SECRETARY OF LABOR,
Complainant,

v.

BETHLEHEM STEEL CORPORATION,
Respondent.

INDUSTRIAL UNION OF MARINE AND
SHIPBUILDING WORKERS OF AMERICA,
LOCAL 24,
Authorized Employee
Representative.

OSHRC Docket No. 78-3512

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

A decision of Administrative Law Judge William E. Brennan is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C §§ 651-678 ("the Act").  Judge Brennan vacated that part of a citation issued by the Secretary of Labor ("the Secretary") to Respondent, Bethlehem Steel Corporation ("Bethlehem"), alleging a violation of the Act For failure to comply with the standard at 29 C.F.R. § 1915.33(c)(1).[[1]]  The Secretary had proposed a $640 penalty for this alleged violation and had characterized it as serious.[[2]] Commissioner Cottine granted in part the Secretary's petition for discretionary review, directing review on the following limited issue:

Whether the Administrative Law Judge erred in not considering evidence of employee reactions symptomatic of exposure to the byproducts of welding, cutting, or heating surfaces coated with a toxic preservative as a basis for a violation of 29 C.F.R. § 1915.33(c)(1)?

Commissioner Cleary also directed review on the following issues:

Whether the Administrative Law Judge erred in vacating the alleged serious violation of 29 C.F.R. § 1915.33(c)(1) on the ground that the Secretary introduced uncorroborated hearsay evidence insufficient to establish a violation of the cited standard?

and

Whether in alleging the serious violation of 29 C.F.R. § 1915.33(c)(1) the Secretary must prove that concentrations of zinc oxide fumes exceeding 5 mg/M3 are present in the enclosed work space?

For the reasons set forth below, we conclude that the Secretary sustained his burden of proving Bethlehem's noncompliance with section 1915.33(c)(1), but that he failed to prove that this violation of the Act was serious.

I
The relevant facts may be summarized as follows. A number of Bethlehem's employees engaged in welding operations while replacing steel plates in various cargo tanks aboard a crude oil tanker that was berthed for repairs at Bethlehem's shipyard in Baltimore, Maryland.  The new steel plates were coated with an anti-corrosive, inorganic coating called Rust-Ban 191.  A document titled "Material Safety Data Sheet" obtained by the Secretary from Bethlehem and admitted in evidence indicates that Rust-Ban 191 is 80% zinc.  During the course of the month-long repair activities, welding was performed upon steel surfaces coated with Rust-Ban 191. This welding produced zinc oxide fumes which were detected in measurable concentrations in the cargo tanks as a result of air sampling by a Bethlehem environmental health technician.[[3]]  The inhalation of zinc oxide fumes can cause a condition known as metal fume fever.  The "Material Safety Data Sheet" recommends that respiratory protection be provided.  Bethlehem's employees were not provided with air line respirators, although some fume-filter cartridge respirators were available during part of this period and mechanical exhaust fans were located on deck to help circulate air down in the bottom of the tanks.

One of the welders, Ochs, testified that, after he had noticed that several other employees engaged in the welding operation were missing work due to illness, he spoke with 29 co-workers who told him that they had experienced nausea, chills, headaches, bronchial and chest cramps and pains, and sore throats while welding in the tanks.  Ochs filed a complaint with the Occupational Safety and Health Administration ("OSHA") after a Baltimore physician, Dr. Keogh, had reviewed the medical records of those affected and had concluded that a majority of those who became ill had a syndrome compatible with metal fume fever.  By the time OSHA received the complaint, however, the tanker had left the shipyard and, therefore, the OSHA compliance officer was unable to inspect it.  Later, at the hearing before Judge Brennan, the compliance officer testified that he had been told by three industrial hygienists at the OSHA office that they considered Rust-Ban 191 to be a toxic preservative.  The compliance officer -- who conceded that he had no background in medicine, toxicology, or pharmacology -- accepted the hygienists' assessment regarding the toxicity of the coating, as well as their opinion that metal fume fever could cause serious physical harm.  He also testified that he believed that metal fume fever lasts a day or two and that zinc remains in the body about one day.

