Docket No. 5003

AMERICAN SMELTING & REFINING COMPANY

OSHRC Docket No. 5003

Occupational Safety and Health Review Commission

December 23, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry C. Mahlman, Assoc. Regional Solicitor

Peter Phillipes and Richard S. Morey, for the employer

Michael J. Hughes for the employees

Robert E. Denham, American Smelting & Refining Co., for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On October 3, 1974, the Commission granted respondent's petition for discretionary review and directed that the decision of the Judge be reviewed pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. The sole issue on review is whether the Judge erred in concluding that respondent failed to comply with the standard at 29 CFR § 1910.1001(j)(3). n1

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n1 At the time of the Judge's decision, this standard was published at 29 CFR § 1910.93a(j)(3). On May 28, 1975, the standards at 29 CFR § 1910.93a, et seq. were redesignated as 29 CFR § 1910.1001, et seq.

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The standard at issue provides as follows:

§ 1910.1001 Asbestos

* * *

(j)

* * *

(3) [*2] Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers. Such annual examination shall include, as a minimum, a chest roentgenogram (posterior-anterior 14/17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 10).

The evidence of record indicates that respondent's employees were exposed to airborne asbestos fibers, but in concentrations well below the threshold limit value of five fibers, longer than five micrometers, per cubic centimeter of air, set out in 29 CFR § 1910.1001(b)(1). n2

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n2 29 CFR § 1910.1001(b)(1) provides:

§ 1910.1001 Asbestos.

* * *

(b) Permissible exposure to airborne concentrations of asbestos fibers -- (1) Standard effective July 7, 1972. The 8-hour time-weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed five fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section.

[*3]

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The question to be answered is whether the annual medical examinations required by 29 CFR § 1910.1001(j)(3) must be conducted when there is any exposure to a concentration of asbestos, or whether the examinations are required only when the exposure levels of airborne asbestos exceed that listed in 29 CFR § 1910.1001(b)(1). Judge Kennedy held that the presence of any concentration of airborne asbestos fibers requires the administering of annual medical examinations. We agree. The standard speaks of "concentrations" without the addition of qualifying terms. Thus, the levels of exposure to asbestos dust illustrated in respondent's Exhibit 6, while well within permissible limits, are "concentrations" within the meaning of the standard requiring annual medical examinations.

Furthermore, in GAF Corp., Nos. 3203, 4008, 7355 (November 14, 1975), the Commission extensively reviewed this identical issue. In GAF the Commission stated the following:

[W]e hold that § 1910.93a(4) requires an employer to provide, or make available at his cost, medical examinations to employees engaged in occupations [*4] that require exposure to concentrations of airborne asbestos even though the levels of exposure may not exceed those set forth in § 1910.93a(b)(1). n3

Respondent has presented no argument why the rule announced in GAF should not be controlling here.

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n3 See note 1, supra. Since the adoption of the present asbestos standards on June 7, 1972, at 37 FR 11318, the Secretary of Labor has proposed a revision of the asbestos standards. 40 FR 47652 (October 9, 1975). Among other things, the proposal would lower the 8 hour time weighted average concentration exposure limit from its present level of 5 fibers, longer than 5 micrometers, per cubic centimeter of air to 0.5 fibers, longer than 5 micrometers, per cubic centimeter of air. The preamble to the proposal states that the Occupational Safety and Health Administration believes that new research developments regarding the harmful effects of asbestos exposure make desirable re-examination of the standard's premises and general structures.

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Accordingly, it is [*5] ORDERED that the decision of the Judge be affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Since the foregoing opinion does not fully address the matters covered in Judge Kennedy's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Ronald G. Whiting, for the complainant, Secretary of Labor

Richard S. Morey, Michael J. Hughes and Robert E. Denham, for the respondent employer

Harold A. Kennedy, Judge:

This proceeding was initiated by a notice of contest filed by Respondent Employer American Smelting and Refining Company, pursuant to Section 10(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et sea.). The notice of contest was filed following the issuance of a nonserious citation, designated Citation No. 2, on September 19, 1973 by the Complainant Secretary of Labor. The citation contained six "Items" or charges which charged violation of Section 5(a)(2) of the Act n1 by reason of Respondent's [*6] alleged failure to comply with six separate occupational safety and health standards on July 16, 1973, the date on which an inspection was carried out by a representative of the Secretary at Respondent's plant at East Helena, Montana. Penalties were proposed for only two items, viz., $30 for Item 1 and $35 for Item 5. Respondent's notice of contest put in issue only Item 1 and Item 6. n2 Item 1 alleged violation of 29 C.F.R. 1910.93(e) as follows:

