contentions Smith Steel raises.[[8\/]] Accordingly, we affirm the judge’s decision that ? 1910.1000 is valid, but for thereasons that follow.C. Analysis of Smith Steel’s Claims1. Change from 1968 to 1970 TLV’sThere are two aspects to this argument.\u00a0 First, Smith Steel contends that thesubstitution of the 1970 ACGIH TLV’s for the 1968 values was a substantive change becausethe 1970 values differ from those the ACGIH adopted in 1968.We reject this claim.\u00a0 As Smith Steel asserts, a comparison of the 1968 edition ofthe ACGIH publication with Table G-1 of ?1910.93 does reveal differences in exposurelimits for some substances.\u00a0 However, as previously indicated, the limit for copperfume is the same in both the 1968 ACGIH list and Table G-1.\u00a0 Therefore, insofar asthe cited exposure limit is concerned, no substantive change was made to Smith Steel’sobligation to protect its employees against copper fume.[[9\/]]\u00a0 Other changes inuncited exposure limits are simply not relevant to these proceedings.\u00a0 See SencoProducts, 10 BNA OSHC at 2095, 1982 CCH OSHD at p. 33,271 (if employer’s complianceresponsibilities are not altered, the standard is valid as to that employer).The second facet of Smith Steel’s argument is not based on any substantive differencesbetween ? 1910.93 and its Walsh-Healey source but rather on perceived irregularities inthe promulgation of the Walsh-Healey standard.\u00a0 Smith Steel argues that even if theOSHA standard had set forth the 1968 ACGIH TLV’s rather than the 1970 limits, the standardwould still have been invalid.\u00a0 In Smith Steel’s view, the Secretary could not havemerely republished the 1968 values without notice-and-comment rulemaking because theincorporation by reference of the 1968 TLV’s in the Walsh-Healey standard did not conformto the requirements for incorporation by reference prescribed by the office of the FederalRegister.[[10\/]]\u00a0 In other words, Smith Steel in effect contends that the Secretarycould not have adopted any ACGIH list of TLV’s under section 6(a) because she couldnot have properly used the Walsh-Healey standard as the source for such a list. \u00a0Smith Steel alludes to section 3(10) of the Act, which defines an \”establishedFederal standard\” as any \”operative occupational safety and health standardestablished by any 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.\”\u00a0 Because theWalsh-Healey standard did not validly incorporate the ACGIH table, Smith Steel contendsthat there was no \”operative\” source for Table G-1 that was \”ineffect\” when the Secretary promulgated ? 1910.93.The Commission has previously ruled that the procedural validity of the promulgation of astandard under the Walsh-Healey Act may not be challenged in an enforcement proceedingbefore the Commission.\u00a0 General Motors, 9 BNA OSHC at 1337, 1981 CCH OSHD atp. 31,124.\u00a0 Because Congress made an explicit determination that established Federalstandards, including standards issued under the Walsh-Healey Act, are valid andenforceable occupational safety and health standards under the Act, the Commissionreasoned that reviewing the promulgation process occurring under another Federal statutewould be tantamount to questioning the judgment of Congress.\u00a0 In the same vein, theCommission concluded that to regard a Walsh-Healey standard as not \”operative\”under section 3(10) because of some defect in its promulgation under the Walsh-Healey Actwould likewise disregard the plain intent of Congress.\u00a0 Id. at 1335 &n.11, 1981 CCH OSHD at p. 31,122 & n.11.\u00a0 See American Can, 10 BNA OSHC at1310, 1982 CCH OSHD at p. 32,413 (Commission will not consider argument that a sourcestandard lacked a statement of basis and purpose when it was adopted under theWalsh-Healey Act). [[11\/]]\u00a0 Accordingly, we reject this portion of Smith Steel’sargument.2. Deletion of Protective Equipment \”Option\” as a Means of ComplianceSmith Steel contends that when the standard was originally promulgated, it allowedpersonal protective equipment (respirators) as an equally acceptable alternative toengineering or administrative controls as a means of compliance.\u00a0 Thus, in SmithSteel’s view, the Secretary substantively modified the standard by removing the phrase\”or protective equipment shall be provided and used\” from paragraph (a) when sherevised ? 1910.93 in August 1971. See Part II.A, supra.\u00a0 Similarly, SmithSteel asserts that the substitution of the phrase \”an employee’s exposure to anymaterial listed in [the tables] shall be limited in accordance with therequirements of [paragraphs (a), (b), and (c)]\” for the phrase exposures byinhalation, ingestion, skin absorption or contact to any material or substance above [thespecified concentration] shall be avoided\” (emphasis added) also improperlyeliminated respirators as an alternative means of compliance.In Deering Milliken, the Commission rejected a similar argument based on thepremise that the original version of ? 1910.93 did not require administrative orengineering controls as the preferred means of compliance with exposure limits. \u00a0While conceding that paragraph (a) of that version might have been ambiguous, theCommission ruled that any ambiguity was cured by the specific requirement of paragraph (b)that \”feasible administrative or engineering controls must first be determined andimplemented in all cases.\”\u00a0 The Commission found this language indistinguishablefrom the requirement of paragraph (e) of the August 1971 amended version that controls areto be determined and implemented \”whenever feasible.\”\u00a0 Therefore, theCommission held that when read in its entirety, the original ?1910.93 imposed the sameduty on employers to comply by using controls to the extent possible as does the August1971 standard.\u00a0 6 BNA OSHC at 2145-46, 1978 CCH OSHD at p. 28,039.The court of appeals affirmed the Commission.\u00a0 In rejecting the same argument madehere, that the deletion of the disjunctive \”or protective equipment shall be providedand used\” was a substantive change, the court specifically held that \”feasibleengineering and administrative controls were mandatory under Walsh-Healey; protectiveequipment, when used, was not a substitute for feasible alternative means of aircontaminant control, but rather a means of compliance available when engineering oradministrative controls were infeasible, or only partially effective.\”\u00a0 630 F.2dat 1101.However, Deering Milliken is not dispositive of the issue before us now because itfocuses only on the \”or protective equipment . . . \” language.\u00a0 Neither thecourt nor the Commission decisions explicitly address Smith Steel’s additional contentionthat the Walsh-Healey phrase \”shall be avoided\” and the modifier \”byinhalation, ingestion. . . \” also provide an option to comply by using protectiveequipment alone that was deleted when this language was changed in the August 1971revision of ? 1910.93.\u00a0 We reject the argument because there is nothing in thisterminology that is inconsistent with a preference for engineering controls as the primarymethod of compliance.\u00a0 In any event, Smith Steel’s argument that this languageallowed an employer to comply by using respirators alone would render superfluous theexplicit statement in paragraph (b) of the Walsh-Healey standard and the first version of? 1910.93 that controls must be implemented \”first.\”\u00a0 It is a basic ruleof construction that a standard must be read as a harmonious whole, with every word orphrase given meaning to the extent possible.\u00a0 Simplex, 12 BNA OSHC at 1594n.6, 1984-85 CCH OSHD at p. 35,569 n.6.\u00a0 Accordingly, we conclude that the specificlanguage changes Smith Steel cites did not alter the employer’s basic duties of complianceunder the standard.3. Conversion of TLV’s Into PEL’sSmith Steel contends that the threshold limit values established in the Walsh-Healeystandard through its adoption of the ACGIH TLV list do not constitute legally binding andenforceable exposure limits.\u00a0 Smith Steel acknowledges that in Deering Millikenthe Fifth Circuit characterized the TLV’s adopted in the Walsh-Healey standard as\”specified exposure limits,\” 630 F.2d at 1101, but asserts that the court erred.\u00a0 Smith Steel claims that the Commission subsequently distinguished a TLV from a PELin Bunge Corporation, 12 BNA OSHC 1785, 1986-87 CCH OSHD ? 27,565 (Nos.77-1622 et al., 1986) and therefore contends that the Commission should not follow DeeringMilliken.Smith Steel plainly misreads Bunge.