SECRETARY OF LABOR,
Complainant,

v.

GENERAL DYNAMICS LAND SYSTEMS DIVISION, INC.,
Respondent.

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, and its LOCAL
UNION NO. 1230,
Authorized Employee Representatives.

OSHRC Docket No. 83-1293

ORDER OF REMAND

Before: BUCKLEY, Chairman; AREY, Commissioner.

BY THE COMMISSION:

The Secretary's Motion for Expedited Remand, which General Dynamics has supported, is GRANTED, and the case is remanded to Administrative Law Judge Paul L. Brady.

This case is before the Commission on remand from the United States Court of Appeals for the District of Columbia Circuit. UAW v. General Dynamics Land Systems Division, 815 F.2d 1570 (D.C. Cir. 1987), cert., denied, 108 S.Ct. 485 (1987). In its decision, the D.C. Circuit reversed a Commission order that had vacated a citation alleging a violation of the general duty clause, Section 5(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678. The citation alleged that employees were exposed to the hazards of poisoning and asphyxiation by entering confined spaces containing trichlorotrifluoroethane ("freon"). Judge Brady vacated the citation on the basis of his holding that the standard promulgated at 29 C.F.R. § 1910.1000(a)-(d), which regulates the time-weighted average exposure of employees to the chemical trichlorotrifluoroethane over an eight hour period, preempted the application of the general duty clause to the cited conditions. The judge's decision became the final order of the Commission when it was not directed for review by a Commission member. 29 U.S.C. § 661(j).

The D.C. Circuit held that a standard does not preempt the applicability of the general duty clause "if an employer knows that [the] specific standard will not protect his workers against a particular hazard..." 815 F.2d at 1577.[[1/]] The court found the hazard described by the citation to be distinct from that addressed by the standard. While the standard places a limit on the permissible level of time-weighted exposure to freon vapors over an eight-hour shift, the citation referred to the danger, in confined spaces requiring special entry procedures, of short-term exposure to toxic vapors in concentrations that may displace oxygen. In remanding the case to the Commission the court concluded that, given the facts alleged, the judge should have determined whether the hazard described in the citation was present at General Dynamic's workplace ("Is the hazard . . . accurately described?") and, if so, whether General Dynamics had knowledge of the hazard and took "appropriate measures" to "mitigate" it. 815 F.2d at 1577.

The Secretary, supported by General Dynamics, has moved the Commission to further remand the matter to Judge Brady to enable the judge to make the necessary credibility and factual findings that, due to the nature of his disposition, were not made when the case was originally before him.

Accordingly, the case is remanded to Judge Brady with instructions to determine, in accord with the remand order of the D.C. Circuit, whether the record establishes a violation of Section 5(a)(1) and, if so, whether the violation was willful.

FOR THE C0MMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: March 24, 1989

SECRETARY OF LABOR,
Complainant,

v.

GENERAL DYNAMICS LAND SYSTEMS DIVISION, INC.,
Respondent, and

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, and its LOCAL UNION NO. 1200,
Authorized Employee Representative.

OSHRC Docket No. 83-1293

APPEARANCES:

Richard J. Fiore, Esquire, and Mark A. Holbert, Esquire,
Office of the Solicitor, U. S. Department of Labor,
Chicago, Illinois, on behalf of complainant.

John P. Hancock, Esquire, and Lisabeth Coakley, Esquire,
Butzel, Long, Gist, Klein and Van Zile, Detroit, Michigan,
on behalf of respondent.

Beverly Tucker, Esquire, and Diane Thomas, Law Clerk,
United Automobile, Aerospace and Agricultural Implement
Workers of America, International Union, Detroit, Michigan,
on behalf of the authorized employee representative.

Charles Farrugia, Health and Safety Representative, United
Automobile, Aerospace and Agricultural Implement Workers
of America, Local Union No. 1200, on behalf of the
authorized employee representative.

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 ("Act") to contest a citation alleging two willful violations of the Act, and a proposed penalty in the amount of $18,000. General Dynamics Land Systems Division, Inc., ("General Dynamics"), is charged with violating the general duty requirements of section 5(a)(1) of the Act and specific standards under section 5(a)(2) at 29 C.F.R. § 1910.1000(a) and (e). The violations are alleged to have occurred while respondent was engaged in the production of M1 Abrams Main Battle Tanks at the Detroit Arsenal Tank Plant (DATP) which it had taken over from the Chrysler Corporation in March 1982.