In his decision, Judge Brennan determined that Bethlehem had been properly cited under section 1915.33(c)(1).  He then turned to the question of whether the Secretary had established that Bethlehem's employees were exposed to "toxic" concentrations of zinc oxide while working in the vessel's tanks, thereby implicitly holding that the Secretary was required to make such a showing in order to establish noncompliance with the cited standard.  The judge noted that, according to the standard at 29 C.F.R. § 1910.1000(a)(2), Table Z-1, zinc oxide is a toxic substance in concentrations exceeding an 8-hour time-weighted average of 5 mg/M3.[[4]]  The judge found that no quantitative data had been introduced to establish that the threshold limit value (TLV) for zinc oxide set forth in section 1910.1000 had been exceeded.  He characterized the only evidence directly relevant to this issue, i.e., the testimony of Bethlehem's environmental health technician concerning the samples he had taken, as "not conclusive."  The judge noted that the Secretary had attempted to bridge "a substantial evidentiary gap" by introducing the compliance officer's testimony relating the opinion of the three OSHA industrial hygienists, Ochs' testimony describing the symptoms reported to him by the 29 employees, and a letter by Dr. Keogh stating his evaluation of the symptoms which the employees had related to him.  The judge found that none of this hearsay evidence was corroborated at the hearing and he indicated that such uncorroborated hearsay could not support a finding of noncompliance.   Having concluded that the Secretary had failed to establish that the employees were exposed to toxic concentrations of zinc oxide while welding, Judge Brennan vacated this item of the citation.

II
Bethlehem endorses Judge Brennan's determination that, in order to establish the alleged violation at issue, the Secretary had the burden of proving that the concentration of zinc oxide fumes exceeded 5 mg/M3 in the enclosed spaces in which welding was performed. [[5]] Bethlehem refers to the alternative tests set forth in 29 C.F.R. § 1910.141(a)(2)(viii), which defines "toxic material" as "a material in concentration or amount which exceeds the applicable limit established by a standard, such as §§ 1910.1000 and 1910.1001 or, in the absence of an applicable standard, which is of such toxicity so as to constitute a recognized hazard that is causing or is likely to cause death or serious physical harm."  Bethlehem asserts that, once the + 25% sampling error factor is applied to the results of the samples taken by its environmental health technician, there is no record evidence to show that the 5 mg/M3 TLV was exceeded.  Moreover, it continues, by failing to show exposure to zinc oxide fume in excess of 5 mg/M3, the Secretary has also failed to establish that the employees were exposed to any hazard, because, in Bethlehem's view, no adverse health effects could be expected as a result of exposure to concentrations below 5 mg/M3.  Bethlehem argues that the concentrations shown in this case cannot be said to cause death or serious physical injury because the record establishes the relatively brief duration of metal fume fever.  Accordingly, Bethlehem concludes, Rust-Ban 191 does not constitute a toxic material under either part of the definition set forth in section 1910.141(a)(2)(viii).

III
The cited standard, a specification standard, requires that employees engaged in welding, cutting or heating in enclosed spaces on surfaces covered with toxic preservatives must be protected by air line respirators or that the toxic coating must be stripped at least four inches from the area of heat application.  It is not seriously disputed -- and Judge Brennan so found -- that air line respirators were not provided and that welding was performed in enclosed spaces on surfaces which had not been stripped of coating.   Thus, the matter fundamentally at issue before us is whether the unstripped coating on the steel plates was a "toxic preservative coating" within the meaning of the cited standard, note 1 supra.