\u00a0 The Commission simply observed in thatcase that the phrase \”threshold limit value\” has no specific meaning in law butrather is an industrial hygienist’s term referring to the concentration of an airbornecontaminant to which an employee may be exposed without adverse effect.\u00a0 The decisiondoes not in any way suggest that the Secretary was required to provide notice and anopportunity for comment in order to promulgate a TLV as an enforceable exposure limit in asection 6(a) standard.\u00a0 On the contrary, the Commission specifically held that whenthe Secretary incorporated the ACGIH TLV’s into ? 1910.1000, she \”therebytransformed the TLV’s into legally enforceable PEL’s.\”\u00a0 12 BNA OSHC at 1788n.10, 1986-87 CCH OSHD at p. 35,803 n.10.\u00a0 Accordingly, Smith Steel’s argument thatthe Secretary could not properly adopt a TLV as a PEL is contrary to Commission precedent,as well as the case law in the Fifth Circuit.4. Addition of Time-Weighted Average Limits for Copper Fume and SilicaThe ACGIH publication incorporated by reference in the Walsh-Healey standard distinguishesexposure levels measured over the period of an entire day (time-weighted averageconcentrations) from immediate, short-term exposures (ceiling values).\u00a0 As thepreface to the 1968 TLV list states:The values not given a \”C\” listingrefer to time-weighted average concentrations for a conventional 7 or 8 hour workday.Time-weighted average concentrations permit excursions above the limit, provided they arecompensated by equivalent excursions below the limit during the work day….Ceiling vs. Time-Weighted Average Limits.\u00a0 Although the time-weighted averageconcentration provides the most satisfactory, practical way of monitoring air-borne agentsfor compliance with the limits, there are certain substances for which it isinappropriate.\u00a0 In the latter group are substances which are predominantly fastacting and whose threshold limit is more appropriately based on this response. \u00a0Substances with this type of response are best controlled by a ceiling \”C\” limitthat should not be exceeded.Smith Steel contends that the Walsh-Healey standard did not establish a time-weightedaverage limit for either copper fume or silica dust and that the Secretary thereforesubstantively amended the Walsh-Healey standard when she adopted such exposure limits in? 1910.93.We conclude, however, that because the entry in the ACGIH list for copper fume is notaccompanied by a \”C\” notation, it therefore establishes an 8-hour time-weightedaverage limit.\u00a0 Smith Steel does not expressly dispute that the ACGIH listingprescribes a time-weighted average limit for exposure to copper fume but asserts thatbecause the Walsh-Healey source standard did not properly incorporate the ACGIH limits, itfailed to set forth the time weighted average limit for copper fume that appears in theACGIH list.\u00a0 Since this argument challenges the procedural validity of theWalsh-Healey standard, we decline to address it for the reasons given previously.Smith Steel’s contention that the Walsh-Healey standard did not establish a time-weightedaverage limit for silica dust presents a more substantial issue.\u00a0 As previouslyindicated, the silica dust limit in Table II of the Walsh-Healey standard is not takenfrom the ACGIH TLV list.\u00a0 And as Smith Steel correctly points out, the term\”time-weighted average\” or any other words indicating a time limitation do notappear in Table II.\u00a0 Thus, the question before us is whether the silica TLV formulais a time-weighted average limit even though the standard lacks specific language to thateffect.A review of the history of the Walsh-Healey standards reveals that the Walsh-Healeyexposure limit for silica dust has always been a time-weighted average limit.\u00a0 Whenthe Walsh-Healey standards were originally promulgated on December 28, 1960, they includeda provision then codified at ? 50-204.275, which required employees to use respiratorswhen exposed to air contaminants above the limits specified in another provision, ?50-204.276, \”on an average basis for an eight-hour workday.\”\u00a0 Exposuresexceeding such limits \”temporarily, without exceeding them on a daily averagebasis\” required an industrial hygienist’s approval in lieu of respirators. Section50-204.276 prescribed limits for mineral dust containing various percentages of silica.\u00a0 25 Fed. Reg. 13809, 13823-24 (1960).\u00a0 Therefore, at the very outset theWalsh-Healey standards distinguished time-weighted average from ceiling limits andprovided 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 I labeled \”Threshold Limit Values\”and Table II labeled \”Ceiling Values.\”\u00a0 A portion of Table I entitled\”Respirable Dusts Evaluated by Count\” included a formula for determining thelimit for silica dust.\u00a0 As proposed, ? 50-204.50(b) described the limits prescribedin Table I as 8-hour time-weighted averages: Excursion of concentration above these levelsmay be permitted provided that they are compensated by equal excursions below the listedlevels and that in any one day the sum of all the products of concentration multiplied bytime in minutes does not exceed the product of the listed concentration multiplied by 480.33 Fed. Reg. 14258, 14268-70 (1968).\u00a0 When ? 50-204.50 was adopted in its finalform, it was restructured, and the portion of Table I that included the respirable silicadust exposure limit was redesignated as Table II, entitled \”Mineral Dusts.\”\u00a0 Therefore, while Table II did not expressly state that its exposure limits weretime-weighted average limits, it originated from a provision of the proposed ? 50-204.50that clearly did set forth time-weighted average limits.\u00a0 There is nothing in thepreamble accompanying the adoption of ? 50-204.50 to indicate that the Secretary intendedto change the nature of the exposure limits as set forth in the proposal. \u00a0Accordingly, we conclude that the sliding-scale PEL for respirable silica dust is andalways was a time-weighted average limit.\u00a0 We therefore reject Smith Steel’scontention that the Walsh-Healey standard did not establish a time-weighted average limitfor exposure to silica dust.Having disposed of Smith Steel’s challenges to the validity of the standard, we turn tothe remaining issue before us.III. Feasibility of controls for Silica DustA. BackgroundThe Secretary’s witness, Robert A. Ressl, an environmental engineering consulting firmengineer with experience designing ventilation control systems, testified regardingfeasible engineering and administrative controls based on his inspection of Smith Steel’splant and on his subsequent report.\u00a0 Essentially, he proposed two alternative methodsof engineering controls:\u00a0 a fairly comprehensive modification of Smith Steel’s entiresystem for storing and handling sand and a less complex addition of only a ventilationsystem.\u00a0 Since Ressl regarded the mullers and sand-handling system to be the majorsource of the dust in the plant, he testified that his first proposal would decrease theamount of ambient dust to \”very, very low levels.\”\u00a0 He also stated thateither of his proposals would be able to reduce the employees’ exposure to a level withinthe PEL for silica dust.Because Ressl’s first proposal would allow Smith Steel to move sand by mechanical means,he testified that Smith Steel could eliminate the position of sand bin attendant andoperate the mullers with only 5 rather than the 10 workers it then employed in thoseduties.\u00a0 He estimated the capital cost of this system at $281,300, which he amortizedover a period of 20 years, the life span customarily assumed for this type of equipment.\u00a0 The total annual cost, including the amortized portion of the initial capitalexpense, would be $74,100.\u00a0 Factoring in the reduction in payroll costs, he projectedannual savings of $66,300.\u00a0 This system would therefore have a net annual cost of$7800.Ressl’ s less elaborate alternative proposal would have an installation cost of $145,300,again amortized over 20 years, with a total annual cost of $41,100.\u00a0 This proposalwould not reduce the number of employees and therefore would not provide any savings inlabor costs.Ressl stated that although he was neither an economist nor an accountant by profession, hehad received some training in \”economic evaluation,\” as is customary forengineers.\u00a0 He had also performed a \”fair amount of costing type work to developcosts of systems.\”\u00a0 Judgments as to cost recovery and interest rates are atypical part of this work.