The violations are described in the citation in pertinent part as follows:

5(a)(1)
...employees working in the Heavy Repair, Test and Adjust, Marriage and M1 Hull Line were required to spray or pour varying quantities of 1, 1, 2 trichloro 1, 2, 2 trifluoroethane into the turret and driver's compartments of M1 tanks and immediately enter these compartments to perform clean-up and other routine tasks thereby exposing themselves to the hazard of asphyxiation and/or chemical poisoning. A confined space entry procedure, specific for these operations, had not been implemented when toxic compounds were introduced into the vehicle.

29 C.F.R. 1910.1000(a)(2) -
...employees were exposed to 1, 1, 2 trichloro 1, 2, 2 trifluoroethane in excess of 1,000 ppm for an 8-hour TWA in that an employee was found unconscious in M1 Tank, Hull Number 163 located at Bay L-23.... Calculated range of exposure was approximately 1,200 to 5,000 ppm TWA.

29 C.F.R. 1910.1000(e) -
...and feasible administrative and/or engineering controls had not been implemented.

There is no dispute that 1, 1, 2 trichloro 1, 2, 2 trifluoroethane ("freon" or "the solvent") was used as a cleaning agent during production and repair of the tanks. The solvent is a colorless liquid described as having a "light ethereal" (sweet) odor. It has a high vaporization rate and is of high density, being six and one-half times heavier than air. While less toxic than most commercial solvents, inhalation of high concentrations can cause depression of the central nervous system, cardiac arrhythmia (irregular heart beat), and even cardiac arrest.

The M1 tank is produced in three assembly stages at the DATP. The hull assembly, turret assembly, and when connected, become fully assembled or the married vehicle. The hull enters the assembly department as an open structure with various electrical components, hydraulic lines, rolled wheels and tracks. Assembly fitters install components to the vehicle including the engine, and it becomes drivable. The hull and turret are connected in the Marriage Department and any needed repairs are performed. The vehicle is then inspected and tested in the Heavy Repair or Test and Adjust Department. These production tasks are performed by tank repairmen, assembly fitters. and inspectors, all skilled tradesmen. The solvent is used during each stage of assembly, usually in cleaning up hydraulic fluid or fuel which has been spilled.

The M1 Abrams tank, unlike it predecessor the M60 tank, has increased hydraulic systems which contributes to larger amounts of oil spillage and leaks.

THE ALLEGED VIOLATION C: SECTION 5(a)(1)

The inspection which gave rise to issuance of the citation was conducted by Mr. David Morgan, an Industrial Hygiene Supervisor for the Occupational Safety and Health Administration (OSHA). He commenced his investigation because an employee, Charles Paling, was seriously injured from exposure to freon vapor while working in the driver's compartment of a fully assembled tank.

Respondent is charged with failure to develop and implement a safe employee entry procedure into the tank compartments when the atmosphere was known to have been altered and contaminated by the solvent vapors. The willful charge is based on allegations that respondent knew the configuration of the compartments presented recognized hazards associated with confined spaces yet required its employees to enter and work in the spaces without providing the necessary precautions. It is also alleged that respondent has a history of non-response to frequent employee complaints and union requests that affected employees be protected.

Mr. Charles Paling, a tank repairman, testified to the events which led to his being overcome by the solvent on September 21, 1983. He stated that,as a repairman in the Test and Adjust Department, he was assigned to correct deficiencies on Tank No. 163 (Tr. 800). One such deficiency was a leak in a one-inch hydraulic line on the turret distribution manifold. In order to make the repair, Mr. Paling gained access to the line by entering the driver's compartment head first and positioning himself facing the rear of the vehicle. As a result of replacing the line, oil spilled onto the turret distribution manifold and turret floor (Tr. 802-804). At Paling's request his co-worker, Steven Valentine, brought him a pail containing three to four gallons of freon which he poured on the manifold and turret platform to clean up the spill (Tr. 808). At. this point, the testimony differs as to what actually occurred. According to Mr. Valentine, Paling immediately re-entered the driver's compartment to check his repair. Valentine then left the area as he was instructed to perform work on another tank. When he returned approximately 20 minutes later, he found Paling unconscious in the tank (Tr. 919-920). Paling, however, testified that, after pouring the freon, he immediately got out of the vehicle, set up his air mover to "blow out the fumes" and proceeded to work on the outside of the vehicle (Tr. 809). He indicated the tank was ventilated for about 45 minutes to an hour with the three hatches and the drain open (Tr. 854, 868). Paling also related that when he re- entered the tank to check the line, he noted another leak; and, while preparing to break the line, he passed out (Tr. 812, 813). After six days of hospitalization, he was discharged with the following diagnosis (Ex. C-33(c), "Discharge Summary"):

Trichlorotrifluroethane Exposure, Industrial, Severe.
Atrial Fibrillation.
Atrial and Ventricular Extrasystoles.