Bethlehem contends that Judge Brennan properly held that the Secretary failed to prove that Rust-Ban 191 is a toxic preservative coating.  We disagree.  The Material Safety Data Sheet indicates that the preservative coating Rust-Ban 191 is 80% zinc.  It also prescribes the use of respiratory protection and urges the use of adequate ventilation while welding coated surfaces.  The record evidence, particularly the four samples collected by Bethlehem's own environmental health technician, establishes that welding upon steel surfaces coated with Rust-Ban 191 produces measurable concentrations of zinc oxide fume.  Under the ship repairing standards Bethlehem was expressly required to ascertain the threshold limit value for zinc oxide. 29 C.F.R. § 1915.57 provides in pertinent part:

§ 1915.57 Health and sanitation.
(a) No chemical product, such as a...preservative; [and] no structural material, such as... zinc coated steel ... which is a hazardous material within the meaning of § 1915.2(s), shall be used until the employer has ascertained the potential fire, toxic, or reactivity hazards which are likely to be encountered in the handling, application, or utilization of such a material.
(b) In order to ascertain the hazards, as required by paragraph (a) of this section, the employer shall obtain the following items of information which are applicable to a specific product or material to be used:

(7) Health hazard data, including threshold limit value, in appropriate units, for a single hazardous chemical or for the individual hazardous ingredients of a mixture, as appropriate; ....

Section 1915.2(s), cited in section 1915.57(a), defines "hazardous material" as having any of seven characteristics, including "...a threshold limit value... below 500 mg/M3 for fumes .... " The threshold limit value for zinc oxide fumes is set forth in Table Z-1 of section 1910.1000, the roster of toxic and hazardous substances.  Table Z-1 applies in this case because there is no specific reference in or to section 1915.57(a) regarding any other source for threshold limit values.  The low TLV for zinc oxide fume found in Table Z-1, 5 mg/M3, establishes the characterization of these fumes as "hazardous." [[6]]  We also note that metals coated, as here, with zinc-bearing materials are deemed to be "of toxic significance" pursuant to section 1915.31(c)(1), a companion standard to section 1915.33(c)(1) in Subpart D--Welding, Cutting and Heating, of the Safety and Health Regulations for Ship Repairing under Part 1915.  Based on the foregoing evidence as well as the Secretary's regulations, we conclude that Rust-Ban 191 is a "toxic preservative coating" within the meaning of the cited standard.

We reject Bethlehem's argument that, in order to establish a violation of section 1915.33(c)(1), the Secretary had the burden of proving the presence of zinc oxide fume in excess of the levels set forth in Table Z-1.[[7]]  The plain meaning of the cited standard is that employees must be protected by air line respirators unless "all toxic coatings" have been stripped for a distance of at least 4 inches from the area of heat application.  The standard applies to all surfaces covered by a toxic coating.  Its application is not determined by the level of air contaminants produced by welding, cutting or heating these surfaces.[[8]]

Bethlehem's interpretation also is contrary to the standard's preventative intent.  The standard requires either the stripping of coating away from the area of heat application, which would prevent the creation of any toxic air contaminants, or the use of air line respirators, which would assure protection from any toxic air contaminants that were created.  The interpretation advocated by Bethlehem would permit employees to be exposed to toxic air contaminants caused by welding upon surfaces coated with a toxic preservative for as long a period as is necessary to extrapolate an 8-hour time-weighted average.  Indeed, such exposure could continue until the ever-changing concentration of zinc oxide fume created by the process of welding in an enclosed space reached the point where the TLV was exceeded.  In our view, Bethlehem's interpretation contravenes the clear intent of the standard, which is to protect employees from any exposure to the air contaminants created by welding on a toxic preservative coating by taking precautions before welding ever begins.

In Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1480, 1981 CCH OSHD ¶ 25,300, p. 31,352 (No. 13102, 1981), the Commission held that 29 C.F.R. § 1910.1001(c)(2)(iii) is not limited in its application to those situations in which the permissible exposure limit for asbestos is exceeded.  In essence, the Commission concluded that the standard cited in that case was a work practices standard that required employees to use supplied-air respirators and special clothing whenever they engaged in the specified activities of spraying, demolition, or removal of asbestos.  We conclude that the standard at issue in this case is similar to the standard at issue in Anaconda, i.e., both standards require specified precautions to be taken whenever employees are engaged in specified activities.  Therefore, the cited standard like the standard at issue in Anaconda is not limited in its application to situations where a showing is made that permissible exposure limits have been exceeded.  Inasmuch as Bethlehem failed to provide air line respirators when its employees welded upon surfaces which had not been stripped of a toxic preservative coating, we further conclude that Bethlehem failed to comply with 29 C.F.R. § 1915.33(c)(1).[[9]]