\u00a0 In developing his cost estimates, he used figures forinterest rates similar to those he or his company had applied on other projects. \u00a0Ressl conceded that in actuality a business would not amortize capital investment in\”exactly\” the way he proposed.\u00a0 Although he was not asked what thedifferences might be, he did say that a business might not be able to borrow money at theinterest rate he projected.\u00a0 Furthermore, he did not consider InternalRevenue Service rules for writing off equipment purchases.\u00a0 However, he emphasizedthat his figures are based on the methodology normally used by engineers for estimatingcapital costs and insisted that he had established economic feasibility \”from anengineering evaluation standpoint.\”Also relevant to the issue of economic feasibility are Smith Steel’s answers to theSecretary’s interrogatories regarding Smith Steel’s financial condition, which wereintroduced into evidence.\u00a0 Smith Steel’s answers establish that it had gross revenueof $7,096,499.55 and a net profit before taxes of $480,316.85 for 1979, the year precedingthe inspection.In his first decision on the merits of the citations, Judge Salyers found that either ofthe two systems Ressl proposed would \”significantly reduce the exposure of employeesto silica dust perhaps, as indicated by the expert, to a level within the limits permittedby the standard.\”\u00a0 83 OSAHRC 1\/A2 at 22.\u00a0 Since Ressl’s testimony wasundisputed, the judge concluded that the Secretary had shown that controls to reducesilica exposure were technologically feasible.\u00a0 See Continental Can Co., 4 BNAOSHC 1541, 1546, 1976-77 CCH OSHD ? 21, 009, p. 25,255 (Nos. 3973 et al. , 1976)(controls are technologically feasible when the technology exists to accomplish asignificant reduction in exposure levels).\u00a0 In addition, the judge noted that in ContinentalCan 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’s noise exposurestandard, 29 C.F.R. ? 1910.95, that feasibility also requires consideration of the costsof controls in relation to the expected reduction in exposure levels.\u00a0 As theCommission stated in Samson Paper Bag, \”the cost of controls must bear areasonable relationship to the benefits to be achieved.\”\u00a0 8 BNA OSHC at 1521,1980 CCH OSHD at p. 30,045 (lead opinion). [[12\/]]While noting that the Secretary presented no evidence to establish economic feasibilityother than Smith Steel’s gross income and net profit for 1979, the judge also observedthat Smith Steel made no showing that it was \”unable to afford the controls.\”\u00a0 The judge concluded that \”[i]n the absence of a showing that implementation ofthe controls [is] beyond the financial means of the Respondent and, in view of the obviousbenefits to be derived by reducing to a significant degree the exposure of employees totoxic substances the Secretary has carried her burden.\”\u00a0 83 OSAHRC 1\/A2 at 23.\u00a0 In short, the judge held both that the costs of the controls Ressl proposed werereasonable in light 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 the Secretary had not met herburden of proof on the economic feasibility issue.\u00a0 First, the court brieflycommented that the content of Ressl’s report describing his recommendations and theircosts, together with his responses on cross-examination, left \”doubt\” as to theaccuracy of his cost figures, which the court characterized as \”preliminaryguesstimations.\”\u00a0 Second, it concluded that the record did not present asufficiently \”complete\” picture of Smith Steel’s financial condition.\u00a0 Thecourt stated as follows:Without a more complete picture of Smith’s financial condition, we cannot uphold JudgeSalyers’s conclusion that the Secretary has proven economic feasibility as supported bysubstantial evidence.\u00a0 Our problem is not so much insubstantial evidence asinsufficient evidence.\u00a0 We have no way of knowing whether these gross income and netprofit figures represent a typical year for Smith.\u00a0 For all we know, Smith may haveoperated at a loss for the three preceding years or for the three succeeding years. \u00a0We are vitally concerned with the health of the three out of 250 Smith employees who areover-exposed to silica dust, but we are unwilling to risk putting Smith Steel out ofbusiness or into our overcrowded bankruptcy courts by forcing Smith to revamp its sandhandling system completely without any real idea whether Smith can survive such a costlyrenovation.\u00a0 If it cannot, the law as it presently stands allows Smith to protect itsemployees from the harmful silica dust in the foundry by implementing an effectiverespirator program. Therefore, we remand Items 2F and 2G of Citation 1 to the Commissionfor the receipt of additional evidence on the issue of economic feasibility.800 F.2d at 1339 & n.9.\u00a0 The court’s order did not dispute the judge’s conclusionthat Ressl’s testimony and report met the Secretary’s burden of proving that there wereavailable technologically feasible controls capable of producing significant reductions inthe exposure of Smith Steel’s employees to silica dust, and that question is not beforeus.[[13\/]]After the Commission in turn remanded to the judge for further proceedings in accordancewith the court’s order, the parties agreed that a further evidentiary hearing would not benecessary.\u00a0 Instead, the Secretary sent Smith Steel a second set of interrogatoriesregarding its gross revenue and net profit before taxes for the years 1976-1978 and1980-1982.\u00a0 In answering these interrogatories, Smith Steel also supplied the sameinformation for three additional years, 1983-1985.\u00a0 The following chart summarizesSmith Steel’s answers:Year Gross Revenue Net Profit Before Taxes 1976 $5,301,887.35 $89,957.16 1977 $4,842,199.76 $70,710.06 1978 $6,331,728.37 $441,864.70 1980 $9,703,537.56 $662,351.47 1981 $12,888,298.88 $1,072,935.31 1982 $6,789,075.28 $87,972.08 1983 $1,143,074.75 $(-632,581.09) 1984 $2,678,126.86 $(-547,890.70) 1985 $2,660,152.00 $269,352.00 The judge rejected Smith Steel’s contention that he could not consider these answers aspart of the record because the Secretary had not moved to admit them into evidence. \u00a0He further faulted Smith Steel for not presenting evidence pertaining to its financialcircumstances.\u00a0 Based on the data presented by Smith Steel for the 1976-1985 period,Judge Salyers concluded that without further input from respondent [these figures] do notestablish that implementation of the proposed controls [is] beyond respondent’s financialreach or would result in forcing respondent into bankruptcy.\” \u00a0 The judge didnot address the court’s concern regarding the accuracy of Ressl’s cost data.\u00a0 Thejudge’s decision on remand is now pending before us for review.C. The Cost of Engineering ControlsAt the outset, we find Ressl’s projections for the cost of his suggested controls to beadequately supported.\u00a0 Both his testimony and his written report describe in somedetail the methodology he used to arrive at his cost estimates.\u00a0 While Ressl concededon cross-examination that in practice an employer might not apply the same cost factors hedescribed or might apply them in a different way, Smith Steel made no attempt to establishhow much of an effect these differences might have on the cost figures themselves.Furthermore, Smith Steel did not challenge Ressl’s basic methodology either oncross-examination or with evidence of its own.\u00a0 In our view, the Secretary did nothave the burden to establish Smith Steel’s costs of compliance to a definitive degree ofcertainty; rather, absent rebuttal evidence, the Secretary was only obligated to adduceenough evidence to support a prima facie case.\u00a0 See American PetroleumInst. v. OSHA, 581 F.2d 493, 503 (5th Cir. 1978), aff’d sub nom. on other grounds,Industrial Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607(1980) (court holds that Secretary’s estimate of costs based on analysis by a consultingfirm adequately establishes the cost of compliance with a standard regulating exposure tobenzene).\u00a0 Considering that Ressl had training and experience in developingengineering cost projections and that he testified, without rebuttal, that he appliedgenerally accepted principles in arriving at his estimates, we find his testimonysufficient to satisfy the Secretary’s burden of proving the cost of her suggestedcontrols.