Feasible engineering or administrative controls were not determined and implemented to reduce exposure of: (9)

1. Lead to a bullion man in the dross plant to less than the value stated in Table G-2 for an 8-hour time weighted average;

2. Lead to a machine operator in the D & L plant to less than the value stated in Table G-2 for an 8-hour time weighted average;

3. Lead to a furnace man in the No. 1 blast furnace area to less than the value stated in Table G-2 for an 8-hour time weighted average;

4. Lead to two zinc fume loaders in the zinc fume loading area to less than the value stated in Table G-2 an 8-hour time weighted average;

5. Lead to a crane operator in the new deal shed to less than the value stated in Table G-2 for [*7] an 8-hour time weighted average;

6. Lead to a feeder man in the new deal shed to less than the value stated in Table G-2 for an 8-hour time weighted average;

7. Zinc oxide to two zinc fume loaders in the zinc fume loading area to less than the value stated in Table G-1 for an 8-hour time weighted average.

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n1 Section 5(a)(2) provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act."

n2 The Secretary proposed a penalty of $30 for Item 1 and $35 for (uncontested) Item 5. It was stipulated that if the contested violations occurred, the proposed penalty was reasonable (Tr. 14).

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The cited standard provides:

(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 [*8] contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with § 1910.134. n3

The Citation directed abatement of Item 1 as follows:

Dec. 21, 1973 to study and determine feasible engineering or administrative controls

Mar. 22, 1974 to implement feasible engineering or administrative controls

A progress report is required every 30 days until violation is abated

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n3 Section 1910.93 begins as follows:

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

Subparagraphs (a), (b) and (c) make reference to materials set forth in Tables G-1, G-2 and G-3, respectively. Subparagraph (d) sets forth "computation formulae." Tables G-1, G-2 and G-3 appear immediately after Section 1910.93(e). Table G-1 gives the maximum exposure for an 8-hour time weighted average for zinc oxide fume as 5 milligrams per cubic meter of air (5 mg./M3). G-2 gives the maximum exposure for 8-hour time weighted average for lead and its inorganic compounds as 0.2 milligrams per cubic meter of air (0.2 mg./M3).

[*9]

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Item 6 alleged violation of 29 C.F.R. 1910.93(a)(j)(3) in the following language:

Comprehensive medical examinations for employees engaged in occupations exposed to airborne concentrations of asbestos fibers were not provided or made available. (1)

The cited standard provides:

(3) Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers. Such annual examination shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV[1.o]).

The Citation directed abatement of Item 6 by December 21, 1973. n4

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n4 Although Respondent points out that abatement with respect to Item 1 could not now be carried out for some time (Prop. Finding 8, citing Professor Caplan, Tr. 205), the time prescribed for abatement was not specifically contested (Tr. 7-8).

[*10]

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The cause was heard in Helena, Montana on March 14 and 15, 1974. Testifying for the Secretary were Edward Gatzemeier, an industrial hygienist who inspected Respondent's East Helena plant commencing on July 16, 1973; Robert G. Adler, a chemist employed at the laboratory of National Institute for Occupational Safety and Health (NIOSH) in Salt Lake City; and Jack D. Torrey, an industrial hygienist employed by the United States Department of Labor to provide "technical support" (Tr. 62) for the Occupational Safety and Health Administration (OSHA). Respondent called the following persons to testify on defense: Kenneth W. Nelson, an industrial hygienist employed as Respondent's Vice President for Environmental Affairs; Stanley M. Lane, Manager of Respondent's East Helena plant; Charles M. Hine, M.D., Ph. D., Clinical Professor of Environmental and Occupational Medicine and Toxicology; Warren A. Cook, a former professor in public health; Knowlton J. Caplan, a chemical engineer and an associate professor in public health; and George W. Wright, M.D., a consultant in occupational medicine. No one appeared on [*11] behalf of Respondent's employees (who are represented by Local 72, USWA).

Jurisdiction

Jurisdiction is not disputed. The pleadings establish that Respondent is a corporation engaged in the production of lead bullion and zinc oxide, that it is an "employer" within the meaning of the Act and that it is engaged in a business affecting commerce.