The citation alleged that the violation was serious in nature.  Viewing the evidence in the light most favorable to the Secretary, it could be concluded that some of the affected employees contracted metal fume fever as the result of exposure to zinc oxide fumes in the cargo tanks.  Also, the compliance officer reported the hearsay opinion of three OSHA industrial hygienists that metal fume fever could cause serious physical harm and Dr. Keogh's report indicated that some of the workers exposed had persistent symptoms.  Nevertheless, Dr. Keogh noted that these persistent symptoms are "clearly not typical of the course reported in the literature for metal fume fever."  Moreover, the ACGIH documentation regarding zinc oxide fume states that "[m]ost authorities agree that metal fume fever itself is a relatively innocuous condition.  It has been described as temporary and never serious, of brief duration and without aftereffects, never fatal . . . . "[[10]]  There is no argument or evidence that employees were exposed to the hazard of contracting metal fume fever other than during this one welding operation or that the metal fumes were contaminated with any other substance that could aggravate the resulting symptoms.  Thus, the Secretary's case rests on the effects of metal fumes during the limited period of welding involved in this case.

We conclude that the Secretary's evidence does not establish a probability that metal fume fever could result in prolonged or serious physical harm in light of the references by Dr. Keogh and ACGIH to the widely-held scientific opinion to the contrary.

As to the appropriate penalty, the gravity of the violation was substantial because a great number of employees were exposed to the zinc oxide fumes.  Bethlehem is a large company with many prior violations.  Though Bethlehem showed a degree of good faith by monitoring some employees' exposure levels, it took no action after those readings revealed exposure to measurable concentrations of zinc oxide fume.  In addition, the inadequate metal fume filter respirators were not always provided.  In consideration of these factors we assess a $300 penalty.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  FEB 28 1983

The Administrative Law Judge decision in this matter is unavailable in this format.   To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The standard provided as follows:

§ 1915.33 Welding, cutting and heating in way of preservative coatings. (c) Protection against toxic preservative coatings. (1) In enclosed spaces all surfaces covered with toxic preservatives shall be stripped of all toxic coatings for a distance of at least 4 inches from the area of heat application or the employees shall be protected by air line respirators meeting the requirements of § 1915.82(a).

The Secretary recently has consolidated and revised the standards that previously were published at 29 C.F.R. Parts 1915, 1916 and 1917.  These revised standards have been promulgated as a new 29 C.F.R. Part 1915--Occupational Safety and Health Standards for Shipyard Employment. 47 Fed. Reg. 16984-17013 (April 20, 1982). The standard cited in this case and set forth above is now found at 29 C.F.R. § 1915.53(d)(1). 47 Fed. Reg. 16995. In this decision, we will use the old designation for the cited standard, as well as for the other standards and regulations that formerly were published in Part 1915--Safety and Health Regulations for Ship Repairing.

[[2]] Section 17(k), 29 U.S.C. § 666(j), of the Act provides:

[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result... unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[3]] The Bethlehem environmental health technician testified that he took samples in the tanker but did not use any breathing zone monitoring devices because none of the employees he approached were willing to wear them.  Therefore, instead of attaching sampling devices to individual employees, he took sampling pumps and placed them in pairs in different areas where employees were working.  He collected four samples which yielded zinc oxide in the following concentrations:

Sample#                    Sample Duration               Zinc-Oxide Concentration

1                               36 minutes                             .74 mg/M3                                                
3                               15 minutes                           5.67 mg/M3
5                               10 minutes                           1.14 mg/M3
6                               30 minutes                           3.66 mg/M3

test, so he was unable to state at what level inside the tanker the samples had been taken.

At the hearing the technician initially testified that he had computed the exposure level in terms of a time-weighted average by adding the concentration level figures determined by the samples taken and then dividing that total by the number of samples. However, he later admitted that the figure he had computed could not be equated with an 8-hour time-weighted average.

