AMERICAN SMELTING AND REFINING COMPANY

OSHRC Docket No. 10

Occupational Safety and Health Review Commission

August 17, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: On March 1, 1972, Judge William E. Brennan issued his decision finding Respondent in violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").   A penalty of $600 was assessed.   Thereafter, review of the Judge's decision was directed.

The issue on review was whether the condition for which Respondent was cited constituted a recognized hazard causing or likely to cause death or serious physical harm to Respondent's employees as provided for in section 5(a)(1) of the Act.

We have reviewed the record, including the decision of the Judge and the briefs filed by the parties.   We are of the view that Judge Brennan has correctly construed the law and has properly applied it to the facts of this case, with one exception discussed below.

Usually, when we find ourselves in agreement with the trial Judge, it is unnecessary to make additional comment.   However, one aspect of this case requires comment on our part concerning the statutory meaning of the words "recognized hazards."

Respondent argues that Congress intended section 5(a)(1) n1 to apply only to "recognized hazards" of types   which are detectable by the basic human senses.   We are told that recognized hazards, whose presence can only be determined through the use of testing devices, are not within the purview of the section.   Respondent relies on a statement n2 made by Congressman William Steiger during House consideration of the conference report on the Act. n3

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n1 Section 5(a)(1) provides:

"Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

n2 The statement, in pertinent part, is as follows:

. . . [T]his requirement is made realistic by its application only to situations where there are 'recognized hazards' which are likely to cause or are causing serious injury or death.   Such hazards are the type that can be readily detected on the basis of the basic human senses.   Hazards which require technical or testing devices to detect them are not intended to be within the scope of the general duty requirement" (116 Cong. Rec., Part 31, p. 42206).

n3 1970 U.S. Code Cong. and Ad. News, 5228 et seq.

 

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Respondent's argument must fail.   The term "recognized hazards" had its origins in S. 2193 by way of an amendment offered by Senator Javits.   In explanation of his amendment, the Senator said:

This is a significant improvement over the Administration Bill which requires employers to maintain the workplace free from readily apparent hazards. That approach would not cover non-obvious hazards discovered in the course of the inspection. n4 (Emphasis added.)

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n4 id at 5222 and 5223.   The Administration Bill referred to by the Senator was S.4404.   Its counterpart in the House was HR. 19200.   The general duty provision in the Bill would have required employers to provide employees with employment and places of employment which are free from any hazards which are readily apparent and are causing or are likely to cause death or serious physical harm to employees.   Comm. Print, Leg. His. of the Occupa. Safety & Health Act of 1970, Subcommittee on Labor (Senate), 79, 769 (1971).

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Clearly, it was thought that the readily apparent hazards test only covered those hazards that are obvious, i.e., those which can be detected by the basic human senses.   It is also clear that the Congress by rejecting the readily apparent   hazards test and accepting the recognized hazards test in its place intended that non-obvious hazards be within the scope of the general duty requirement.   There can be no question that non-obvious hazards include those that can only be detected by instrumentation.

Moreover, acceptance of Respondent's argument requires a conclusion that Congress did not intend the general duty to cover known health hazards which are of a serious nature, which can only be detected by instrumentation, and for which a standard does not exist.   We cannot so conclude.   The Congress itself recognized the existence of health hazards which are of a serious nature and which are detectable by instrumentation.   For example, both the Senate and the House recognized that industry and medical practitioners have known for years that employees exposed to asbestos have incurred serious physical harm and death by virtue of their exposure. n5

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n5 1970 U.S. Code Cong. and Ad. News at 5179; H. Rep. No. 91-1291, 91 Cong. 2nd Sess. 15 (1970) ( Leg. History, supra, at 845)

Asbestos dust of the type which produces asbestosis can only be detected by instrumentation.   No standard existed until July of 1972 (see 29 CFR 1910. 93a).

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Respondent would have us say that health hazards of this kind are outside the scope of the general duty. We will not agree.

Turning now to our exception noted above, the Judge's recommended decision purports to decide the constitutionality of section 5(a)(1) and the civil penalty proposed by the Secretary pursuant to sections 10(a) and 17.   Neither the Commission nor its judges have the authority to rule on the constitutionality of the Act. See e.g., Secretary of Labor v. Engstrum and Nourse,   This portion of the recommended decision is specifically rejected.

For the reasons given it is ORDERED that the decision of the Judge, as modified, be and the same is   hereby affirmed.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: To understand this case fully one has to have clearly in mind the time when the statements cited in this decision were made, the time of official promulgation of the criteria used to measure the respondent's transgression, as well as the time of the alleged violation thereof.

More than two centuries ago Euripides wrote:

Time will reveal everything.   It is a babbler, and speaks even when not asked. n6

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n6 Euripides, AEOLUS, Fragment 38, 425 B.C.

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In order to define the term "recognized" hazards in a manner different from that which was before Congress at the time this legislation was adopted, the Commission quotes from a statement of Senator Javits which was attached as his "Individual Views" to a Senate Committee Report on a bill which was not enacted by the Congress as it existed when that report was submitted. n7 For example, one sentence after that portion of his statement which the Commission has underscored in this decision, the Senator continues his remarks as follows:

In addition, the provisions of the Committee bill which provides a penalty only for failure to correct a violation of the general duty requirement are better than the provisions of the Administration bill which impose a penalty on an employer for his initial violation of the duty, as well as his failure to correct it.

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n7 Senate Report No. 91-1282, 91st Congress, 2d Session, October 6, 1970.   Individual Views of Senator Javits appear on pages 54 through 59.

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It is, at the very least, somewhat illogical for the Commission to use as its authority for the imposition of a penalty on an employer for his initial violation of the general duty requirement, a portion of the individual views of a Senator who was speaking at the time of a requirement which prohibited such penalties.

In any event the Congress did not adopt the general duty requirement of which Senator Javits was speaking at the time of that statement.   The general duty requirement   which was enacted does authorize penalties for an initial violation.   On December 16, 1970, more than 2 months after Senator Javit's statement, a conference committee reconciled the differing versions of the general duty requirement which had previously passed each of the Houses of the Congress by adopting the House of Representatives' version in all respects except that the words "readily apparent" were replaced with the single word recognized." n8

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n8 House of Representatives Report No. 91-1765, 91st Congress, 2d Session, Conference Report to accompany S. 2193, at page 33.

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The law as it appears today is identical to the bill reported by the conference committee on December 16, 1970.   The House enacted it on the following day, December 17, 1970.   Just prior to the enactment roll call, Congressman Steiger, who had sponsored the earlier House version and was now speaking in favor of adoption of the version agreed upon by the conference committee stated as follows:

The conference bill takes the approach of this House to the general duty requirement that an employer maintain a safe and healthful working environment.   The conference-reported bill recognizes the need for such a provision where there is no existing specific standard applicable to a given situation.   However, this requirement is made realistic by its application only to situations where there are 'recognized hazards' which are likely to cause or are causing serious injury or death.   Such hazards are the type that can readily be detected on the basis of the basic human senses.   Hazards which require technical or testing devices to detect them are not intended to be within the scope of the general duty requirement. . . .   It is expected that the general duty requirement will be relied upon infrequently and that primary reliance will be placed on specific standards which will be promulgated under the Act." 116 Cong. Rec. 11899 (Daily ed. December 17, 1970). (emphasis supplied)

No Member of the House of Representatives or the Senate, at any time subsequent to the conference committee report took issue with Representative Steiger's view   that the general duty clause would not cover hazards requiring technical or testing devices to detect them. n9 In addition, it is more   consistent with the purposes of the Act, as well as with both the spirit and the plain meaning of section 6 of the Act, than is the interpretation adopted by the Commission at the urging of complainant. n10

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n9 In addition to the various versions of what eventually became the Act's section 5(a)(1), which have been previously noted in this opinion, that clause underwent a number of earlier changes.   In its original form it required employers to provide "a place of employment which is safe and healthful." House Report 91-1291, 91st Cong. 2nd Sess. (1970).   The second amendment altered the language to require provision of a place of employment free from "readily apparent" hazards. Each of these amendments was preceded by numerous, acrimonious criticisms of what was variously referred to as a vague, unfair, "do-good-and avoid-evil" kind of prohibition failing to give any guidelines to employers concerning proscribed conduct.   The trend was to approve amendments on the basis that they limited the scope of the general duty requirement.   Such is the clear expression of Representative Steiger, which expression coincides with the notion that the general duty requirement was intended to be utilized to cover obvious hazards not covered by a specific standard.   For a good treatment of the Act's legislative history, see Gross, The Occupational Safety and Health Act: Much Ado About Something, 3 Loyola Chi. L.J. 247 (1972).   For an analysis of the general duty requirement, see Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harvard Law Review 988 (1973).

n10 In a brief filed with the Commission, complainant urged adoption of an interpretation of section 5(a)(1) along lines suggested in the statement of Senator Javits discussed above.