In order to establish a violation of section 5(a)(1) of the Act, the Act's general duty clause, the Secretary must prove: (1) that the employee failed to render its workplace free of a hazard which was (2) "recognized" and (3) causing or likely to cause death or serious physical harm, and (4) that feasible means existed to free the workplace of the hazard. Empire-Detroit Steel Division v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).

The proof required to establish the first two elements of the alleged violation provides the basis for this dispute. A considerable amount of evidence was presented to establish that the driver's. crew and hull compartments of the tank constituted "confined space," necessitating safe employee entry procedures. Generally, the characteristics of a "confined space" are that the space is: (1) an enclosure, (2) having limited means of access or egress, and (3) not subject to good natural ventilation (Ex. C-35(a), (b), (c), (d)). In addition, the Secretary attempts to show respondent had full knowledge of the hazards associated with employees working in confined spaces because in August 1982 an employee was rendered unconscious from his exposure to freon.

The record discloses that the employee representative's complaint to OSHA on August 25, 1982, indicated that freon vapor had accumulated in a pit under a conveyor line where the employee was injured. This was followed by an investigation of the incident by OSHA, and issuance of a citation for violation of section 5(a)(1). Implementation of a confined space entry procedure throughout the plant was recommended to abate the hazards. The matter was subsequently resolved by a settlement agreement in Secretary v. General Dynamics Land Systems, Inc., OSHRC Docket No. 82-1001 (Ex. C-7, C-8). The agreement, in part, states as follows:

(a) Respondent represents that the violative conditions alleged have been abated in accordance with the abatement procedures set forth in the Citation by the implementation of amended Confined Space and Lockout Procedures developed with the full input and cooperation of authorized employee representatives.

(b) To the best of Respondent's knowledge and belief, Respondent is currently complying, and in the future will in good faith continue to comply, with the provisions of the Act, and applicable standards promulgated pursuant thereto.

The evidence shows that a confined space entry procedure was implemented at the plant, which was acceptable to complainant (Tr. 504).

Respondent now argues that the confined space entry procedures developed at the plant were not intended to include the M1 tanks. Also, at no time was it advised or made aware that confined space hazards were associated with its use of the solvent in the tanks until issuance of the instant citation.

In support of this argument, respondent relied upon the background testimony of its Safety and Health Director, Edmund Matthews. Mr. Matthews was aware that freon had been used at the plant even prior to 1974. It was preferred as a solvent because of its relatively low toxicity, high rate of evaporation without residue, and lack of combustibility. He had first investigated its toxic effects in 1976 (Tr. 2299-2300).

Following the OSHA inspection in 1982, Matthews stated he conducted a survey of the plant and compiled a list of confined spaces within the meaning of the Michigan Occupational Safety and Health Act (MIOSHA). He also developed safe entry procedures for those spaces, took air samples, provided portable ventilation systems, lifelines and safety harnesses. In addition, confined space entry classes were conducted for employees having occasion to work in the designated spaces (Tr. 2289-2295).

Respondent also argues that the Health and Safety Representative for the employee's union did not recognize the tank as being a confined space. The list of confined spaces submitted by the union in accordance with the settlement agreement did not include the M1 tank in either its married or unmarried configuration (Tr. 1343, 1344).

Although the compliance officer who conducted the initial inspection was not called to testify in this proceeding, it can be reasonably assumed he thoroughly investigated the use of freon at the DATP, including its use in the M1 tanks. This becomes quite evident since another complaint was filed with OSHA by the union concerning use of the solvent in the tanks. The complaint stated in part, that "employees made to wash out tanks with 14 gallons of freon" and "employees made to drive under the influence of these gases" (Ex. C-9). This complaint was investigated by the same compliance officer whose earlier inspection resulted in the citation. Upon completion of this inspection, neither he nor OSHA advised respondent the M1 tank was considered a confined space, or that use of freon inside the tank presented a potential hazard (Tr. 442, 446, 2298).