[[4]] The standard at 29 C.F.R. § 1910.1000(a)(2) requires employee exposure to specified air contaminants to be limited to the applicable 8-hour time-weighted average as listed in Table Z-1.

[[5]] Both Bethlehem and the Secretary frame their arguments in terms of whether the samples taken by the environmental health technician indicated a concentration of zinc oxide fume in excess of 5 mg/M3 for the brief period of time sampled.  They overlook the fact that this TLV for zinc oxide fume is an 8-hour timeweighted average.

[[6]] Commissioner Cleary does not rely on the listing of zinc oxide fumes in Table Z-1 of § 1910.1000 as a basis for concluding that Rust-Ban 191 is a toxic preservative coating.  Instead, he notes that the American Conference of Government Industrial Hygienists, in its publication, Threshold Limit Values, has set a TLV for zinc oxide fumes of 5 mg/M3, and that § 1915.5 specifically incorporates this publication into §§ 1915.11(a)(3) and (b)(3) and 1915.21(b).  Accordingly, Commissioner Cleary concludes that the references to threshold limit values in §§ 1915.2(s) and 1915.57 refer to the TLVs as established and published by the ACGIH.

[[7]] The definition of "toxic material" at 29 C.F.R. § 1910.141(a)(2)(viii) cited by Bethlehem is by its terms applicable only to 29 C.F.R. Part 1910, Subpart J, and does not control the meaning of "toxic coating" under the cited standard.

[[8]] Commissioner Cottine notes that the dissent at n.15, infra, overlooks the elementary distinction between a permissible exposure level and a work practice. See 29 C.F.R. § 1910.1001(b)(1), (c)(2)-(iii) (asbestos standard: separate requirements for permissible exposure level and work practices), § 1910.1029(c), (f)(3) (coke oven emissions standard: same), § 1910.1043(c), (g) (cotton dust standard: same).  In Bethlehem Steel Corp., 82 OSAHRC 31/A2, 10 BNA OSHC 1673, 1982 CCH OSHD ¶ 26,083 (No. 77-1807, 1982), the standard specifically required a mechanical ventilation system adequate to maintain welding fumes and smoke "within safe limits" unless alternative protection was provided. 29 C.F.R. § 1916.31(a), (b).  However, the citation in this case involves the work practices provision of § 1915.33(c)(1).   This provision specifically mandates protection unless all toxic coatings are removed from the area of heat application.  Therefore, this provision requires specific work practices regardless of air contaminant levels when welding is to be done on surfaces covered with toxic preservative coatings.  These work practices are supplemented by the requirement of adequate ventilation or alternative protection when welding smoke and fumes exceed "safe levels." Work practices are dependent on a qualitative criterion--"metals of toxic significance" on the surface of the material to be welded--and by a quantitative criterion--the "safe limits" established by the permissible exposure levels for toxic air contaminants. Accordingly, Commissioner Cottine adheres to his fully consistent view that the threshold limit values of Table Z-1 of § 1910.1000 are an appropriate quantitative reference for a standard requiring the measurement of air contaminants, Bethlehem Steel Corp., 10 BNA OSHC, at 1677 n.9, 1982 CCH OSHD at p. 32,832 n.9, but that this quantitative reference is irrelevant to a standard that requires a specific work practice regardless of the air contaminant levels.

[[9]] Our finding that the coating before us is a "toxic preservative coating" within the meaning of the cited standard is not based upon any of the evidence which the judge characterized as "uncorroborated hearsay." Therefore, we need not reach the evidentiary issues directed for review in order to dispose of this case. It is, of course, well-settled that hearsay evidence is admissible in Review Commission proceedings and that hearsay evidence may be probative. E.g. Ultimate Distribution Systems, Inc., 82 OSAHRC 22/B12, 10 BNA OSHC 1568, 1982 CCH OSHD ¶ 26,011 (No. 79-1269, 1982).

[[10]] ACGIH, Documentation of the Threshold Limit Values 284 (3d ed. 1971)(citations omitted); see also Id. 446 (4th ed. 1980).