\u00a0 We further note that the court did not vacate the judge’s decision on theground that Ressl’s cost figures were unpersuasive; rather, the court remanded thesecases, and it limited its remand to the matter of Smith Steel’s financial condition.D. The State of the Evidentiary RecordThe only evidence adduced on remand concerning the issue of Smith Steel’s financialcondition is the second set of interrogatories and answers.\u00a0 We agree with JudgeSalyers that these interrogatories and answers may be considered evidence of record.\u00a0 As a general rule, answers to interrogatories are not evidence unless they areformally offered and admitted.\u00a0 4A J. Moore, J. Lucas & D. Epstein, Moore’sFederal Practice ? 33.29 [1.-2] (2d ed. 1988).\u00a0 See Jones v. Diamond, 519F.2d 1090, 1098 & n.13 (5th Cir. 1975).\u00a0 However, for all practical purposes, theparties have treated these interrogatories and answers as part of the evidentiaryrecord.[[14\/]]Smith Steel initially raised the issue of the admission into evidence of its answers tothe Secretary’s interrogatories when it objected that the Secretary’s brief before thejudge on remand improperly relied on those answers.[[15\/]]\u00a0 In response, the judgewrote to the parties as follows:After receipt of the remand, this matter was discussed with the parties, and a consensuswas reached that no further hearing was needed and that the record would besupplemented by means of interrogatories.\u00a0 Thereafter, interrogatories seekingrespondent’s gross sales and net profits for the fiscal years 1976 through 1982 werepropounded and have been answered.\u00a0 However, this information without furtherexplanation or development appears inadequate to resolve the issue of economicfeasibility.I Plan to conduct a further hearing in this case and will place a conference call to theparties on July 10, 1987, to determine a time, date, and place mutually convenient to theparties.\u00a0 [emphasis added].Nevertheless, Smith Steel opposed a further hearing, reminding the judge that the partieshad already decided to submit the remanded issues for disposition without an additionalhearing.\u00a0 Significantly, Smith Steel expressed no objection to the judge’s statementthat the second set of interrogatories would be part of the record to be considered onremand and that the parties had so agreed.\u00a0 Furthermore, both theinterrogatories and answers were filed directly with the judge, at the same time thefiling party served a copy on the opposing party.\u00a0 Since the filing ofinterrogatories and answers with the judge is not required by the Commission’s rules, thefact that the parties followed this procedure supports our conclusion that they regardedthose documents as part of the record.E. Compliance with the Court’s Remand OrderIn view of this conclusion, the question before us is whether the limited informationpresented in Smith Steel’s answers to the Secretary’s interrogatories is sufficient tosatisfy the requirements of the court’s remand order.\u00a0 The court could not determinewhether fiscal year 1979 was a representative or typical year for Smith Steel; hence itcould not be sure that Smith Steel could \”survive\” the renovations required.\u00a0 The court stated that Smith Steel \”may have operated at a loss for the threepreceding years or for the three succeeding years\” and was concerned that Smith Steelnot be forced into a financially untenable position.While the additional figures the Secretary presented show a wide variation from year toyear in Smith Steel’s gross revenue and net profit before taxes, it is clear that SmithSteel had positive earnings for several years preceding the inspection and that SmithSteel had its highest earnings in 1980 and 1981, the year of the inspection and the yearimmediately thereafter.\u00a0 Its net profit before taxes in those years exceeded Ressl’scost figure for the more expensive control system by a wide margin.\u00a0 Subsequently, in1982, Smith Steel’s net profit dropped dramatically but still exceeded the cost of thosecontrols.\u00a0 The two succeeding years of negative profit before taxes were followed bya sharp rebound to a profit of approximately $269,000 in 1985, the last year of the periodcovered by the Secretary’s interrogatories.\u00a0 That figure is about 360 percent greaterthan the cost of the more expensive controls.\u00a0 Furthermore, Smith Steel’s averageannual net profit over the entire 10-year period comes to approximately $250,000, onlyslightly less than its net profit for 1985.\u00a0 In his decision on remand, Judge Salyersexamined this financial data and found that the cost of the controls would not exceedSmith Steel’s ability to pay for them and would not force Smith Steel into bankruptcy.\u00a0 We conclude that these findings are supported by a preponderance of the recordevidence and fully comply with the court’s remand order.\u00a0 We therefore affirm thejudge’s decision on the economic feasibility issue.We emphasize, however, that our holding is based on the limited scope of the court’sremand order.\u00a0 The court did not take issue with Judge Salyers’ conclusion that thecosts of controls were not unreasonable in light of the amount of reduction in exposurethey would achieve.\u00a0 Rather, the court focused on the question of whether theevidence establishes that Smith Steel could afford those costs.\u00a0 An employer’sability to afford the cost of controls may be among the relevant factors for determiningeconomic feasibility under the air contaminant standard at issue here.\u00a0 However, itmay be appropriate for other elements, including but not necessarily limited to thereasonableness of the costs in light of their expected benefit to be taken intoconsideration as well.\u00a0 We need not decide now what test for economic feasibilityshould be applied under this standard.\u00a0 That is because the Fifth Circuit’s remandorder is binding on the Commission as the law of the case and does not require us to makethat determination at this time.\u00a0 See Schuylkill Metals Corp., 13 BNAOSHC 2174, 2176 n.4, 1989 CCH OSHD ? 28,520, p. 37,844 n.4 (No. 81-856, 1989), on remandfrom United Steelworkers v. Schuylkill Metals Corp., 828 F.2d 314 (5th Cir. 1987); MountainStates Tel. & Tel. Co., 9 BNA OSHC 2151, 2153 n.2, 1981 CCH OSHD ? 25,597, p.31,931 n.2 (No. 13266, 1981), on remand from 623 F.2d 155 (10th Cir. 1980).IV. The Commission’s Order on RemandWe have concluded that the provisions of 29 C.F.R. ?1910.1000 at issue here were validlypromulgated and that the Secretary has demonstrated the economic feasibility ofengineering controls for silica dust, applying the test for economic feasibility stated bythe court.\u00a0 We therefore affirm item 2F of citation 1 and item 2 of citation 2alleging excessive exposure to copper fume and silica dust, as well as item 2G of citation1 alleging that feasible controls were not used to reduce the silica dust exposure.[[16\/]]The violations alleged in citation 1 were characterized as serious violations, and theviolations charged in citation 2 were alleged as other than serious.[[17\/]]\u00a0 TheSecretary proposed an aggregate penalty of $640 for the entirety of item 2 of citation 1,which also includes violations of the respirator standard, 29 C.F.R. ? 1910.134, notinvolved in these proceedings.\u00a0 The Secretary did not propose any penalty forcitation 2.\u00a0 In his earlier decision, Judge Salyers affirmed the other allegations ofitem 2 of citation 2, as well as the allegations at issue here.\u00a0 He accepted theSecretary’s characterizations and penalty proposals, and no issue is presented before usnow with respect to either the characterization of the violations or the amount of penaltyto be assessed.\u00a0 Since there is no basis on which to disturb the judge’s findings, weadopt that portion of his decision assessing an aggregate penalty of $640 for the seriousviolations set forth in item 2 of citation 1 and assessing no penalty for the other thanserious violation in citation 2.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: April 24, 1991SECRETARY OF LABOR, Complainant, v. SMITH STEEL CASTING COMPANY, Respondent.OSHRC Docket Nos. 80-2069 and 80-2332DECISION AND ORDERSALYERS, Judge:\u00a0 This case, which arises out of respondent’s contest of citationsissued by the Secretary pursuant to the Occupational Safety and Health Act (29 U.S.C. ?651, et seq.) following a 1980 inspection of respondent’s foundry in Marshall,Texas, is presently before this tribunal on remand from the Fifth Circuit.\u00a0 SmithSteel Castings Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986).