The inspecting officer was clearly aware of the solvent's use in the tanks as Mr. Charles Farrugia, the Health and Safety Representative for the local union, testified that, he personally explained how it was being used by employees inside the tanks (Tr. 1353). It is also obvious that the OSHA investigation included an evaluation of the control measures implemented by respondent (Tr. 436, 2315-2317).

Although the record indicates a number of employees have complained of ill effects from working with the solvent, General Dynamics presented evidence to show it had responded adequately to the complaints and that it has maintained safe controls and procedures. It is noted that a grievance filed by the union through a formal labor- management procedure regarding use of freon was withdrawn (Ex. C-2). Also, in August 1983, the International Union's Safety Representative conducted an inspection at DATP with Mr. Farrugia. The inspection was followed by a meeting with company officials regarding health and safety problems, but employee use of the solvent was not included in the topics discussed (Tr. 1430-1431). Thus, it would appear respondent employed acceptable work procedures.

The Secretary strongly contends that the respondent had actual knowledge of the hazards associated with employee entry into confined spaces and knowingly exposed its employees to such hazards in the M1 tanks. The record indicates, however, that the basic criteria for identifying a confined space requiring safe entry procedures is the extent of enclosure and inadequacy of natural ventilation to purge the atmosphere. In the instant case, Mr. Paling testified the hatches and drains were open when he ventilated the space for up to an hour as part of his normal procedure. The conditions under which he worked suggest safe operating procedures were being employed which included purging of the atmosphere by mechanical ventilation.

Generally, there appears some question regarding the sufficiency of the evidence to establish the violation. However, a ruling upon consideration of all the evidence will not be made as the allegations of the violation are inappropriate and must be vacated because the alleged hazard is addressed by a specific standard.

The declared purpose of the Act is to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . 29 U.S.C. § 651(b). While the Act contemplates specific safety standards, its purposes are also effectuated by the general duty clause because it is obvious the Secretary can not promulgate specific standards to protect employees from every conceivable hazardous condition. The legislative history of the Act reflects this view through the comments of the Senate Committee on Labor and Public Welfare which in part state:

The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted. S. Rept. No. 91-1282, 91st Cong., 2d Sess. (1970) at 9, 10.

The general rule of statutory construction requires that the specific takes precedence over the general. See, e.g., Clifford F. MacEvoy Co. v. United States, 322 U. S. 10,107 (1941). This principle is recognized by the Secretary in the regulation at 29 C.F.R. 1910.5(c)(1) which provides:

If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process . . . .

The Commission has also adopted this principle and established it as precedent by stating:

It is the opinion of the Commission that a citation for a violation of section 5(a)(1) is invalid and will not lie, where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act. [Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD ¶ 15,392 (No. 1046, 1973)]

Thus, under the Act, a citation alleging violation of section 5(a)(1) is inappropriate if the hazard is addressed by a standard. Daniel International, Inc., 82 OSAHRC 23/D3, 10 BNA OSHC 1556, 1982 CCH OSHD ¶ 26,033 (No. 78-4279, 1982). However, when no specific standard entirely protects against the hazard alleged, citation under 5(a)(1) is proper. Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD ¶ 25,551 (No. 13390, 1981); Peter Cooper Corp., 81 OSAHRC 101/A2, 10 BNA OSHC 1203, 1211, 1981 CCH OSHD ¶ 25,795, p. 32,238 (No. 76-596, 1981).

In support of its position that 5(a)(1) is proper in this case, complainant cites the Commission decision in ConAgra, Inc., 83 OSAHRC 5/C7, 11 BNA OSHC 1141, 1145, 1983-1984 CCH OSHD ¶ 26,764 (No. 79-1146, 1983) where it is stated:

The failure to test in a confined atmosphere before possible exposure of employees to toxic substances is a violation distinct from a continued exposure to known quantities of substances listed in section 1910.1000.