Zinc Oxide and Lead (Item 1)

The Secretary's evidence included the results of air samples taken on seven employees at Respondent's East Helena plant between July 18 and July 24, 1973. Industrial Hygienist Gatzemeier testified concerning the techniques used in obtaining the samples. n5 He sealed and forwarded the samples to Salt Lake City where Dr. Adler analyzed the samples and made reports showing the results of such tests. Thereafter Mr. Gatzemeier calculated the 8-hour equivalent as to each (Tr. 39). The methods used in obtaining, analyzing and calculating the air samples need not be spelled out here in detail. Respondent expressly concedes the accuracy of the values for the airborne lead samples collected by Secretary (Respondent's Br., p. 3). n6 It does challenge the Secretary's values with respect to zinc oxide air samples [*12] on the basis that the Secretary's samples included "harmless zinc oxide dust," along with zinc oxide fume (Respondent's Br., p. 14).

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n5 The periods of the samples taken varied between five and six hours (Tr. 20). The collecting device was placed "as near the breathing zone as possible" of each employee (Tr. 52). Each was instructed to carry on his normal work during the test period (Tr. 24).

n6 At the hearing, Respondent conceded that "the OSHA results are basically consistent with the Company's work on this" (Tr. 72-3). See also Tr. 103-5; RX 5. Respondent had raised questions about: (1) the fact that the air sampling device had been calibrated in Cincinnati, Ohio, and (2) that a "cyclone" had not been used to eliminate larger particles from the samples. Neither of these objections invalidated the samples. See Tr. 66-7.

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The Secretary's data showed exposure to lead, calculated for an eight-hour time weighted basis, as follows (SXs 1, 2, 3, 4A, 4B, 5, 6, and 7; Tr. 40-48):

1. Employee Radley, who worked in [*13] the lead pouring and mixing operation in the old building (Sub-item 1) - .73 mg./M3; n7

2. Employee Watson, a sintering machine operator in the old building (Sub-item 2) - 1.0 mg./M3;

3. Employee Pocha, who worked in blast furnace tapping in the old building (Sub-item 3) - .50 mg./M3;

4. Employee Miller, a zinc fume loader in the new building (Sub-item 4) - 1.4 mg./M3;

5. Employee Bright, another zinc fume loader in the new building (Sub-item 4) - 1.6 mg./M3;

6. Employee Stanghill, who worked in the ore concentrate mixing area in the old building (Sub-item 5) .44 mg./M3; and

7. Employee Zitnik, who also worked in the ore concentrate mixing area in the old building (Sub-item 6) - .41 mg./M3.

Employees Miller and Bright, the two zinc fume loaders, were also tested for exposure to zinc oxide (Sub-item 7). The zinc oxide fume values were computed as follows (SX 7):

Miller	8.3 mg./M3; and
Bright	10.6 mg./M3

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n7 The expression "mg./M3" is an abbreviation for milligrams per cubic meter of air. See Footnote 3, supra. Respondent's facilities are rather old. The term "old", however, refers to that part of Respondent's East Helena facilities used in producing lead bullion; "new" is used to refer to the zinc oxide production facilities purchased from Anaconda around 1972 (Tr. 17, 47, 207).

[*14]

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Both Mr. Torrey and Mr. Gatzemeier testified for the Secretary on the availability of engineering controls. Mr. Torrey, who had been trained in chemistry and in industrial hygiene, said he had visited Respondent's facilities in 1971 and 1972 (Tr. 64) While acknowledging that Respondent had made some improvements since that time, Mr. Torrey expressed the view that Respondent could do more -- "either a hood or the slotted dust collecting system employing a suction pump at one end to create a pressure to cause inflow of the air into the dust collecting system and remove it from the man's breathing zone" (Tr. 65) -- to remove contaminants from the air. According to him, engineering technology exists which will reduce air contaminants below table levels for "almost any kind of operation" (Id.)

Mr. Gatzemeier was more specific on the issue and made the following recommendations (Tr. 43-46; 54):

Sub-item 1	add a local hooding exhaust system
	over the lead pouring operation;

Sub-item 2	improve collection over D & L
	sintering machine by increasing
	suction power of fans;

Sub-item 3	additional hooding and fresh air
	feed;

Sub-items	hooding over ore cars, vacuum sweep
4 and 7	control and suction fan;

Sub-item 5	improved ventilation with filtered
	fresh air into cab; and

Sub-item 6	improved ventilation in belt areas.