\u00a0 The court remandeditems 2F and 2G, Citation No. 1, and item 2, Citation No. 2, for consideration ofrespondent’s argument that 29 C.F.R. ? 1910.1000 is invalid and unenforceable because itwas improperly promulgated.\u00a0 The court also remanded items 2F and 2G of Citation No.1 for the receipt of additional evidence on the issue of economic feasibility.Validity of ? 1910.1000Respondent contends that 29 C.F.R. ? 1910.1000 was not adopted pursuant to the rulemakingprocedure provided for in 29 U.S.C. ? 655(b).\u00a0 The history of this standard isrecited 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 Labor promulgated 29C.F.R. ? 1910.1000 as an OSHA requirement.\u00a0 This regulation, dealing withpermissible levels of exposure to air contaminants . . . was based upon 41 C.F.R. ?50-204.50, an established federal standard under the Walsh-Healy Public Contracts Act.\u00a0 Subsequently, on August 13, 1971, the Secretary published a revision of 29 C.F.R.? 1910.1000 stating that \”Section 1910.93 (air contaminants) [presently designatedas 29 C.F.R. ? 1910.1000 . . . .] has been revised in its entirety, in the interest ofgreater intelligibility and accuracy.\u00a0 36 Fed. Reg., 15101 (August 13, 1971). \u00a0This revision was achieved pursuant to section 6(a) and thus without regard to theAdministrative Procedure Act or to the notice and comment procedures of section 6(b) ofOSHA.\u00a0 (Footnotes omitted)In Deering-Milliken, supra, the court found that the Secretary did notmaterially alter the provisions of the standard and that the standard’s revision was notnew and was not improperly promulgated.\u00a0 The court expressly rejected the argumentthat respondent now makes, as did the Review Commission in the following cases:\u00a0 FieldcrestMills, 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 BNA OSHC 2091, 1982 CCH OSHD? 26,304 (No. 79-3291, 1982).Accordingly, respondent’s argument that ? 1910.1000 was improperly promulgated is withoutmerit and is rejected.Economic FeasibilitySection 1910.1000(e) provides in pertinent part:\u00a0 \”To achieve compliance withparagraphs (a) through (d) of this section, administrative or engineering controls mustfirst be determined and implemented whenever feasible.\”\u00a0 This standardcontemplates that exposure to excessive levels of toxic substances will be abatedprimarily by administrative or engineering controls and that personal protective equipmentwill be employed only in the event that such controls are not \”feasible.\” \u00a0The meaning of the term \”feasible\” has been the subject of controversy in theReview Commission among the various circuit courts of appeal and in the Supreme Court, butthere is a consensus that this term encompasses both technological and economicfeasibility.\u00a0 See United Steelworkers v. Marshall, 647 F.2d 1189, 1264(D.C. Cir. 1980), cert. denied, 453 U.S. 913, 101 S. Ct. 3148; Diversified IndustriesDivision, Independent Stave Co. v. OSHRC, 618 F.2d 30, 32 (8th Cir. 1980); AmericanIron and Steel Institute v. OSHA, 577 F.2d 825, 832 (3d Cir. 1978).In this case the Secretary established in the initial proceeding that two proposedengineering plans were \”technologically feasible.\” One of these plans would cost$281,300 to purchase and install with annual operating costs of approximately $74,100.\u00a0 The other system would cost approximately $145,300 to install with a yearlyoperating cost approximating $41,100.\u00a0 The engineer who designed these systems wasconvinced that the implementation of these plans would significantly reduce employeeexposure to respirable quartz.\u00a0 It was his considered opinion that the controls whenimplemented \”would reduce employee exposure to within the OSHA permissible exposurelimit for respirable quartz\” (Tr. 723-724).\u00a0 The testimony of the Secretary’sexpert was sufficient to establish \”technological feasibility,\” was notcountered by any evidence offered by respondent, and was not challenged on review by theReview Commission or the Fifth Circuit.The crucial question remaining in this case is whether the engineering controlsrecommended by the Secretary under section 6(b)(5) [[1\/]] of the Act are\”economically feasible\” as that term is now construed by the Review Commissionand the courts.\u00a0 On this issue, neither party has rendered substantial assistance tothe undersigned during the remand process.In its remand order, the Circuit expressed its concern that the evidence offered in theinitial proceedings [[2\/]] was insufficient to support a finding that the plans proposedby the Secretary were economically feasible and commented that the \”problem is not somuch insubstantial evidence as insufficient evidence.\”\u00a0 The Circuit furtherobserved:We have no way of knowing whether these gross income and net profit figures represent atypical year for Smith.\u00a0 For all we know, Smith may have operated at a loss for thethree preceding years or for the three succeeding years.\u00a0 We are vitally concernedwith the health of the three out of 250 Smith employees who are over-exposed to silicadust, but we are unwilling to risk putting Smith Steel out of business or into ourovercrowded bankruptcy courts by forcing Smith to revamp its sand handling systemcompletely without any real idea whether Smith can survive such costly renovation.\u00a0 If it cannot, the law as it presently stands allows Smith to protect its employeesfrom the harmful silica dust in the foundry by implementing an effective respiratorprogram.\u00a0 800 F.2d at 1339 Following receipt of the remand order, this Judge conducted a conference call with theparties and was advised additional evidence required by the remand order would be adducedby means of interrogatories.\u00a0 The record now contains the following information (Ex.J-41, J-45) [[3\/]] reflecting respondent’s gross sales and net profits for thecorresponding years: Year Gross Sales Net Profit 1976 $ 5,301,887 $ 89,957 1977 4,842,199 70,710 1978 6,331,728 441,864 1979 7,096,499 480,316 1980 9,703,537 662,351 1981 12,888,298 1,072,935 1982 6,789,075 87,972 In addition, respondent has volunteered information for subsequent years as follows: Year Gross Sales Net Profit 1983 $ 1,143,074 $ 632,581 (Loss) 1984 2,678,126 547,890 (Loss) 1985 2,660,152 269,352 The Secretary’s interrogatories and respondent’s answers thereto constitute the entireeffort made by the parties to comply with the dictates of the remand order.\u00a0 Thisscant information did not resolve the questions still pending for determination and leavesthe record in this case in much the same posture as before.\u00a0 Accordingly, this Judge,by letter dated June 30, 1987 (Ex. J-55), advised the parties of his intention to conducta further hearing in the matter.\u00a0 Contrary to assumptions made in respondent’s replyletter of July 7, 1987 (Ex. J-56), that this action was intended to provide the Secretaryan opportunity to correct deficiencies in his case, the purpose of this letter was toafford respondent the opportunity to supplement the record by showing the impact theseproposals would have upon respondent’s economic health, or to suggest alternative, butless expensive, methods of abatements.In a telephone conference call conducted with the parties on July 10, 1987, this Judgediscussed his concern that the interrogatories and answers did not provide an adequatebasis for resolving the issue of economic feasibility and specifically directed theattention of the parties to the burden of proof question as set forth in Sherwin-WilliamsCompany, 84 OSAHRC 28\/A2, 11 BNA OSHC 2105, 1984-85 CCH OSHD ? 26,986 (No. 14131,1984) (which will be discussed infra).\u00a0 However, this effort was met withresistance by both parties (Ex. J-57).\u00a0 In view of this development, this case willbe decided on the record as presently constituted.\”Economic feasibility\” was first addressed by the Review Commission in ContinentalCan Company, 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ? 21,009 (No. 3973,1976), wherein the Commission vacated a citation which charged an employer with failure toinstitute feasible engineering controls to reduce noise levels, holding that the Secretaryfailed to prove these controls were economically feasible.\u00a0 This case required thatexpected benefits must be weighed against costs.\u00a0 Succeeding cases, all of whichinvolved the noise standard, reached similar results.\u00a0 Castle & Cooke Foods,77 OSAHRC 87\/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD ? 