 

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Section 2(b) states that the Act's purpose is to provide safe and healthful working conditions.   Subsection 2(b)(9) states that this purpose is to be effected

by providing for the development and promulgation of occupational   safety and health standards. n11

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n11 See also the comments of Representative Broomfield during the House debate when he stated that: "a general standard like this only discourages the formulation of specific standards, which is after all, the basic purpose of the bill." Cong. Rec -- House, 91st Cong. 2nd Sess., November 23, 1970.

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Section 6 is by far the longest and most detailed section of the Act.   In addition to providing an elaborate means by which the Secretary of Labor may adopt occupational safety and health standards, it also establishes a method by which an employer may, for reasons specified therein, apply for, and be granted, variances from the requirements of any such standard.

That section also details specific procedural steps to be utilized by an employer, which include specification of the standard from which a variance is sought.   By permitting the Secretary to use section 5(a)(1) as a means to effectively implement an occupational safety and health standard (promulgated but not yet effective) n12 in a manner which circumvents all of the elaborate procedures set forth in section 6, the Commission has not only rendered the variance procedure unavailing but it has adopted a ruling which is inconsistent with the overall purpose of the Act itself.

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n12 See Footnote 14.

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A similar point was also made by Congressman Steiger only minutes before the House adopted this law on December 17, 1970.   Mr. Steiger stated at that time:

It is also clear that the general duty requirement should not be used to set ad hoc standards.   The bill already provides procedures for establishing temporary emergency standards.   See Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, U.S.   Government Printing Office, 1971, at page 1217.

  The Commission's decision in this case is a retreat from our very recent ruling in Secretary of Labor v. Brisk Waterproofing Co., Inc.,

. . . would provide little advance warning of what specifically is required in order that employers could maintain a safe and healthful workplace.

and

. . . would emasculate all the provisions dealing with the promulgation of standards, and . . . give a wider effect to the . . . general duty clause than was ever intended by Congress.

Further evidence of the limited interpretation intended for the general duty requirement is the statement of Howard Pyle, President of the National Safety Council, who testified on December 9, 1969, before the Senate Subcommittee on Labor when that committee was considering legislation which led to the enactment of this statute.   Commenting upon the desirability and proposed nature of a general duty requirement, Mr. Pyle stated:

The absence of such a general obligation provision would mean the absence of authority to cope with a hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated.   [Senate Report 91-1282, page 9] (emphasis added).

During House debate on this legislation, n13 Representative Steiger also stated that one of the bill's primary purposes is to be the provision of a mechanism by which fair standards could be promulgated.   Congress did precisely that in adopting section 6 of the Act.

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n13 Conf. Report on S. 2193, Cong. Rec. -- House, December 17, 1970.

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It is thoroughly inconsistent with this clearly stated purpose to interpret Section 5(a)(1) in a manner which will permit the Secretary of Labor to effectively institute occupational safety and health standards in an ad hoc fashion.   This is especially objectional in a case such as this, where the prohibited conduct concerns a hazard which can be detected only by technical testing devices.   To allow the Act to be so used reduces section 6 to a virtual nullity.   This is especially true in this case, since a specific occupational safety and health standard would have covered this precise situation had the complainant chosen either to amend this citation or to wait until the standard became effective before causing a citation to be issued. n14 The introduction into evidence of the text of this would-be standard magnifies the absurdity of using section 5(a)(1) in a manner in which it was never intended to be used.

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n14 29 CFR 1910.93, Table G-2 (which became effective August 27, 1971, as an occupational safety and health standard under section 6 of the Act), establishes maximum allowable concentrations of airborne particles of inorganic lead at the same levels as stated in footnote 15 of this opinion.   It was published in the Federal Register on May 29, 1971 (36 FR 10466).

The inspection upon which the citation in this case was based was conducted June 30, 1971.   The citation was issued July 7, 1971.   A pre-trial hearing was held on September 28, 1971, at which time complainant could, and in my opinion should, have amended the citation and complaint to allege a 5(a)(2) violation for noncompliance with a then-existing standard.   In this connection see Secretary of Labor v. Brisk Waterproofing Co., Inc., supra.

 

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It is so clear from the legislative history as not to admit of doubt that section 5(a)(1) was, and is, intended to cover only those situations for which no standard has been promulgated or for which it is impractical or unnecessary to promulgate a standard because of the obvious nature of a hazard. It was never intended to apply to the kind of condition involved in this case.   The problems presented by this case arise because complainant jumped the gun on his own time table for compliance with the occupational safety and health standards he promulgated which were to become enforceable pursuant to section 5(a)(2) of the Act on August 27, 1971.

  The Commission has ruled in this decision that respondent violated section 5(a)(1) by allowing airborne concentrations of inorganic lead which significantly exceeded levels generally recognized as safe to exist in the breathing zones of certain of its employees. n15 Even assuming for the sake of argument that the overall conditions in respondent's plant at the time in issue here were hazardous, the record does not establish the existence of a condition which could be "recognized" as a hazard within the meaning of section 5(a)(1) of the Act.   There was no evidence that concentrations of lead which exceeded the levels generally recognized as safe could be regarded as unsafe or that anyone recognized the levels shown to exist at respondent's plant as a hazard likely to cause death or serious physical harm.

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n15 The evidence relied on by the Judge to support his finding of what constitutes a generally accepted safe level of airborne concentrations of inorganic lead consisted, inter alia, of a standard adopted by the American National Standards Institute which recommended .2 milligrams of lead per cubic meter of air (.2 mg/M<3>) as the optimum safe level of airborne lead particles in an employee's breathing zone based on a weighted eight hour average.   This level is referred to as the Threshold Limit Value (hereinafter "TLV").   Neither this standard nor any other evidence showed what might constitute an unsafe level of the same.   For information on the American National Standards Institute, see Peyton, ANSI: Consensus Agency For Voluntary Standards, Defense Management Journal, April 1973, pp. 41-45.

 

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The record establishes that on June 30, 1971, three representatives of complainant entered respondent's lead smelting plant in Omaha, Nebraska, and utilized seven technical air sampling devices to determine the level of airborne concentrations of inorganic lead in several of its working areas. n16 Each of seven different employees who   was selected to be the experimentees wore one of the devices during a three-hour sampling period.   Analyses of the contents of the air samplers showed that 5 of the 7 had been exposed to airborne concentrations of inorganic lead in excess of the .2mg/M<3> TLV (See footnote 15).

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n16 Portable air samplers were used, each consisting of a battery operated air pump worn on an employee's belt.   Each pump was equipped with a rotometer to indicate the rate of air flow.   Each pump was connected by a hose to a stabilizing device, in turn connected by another hose to a monitor. The monitor was worn as close to the employee's breathing zone as possible.   The monitor has a face plate with an opening in it, and contains a millepore filter. When the pump was started, the opening in the face plate permitted air to be pulled into the monitor and across the filter. Any contaminants in the air were thus pulled across and trapped by the filter. It should be noted that the sampler filters would pick up lead particles which evidence established would be too large to be inhaled.   After a 3 hour sampling period, each filter was removed from its sampler and sent to the Public Health Service Laboratory in Salt Lake City where the contents of the sampled air were analyzed.

 

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Based on the results of the air sampling tests, complainant issued a citation alleging a violation of section 5(a)(1) of the Act in that:

Airborne concentrations of lead significantly exceeding levels generally accepted to be safe working levels, have been allowed to exist in the breathing zones of employees working in [several] workplaces.   Employees have been and are being exposed to such concentrations. This condition constitutes a recognized hazard that is causing or is likely to cause death or serious physical harm to employees.

The Administrative Law Judge's finding that the existence of airborne concentrations of inorganic lead in excess of the TLV of .2mg/M<3> constituted a recognized hazard causing or likely to cause death or serious physical harm to respondent's employees is contrary to the meanin g of the term "recognized hazard" as that term is used in the Act.   The legislative history discussed above leads to the inescapable conclusion that a condition which can be detected   only by utilizing technical testing devices cannot constitute a "recognized hazard."

In addition, there was no evidence upon which the conclusion recited above could be based.   There was evidence that the stated TLV was a generally recognized safe level.   There was no evidence -- and no finding of fact in this case -- that any concentration in excess of that TLV was unsafe. n17 On the contrary, the documents admitted at the hearing affirm repeatedly that threshold limit values are simply guides to good practice in maintaining comfortable and healthful working conditions.   The publications of the American Conference of Governmental Industrial Hygienists upon which findings of fact in this case were based include the statement that threshold limit values should not be used as fine lines between safe and dangerous conditions.   No witness who testified at this hearing nor any document admitted into evidence refuted this statement.

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n17 The arguments advanced in this case on this matter are unconvincing.   Just because a specified level of chemicals in the air is generally recognized to be safe level does not mean that any level in excess thereof is thereby an unsafe level.   For example, 72 degrees Fahrenheit on a thermometer may be the generally recognized safe level for office work.   It would be ridiculous to conclude from such a fact that any office worker would be exposed to a hazardous condition if he were allowed to work when the temperature was 73 degrees or 76 degrees.