[*15]

Plant Manager Lane explained the operation at East Helena in some detail -- how the lead ore is received and unloaded into a "New Deal" conveyor system, stored, placed into one of 10 feed hoppers, mixed in a hammermill, and sent to the sinter machine, blast furnace (which yields lead and slag containing zinc) and finally, into the drossing plant where molten lead is poured into 9-ton kettles. In the drossing plant, he stated that the "dross" was separated from the lead and sent to a reverbatory furnace where copper compounds are removed (Tr. 130-4, RX 7). Mr. Lane also explained that Respondent had taken steps to protect its employees from exposure to contaminants through work and safety rules requiring the use of respirators, biological monitoring of blood and urine samples taken from employees and development of engineering controls (Tr. 134-44; RXs 4, 8, 9, 10 and 11). Many of the improvements referred to were still in process at the time of the hearing, however (Tr. 139; Item 9 of RX 10).

Respondent's Vice President Kenneth Nelson conceded that air monitoring is useful for some pourposes but he questioned whether it reflects "true exposure of the employees," primarily [*16] because it does not take into account that some particles "of visible size would not be likely to be inhaled and get into the lung." He added, moreover, that some of the lead inhaled is in the form of lead sulphide and is insoluble (Tr. 95-6).

According to Mr. Nelson, Respondent's biological monitoring program permits Respondent to accurately check on the lead absorption status (regardless of the source, Tr. 97) of an employee and thus be able to take preventative measures to protect him (Tr. 96). Mr. Nelson testified that Respondent has been monitoring the urine of employees since 1946 (Tr. 94). Currently, blood and urine samples are taken at least once each year from employees. Sometimes employees are checked much more frequently. Mr. Nelson explained the program as follows (Tr. 100-1):

* * * If a blood sample, a given blood sample, exceeds our guideline of 80 micrograms of lead per hundred grams of whole blood, a sample must be immediately repeated to confirm that the above 80 value is valid, and if so, appropriate actions must be taken to reduce the individual's exposure. These actions may be, first of all studying the operation. What is being done wrong, what can be done [*17] by way of changed work habits or improvements of the dust and/or fume control system that is in operation, or what other means -- by what other means can the exposure be reduced. If the job entails short exposure, is the respirator being worn at such times? Is it being fitted properly, is it being worn faithfully? Is the individual taking off his respirator and smoking a cigarette when he should not be doing so? Work habits, in other words, are very important. Subsequently, we would check the employee again to see whether there has been actually achieved a reduction in the blood lead level. If not, then we would remove the man from exposure, if possible, and intensify our efforts to reduce his exposure if he had to remain on the same job. I didn't mention the urine level, the action levels of urine are 200 micrograms of lead per liter of urine, corrected to a normal specific gravity of 1.018. The urine samples, I should add, are the lesser valuable of the two criteria for lead absorption, in that they are more variable, depending upon various physiological factors. We rely much more upon the blood lead value in making our judgments. * * *

Respondent offered, through Mr. [*18] Nelson, into evidence abstracts of the record on blood and urine levels of certain employees also tested (i.e., air samples) by the Secretary -- Radley, Watson, Pocha, Miller, Bright, Stanghill. An examination of the report of the abstract shows that Radley's blood tested twice over 80 (87 and 88) in 1973 and Watson's 80 or more four times (94, 80, 92, and 89) between 1971 and 1973. See RX 11, Tr. 157.

Mr. Nelson challenged the Secretary's reading for zinc oxide on the basis that the samples collected included much more dust as opposed to fume as understood in the industry and as contemplated by the standard (Tr. 97-98).

Dr. Hine has had considerable experience in the field of toxicology, including treatment of patients with lead intoxication. He has been a consultant for Respondent for five years (Tr. 160). According to Dr. Hine, lead in soft tissues and blood "can cause injury to a number of body systems," but added that it occurs generally in adults only "in the neighborhood of 200 micrograms per cent" (Tr. 152-3). Eighty (80) micrograms in the blood, he said, however, is an indication of a "beginning of an undesirable buildup" as would 200 micrograms per liter in the [*19] urine (Tr. 155, 162). Dr. Hine considered Respondent's biological monitoring program, set forth in Respondent's Exhibit 4, as "excellent," adding (Tr. 156):

* * * I do not see that there is any risk to the employee since it is a program which will control the individual satisfactorily, and remove him when undesirable concentrations of lead tend to appear in the body. * * *

According to Dr. Hine, neither the lead values reported for the air samples collected by the Secretary (SX 7) nor the lead levels shown in Respondent's blood tests (RX 11) suggest any undesirable absorption of lead by any of Respondent's East Helena employees (Tr. 156-7).