The foregoing exception is not applicable to the facts in this case because of the procedure followed by Paling in ventilating the atmosphere, and that the air contaminants standard deals fully and completely with the hazard at issue, which is employee use of trichlorotrifluoroethane in production of the M1 tank. Also, in ConAgra, supra, the Commission did not deviate from its precedent by again stating:

We note that the purpose of the general duty clause is to provide protection against recognized hazards where no duty under a specific standard exists, and that specific, promulgated standards will preempt the general duty clause, but only with respect to hazards, conditions or practices expressly covered by the specific standards . . . .

Clearly, the circumstances of this case are governed solely by the regulations at 29 C.F.R. § 1910.1000(a)--(d) which set forth the limits of employee exposure to trichloro trifluoroethane. Protection is provided against any potential hazards associated with employee use of the solvent by specifically prescribed levels within which the employees may safely work. In addition, the employer is specifically notified of the manner in which abatement is to be accomplished by 1910.1000(e) which requires the following:

"[A]dministrative controls, engineering controls, personal protective equipment or 'any other protective measures' . . . . The employer must use one or more of the specified measures to assure full protection for the employees, whatever the circumstances or the nature of the employer's operations." Todd Shipyards Corp. 81 OSAHRC 69/A2, 9 BNA OSHC 2031, 2034, 1981 CCH OSHD ¶ 25,516 at p. 31,812 (No. 77-2545, 1981).

The decision in this case recognizes that specific standards "are intended to be the primary method of achieving the policies of the Act." Brennan v. OSHRC and Underhill Construction Corp., 513 F.2d 1032, 1038 (2d Cir. 1975). And further, "the standards presumably give the employer superior notice of the alleged violation and should be used instead of the general duty clause whenever possible." Usery v. Marquette Cement Manufacturing Co., 569 F.2d 902, 905 (2d Cir. 1975). Necessarily, the employer has a legal obligation to comply with the safety regulations specifically promulgated to accomplish the stated purpose of the Act.

That part of the citation alleging violation of section 5(a)(1) is vacated.

THE ALLEGED VIOLATIONS OF THE SPECIFIC STANDARDS
AT 29 C.F.R. § 1910.1000(a)(2) AND 29 C.F.R. § 1910.1000(e)

The standards under section 1910.1000 pertain to air contaminants and state in pertinent part as follows:

An employee's exposure to any material listed in table Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(a) Table Z-1:
*    *    *
(2) An employee's exposure to any material in table Z-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.
*    *    *
(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section . . . .

The alleged violations are described in the citation as follows:

29 CFR 1910.1000(a)(2)
Employees were exposed to 1, 1, 2 trichloro 1, 2, 2 trifluoroethane in excess of 1,000 ppm for an 8-hour TWA in that an employee was found unconscious in M-1 Tank, Hull Number 163 located at Bay L-23 on 9/21/83 at approximately 4:50 p.m. due to this exposure. Calculated range of exposure was approximately 1,200 to 5,000 ppm TWA....

29 CFR 1910.1000(e)
In Bay L-23 an employee cleaning inside M-1 Tank #163 was overexposed to 1, 1, 2 trichloro 1, 2, 2 trifluoroethane and feasible administrative and/or engineering controls had not been implemented....

The Commission has held that in order to establish a violation under section 5(a)(2), it is necessary for the Secretary to show by a preponderance of the evidence that (1) the cited standard applies; (2) there was a failure to comply with the standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1982 CCH OSHD ¶ 26,251 (No. 78-6247, 1982); Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD ¶ 21,679 (No. 76-181, 1977).

The Secretary also contends that these violations occurred when tank repairman Charles Paling was exposed to the solvent on September 21, 1983. There is no question the cited standards are applicable. The solvent used by Paling, 1, 1, 2 trichloro 1, 2, 2 trifluoroethane, is listed in Table Z-1 of 29 C.F.R part 1910 which requires an eight-hour time weighted average exposure limitation of 1,000 parts of vapor per million parts of air (PPM). Subsection (e) sets forth the required controls to reduce exposure to the material in order to achieve compliance with subsection (a). The primary issue relates to the proof required to establish the employer's failure to comply with subsection (a).