 

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Furthermore, even if the foregoing were overlooked and even if this Act were to permit a violation of section 5(a)(1) to be based upon the existence of conditions which could only be revealed by the use of technical testing devices, the record in this case would not support the Commission's decision.

The criterion relied upon to establish that the concentrations of inorganic lead at respondent's plant were excessive was inexact.   That criterion: a TLV which is essentially a minimum numerical concentration limit for lead and its inorganic compounds, was based upon a time-weighted   average, i.e., the average level of inorganic lead over an 8-hour workshift of a 40-hour work week. n18 The determination that this criterion was exceeded was based upon a 3-hour sample which was then mathematically projected to demonstrate what the 8-hour average might be.

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n18 29 CFR 1910.93(b) and Table G-2 thereof.   The text of this regulation is the TLV which the Administrative Law Judge used to determine the criterion which would constitute a safe level for inorganic lead.   It is identical to the standard referred to in Footnote 15 supra.

 

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Courts have never allowed this type of evidence to sustain a violation of law.   A conviction must be founded on facts -- not conjecture or projections.   The "average" condition which prevails over an 8-hour day cannot show what the "actual" condition was at any time.   Indeed, the average height of all buildings in the world may represent a level that does not exist anywhere.

In addition, the collection of the evidence upon which the average levels of inorganic lead in this case was calculated (see footnote 16) was not only unreliable because the filters picked up lead particles too large to be inhaled but did not represent the actual conditions under which respondent's employees worked.

The establishment of a violation of section 5(a)(1) requires a showing of a condition "likely to cause death or serious physical harm to . . . [respondent's] employees." The TLV at issue here is concerned with "an employee's exposure" to excessive levels of inorganic lead.   The evidence, however, shows that employees of the respondent firm did not work under the conditions used in complainant's test sample.   Respondent's employees were provided with and wore respirators approved by the U.S. Department of Interior's Bureau of Mines, a device approved by the Secretary of Labor in the regulations issued under this Act to prevent over-exposure of employees to airborne contaminants.   29 CFR 1910.93(e) and 29 CFR 1910.34.   It would have been impossible for the selected   experimentees in this case to have worn their respirators while collecting the sample used in this case.

The evidence, however, showed that the use of such respirators reduced the actual lead exposure of respondent's employees to zero.   No evidence was introduced of death, serious physical harm or even temporary disability due to lead intoxication of any of the employees of respondent alleged in this case to have been furnished a workplace which was not free from recognized hazards likely to cause serious physical harm.

I cannot agree with a decision which is founded upon legislative "history" that does not relate to the statute as enacted, test results which do not represent actual working conditions, numerical averages which do not establish facts, and hazards presumed to exist from facts which do not show what would constitute an unsafe level of airborne concentrations of lead.   In my opinion, a violation of the Act has not been established in this case. n19

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n19 There is, however, one point in this decision with which I am in complete agreement.   This decision states that "Judge Brennan has correctly construed the law and has properly applied it to the facts of this case" with the exception of his action relative to issues of constitutionality.   The Commission has therefore adopted the Judge's action on the penalty to be assessed, which was accomplished by the acceptance of a stipulation between the parties that if a violation were to be established the complainant's proposed amount of "$600 is reasonable and in conformity with Section 17(j)." I specifically join my colleagues in stating that the Judge correctly construed the law and properly applied the facts when he took this action on the penalty.   I do so in order to form a unanimous position on this matter.   The earlier decision which was opposite to this ruling was Secretary of Labor v. Thorleif Larsen and Son, Inc.,

 

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[The Judge's decision referred to herein follows]

  BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Public Law 91-596; 84 Stat. 1590 et seq.; 29 U.S.C. 651 et seq. (hereinafter the Act), to review a Citation for Serious Violation issued by the Secretary of Labor (hereinafter Secretary), pursuant to Section 9(a) of the Act and a proposed penalty thereon issued pursuant to Section 10(a) of the Act.

The Citation dated July 7, 1971, alleges that American Smelting and Refining Company, 120 Broadway, New York, New York 10006 (hereinafter Respondent), at a workplace under its ownership, operation or control located at 5th & Douglas Streets, Omaha, Nebraska (hereinafter Omaha plant), was in violation of Section 5(a)(1) of the Act.   The following description of alleged violation is set forth in this Citation:

Airborne concentrations of lead significantly exceeding levels generally accepted to be safe working levels, have been allowed to exist in the breathing zones of employees working in the lead-melting area, the retort area, and other work places.   Employees have been, and are being exposed to such concentrations. This condition constitutes a recognized hazard that is causing or is likely to cause death or serious physical harm to employees.

The following appears in the column of this Citation entitled "Date on which alleged violation must be corrected."

Completion of the implementation of feasible administrative controls, including use of protective equipment and rotation of employees, and any other measures appropriate -- 48 hours

Completion of the implementation of feasible engineering controls to reduce the concentration of the airborne contaminant -- 60 days (R. p. 1). n1

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n1 References hereinafter have the following meaning:

R. p. 1 -- That document, bearing page number 1 on its lower right hand corner, appearing in Docket File No. 10 of the Occupational Safety and Health Review Commission.

R. p. H-1 -- That document, bearing page number H-1 on its lower right corner, received or issued by the Hearing Examiner and made a part of the record in this matter and incorporated into Docket File No. 10.

Tr. 1 -- Page 1 of the Transcript of the hearing held herein.

Ex. G-1 -- Exhibit number 1 received into evidence upon motion of the Government (Complainant).

Ex. R-1 -- Exhibit number 1 received into evidence upon motion of the Respondent.

 

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  A Notification of Proposed Penalty also issued on July 7, 1971, to the Respondent proposing the assessment of a penalty in the amount of $600.00 based upon the violation alleged in the Citation (R. p. 2).

By letter from its Omaha Plant Manager dated July 20, 1971, addressed to the Secretary's Regional Administrator and Area Director, the Respondent timely noted its intention to contest the Citation and proposed penalty (R. p. 3).

This matter was thereupon forwarded to the Occupational Safety and Health Review Commission (hereinafter Commission), receipt of which was acknowledged by the Commission by its Notice to the Secretary's Regional Solicitor and Respondent's Omaha Plant Manager dated July 26, 1971, for hearing pursuant to Section 10(c) of the Act (R. p. 4).

This matter was assigned to the undersigned for hearing pursuant to Section 12(j) of the Act.   Notice of this action was given to the parties by the Commission's notice dated August 5, 1971 (R. p. 5).

Thereafter, Respondent through its counsel filed a Motion dated August 24, 1971, to require the Secretary ". . . to make more definite its (his) description of alleged violation in its citation for serious violation" and to strike the last sentence of the description of thr alleged violation as set forth in the Citation (R. p. H-8).

After receipt of the Secretary's brief in response to this motion (R. p. H-10) and consideration of these documents,   the undersigned issued an Order dated September 2, 1971, granting Respondent's Motion for more definite statement and denying its motion to strike the above identified sentence set forth in the Citation (R. p. H-12).

With a letter dated September 20, 1971, the Secretary through his Regional Solicitor filed the Complainant's response to the above identified order, setting forth the information ordered (R. p. H-23).

By his letter dated September 9, 1971, the Assistant General Counsel of the United Steelworkers of America filed his appearance in this matter on behalf of this union and its Local Chapter 461 of Omaha, Nebraska, as the authorized employee representative (hereinafter Union) 50, 51).

By notice to the parties of record dated August 6, 1971, this matter was scheduled for hearing to commence on September 28, 1971, in Omaha, Nebraska (R. p. H-2).   Upon Complainant's request, (R. p. H-24, 25) and without objection from the other parties, the hearing previously scheduled was vacated and a pre-hearing conference was held on September 28, 1971, in Omaha, Nebraska.   The Complainant, Respondent and Union, through their respective counsel heretofore identified, appeared and participated.   The results of the conference are set forth in the PreHearing Order, dated October 12, 1971, entered herein and served upon the parties of record (R. p. H-28).

The hearing date was reset to October 27, 1971 (R. p. H-28 para. 1).

Among other matters, the parties reached agreement during the pre-hearing conference on the following:

The documents hereinafter listed were to be considered pleadings obviating any necessity to place the same into evidence as exhibits;

a) Citation for Serious Violation dated July 7, 1971.

b) Notification of Proposed Penalty dated July 7, 1971.

c) Respondent's Notice of Contest dated July 20, 1971.

d) Respondent's Motion for Definite Statement dated August 24, 1971.

e) Complainant's brief in response.

  f) Examiner's Order dated September 2, 1971, ruling on Respondent's Motion.

g) Complainant's response to the above Order (R. p. H-28 para. 12).