21,854 (No. 10925, 1977); WestPoint Pepperell, 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 BNA OSHC 1730, 1978 CCHOSHD ? 22,837 (No. 8165, 1978); Sampson Paper Bag Co., 80 OSAHRC 60\/A2, 8 BNA OSHC1515, 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 the validity of the cotton dust standardpromulgated under section 6(b)(5) of the Act on the grounds that the Act required theSecretary to show a reasonable relationship between the costs of implementing therequirements of the standard and the expected benefits to employees.\u00a0 After reviewingthe language of the Act and its legislative history, the court concluded that the term\”feasible,\” as used in section 6(b)(5) of the Act, means \”capable of beingdone\” or \”achievable\” and held that Congress did not intend to requirecost-benefit analysis in promulgating standards dealing with toxic substances or harmfulphysical agents.\u00a0 The court observed:Congress specifically chose in ? 6(b)(5) to impose separate and additional requirementsfor issuance of a subcategory of occupational safety and health standards dealing withtoxic materials and harmful physical agents:\u00a0 it required that those standards beissued to prevent material impairment of health to the extent feasible. (Emphasis inoriginal) Id. at 2492* * *The congressional Reports and debates certainly confirm that Congress meant\”feasible\” and nothing else in using that term. Congress was concerned that theAct might be thought to require achievement of absolute safety, an impossible standard,and therefore insisted that health and safety goals be capable of economic andtechnological accomplishment.\u00a0 Perhaps most telling is the absence of any indicationwhatsoever that Congress intended OSHA to conduct its own cost-benefit analysis beforepromulgating a toxic material or harmful physical agent standard.\u00a0 The legislativehistory demonstrates conclusively that Congress was fully aware that the Act would imposereal and substantial costs of compliance on industry, and believed that such costs werepart of the cost of doing business.\u00a0 Id. at 2493Not only does the legislative history confirmthat Congress meant \”feasible\” rather than \”cost-benefit\” when it usedthe former term, but it also shows that Congress understood that the Act would createsubstantial costs for employers, yet intended to impose such costs when necessary tocreate a safe and healthful working environment. Id. at 2496* * *When Congress passed the Occupational Safety and Health Act in 1970, it chose to placepre-eminent value on assuring employees a safe and healthful working environment, limitedonly by the feasibility of achieving such an environment.\u00a0 We must measure thevalidity of the Secretary’s actions against the requirements of that Act.\u00a0 Id.at 2506Following ATMI, the Review Commission reconsidered its previous position on cost-benefitin Sun Ship, Inc., 83 OSAHRC 49\/D1, 11 BNA OSHC 1775, 1983 CCH OSHD ? 26,353 (No.16118, 1983), another noise case involving a standard promulgated under section 6(a) ofthe Act, and adopted the position that Congress did not intend to require cost-benefitanalysis in dealing with toxic substances or harmful physical agents except in those caseswhere implementation of controls \”would seriously jeopardize the cited employer’slong-term financial profitability and competitiveness.\”\u00a0 1983 OSHD at 33,422.\u00a0 It further reasoned that while \”the Supreme Court decided only the meaning ofsection 6(b)(5) and not whether cost-benefit analysis might be required for standardspromulgated under other sections (of the Act),\” it would employ the same reasoning ina section 6(a) case since \”the identical question of legislative intent is presentedin interpreting the noise standard.\”\u00a0 Id. at 33,420.In the opinion of this Judge, the Supreme Court opinion in ATMI is controlling in the caseat bar, dealing as it does with a standard promulgated under section 6(b)(5) of the Act.\u00a0 I do not read the Review Commission decision in Sherwin-Williams, supra,as requiring a contrary result.In Sherwin-Williams, supra, the Secretary proceeded under section 6(a) ofthe Act and 29 C.F.R. ? 1910.95(b)(1) to require the abatement of excessive noise levels.\u00a0 In overruling Sun Ship, supra, and reinstating a cost-benefitrequirement for actions pursued under section 6(a) of the Act, the Commission was carefulnot to expand its ruling into the realm of section 6(b)(5) cases.\u00a0 The Commissionnoted its reliance on the Ninth Circuit decision in Castle & Cooke Foods, 692F.2d 641 (9th Cir. 1982), which observed that the ATMI decision limited its constructionof \”feasible\” to standards promulgated under section 6(b)(5)of the Act \”adistinct ‘species of the genus of standards governed by the basic requirements’ of theAct,\” 692 F.2d at 648, quoting Industrial Union Department v. AmericanPetroleum Institute, 448 U.S. 627, 642 (1980).\u00a0 I find nothing in either of thesedecisions nor in any other decisions emanating from the Review Commission [[4\/]] or thecircuit courts subsequent to ATMI which conflicts with the view that section 6(b)(5) casesdo not require a cost-benefit test.Despite the holding in ATMI, however, it is reasonable to conclude that neither theSecretary nor the courts would impose the implementation of controls where such actionwould clearly result in forcing an employer out of business or into bankruptcy.\u00a0 Thisconcern was articulated in the circuit’s remand order and requires treatment in thisdecision.The respondent did not present any evidence bearing on its financial circumstances duringthe initial hearing or on remand despite the clear admonition in the remand order thatsuch evidence was germane to a resolution of the issue.\u00a0 This passive, unresponsiveapproach was maintained even after this Judge specifically indicated a need for suchevidence in a conference call to the parties and called respondent’s attention to thefollowing quote from Sherwin-Williams, supra:To prove a violation, therefore, the Secretary must prove that proposed engineering andadministrative controls are both technologically and economically feasible.\u00a0 As theNinth Circuit recognized in Castle & Cooke, \”realism and common senseshould dictate how the Secretary may meet his burden of providing substantial evidence offeasibility.\”\u00a0 692 F.2d at 650 [10 OSHC at 2175].\u00a0 After the Secretaryproves that controls are technologically feasible, the burden of producing evidence shiftsto the employer who may raise the issue of economic feasibility and go forward withevidence of the cost of controls and personal protective equipment.\u00a0 Theburden of producing evidence then returns to the Secretary \”who must establish thatthe benefit of the proposed engineering controls justifies their relative cost incomparison to other abatement methods.\”\u00a0 Id.\u00a0 The ultimate burden ofpersuasion on the feasibility issue nevertheless remains with the Secretary.\u00a0 11 OSHC2110.\u00a0 (Emphasis supplied)While the Secretary may bear \”the ultimate burden of persuasion on the issue offeasibility,\” it is clear that this burden is not foisted solely on his shoulderseven in a case brought pursuant to section 6(a).\u00a0 This point was made clear in theNinth Circuit’s decision in Castle & Cooke Foods, supra, cited by bothparties and relied upon by the Review Commission in Sherwin-Williams, supra,as follows:We therefore hold that when the Secretary seeks enforcement of a citation alleging aviolation of 29 C.F.R. ? 1910.95(b)(1), he bears an initial burden of showing thattechnologically feasible engineering controls are available to the cited employer.\u00a0 Although the Secretary will generally have access to information on the averagedevelopment and installation cost of the proposed controls, he will not have knowledge ofthe specific economic impact implementation of the controls will have on the citedemployer.\u00a0 Therefore, once the Secretary meets his initial burden, the burden mustshift to the employer, who may raise the issue of economic feasibility.\u00a0 The employermay satisfy this burden of production with evidence of the relative cost to him of variousmethods of noise control.\u00a0 That is, the employer may compare the costs ofimplementing engineering controls, administrative controls, or personal protectiveequipment at a specific employment location.\u00a0 If the employer raises the question ofeconomic feasibility in this manner, the burden of proof returns to the Secretary, whomust establish that the benefit of the proposed engineering controls justifies theirrelative cost in comparison to other abatement methods.