Professor Cook, who served on the ANSI 237 Committee, testified that the "acceptable concentrations" specified in the ANSI standard, which provided the basis of the OSHA standard (Tr. 178), had limitations and were not to be taken as precise values (Tr. 169). The excessive lead exposures reported at the East Helena plant did not necessarily lmean to him that the standard had been violated. He stated, however, that he would be certain that the exposed employees wore respirators and were given biological monitoring tests, preferably blood [*20] analyses (Tr. 170-1). He accepted the testimony of other defense witnesses to the effect that the biological monitoring indicated that there was no hazardous exposure to lead and, thus, no violation of the standard. According to Professor Cook, the ANSI standard was intended to apply only to respirable size particles and contemplated engineering and administrative controls, even though these were not expressly stated (Tr. 173, 180-1). Biological monitoring, in his view, was a form of an administrative control ("the ultimate," Tr. 174) acceptable under the pertinent standard.

Professor Caplan, a chemical engineer, has had experience in ventilation control in lead smelting and related industries. During his testimony, he undertook to explain measures that might be utilized to control lead and zinc oxide exposures at the East Helena plant. Professor Caplan stated that the citation listed items in "descending importance or difficulty, at least from the engineering point of view" (Tr. 187).

According to Professor Caplan, Sub-item 7 should present little difficulty as the zinc oxide collected in the zinc loading area was not really fume but in powder form -- which could be conveyed [*21] out of the baghouse in an enclosed system under suction (Tr. 188, 206). n8 Professor Caplan likewise felt that the dust generated by belts on the hammermill around the feederman in the new deal shed (Sub-item 6) probably could be enclosed and controlled (Tr. 189).

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n8 The system should also control the lead to the zinc fume loaders, Sub-item 4, Tr. 191.

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Professor Caplan expressed the view that the crane operator's exposure to lead could be reduced by filtering and air conditioning while he is in the cab for five and one-half hours (Sub-item 5) but not otherwise (Tr. 189-91). He also believed that the fume control hood in use in the blast furnace area (Sub-item 3) was effective, but conceded that 20-25 tuyere air pipes, which must be unplugged manually with a bar, presented a nearly insurmountable problem. He added that Respondent is experimenting with a new system, utilizing preheating air moving at a high velocity (Tr. 191-7).

Respondent's D & L or sinter plant is the "cleanest" Professor Caplan ever saw, but it [*22] still yield over 0.2 in lead (Sub-item 2). He was not sure that engineering control in this area is achievable (Tr. 155-8). Yet, he thought the dross plant presented an even more serious problem because of the hot, corrosive materials that are cooked in the kettles (Sub-item 1, Tr. 198-202). Professor Caplan explained that it was difficult to predict just how successful engineering controls would be and that experience and time are needed to solve Respondent's problems (Tr. 202-10).

Asbestos (Item No. 6)

It was stipulated at the hearing that persons are employed in an area where "some work on asbestos is done" and that annual medical examinations were not given such persons (Tr. 11-14).

Respondent's expert witness on this issue, Dr. Wright, had worked with NIOSH on the development of criteria for the asbestos standard. According to Dr. Wright, the levels of exposures to asbestos as shown in Respondent's tests (RX 6) did not suggest chages or symptoms in the persons tested. He was of the opinion, therefore, that physical examinations were not necessary (Tr. 211-20).