Additionally, the parties reached agreement on the following:

a.   The full and accurate legal name of the Respondent is American Smelting and Refining Company.   State of Incorporation: New Jersey.   Principal office: 120 Broadway, New York, New York 10005.

b.   The address of the Respondent's Omaha plant is Fifth and Douglas Streets, Omaha, Nebraska.

c.   The jurisdiction of the Occupational Safet any Health Administration under the Occupational Safety and Health Act of 1970 in this matter was conceded.

d.   The names of Respondent's employees who, it is alleged in the Citation, have been exposed to unsafe concentrations of lead are those individuals set forth at page 2 of the Complainant's response to the Order granting Respondent's Motion for a More Definite Statement, except Charles Adkins and Gayle Adams, who were Government employees present in Respondent's plant on official duty on August 11 and 12, 1971.   The spelling of the last named employee was corrected from "Fenderson" to "Ferguson." The fact of employment of these identified employees was conceded by Respondent.

e.   The ownership and control by the Respondent of the work areas and work places mentioned in the Citation was admitted by Respondent.

f.   If any penalty is legal and proper, the Respondent conceded that the assessed (proposed) amount thereof of six hundred dollars ($600.00) is reasonable and in conformity with Section 17(j) of the Occupational Safety and Health Act of 1970.

g.   The Citation was posted on July 9, 1971, at three locations of Respondent's Omaha plant, the two locations mentioned in the Citation, namely, the lead melting area and retort area and a third location, the residue department.

  h.   The Respondent admitted proper service of the Citation and Notice of Proposed Penalty by the Complainant.

i.   The authenticity of all exhibits marked for identification at the pre-hearing conference is to be deemed admitted unless written objection thereto is filed (postmarked not later than) October 13, 1971.   All rights to object to the authenticity of any documents not physically marked for identification and exchanged among the parties at the prehearing conference, is reserved to the parties.

j.   The Respondent completed the "administrative controls" set out in the Citation and has agreed to continue such controls.

k.   The Complainant has conceded that the sixty day period allowed in the Citation to complete the implementation of feasible engineering controls to reduce the concentration of the airborne contaminants, was unreasonable (R. p. H-28 para. 13).

The following issues were finalized at this conference:

I.   At the time of the inspection of Respondent's work place, what was the generally accepted level of airborne concentrations of lead which was considered to be safe?

II.   Did the conditions existent at the Respondent's plant at the time of the inspection herein, as they relate to airborne concentrations of lead, constitute a recognized hazard that was causing or was likely to cause death or serious physical harm to its' employees?

Subject to being stricken as an issue upon a determination that it is beyond the scope of the hearing herein, the following third conditional issue was formulated:

III.   If the violation as alleged is established, what remedial action, be they administrative controls, engineering controls or otherwise, are feasible and reasonable to reduce the level of airborne concentrations of lead to safe working levels, and what period of time is reasonable to effect such corrective measures (R. p. H-28 para. 14, 15)?

As rescheduled, the hearing herein was held in Omaha, Nebraska, beginning on October 27, 1971, and concluding the following day.   Complainant presented the testimony   of 3 witnesses and 15 exhibits were received into evidence upon its' motion.   Respondent presented the testimony of 6 witnesses and 17 exhibits were received into evidence upon its' motion.   The union presented neither witnesses nor exhibits.   The transcript of this proceeding comprises 151 pages of the prehearing conference and pages 1 through 356 of the hearing in chief.

After receipt of the transcript the parties of record submitted their Proposed Findings of Fact, Conclusions of Law, Proposed Orders, Briefs, Reply Briefs and Proposed Corrections to the transcript (R. p. H-36, 38, 43, 46, 48, 50, 51).

An Order correcting the transcript herein dated January 18, 1972, was issued and served upon all the parties of record (R. p. H-45).

Having heard the testimony of the witnesses, and having considered the same together with the exhibits, Proposed Findings of Fact, Conclusions of Law, all arguments and briefs of the parties, it is concluded that the substantial, reliable and creditable evidence on the record considered as a whole, supports the following Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

POSITIONS OF PARTIES

1.   Complainant's position:

a) The violation:

The Respondent, at its Omaha plant, allowed airborne concentrations of inorganic lead to exist in the breathing zones of its employees working in the lead melting, retort, cupel, crane operating areas and other areas, which significantly exceeded those levels generally recognized to be safe levels, to wit .2 milligrams of lead per cubic meter of air, based on a weighted 8 hour average.   That certain of Respondent's employees had been exposed to these elevated levels and this condition constituted a recognized hazard that was causing or was likely to cause death or serious physical harm to Respondent's employees in violation   of Section 5(a)(1) of the Act (R. p. 1; Secretarys brief R. p. H-36).

b) The penalty:

The Respondent conceded at the prehearing conference that if any penalty is legal and proper, the amount proposed by the Secretary, $600 is reasonable and in conformity with Section 17(j) of the Act (R. p. 2; Secretarys briefs, R. pp. H-36, 50).

c) Abatement:

The Secretary has conceded that the administrative controls called for in the Citation, i.e., Respondent's providing respirators, has been met, conditioned upon Respondent's assurance that it would enforce their use by affected employees (R. p. 1, Tr. 246-47, 276).   Further, the Secretary has conceded that the original period of 60 days for implementation of feasible engineering controls to reduce the concentration of lead in Respondent's Omaha plant was not reasonable.   At the hearing, the Citation herein was amended to allow six months for the completion of feasible engineering controls, the six month period to commence upon issuance of a final order in this matter.   No issue was before this hearing as to specific details of any engineering control measures which may be required if a violation is found to have existed, although this question may later arise under the provisions of the Act governing failure to abate (Tr. 276-86; Secretary's briefs, R. pp. H-36, 50).

2.   Union's position:

The Union's position coincides in all essential respects with the Complainant's position (See Union's brief, R. p. H-43).

3.   Respondent's position:

a) The violation:

The finding of airborne concentrations of lead in excess of .2 mg. pb/M<3> at its Omaha plant, standing alone does not constitute a violation of Section 5(a)(1) of the Act in view of the protective safety measures in effect at this plant, i.e., the company's policy on the use of respirators, transferring employees from high exposure jobs, and its   biological sampling program.   "All conditions present in the work place, both potential hazards and measures taken to control such hazards, must be considered under Section 5(a)(1) of the Act" (R. p. H-38, p. 3).   Under the above construction of Section 5(a)(1) of the Act, the Secretary has not sustained his burden of proof of a violation by the Respondent (Respondent's brief, R. pp. H-38, 46).

b) The penalty:

The "civil penalties" proposed by the Secretary and to be assessed by the Review Commission are unconstitutional in that this proceeding involves the assessment of a "criminal penalty" which constitutionally may be done, if at all, only by a federal court, not an administrative tribunal (Respondent's brief, R. pp. H-38, 46).

c) Abatement:

Respondent has an ongoing safety program of inspections of its plants, including its Omaha plant, concerning ventilation and other equipment, physical examination and biological sampling of the urine and blood of employees exposed to high levels of airborne lead, supervision of the work habits of employees, hygienic facilities such as showers, washing facilities and separate locker rooms for employees exposed to high levels of airborne lead, and a policy under which the Respondent intends employees exposed to high levels of airborne lead to wear approved respirators. Respondent maintains it has had a continuing program of making feasible engineering improvements and presently has additional engineering measures "under consideration." Respondent argues however that engineering controls to reduce the airborne levels of inorganic lead in its Omaha plant to the recognized level of .2 mg. pb/M<3> is not feasible because such ventilation plans can not, at this point in time, be guaranteed to be one hundred percent effective and because the implementation of such controls will be costly (P. pp. H-38, 46).

4.   The Respondent herein, American Smelting and Refining Company, at all times involved in this case was a New Jersey corporation with its principal office at 120 Broadway, New York, New York 10005 (R.   p. H-28, p. 7).

  5.   The Respondent herein, at all times involved in this case owned, operated and controlled a lead refining plant at 5th and Douglas Streets, Omaha, Nebraska (Omaha plant), which operations are within the jurisdiction of the Act (R. p. H-28, p. 7).

6.   On June 30, 1971, three representatives of the Secretary, (Adkins, Ludwig and Soule), conducted an inspection of Respondent's Omaha plant, without prior notice, pursuant to the provisions of Section 8 of the Act, based upon a complaint from the union that hazardous concentrations of lead existed in the atmosphere of this plant (Tr. 17).

7.   The Secretary's representatives made a tour of this plant, accompanied by representatives of both the Respondent and the union.   Respondent cooperated fully throughout this inspection (Tr. 17-20; 46).

8.   After making this tour of this plant, the Secretary's representatives designated those areas where they desired to install portable air sampling devices on employees.   The Respondent selected the seven employees to which these devices were attached (Tr. 20).