\u00a0 692 F.2d at 650.In this case the Secretary has provided information relative to respondent’s gross salesand net profits.\u00a0 The record now reflects gross sales for the period 1976 through1985 approximate $59,000,000.\u00a0 Net profits (after taking into account lossesreflected during 1983 and 1984), approximate $2,600,000. [[5\/]]\u00a0 The record does notcontain respondent’s current sales and profits for 1986 or 1987.\u00a0 These figures ontheir face, and without further input from respondent, do not establish thatimplementation of the proposed controls are beyond respondent’s financial reach or wouldresult in forcing respondent into bankruptcy.\u00a0 While the costs of effectuatingcontrols are considerable in this case, they are not exorbitant when viewed in light ofthe damage they seek to prevent.The difficulty with this case, as expressed in this Judge’s initial decision, results fromrespondent’s failure to come forward with any evidence to show a responsible recognitionof, or concern for, the hazardous circumstances existing in its foundry or the steps ithas taken or proposes to take to rectify a serious, life-threatening condition.\u00a0 Thiscontinued silence leads to a presumption that respondent has either taken no action tocope with the reality of silica exposure or that it has no evidence to present that wouldbe favorable to its case.\u00a0 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 exposure as it relates toemployees working in its sand handling and muller operations with a view to reducing thisexposure by means of engineering controls to a level within the limits set by 29 C.F.R. ?1910.1000, Table Z-1.\u00a0 Implementation of appropriate engineering controls will beeffectuated within a three-month period from the date of this order.EDWIN G. SALYERS JudgeDate: November 18, 1987FOOTNOTES: [[1\/]] Feasible engineering or administrative controls are only in issue with respect tothe silica dust exposure.\u00a0 The Secretary previously withdrew an allegation that SmithSteel had failed to use feasible controls to reduce the levels of copper fume.\u00a0 Another allegation, that the employee exposed to copper fume was not wearing theproper kind of respirator, was affirmed by the Fifth Circuit and is no longer before us.\u00a0 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.\u00a0 54 Fed. Reg. 2332(1989).[[3\/]] Regardless of whether the sampling is for total airborne silica dust orrespirable silica dust, the sampling device will collect all kinds of airborne particulatematter, not just silica.\u00a0 However, if the sampling is for respirable silica dust,only particles 10 microns or less in length will be collected.\u00a0 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 provisions ofthe cited standard read as follows:? 1910.1000 Air contaminants.An employee’s exposure to any material listed intable Z-1, Z-2, or Z-3 of this section shall be limited in accordance with therequirements of the following paragraphs of this section.(a) Table Z-1:(1) Materials with names preceded by \”C\”-\”Ceiling Values.\u00a0 Anemployee’s exposure to any material in table Z-1, the name of which is preceded by a\”C\” (e.g., C Boron trifluoride), shall at no time exceed the ceiling value givenfor that material in the table.(2) Other materials–8-hour time-weighted averages.\u00a0 An employee’s exposure toany material in table Z-1, the name of which is not preceded by a \”C\”, in any8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time-weightedaverage for that material given in the table.. . . .(c) Table Z-3: An employee’s exposure to any material listed in table Z-3, in any 8-hourwork shift of a 40-hour work week shall not exceed the 8-hour time-weighted average limitgiven for that material in the table.. . . . (e) To achieve compliance with paragraphs (a) through (d) of this citation, administrativeor engineering controls must first be determined and implemented whenever feasible . . . .[[5\/]] Table Z-1 allows a higher exposure level, 1 mg\/m3, for copper \”dusts andmists.\”\u00a0 Matthews explained that copper \”fume\” consists of very smallparticles, less than one micron in \”size,\” whereas \”mist\” refers to a\”liquid aerosol\” or liquid medium containing copper.\u00a0 He did not definecopper \”dust,\” but stated that a welding operation normally would produce fumeand not dust or mist.[[6\/]] Section 6(a) provides, in pertinent part:Without regard to chapter 5 of title 5, UnitedStates Code, or to the other subsections of this section, the Secretary shall, as soon aspracticable during the period beginning with the effective date of this Act and ending twoyears after such date, by rule promulgate as an occupational safety and health standardany national consensus standard, and any established Federal standard, unless hedetermines that the promulgation 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 any occupational safety and health standard ormodification thereof which (1), has been adopted and promulgated by a nationallyrecognized standards-producing organization under procedures whereby it can be determinedby the Secretary that persons interested and affected by the scope or provisions of thestandard have reached substantial agreement on its adoption, (2) was formulated in amanner which afforded an opportunity for diverse views to be considered and (3) has beendesignated as such a standard by the Secretary, after consultation with other appropriateFederal agencies.Section 3(10) of the Act defines an\”established Federal standard\” as \”any operative occupational safety andhealth standard established by any agency of the United States and presently in effect, orcontained in any Act of Congress in force on the date of enactment of this Act.\”[[7\/]] When review was directed, the statement of issues to be considered on reviewwas expressly limited to the economic feasibility issue discussed infra and validitychallenges that are directly related to the facts of these cases.\u00a0 The direction forreview 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 it wouldconsider arguments that a standard is invalid only as they relate to the citation items inquestion.\u00a0 Thereafter, when it requested briefs, the Commission directed that briefsbe filed \”with respect to the issues stated in the direction for review.\”\u00a0 Despite these express limitations on the scope of the validity issue to beconsidered on review and the explicit citation to DeKalb Forge in the direction forreview, Smith Steel’s review briefs discuss language changes to the Walsh-Healey standardthat have no relationship to the alleged violations.\u00a0 To the extent Smith Steel’sarguments are unrelated to the specific violations charged in these cases, we decline toconsider them.[[8\/]] The judge cited Senco Products, Inc., 10 BNA OSHC 2091, 1982 CCH 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 and remanded on other grounds,584 F.2d 127 6th Cir. 1978); and Fieldcrest Mills, Inc., 2 BNA OSHC 1143, 1974-75CCH OSHD ? 18,471 (No. 5625, 1974). Senco involved a provision of ? 1910.1000concerning mixtures of air contaminants that is not in question here.\u00a0 In HermitageConcrete Pipe Co., 76 OSAHRC 2\/D1 (ALJ, 1974), and Fieldcrest Mills, Inc., 2BNA OSHC 1143 (ALJ, 1974) (excerpt), two Commission judges generally concluded that thechanges made in the August 1971 revision were substantive in nature.\u00a0 However, withone exception dealing with a respirator requirement that is not at issue here, neitherjudge specified the language changes he considered to be substantive.\u00a0 Without anydiscussion, the Commission summarily reversed the judges’ decisions in both cases.Therefore, Smith Steel is correct that these prior cases cannot be construed as statingthe Commission’s position on the issues now before us. [[9\/]] Smith Steel’s argument that the 1970 ACGIH TLV’s differ from those in the 1968 listrelates only to the copper fume citation. The PEL’s for silica dust did not originate inthe ACGIH TLV list incorporated 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.\u00a0 Therefore, any changes to the TLV list the Secretary may have made when she issued? 1910.93 have no bearing on the silica dust allegations.[[10\/]] These regulations, which have beenamended since these cases arose, now appear in 1 C.F.R. Part 51.\u00a0 Smith Steelcontends that the Walsh-Healey standard did not contain the proper statement ofincorporation by reference, did not properly identify the referenced material, and did notdescribe its availability.