The record reveals that under the circumstances, representatives of OSHA were unable to take actual samples of the atmosphere in which Mr. Paling was working at the time he sustained his injury. Following an investigation of the facts and circumstances, a technique known as is mathematical calculation" was utilized to determine Paling's range of exposure to the solvent (Ex. C-14, p. 4; Tr. 106-108, 143, 144). The formula used to determine the vapor concentration is as follows (Tr. 150-151):

The concentration of the material's vapor expressed in parts per million (C) is equal to the volume of the material in the liquid form expressed in milliliters (v), times the density of the substance expressed in grams per milliliter (p), times the volume that one mole of the material would occupy at normal temperature and atmospheric pressure expressed in liters (24.4), divided by the molecular weight of the material expressed in grams (MW), all divided by the atmospheric volume of the space or enclosure expressed in liters (vt), all multiplied by one million,

(or)

C(ppm) = v(ml)p(gm/ml)24.4(liters)MW(gm) x 10^6
                                          Vt(liters)

After determining the vapor concentration, an eight-hour time weighted average (TWA) exposure is found by inserting the concentration into the formula set forth in the regulation. Thus, the equivalent exposure for an eight-hour work shift expressed in parts per million (E) is equal to the vapor concentration expressed in parts per million (C), times the duration of that exposure expressed in hours or minutes (T), all divided by 8 hours or 480 minutes, (or)

E (ppm) = C(ppm) T(hours)
                        8 hours

Based upon the foregoing formula and the stipulated atmospheric volume of a fully assembled M1 tank to be 268.5 cubic feet (Ex. C-29), complainant determined an eight-hour TWA exposure to one gallon of solvent for five minutes to be 1,048.6 PPM. The exposure to two gallons for ten minutes amounts to 4,194.3 PPM (Tr. 157).

The record shows that the vapor concentrations calculated from the formula are based on certain factual assumptions. These assumptions, respondent maintains, are so inaccurate and unreliable that they fail to provide a basis to prove overexposure. Complainant asserts, however, that the assumptions either had no significant effect on the ultimate exposure determination or actually resulted in a lower exposure determination. The questionable assumptions are: (1) that Paling introduced one to two gallons of solvent into the M1 tank (Tr. 117); (2) that none of the solvent introduced had drained out of the tank (Tr. 393); (3) that the M1 tank was a closed space with no opening when the solvent was introduced (Tr. 151-152); (4) that there was no ventilation in the compartments of the tank where Paling was working (Tr. 152); (5) that there was total evaporation of the solvent Introduced (Tr. 152); (6) that the duration of Paling's exposure was five minutes (Tr. 132).

The evidence does show that the assumptions are in error. Mr. Paling estimated that he used between three and four gallons of the solvent prior to his injury (Tr. 808). This amount is consistent with the testimony of Steven Valentine, his co-worker who brought the solvent to Paling in a five-gallon bucket, which Valentine stated was one-half to three-quarters full (Tr. 918). While the amount of solvent assumed to have been used is in error, it is less than the amount actually used, and therefore the error is favorable to respondent's position.

Mr. Paling also testified that the solvent was poured near the drain which was open and some of the liquid solvent necessarily drained out of the tank This of course means that not all of the solvent evaporated. In addition, Paling's testimony revealed that the three hatches on the tank were open (Tr. 862-868).

The period of Paling's exposure varied from his account of 5 to 10 minutes, to Valentine's account of about 20 minutes (Tr. 133, 920). But regardless of the foregoing, the period of exposure used in the formula assumes the period commenced a few minutes after Paling introduced the solvent (Tr. 401). This assumption is erroneous because Paling actually introduced the solvent then ventilated the compartment for 45 minutes to an hour before he re-entered it (Tr. 867).

The question of ventilation as it relates to exposure is a highly significant factor in this case. While the Secretary concedes a ventilating device (air move)[[*/]] was employed by Paling during the assumed period of exposure, it is asserted the location rendered It essentially ineffective. This apparently is based on Paling's testimony that he thought the device was entirely inside the tank and located on the turret seal pump above his right shoulder (Tr. 810). This testimony is consistent with that of Mark Burns, a process inspector at the facility, who testified to the position of the turret seal pump in relation to the hatch (Ex. C- 36(a)(b); Tr. 1126-1133).