9.   A portable air sampler consists of a battery operated air pump worn on a belt.   This pump is equipped with a rotometer which indicates the calibration, i.e., rate of air flow.   The pump is connected by a length of hose to a flow stabilizing device which in turn is connected by another length of hose to a monitor. The monitor is affixed to a workers label as near his breathing zone as possible.   The monitor has a face plate and an opening within the face plate.   Within the monitor is a membrane or millepore filter. In operation, the pump is started, and the covering over the aperture in the monitor's face plate is removed which allows air to be pulled into the monitor and across the filter. Any airborne contaminants present in the air surrounding the monitor are thereby pulled into the monitor and are trapped by the filter. After the sampling period, the filter is analyzed at appropriate laboratories and the amount of air contaminants on the filter is measured.   Thereafter, using standard, generally accepted   methods and formulae, the amount of contaminants per cubic liter of air are calculated (Tr. 21-23; 66-72).

10.   On June 30, 1971, portable air samplers were affixed to seven of Respondent's employees, at its Omaha plant, 2 furnacemen, 3 employees in the retort area, 1 floor man and 1 crane operator, by the Secretary's representatives.   Each of these samplers was operated for approximately a 3-hour period during which time the employees were engaged in their normal duties.   After the sampling period, the samplers including the filters were carefully transported to the Public Health Service Laboratory in Salt Lake City by Mr. Ludwig who had brought them from this facility to the Omaha plant. The samples collected were thereafter analyzed at this laboratory for airborne concentrations of lead.   The results of these analyses were thereafter sent to the Secretary's representative, Mr. Adkins, and were admitted into evidence as Exhibit G-3.

The sampling devices used and procedures followed at Respondent's Omaha plant on June 30, 1971, were in accord with procedures generally recognized and widely used by experienced industrial hygienists.   Respondent in the past has used similar devices and procedures.   These procedures and the subsequent handling and analysis of the samples obtained resulted in accurate and valid results (Tr. 20; 6272; 123; 146; Exs. G-1, 1A, 2).

16.   The results of the air sampling conducted at Respondent's Omaha plant on June 30,   1971, are as follows:

		Concentrations of lead
Employee's name	Area of plant	(pb) found
Minard	Furnaceman	n2 0.16 mg/M<3>
Miksinovic	Furnaceman	0.22 mg/M<3>
Marion	Floor man	0.10 mg/M<3>
Alley	Craneman	0.25 mg/M<3>
Zendijas	Retort area	2.70 mg/M<3>
Gulizia	Retort (Cupel) area	0.75 mg/M<3>
Rojas	Retort (Cupel) area	2.85 mg/M<3>

 

n2 See Findings of Fact number 17 infra.

  This evidence, which is unrebutted on this record, conclusively establishes that five of the seven above listed employees were subjected to airborne concentrations of lead on June 30, 1971, in excess of the Threshold Limit Values for lead adopted by the American National Standards Institute which is .2 mg(pb)/M<3>. n3 Three of these seven employees were subjected to levels significantly in excess of the TLV, (Zendijas, Gulizia, Rojas).   Respondent on July 20, 1971, collected air samples in the cupel and retort areas of its Omaha plant. Some of these samples also exceeded the TLV figure of .2 mg/M<3>, confirming the conditions found by the Secretary's representative as reported in Exhibit G-3 (Ex. G-3; Ex. R-1; Tr. 68; 153-56; R. p. H-23).

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n3 Ibid.

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17.   The maximum airborne concentrations of inorganic lead generally recognized and accepted as safe by individuals who are qualified and experienced in the field of industrial safety is .2 milligrams per cubic meter of air. This amount is known as the Threshold Limit Value (hereinafter TLV) and is expressed as .2 mg/M<3>.

Respondent's eminent physician witness Dr. Kehoe testified (Tr. 214 et seq. ) that this .2 mg/M<3> figure was based upon research first begun by Sir Thomas Legge in Britain approximately 100 years ago.   He further testified that in this country the TLV, originally worked out by the Public Health Service was reduced to .15 mg/M<3>, but that this figure, thought by some to be, ". . . too narrow, . . . a little bit too rigid", (Tr. 215), was subsequently raised to the present figure of .2 mg/M<3> by the American National Standards Institute (hereinafter ANSI), formerly the United States of America Standards Institute.   The ANSI standard was admitted into evidence as Exhibit R-1 (Tr. 33).

Dr. Kehoe, in writing Chapter XXVI, "Industrial Lead Poisoning," published in a text entitled Industrial Hygiene and Toxicology, stated the following:

  Inasmuch as lead is a normal constituent of human tissues, and the regular absorption of lead is a universal human experience, it is evident that there must be some line of demarcation between harmless and dangerous conditions and degrees of exposure to, and absorption of, lead.

Expressed in terms of air analyses, the upper limit of safety for industrial exposure to the more readily soluble, particulate, inorganic compounds of lead is represented in American practice to be the concentration of 0.2 mg. of lead (Pb) per cubic meter of air. This standard, put in plain and simple language, specifies that, when the air of workrooms contains regularly not more than 0.2 mg. of lead (in inorganic form) per cubic meter of air, as measured by prescribed methods, cases of disabling lead intoxication will not occur among the men who work for many years on the usual schedule in such workrooms, and cases of questionable or mild intoxication will occur only rarely, if at all.   In practice, the attempt is made to maintain the lead content of the air within such limits as will yield an average of not more than 0.2 mg. of lead per cubic meter throughout the working day, while preventing the occurrence of materially higher concentrations (0.5 mg. or more per cubic meter) (Ex. G-6 pp. 951, 952).

Nothing in Dr. Kehoe's testimony at the hearing, or in the testimony of the other witnesses appearing on behalf of the parties, contradicts the above quoted statements nor the general recognition of the TLV of lead as .2 mg/M<3>.

The evidence of this record conclusively establishes the validity and wide recognition by industrial safety personnel of this TLV for lead.   See the following exhibits:

Industrial Hygiene and Toxicology, Chapter XXVI, Industrial Lead Poisoning (Ex. G-6, Tr. 33).

Documentation of the Threshold Limit Values for Substances in Workroom Air, American Conference of Governmental Industrial Hygienists, (ACGIH) (Ex. G-7; Tr. 38).

Threshold Limit Values of Airborne Contaminants and Intended Changes Adopted by ACGIH for 1970 (Ex. G-8; Tr. 45).

Handbook of Industrial Toxicology, E. R. Plunkett, M.D.   (Ex. G-11; Tr. 85).

Dangerous Properties of Industrial Materials, N. Irving Sax.   (Ex. G-12; Tr. 85).

  Hygienic Guide Series,     Lead and Its Inorganic Compounds, American Industrial Hygiene Association (Ex. G-13; Tr. 85).

Fundamentals of Industrial Hygiene, edited by Olishifski and McElroy, National Safety Council (Ex. G-14; Tr. 83, 85).

Facts about Lead and Industrial Hygiene, Lead Industries Association, Inc.   (Ex. G-17; Tr. 341).

All of the above publications are standard reference works relied upon by qualified industrial hygienists (Tr. 30, 34, 79, 82, 83). n4

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n4 See also Exhibit G-4, an American National Standard Institute expression of the TLV for lead as .2 mg/M<3>, adopted by the Secretary subsequent to June 30, 1971, (29 CFR 1910.93(b) Table G-2).   No violation of this standard, as such, is charged in this case.   It is, however, evidentiary of that level of airborne concentrations of lead generally recognized as safe, and as such is relevant to issue number I herein.

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Based upon the evidence of this record, issue number I (R. p. H-28, p. 9) is answered as follows: At the time of the inspection of Respondent's work place,   June 30, 1971, the generally accepted level of airborne concentrations of lead considered by qualified industrial hygienists to be safe was the TLV for lead, .2 mg/M<3>.

18.   Respondent's Director of its Department of Environmental Sciences, Mr. Nelson, testified that he was a member of the American Industrial Hygiene Association and a past National President thereof in 1958-59.   This organization published the TLV for lead as .2 mg/M<3> in its Hygienic Guide Series, Exhibit G-13.   Respondent therefore knew, or should have known, of this generally recognized safe level of airborne concentration of lead (Tr. 115, 116; Ex. G-13).

19.   Respondent's basic position in this case is that the levels of airborne concentrations of lead found to exist at its Omaha plant on June 30, 1971, by the Secretary's representatives as set forth in Finding of Fact number 16 supra in excess of .2 mg/M<3>, did not constitute a recognized hazard causing or likely to cause death or serious   physical harm to its employees, because of Respondent's preventive program, consisting of periodic hygiene surveys and inspections of its plant and the ventilation measures taken therein, physical examinations of exposed workers including the taking of biological samples of blood and urine and the reassignment of employees to other jobs when the lead content of their blood (or urine) exceeds certain levels, supervision of the work habits of employees, and the use of approved respirators by employees in high air lead concentration areas (See Respondent's brief part II).