\u00a0 See George C. Christopher & Sons, 10 BNA OSHC1436, 1441, 1982 CCH OSHD ? 25,956, p. 32,529 (No. 76-647, 1982).[[11\/]] Smith Steel further challenges the validity of the incorporation of the ACGIHTLV values into the Walsh-Healey standard on the grounds that the incorporation violatesthe ACGIH’s copyright and ignores an admonition in the preface to the TLV publication thatif its values are used in legislative codes, they should be kept current.\u00a0 It is notclear whether these are procedural or substantive challenges to the validity of theWalsh-Healey standard.\u00a0 See National Industrial Constructors, Inc. v. OSHRC,583 F.2d 1048, 1052 (8th Cir. 1978) (distinguishing compliance with proceduralrequirements for promulgating a standard from the reasonableness or feasibility of thestandard).\u00a0 Nevertheless, regardless of how they are classified, we do not considerCommission review of these arguments in these proceedings to be appropriate.\u00a0 Thegeneral proposition expressed in General Motors that Congress mandated the adoptionof Walsh-Healey standards indicates that the Commission should not consider the contentionthat the incorporation of an ACGIH TLV list in a Walsh-Healey standard was inconsistentwith conditions or stipulations set forth by the ACGIH.[[12\/]] The Commission has since reaffirmed the principle that the relative costs andbenefits of controls must be taken into account in determining feasibility under the noisestandard.\u00a0 Sherwin Williams Co., 11 BNA OSHC 2105, 1984-85 CCH OSHD ? 26,986(No. 14131, 1984).[[13\/]] On review, Smith Steel contends that the evidence does not support JudgeSalyers’ findings regarding the amount of reduction in exposure.\u00a0 The issue of thetechnological feasibility of Ressl’s proposed controls was not raised either in the FifthCircuit’s remand order to the Commission, the Commission’s subsequent remand order to thejudge, or the Commission’s direction for review of the judge’s decision.\u00a0 In theabsence of any compelling reason to address this issue at this stage in the proceedings,we decline to do so.\u00a0 See Commission Rule 92(a), 29 C.F.R. ? 2200.92(a)(Commission has authority to limit the issues considered on review).[[14\/]] This holding is strictly limited to the circumstances of these cases.\u00a0 No party should assume that answers to interrogatories will automatically beconsidered part of the record.\u00a0 Ordinarily, the party seeking to use answers tointerrogatories as evidence must formally move for their introduction into the record.\u00a0 Power Fuels, Inc., No. 85-166 (April 17, 1991).[[15\/]] Smith Steel raises and objection to the procedures that were followed onremand when the parties filed their briefs before the judge.\u00a0 The Secretary’s openingbrief addressed only the validity of the standard and not the feasibility issue.\u00a0 TheSecretary claimed that she was waiting to receive Smith Steel’s answers to herinterrogatories before presenting arguments on feasibility.\u00a0 When the Secretaryfailed to respond even after Smith Steel filed its answers, the judge requested theSecretary to state her position on the feasibility question.\u00a0 The Secretary repliedthat she had not intended to abandon the feasibility issue, and the judge allowed theSecretary and additional period of time to present arguments of feasibility.We reject Smith Steel’s argument that the judgeacted improperly by alerting the Secretary to the incompleteness of her opening brief andaffording the Secretary an opportunity to file a second brief.\u00a0 Smith Steel waspartially responsible for the delay in the completion of briefing because it did not fileits answers to the interrogatories until the very last day of the briefing period.\u00a0 While we do not excuse the lack of diligence on the part of the Secretary’s counselin failing to request an extension of time to file her brief, we do not find that thejudge demonstrated bias in favor of the Secretary, as Smith Steel claims.\u00a0 In anyevent, Smith Steel has neither argued nor established that it was prejudiced by the factthat the parties’ briefs on the feasibility question were not simultaneous.[[16\/]] Smith Steel objects to a provision of Judge Salyers’ decision directing it to\”evaluate\” the hazard and implement \”appropriate\” engineering controlswithin a three-month period.\u00a0 Smith Steel claims that this instruction violates thecourt’s remand order and deprives it of due process because the judge states no criteriafor determining what may be \”appropriate.\”\u00a0 In addition, Smith Steel arguesthat there is no evidence to support the three-month requirement.We agree with Smith Steel that the remand order precluded the judge from considering anypotential abatement methods other than Ressl’s proposed controls.\u00a0 To the extent thejudge instructed Smith Steel to investigate other means of reducing the silica dustexposure, we set aside his order.\u00a0 However, Smith Steel is not precluded from usingother means of engineering or administrative controls if it so chooses, so long as thosemeans reduce the level of silica dust at least to the same extent as Ressl’s proposedcontrols.\u00a0 We further note that the only evidence as to the time needed to accomplishabatement is Ressl’s estimate that the methods he described could be installed in six toeight weeks.\u00a0 We therefore establish an eight-week abatement period, beginning withthe date of entry of this order.\u00a0 Should Smith Steel require additional time toinstall controls, it may file for an extension of the abatement date under section 10(c)of the Act.[[17\/]] Section 17(k) of the Act, 29 U.S.C. ? 666(k), defines a serious violation as onepresenting \”a substantial probability that death or serious physical harm couldresult.\”[[1\/]] This section provides:(5) The Secretary, in promulgating standards dealing with toxic materials or harmfulphysical agents under this subsection, shall set the standard which most adequatelyassures, to the extent feasible, on the basis of the best available evidence, that noemployee will suffer material impairment of health or functional capacity even if suchemployee has regular exposure to the hazard dealt with by such standard for the period ofhis working life.\u00a0 Development of standards under this subsection shall be based uponresearch, demonstrations, experiments, and such other information as may be appropriate.\u00a0 In addition to the attainment of the highest degree of health and safety protectionfor the employee, other considerations shall be the latest available scientific data inthe field, the feasibility of the standards, and experience gained under this and otherhealth and safety laws.\u00a0 Whenever practicable, the standard promulgated shall beexpressed in terms of objective criteria and of the performance desired.[[2\/]] In the initial proceedings, the only evidence bearing on this issue wasrespondent’s gross income ($7,096,499.55) and net profit ($480,316.85) for 1979, the yearpreceding the Secretary’s inspection.[[3\/]] Respondent, by letter dated June 1, 1987 (J-54), objects to consideration ofthis information on the grounds that the interrogatories and answers have not been offeredor received in evidence.\u00a0 This tactical maneuver by respondent may be technicallycorrect but hardly serves to aid in a resolution of the issue.\u00a0 Accordingly, underRule 102 of the Federal Rules of Evidence, the interrogatories and answers are received bythe court \”to the end that the truth may be ascertained and proceedings justlydetermined.\”\u00a0 Furthermore, the interrogatories were answered by respondentwithout objection.\u00a0 Considering the fact that these answers constitute the only newinformation received by this Judge after this case was remanded with an order to receiveadditional evidence on the issue of economic feasibility, respondent’s objection isdisingenuous.[[4\/]] The Review Commission has held employers to a higher duty to protect employeesfrom the effects of toxic substances (which lead to serious or death-dealing consequences)as opposed to hazards created by noise which do not present a life-threatening risk.\u00a0 Harmony Blue Granite Co., 83 OSAHRC 45\/A2, 11 BNA OSHC 1277, 1983-84 CCHOSHD ? 26,467 (No. 14189, 1983).[[5\/]] It is significant to note that gross sales during the period 1979 through 1982(the period immediately preceding and following the 1980 inspection) approximate$36,000,000 with net profits in excess of $2,000,000.”