The location of the air mover takes on added meaning in light of the testimony of the Secretary's expert witness, Dr. Sheldon Rabinowitz. Dr. Rabinowitz, who had conducted laboratory experiments to simulate conditions at the time of Paling's injury, found that the only uncontaminated air being introduced came through the compressed air line which operates the device. Therefore, all other air drawn through and blown out of the air mover was recirculated contaminated air from within the vehicle and the vapor concentration of the solvent increased with the high rate of evaporation (Tr. 1623, 1627-1628, 1739). He found that 1.6 gallons of the solvent would have evaporated within 25 minutes (Tr. 1638-39). The precise location of the air mover can not be clearly determined from the record. On cross-examination, Mr. Paling stated that the believed the device was outside the tank or close to being inside or outside (Tr. 870, 871). It Is clear, however, that he waited 45 to 60 minutes to ventilate the tank before re-entering it (Tr. 401, 402). Also, during this period, the drain and hatches were open, factors not part of the calculations by the Secretary or the experiment of Dr. Rabinowitz.

Respondent points out that both Mr. Morgan and Dr. Rabinowitz agreed if the actual facts had been used in the calculations rather than the facts assumed by complainant, the exposure level would have been significantly reduced (Tr. 391-406). Mr. Morgan agreed that the critical factors associated with use of the formula "are what you put into the equation" (Tr. 428). Dr. Rabinowitz also agreed that, if the tank was ventilated for 45 minutes even with the air mover inside, the 1.6 gallons of solvent would result in less that one thousand parts per million (Tr. 1672-1673). He indicated that he air flow rate through the device would be between 500 and 1,000 cubic feet per minute (Tr. 1622).

Respondent also presented the finding of its expert. Dr. Richard Carchman, who calculated the actual facts into the same formula used by complainant. That at the time of the Paling incident, all the hatches of that tank were open, the drains were open, an air blower was used and Paling ventilated the tank for 45 to 60 minutes before entering. He concluded that Paling's exposure was far below the time weighted average alleged (Tr. 320-322).

Dr.Carchman had also testified that he had prepared a document on the health effects of trochloro trifluoroethine for the Environmental Protection Agency entitled, Health Assessment Document for 1, 1, 2 trichloro 1, 2, 2 trifluoroethene (Ex. R-10; Tr. 3194, 3195). His research indicated that the interaction between the solvent and a stimulant such as epinephrine or adrenaline caused a sensitization to lower concentrations of the solvent which could effect the heart (Tr. 3203, 3204). Although no attempt will be made to determine if Paling had developed a sensitivity to freon, the record discloses such a possibility existed. The evidence shows he had been taking prescription diet pills which could have contained the stimulant which in turn could cause heart toxicity (Ex. C-33; Tr. 3207, 3208).

The proof of the violation under the standard rests essentially on the employee's exposure to the intensity of the trichloro trifluoroethane vapor for a prescribed period of time. In this case, there was no direct proof of the actual concentrations of freon--such as air sampling of the atmosphere it the time of employee Paling's exposure. Thus, the Secretary's proof is based on "mathematical calculation," and the medical findings following Paling's accident. The calculation utilizes a basic gas law formula to determine the concentration of a material in the atmosphere of a known volume. Regardless of the method of proof, however, the Secretary must establish by a preponderance of the evidence, a failure to comply with the standard. Olin Construction v. OSHRC, 525 F.2d 464 (2d Cir. 1975). Preponderance of evidence has been defined as "that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by the proponent are more probably true than false." Ultimate Distribution Systems, Inc., 82 OSAHRC 22/B12, 11 BNA OSHC 1568, 1570 1982 CCH OSHD ¶ 26,011 (No. 79-1269, 1982).

Upon full consideration of the evidence in the record, it is hold that the Secretary failed to meet his burden in proving the violation. The mathematical calculation method through employment of the formula, necessarily involves use of certain assumptions which directly effect the exposure determination. Accurate levels of exposure can, therefore only be determined with the use of assumed facts which accurately reflect the conditions which prevailed at the time of Paling's injury. It is thus concluded that the erroneous assumptions used in the formula resulted in unreliable and inaccurate levels of exposure, which is deemed highly speculative.

The period and manner in which the tank was ventilated are crucial factors in determining exposure utilizing the formula in mathematical calculation. Both complainant's expert witnesses, who testified regarding the calculations, admitted that, if the actual facts had been used in the Calculations, the exposure levels would have been significantly reduced. Respondent's expert witness, whose calculations under the same formula included the actual facts, concluded exposure far below the level alleged.

Although the evidence indicates Paling suffered from exposure to trichloro trifluoroethane, such evidence is not convincing that his exposure was in excess of the permissible level according to the standard.

The citation is, therefore, vacated.