This position resents the following difficulties:

1.   It misconstrues the responsibilities placed upon employers by Congress, ". . . 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 . . ." (Section 2(b) of the Act).   In short, the Act places the responsibility upon employers to provide safe and healthful working conditions for its employees, as far as possible.   It does not allow employers to provide unsafe, unhealthful or hazardous working conditions for its employees even though the adverse effects of such working conditions are attempted to be minimized.   Respondent's position puts the cart before the horse.   Its first responsibility is, by all reasonable measures, to provide safe and healthful working conditions.   This must be done by this Respondent by reducing the levels of airborne concentrations of lead in its Omaha plant, to the generally recognized safe level of .2 mg (pb)/M<3>, or as close to that figure as is possible.

2.   Assuming arguendo that Respondent's position is permitted by the Act, for reasons which are not clear in the record its preventive program simply has not worked.   As will be discussed infra, Exhibits G-15 and G-15A (Tr. 164; 191; 260) clearly establish that by its own criteria, i.e., blood samples of its employees, certain employees working at its Omaha plant where there existed concentrations of airborne lead in excess of the safe limit, had absorbed lead to dangerous levels.

  20.   The Secretary's position in this case, is that the proper means to detect unsafe levels of airborne concentrations of lead is by the utilization of air sampling and that the proper measure to be used to determine if unsafe conditions exist, is the TLV figure of .2 mg/M<3>.   Further, that when the work place has concentrations of airborne lead in excess of this figure, feasible engineering controls, i.e., ventilation systems must be installed to reduce these levels.   He has no objection to the use of biological testing and encourages its use by employers, not as a control of lead hazards, but rather as a diagnostic tool to determine whether employees have absorbed dangerous amounts of lead.   The evidence of record clearly supports this position.

Exhibit G-17 published by the Lead Industries Association, has the following statement:

The keynote of an effective industrial hygiene program is prevention.   Our point of view is simply that excessive lead absorption can be controlled, and is best controlled, by engineering methods.   Certain medical tests are mentioned in this booklet, but only as adjuncts or supplements to engineering control (Ex. G-17, p. 2).

In his chapter "Industrial Lead Poisoning," Dr. Kehoe states:

Adequate systematic sampling of the air of workrooms while work is in progress, and the use of accurate methods for the analysis of such samples, will serve to portray the general distribution and the order of severity of the lead hazard. In a plant in which the quality of sanitary facilities and of the general hygienic performance is good, the results of air analysis will demonstrate the hazard or the lack of it with considerable accuracy and will indicate clearly what is to be done and where to begin (Ex. G6, p. 963).

In a generally well-designed and well-managed plant the problem is straight-forward and comparatively simple.   Mechanical measures of control can be applied where and as they are needed, the results being checked by air-sampling and analysis until the desired conditions have been achieved.   Under the unsatisfactory conditions referred to above, however, and even under the best of conditions, considerable time   may be required to obtain and install the necessary equipment.   It may be highly important, therefore, to do all that can be done to reduce existing lead hazards, pending their elimination by more adequate or permanent means.   In such instances the use of respirators is fully justified as a temporary expedient for the control of otherwise unavoidable respiratory exposure to lead.

It has been implied above that respirators should be regarded as temporary means for preventing the inhalation of lead compounds.   This implication was intentional.   Occasional situations arise that necessitate the use of respiratory equipment of some type, and certain intermittent operations of brief duration may best be dealt with in this manner; but in the main, exposure to lead should be prevented by other means, not only for the sake of the comfort and efficiency of the workmen but also on account of the continued care and supervision that are required to see that this type of equipment is used properly and effectively.   (Ex. G-6, pp. 963-964).

As has been indicated previously, the control of occupational exposure to lead through the maintenance of a safe environment is essentially a mechanical problem, which therefore lies within the province of the engineer.

Nothing in the evidence of this record rebuts these statements, which essentially voice the Secretary's position herein, and rather accurately state the objectives of the Act relating to this case.

21.   Respondent's position that its "preventive program" has in effect cancelled out any hazard to its employees is not supported by the evidence.

Dr. Kehoe in his writings set forth in Exhibit G-6 discusses at considerable length the significanc eof various lead levels in human blood, and concluded that lead -- "Values in excess of 0.08 mg. per 100 g. of whole blood of themselves, however, denote the actual occurrence of dangerous absorption of lead" (Ex. G-6, pp. 958-959).

Exhibits G-15 and 15A present the results of Respondent's biological monitoring program over an approximate two year period, 1970-71.   It sets forth the amounts of lead found upon analysis in the urine and   blood of its employees identified therein.   Of the 491 employees listed in Exhibit G-15, a total of 41, or over 8% had, at one time or another, levels of lead in their blood in excess of .08 mg. per 100 grams of whole blood.   Several employees had lead levels of .101 mg. or higher.   One employee, #77 listed on page 18 of Ex. G-15 had levels of .379 and .433 mg. pb, levels which Respondent's witness Dr. Kehoe testified (Tr. 224) as indicative of a ". . . very severe, very dangerous exposure to lead."

This exhibit demonstrates the weakness of Respondent's position here.   Rather than doing more to reduce the levels of lead in its plant's atmosphere by further engineering controls, i.e., ventilation systems, it waited until some of its employees had absorbed excessive and dangerous amounts of lead to take corrective measures.   Such a program in effect uses the employees as a test device to determine hazardous conditions.   This is precisely what the Act is intended to prohibit (Section 2(b) and 5(a)(1)).

A further problem presented by biological sampling is, of course, that it measures absorbed lead in humans from all sources and does not identify the specific source of absorption.   For this reason, the Secretary's position that biological testing cannot be used to establish lead hazards in a work place, nor can they properly be used as an enforcement tool, is accurate.

Respondent's Director of Environmental Sciences testified that under Respondent's "preventive program," if a blood test showed a lead level of .08 mg. he would suggest another blood test be taken within 3 to 5 weeks (Tr. 160).   Exhibit G-15 clearly shows that this generally was not done, the time periods between tests in employees with these lead levels running from two to nine months (See Ex. G-15, employees numbered 98, p. 1; 23 p. 2; 61 p. 6; 267 p. 7; 96 p. 7; 42 p. 7; 250 p. 9; 306 p. 11; 151 p. 12; 175 p. 14; 874 p. 14; 613 p. 14; 183 p. 15; 462 p. 15; 77 p. 18; 834 p. 19; 113 p. 20; 91 p. 21; 438 p. 23; 415 p. 26; 276 p. 26; 281 p. 27; 325 p. 28).

Respondent's "preventive program" allegedly called for   the transfer of employees when biological sampling revealed high lead absorption.   Although Exhibits G-15 and G-15A, it is true, does show that the lead levels of employees generally and ultimately showed reductions from levels in excess of .08 mg. per 100 grams, to levels below this figure, it cannot be concluded on the evidence of this record that these reductions were caused by transferring employees (Tr. 166, 180).

The transferring of employees from job-to-job can be considered only as a stop-gap measure at best.   It does not constitute a removal of the hazard, rather the removal of an employee from the hazard. It is not within the contemplation of the Act, for such a measure does not protect the employee ". . . over the period of his entire working life." The Congressional intent of the Act as to this point is clearly set forth in the Report of the Senate Committee on Labor and Public Welfare on S 2193 in the following words: "Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health or functional capacity, or diminished life expectancy, by reason of exposure to the hazard involved, even though such exposure may be over the period of his entire working life" (Senate Report No. 91-1282, 91st Congress, 2d Session p. 7).

Furthermore, transferring employees presents significant problems not only to the employee but to employers as well as was in effect admitted by the Respondent.   It means changing employees to other work tasks to which they are not accustomed and in which they assumedly are less skilled, in which they may have less interest, for which they may be less qualified and which may pay less or provide less opportunity for future advancement.   Such transfers may also add extra accident risk (Tr. 176-177; 230).

The availability of approved respirators in work places having high concentrations of airborne lead, another aspect of Respondent's "preventive program," without more, means nothing.   To be effective, obviously, the respirators must be worn at all times that employees are   working in such areas.   The uncontradicted evidence of this record shows, that although approved respirators were provided by Respondent to its employees, they were not worn by these employees as a general practice.   During the inspection of June 30, 1971, the Secretary's representatives saw many employees with respirators hanging loosely around their necks, not in place or in use, except for one employee working inside of a kettle chipping out solidified lead.   Some of Respondent's employees put respirators in place when they were approached by the Secretary's representatives during this inspection (Tr. 20; 50; 57; 76).

The evidence of this record establishes that the use of respirators is ". . . justified as a temporary expedient for the control of otherwise unavoidable exposure to lead" (Finding number 20 supra; See also Ex. G-16, Tr. 192-193).   Their use on a permanent 8 hour a day basis is neither desirable nor feasible. They are uncomfortable to wear, especially where workroom temperatures are elevated.   Their use on a permanent basis transfers the responsibility for compliance with the Act from the employer to his employees.   Such a consequence is contrary to the Congressional intent underlying the Act as stated in the Senate Committee Report on the Act.

The Committee does not intend the employee-duty provided in Section 5(b) to diminish in anyway the employer's compliance responsibilities or his responsibility to assure compliance by his own employees.   Final responsibility for compliance with the requirements of this Act remains with the employer (S. Report No. 91-1282, 91st Cong. 2d Session, pp. 10-11).

22.   The second issue presented in this case, based upon the evidence of this record is answered as follows:

The conditions which existed at Respondent's Omaha plant on June 30, 1971, as they related to airborne concentrations of lead, did constitute a recognized hazard that was causing or was likely to cause death or serious physical harm to Respondent's employees.

  The levels of airborne concentrations of lead found in the furnace, retort (cupel), and crane operating areas of Respondent's plant, significantly exceeded the generally accepted safe level of .2 mg/M<3>.   The existence of such levels as were found, as set out in Finding number 16 supra (Ex. G-3) if allowed to continue unabated, constitutes a recognized hazard within the meaning of Section 5(a)(1) of the Act (Tr. 28, 42, 240).

The testimony of Respondent's witnesses to the contrary is not persuasive.

Respondent's witness Nelson testified substantially that no hazard existed because of Respondent's "preventive program." The evidence however establishes that this program was not successful in its execution, for reasons not made clear on this record.

The opinions of Respondent's witnesses Dr. Kehoe, Cole, and Kaplan to the effect that there was no recognized hazard present in Respondent's plant were predicated upon Mr. Nelson's testimony and the assumption that Respondent's "preventive program" was effective. As such, these opinions are not persuasive and do not effectively rebut the opinion of the Secretary's qualified industrial safety witness and the documentary evidence heretofore identified (Tr. 151; 220-22; 240; 247; 249;251; 322).

Respondent also argues that no hazard likely to cause death or serious physical harm to employees existed at its Omaha plant because no evidence was presented that any of its employees suffered from lead intoxication or had been in any way injured by the airborne concentrations of lead found to exist at its plant (See Respondent's brief pp. 21 et seq.).   The quick answer to this argument is that proof of a violation of Section 5(a)(1) of the Act does not depend upon proof that a hazard has produced injury.   All that is required is a showing that the hazard is likely to cause serious physical harm ot death.   Section 5(a)(1) of the Act is intended to prevent the existence of conditions which are likely, if uncorrected, to cause serious physical harm. Section 17(k) provides that, ". . . 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 from a condition which exists. . . ."

The evidence of this record establishes that if the high levels of airborne concentrations of lead found in Respondent's plant are not reduced by feasible engineering controls, serious physical harm in the form of varying degrees of lead intoxication are highly probable and likely because Respondent's "preventive program" has not been effective in the past to prevent high lead absorption by its employees, and there is no assurance on this record that its good faith attempts in the future will be any more effective.

Exhibit G-11, "Handbook of Industrial Toxicology," by E. R. Plunkett, M.D., lists the following signs and symptoms of lead intoxication:

General:

Pallor, Weakness, Loss of weight, Lassitude, Malnutrition.   Gastrointestinal:

Metallic taste, Increased salivation, Burton's lead line on gums, Pyorrhea, Anorexia, nausea, vomiting, Constipation,   Abdominal colic and tenderness.

Genitourinary:

Nocturia, Albuminuria and hematuria, Increased bilirubinuria.

Neuromuscular:

Numbness and tingling of extremities with associated sensory disturbance.

Extensor weakness of wrists and ankles; brachial palsy has also been described.

Loss of muscle ton.   Tremor, Increased deep-tendon reflexes, Muscular cramps and aching, Arthralgia, Muscular atrophy.

Central nervous system:

Visual disturbances, Headache, Dizziness, Nervousness or depression, Insomnia, Mental confusion and delirium.

Retinal hemorrhages and optic neuritis; gray stippling of lead pigment about the optic disc has also been reported.

Hematopoietic:

Erythrocyte stippling.

Hypochromic normocytic anemia.

  Increased peripheral reticulocytes.

Disability:

Lead palsy and encephalopathy may be disabling.

Preventive Measures:

Adequate ventilation, Regular bathing, Two or more changes of work clothing per week, Clean mechanical filter respirator.

Strict control of atmosphere concentration in work area.

Wet methods for dust control where possible.

No smoking or eating in work area.

Education of exposed employees in personal hygiene.

Determinations of lead   in blood and urine of exposed personnel at 1- to 3-month intervals.

Preclude from further exposure those individuals whose levels for lead in blood and urine are above acceptable limits (Ex. G-11, Tr. 85).

Further, Exhibit G-14 -- a publication of the National Safety Council, gives this advice:

The importance of maintaining the concentration of airborne lead at a very low value stems from lead's high toxicity and its tendency, in small amounts, to accumulate in the human system.   When lead absorption in the body reaches a sufficient degree symptoms of poisoning or intoxication appear (Ex. G-14, pp. 118, 121, Tr. 85).

Under the conditions found to exist at Respondent's Omaha plant, there is a substantial probability that serious physical harm may result therefrom.   These conditions, if continued unabated, would result in Respondent's employees evidencing one or more of the signs and symptoms of lead intoxication listed above.   This probability exists because of the levels of lead in the air of this plant significantly in excess of the TLV of .2 mg/M<3>, and because the preventive measures taken by Respondent are of a temporary nature and cannot reasonably be expected to protect   its employees during their work lines at this work place.

Thus, the conditions found to exist at Respondent's Omaha plant on June 30, 1971, considering all the circumstances as set forth in this record, constitute a serious   violation within the meaning of Sections 5(a)(1) and 17(k) of the Act.

23.   Having found a serious violation of the Act, the remaining factual question presented concerns proper abatement.   Under the citation as amended (Tr. 286) the Secretary takes the position that feasible engineering controls to reduce the concentration of the airborne contaminant (lead) must be implemented within 6 months from any final order herein.   The evidence of this record supports this position.

The Respondent presented at this hearing, plans for increased ventilation at its Omaha plant, which are intended to be recommended for implementation by the plant's manager (Tr. 264-267).   These plans represent another step in Respondent's ongoing program of plant improvements, in which it has been engaged for the past decade (Tr. 260-262).

Respondent's plant manager, after consultation with Respondent's engineering department and an Industrial Hygienist, stated their opinion that these plans, ". . . if implemented, would quite probably reduce the general ambient air in the areas involved (retort and cupel departments (Tr. 265)) to less than .2 of a . . . speaking of lead levels now . . . milligram(s) per cubic meter. And I agree they most probably would do that.   But there would remain some times, some places where at times the level may exceed .2. The general ambient air in these areas would quite probably be reduced under .2" (Tr. 267).

The Secretary's independent consulting Industrial Hygienist, Mr. Soule, after touring Respondent's Omaha plant on September 14, 1971, concluded that Respondent's plant could be modified by engineering methods to insure that the TLV for lead would not be exceeded (Tr. 87).

Respondent's witness Mr. Kaplan testified, "Now by enough engineering work one could get the airborne contamination below the .2 milligram for normal, ordinary, routine plant events, operations.   It would be very difficult, perhaps even impossible, literally to prevent   there being ever any excursion above that that was significant because of the problems with unplanned events" (Tr. 323-24).   He gave two examples of such "unplanned events," a crack and leak occurring in a lead pot, and the occasional need for a worker to make an adjustment in a ventilating hood.   (Tr. 324). n5 He further stated: "So I would say the (that) adequate engineering would cover the normal routine plant events" (Tr. 325).

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n5 These excursions are examples of circumstances in which the temporary use of approved respirators are proper and agreed to be such by the Secretary.   (See Secretary's brief p. 24).

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The testimony of Respondent's witness Mr. Godsey is highly conjectural and does not rebut the other evidence of this record that engineering controls are feasible (Tr. 301-316).   His testimony as to the possible cost of plant modifications to institute engineering controls was admittedly an "educated guess," not supported by any written analysis, and insufficient to support any findings concerning the cost of implementing feasible engineering controls (Tr. 312, 314).

Under the circumstances of this case, the best method for Respondent to furnish its employees ". . . a place of   employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. . . ." (Sec. 5(a)(1)) is by the implementation of feasible engineering controls, to wit, adequate ventilation systems, even though such controls may be costly.   Such costs have become a necessary cost of doing business with the passage of the Act.   Senator Yarborough made the following observations on this question of costs:

This is legislation that has been needed in the country for many years.   We have no national comprehensive occupational health and safety bill.   If a man in a manufacturing plant in one State were to put into effect safety measures to protect his workers and across the State line that practice was not followed, theoretically there would be a cheaper operational base. . . .   We need a Federal statute, not to federalize things,   but to equalize the cost in one industry vis-a-vis another.   We know the costs would be put into consumer goods but that is the price we should pay for the 80 million workers in America (Cong. Rec. (Senate) Nov. 16, 1970, p. S 18269).

24.   Respondent employs from 290 to 300 employees at its Omaha plant. Of   this number, approximately 60 work in the lead melting area, 15 in the retort area, 10 in the cupel area and from 10 to 12 in the crane operating area.   Thus, at a minimum, not less than 95 employees may be affected at one time or another by the high levels of airborne concentrations of lead found to exist at this plant (Tr. 300-301).