FINDINGS OF FACT

1. General Dynamics, at all times hereinafter mentioned, maintained a place of business at 28251 Van Dyke Road, Warren, Michigan. It had been engaged in the business of manufacturing M1 Abrams battle tanks since March 1982 when it took over the operation of the facility from the Chrysler Corporation.

2. Commencing September 29, 1983, authorized representatives of the Secretary conducted an inspection of the aforesaid work site. As a result, respondent was issued the citation alleging willful violations of the Act with notice of proposed penalties for its use of trichloro trifluoroethane at the workplace.

3. Trichloru trifluoroethane was used by employees in varying amounts as a cleaning solvent inside the compartments of both the fully assembled and partially assembled tanks.

4. The solvent has a high evaporation rate and a vapor density six and a half times heavier than air. Although less toxic than most commercial solvents, inhalation of high concentrations is dangerous and can prove fatal.

5. On September 10, 1982, respondent was issued a citation for violation of section 5(a)(1) of the Act. The citation, which was affirmed, alleged that employees were exposed to the hazard of asphyxiation when they entered pits where vapors and gases had accumulated. The violation was abated in accordance with a settlement agreement which provided for implementation of a confined space entry procedure throughout the plant.

6. The designated spaces at the plant which were approved by the parties for safe confined entry procedures did not include the M1 tanks.

7. The compliance officer, who had conducted three inspections of the workplace prior to issuance of the instant citation, was aware of how employees used the solvent and the procedures respondent had developed for its use in the tanks. He, at no time, advised respondent that employee use of the solvent in the tanks presented a potential hazard.

8. A formal grievance filed with the employer by the authorized employee representative regarding use of the solvent by employees was withdrawn on August 16, 1983. Also, in August 1983, safety representatives of the international and local unions conducted a walkaround inspection at DATP. At a meeting with company officials following the inspection, employee use of the solvent was not a matter raised for discussion.

9. The specific air contaminants standard at 29 C.F.R. § 1910.1000 governs employee use of trichloro trifluoroethane at the workplace and any potential hazards associated with use thereof in the M1 tanks.

10. Neither OSHA nor the authorized employee representative conducted atmospheric testing such as the taking of air samples in the tanks. This included the date of September 21, 1983, when tank repairman Charles Paling was injured.

11. OSHA determined the range of Paling's exposure to the solvent on September 21, 1983, by mathematical calculation using a vapor concentration formula.

12. The assumptions made by the Secretary regarding critical factors in utilizing the formula were erroneous. This resulted in a significantly inaccurate and unreliable exposure determination.

13. After Paling poured the solvent into the tank, it was ventilated for 45 minutes to an hour with the three compartment hatches and the drain system open before he re-entered it.

14. The ventilating procedures employed by Paling are in accordance with the hazard abatement procedures outlined in the citation issued September 10, 1982.

15. The atmospheric volume of a fully assembled M1 tank is 268.5 cubic feet and the ventilating device used by Paling moved between 500 and 1,000 cubic feet of air per minute.

CONCLUSIONS OF LAW

1. General Dynamics, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, and the Commission has Jurisdiction of the parties and subject matter herein pursuant to section 10(c) thereof.

2. Respondent is, and at all times pertinent hereto, required to comply with the Act and the safety and health regulations promulgated thereunder.

3. Respondent was not in violation of section 5(a)(1) or the standards at 29 C.F.R. § 1910.1000(a) and 29 C.F.R. § 1910.1000(e) as alleged in the citation.

ORDER

On the basis of the forgoing findings of fact, conclusions of law and the entire record, it is hereby ORDERED:

The citation is hereby VACATED. Dated this 19th day of August, 1985.

Paul L. Brady
Judge

FOOTNOTES:
[[1/]] We make no effort to present a complete statement of the court's reasoning since that can and should be determined by reading the court's decision. Nor are we called upon to express any views regarding the court's reasoning. We merely seek to highlight those portions of the court's decision that, in our opinion, provide guidance to the judge in his handling of the case on remand.

[[*/]] An "air mover" is a ventilation device which is essentially shaped like a tube, approximately 5½ inches long and 3¼ inches in diameter and operates by connecting it to a compressed air hose (Tr. 1131, 1617-1618, 1622). The principle behind this device's operation is that compressed air moved along circular channels within the device, creates a vacuum where outside air will be sucked through and out of the device at an increased velocity (Tr. 1617-1618).