CONCLUSIONS OF LAW

1.   Jurisdiction of this action is conferred upon the Commission by Section 10(c) of the Act.

2.   At all times involved in this action, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

3.   Those individuals identified by name in Findings of Fact number 16 supra were employees of Respondent on June 30, 1971.

4.   At all times involved in this action, the Respondent furnished employment to its employees at a work place within the City of Omaha, State of Nebraska, and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

5.   On July 7, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation of Section 5(a)(1) of the Act and Notification   of Proposed Penalty thereon in the amount of $600.00.

On July 20, 1971, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest this Citation, the period established for abatement and the proposed penalty.   The Secretary thereupon transmitted this case to the Commission which, pursuant to the   provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

6.   The United Steelworkers of America and its Local Chapter 461 of Omaha, Nebraska, through its counsel filed its appearance dated September 9, 1971, and participated in this case as the authorized employee representative.

7.   Section 5(a)(1) of the Act provides that:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

Contrary to Respondent's argument this Section of the Act is sufficiently definite and certain so as not to be violative of the due process clause of the Constitution because of vagueness.

Congress made findings in Section 2(a) of the Act, as follows:

The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

The substantive provisions of the Act are clearly reasonably calculated to alleviate these burdens on commerce.   This Act is remedial legislation designed to correct conditions burdening commerce and as such must ". . . be construed in the light of the mischief to be corrected and the end to be attained," and with "recognition of the aims which Congress sought to achieve" U.S. v. Silk, et al. 331 U.S. 704, 713 (1947). This Act must be construed in the light of "the policy of the legislation as a whole," U.S. v. American Trucking Association, 310 U.S. 534, 543 (1940), drawing "substance from the policy and purposes of the Act, the circumstances and background of particular employment relationships, and all of the hard facts of industrial life." NLRB v. Adkins Co., 331 U.S. 398, 403 (1947).

The "general duty" provisions of Section 5(a)(1) of the Act    are explained in Senate Report 91-1282 (hereinafter S. Rep.) to accompany S. 2193 as follows:

GENERAL DUTY

The committee recognizes that precise standards to cover every conceivable situation will not always exist.   This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune.   Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees.

The committee has concluded that such a provision is based on sound and reasonable policy.   Under principles of common law, individuals are obliged to refrain from actions which cause harm to others.   Courts often refer to this as a general duty to others.   Statutes usually increase but sometimes modify this duty.   The committee believes that employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment.   Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a), in providing that employers must furnish employment "which is free from recognized hazards so as to provide safe and healthful working conditions," merely restates that each employer shall furnish this degree of care (S. Rept. p. 9).

The meaning of "recognized hazard," words added to S. 2193 on motion of Senator Javits, was explained by the Senator as follows:

5.   Modification of General Duty. -- As the result of this amendment the general duty of employers was clarified to require maintenance of a workplace free from "recognized" hazards. This is a significant improvement over the Administration bill (S. 4404 a rival bill), which requires employers to maintain the workplace free from "readily apparent" hazards. That approach would not cover non-obvious hazards discovered in the course of inspection (S Rept. 91-1282, p. 58, parenthetical material supplied).

  Congressman Daniels in agreeing to modify his bill (H.R. 16785) so as to limit the general duty requirement to "recovnized hazards," as the Senate had already done with S. 2193, explained the difference between "recognized hazards" and "readily apparent hazards" as follows:

A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry.   In other words, whether or not a hazard is "recognized" is a matter for objective determination; it does not depend on whether the particular employer is aware of it. . . .   A danger, in other words, may be recognized as such in the industry, but may not be apparent to an employer who is ill-informed and does not choose to investigate the danger of the situation (Cong. Rec. Nov. 23, 1970).

In short, "recognized hazards" is an objective test.   It is a hazard that is of common knowledge or general recognition in the particular industry in which it occurs, detectable by the senses or is of such wide, general recognition as a hazard in the industry that there are generally known and accepted tests for its detection (U.S. Code Cong. and Admin. News. 1970, Vol. 3, pp. 5222, 5223)).

Section 5(a)(1) of the Act, in many respects is a statement of the common law duty of employers that they must take care to avoid harming their employees, and in so doing they are charged with the knowledge and must exercise thecare, of a reasonably prudent man.

The possibility that there may be a factual question inherent in interpreting a duty imposed by a statute does not mean the statute is unconstitutionally vague.   The statutory language must be viewed in the light of the facts of the case, for "That which is reasonably well understood by those to whom its terms are addressed sets an adequate standard of definiteness" U.S. v. Eastern Air Lines, Inc., 192 F. Supp. 187, 193-194 S.D., Fla., 1961).

As the Supreme Court has stated:

. . .   But few words possess the precision of mathematical symbols, most statutes deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging   the business of government inevitably limit the specificity with which legislators can spell out prohibitions.   Consequently, not more than a reasonable degree of certainty can be demanded Boyce Motor Lines, Inc., v. U.S. 342 U.S. 337, 340 (1952).

Section 5(a)(1) of the Act establishes objective requirements to which employers must adhere with a reasonable degree of certainty.   When this Section is read in conjunction with the description of the violation as set forth in the Citation, as further particularized by the Secretary's response to Respondent's motion for more definite statement, the violation was adequately described to sufficiently inform the Respondent of the nature of the violation to allow it to prepare its case.

8.   The maximum amount of airborne concentrations of inorganic lead generally recognized and accepted as safe by qualified and experienced Industrial Hygienists is .2 milligrams per cubic meter of air, expressed as the Threshold Limit Value of .2 mg/M<3>.

9.   Levels of airborne concentrations of inorganic lead, significantly in excess of the Threshold Limit Value of .2 mg/M<3>, were found to exist in the breathing zones of several of Respondent's employees on June 30, 1971, as detailed in Finding of Fact number 16 supra.   These conditions, represented the normal working conditions for the areas identified, constituted a recognized hazard that were likely to cause, if continued unabated, death or serious physical harm to Respondent's employees, and as such, constituted a violation of Section 5(a)(1) of the Act.

10.   The temporary abatement called for in the Citation, i.e., the "administrative controls" of Respondent providing approved respirators, the rotation of employees, and any other appropriate measures, provided Respondent implements these measures consistently until permanent abatement controls can be implemented, is reasonable under the circumstances of this case.

11.   The time period of 60 days allowed in the original Citation for permanent abatement by the implementation of feasible engineering controls was not reasonable.   Under the   circumstances of this case it is reasonable to require the Respondent to implement feasible engineering controls to reduce the levels of airborne concentrations of lead in the furnace, retort, cupel and crane operating areas of its plant to that level generally recognized as safe .2mg/M<3>, or as close to that level as is possible.   A period of 6 months from any final order herein to accomplish this permanent abatement, is reasonable.

12.   Due consideration having been given to the provisions of Section 17(j) of the Act, it is determined that the penalty proposed by the Secretary, under the circumstances, is not inappropriate.

Further, Respondent's position that the civil penalties proposed by the Secretary and assessed by the Commission are unconstitutional because although denominated as "civil penalties" they are in fact a "criminal penalty" which may be imposed, "if at all" only by a federal court, not an administrative tribunal, is not supported in the law.

The assessment of monetary civil penalties through administrative proceedings has long been held not to abridge the due process clause of the Constitution Helvering v. Mitchell, 303 U.S. 391 (1938).

Congress clearly in Section 17 of the Act differentiated between "civil penalties" as civil sanctions, and "criminal sanctions" and "fines." Compare Section 17(a)(b)(c)(d)(j) and (l) to 17(e)(f) and (g).

As the Ninth Circuit has clearly stated:

. . . it has long been settled that Congress may provide civil proceedings for the collection of penalties which are civil or remedial sanctions rather than punitive, and provide that the determination of the facts upon which the liability for such a penalty is based may be by executive officers or administrative agencies.   Olshausen v. Commissioner of Internal Revenue, 273 F.2d. 23, 27 (CA 9, 1959).   See also:   Speten v. Bowles, 146 F.2d. 602 (CA 8, 1945).

13.   The Citation and Notice of Proposed Penalty issued herein were properly served upon this Respondent and the Citation was posted by this Respondent and notice of hearing was served upon the authorized employee representative   consistent with the provisions of Section 9(b) of the Act and the regulations promulgated thereunder.

Based upon the foregoing findings, conclusions and determinations, and pursuant to the provisions of Section 10(c) of the Act, it is hereby ORDERED:

1.   That the Citation for Serious Violation dated July 7, 1971, is amended by striking the words "60 days" therein and substituting the words "6 months from the entry of a final Order herein."

2.   That the Citation for Serious Violation dated July 7, 1971, as amended, and the Proposed Penalty of even date, addressed to this Respondent as issued by the Secretary, are hereby affirmed.