Discussion

The burden of proof is upon the Secretary to establish violation of the cited standards [*23] and the Act (Rule 73 of the Commission's Rules of Procedure). With respect to Item 1, first of all, the Secretary must establish that there were "excessive" exposures. This means as to lead (Sub-items 1-6) that employees were exposed to airborne concentrations of lead in excess of .2 milligrams of lead per cubic meter of air (29 C.F.R. 1910.93(b) and Table G-2). With respect to zinc oxide (Sub-item 7), the Secretary must establish that employees were exposed to such material in excess of 5.0 milligrams per cubic meter of air (29 C.F.R. 1910.93(a) and Table G-1). Secondly, the cited standards require that in the event that the exposure levels were exceeded, feasible administrative or engineering controls must be implemented. n9 Thirdly, in the event that such controls are not shown to be feasible, an employer may still not be held in violation if it utilizes protective equipment to reduce the exposure to such air contaminants so they are within the levels prescribed. Subparagraph (e) of 29 C.F.R. 1910.93, set out in full above (p. 3 supra), reads in part:

(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls [*24] 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. * * *

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n9 The Secretary's position is that administrative controls cannot be used unless feasible engineering controls have been first utilized (Tr. 228-31). This interpretation is contrary to the plain wording of the standard and is rejected. See California Stevedore & Ballast Co., 1 OSAHRC 366 (1972).

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Respondent's principal arguments as to Item 1 are: (1) the lead and zinc oxide exposures shown by the Secretary did not constitute a violation because the air samples relied on included particles of a size which were not respirable, contrary to what the standard contemplates; (2) Respondent's biological monitoring program is an "administrative control" which has kept it in compliance with the Secretary's standard. Finally, [*25] Respondent argues (3) that the Secretary failed to establish that feasible engineering exists which would control the lead and zinc oxide exposures. These arguments will be examined.

The record establishes that there were employees of Respondent at six locations where lead far exceeded the allowable limits; also that two of these employees, Miller and Bright, were exposed to zinc oxide in excess of the allowable limits (Sub-item 7). The difficulty with Respondent's first argument is that there is nothing in the Secretary's regulations which suggest that only so-called respirable size particles are to be measured. n10 Respondent's witness, Professor Cook maintained that the intent of the original ANSI standard, from which the OSHA lead standard developed, applied only to respirable particles (Tr. 173). He conceded, however, that the ANSI standard did not expressly provide for such distinction (Tr. 181-2). According to Respondent's witness Nelson, particles of five microns or over are irrespirable but he agreed that "there is not a sharp cutoff. . ." (Tr. 122). In any event, the standard can only be interpreted as written, and Respondent's first contention is rejected. See [*26] California Stevedors & Ballast Co., 1 OSAHRC 366 (1972). n11

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n10 Respondent has maintained that a cyclone device should have been used by the Secretary to separate out non-respirable particles (Tr. 73). Respondent seeks to reduce the Secretary's values by as much as 80%, based on the testimony of defense witnesses Hine and Nelson (Resp' Br., pp 11-12; Resp's Prop. Finding 8).

n11 The Eighth Circuit in Secretary of Labor v. American Smelting and Refining Company, decided July 15, 1974, F.2d , found that air sampling is the preferred way for detecting hazardous concentrations of lead. The record in this case does not compel a different conclusion.

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Respondent does make a separate argument with respect to zinc oxide values which must be given validity on this record. Respondent points out that the OSHA standard refers to zinc oxide fume, and that two of Respondent's witnesses, Mr. Nelson and Professor Caplan, testified that the exposures here involved more "dust" than fume (Tr. 97-9, 126-9, 187-8). [*27] The testimony is unchallenged in the record. Therefore, Sub-item 7 of Item 1 must be vacated due to the Secretary's failure to show there was sufficient zinc oxide fume exposure as to exceed the allowable limits. n12

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n12 Mr. Nelson stated that inhaling unaged, fresh fume has quite a different effect as opposed to agglomerated dust (Tr. 127-8).

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Relying primarily on the testimony of Professor Cook, Respondent argues that Respondent's biological monitoring program must be accepted as an administrative control. Granted that Respondent's witnesses (Professor Cook, Dr. Hine, Nelson and Line) testified that Respondent's biological monitoring program showed that employees were not exposed to harmful amounts of lead, it is not, in my opinion, an cadministrative control" as contemplated by the Secretary's regulation. It is obviously a useful tool to measure the amount of material absorbed into the body, but admittidly it has no effect on reducing the level of air contaminants, such as the rotation of employees would (Tr. [*28] 120-1, 182). n13 Plant Manager Lane indicated that employees exposed to excessive levels of air contaminants could be transferred to other work areas, but the record does not indicate that this took place. n14 Thus, I conclude that it was established that Respondent did not utilize administrative controls to reduce the allowable lead exposure levels.

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n13 Quoting from the recent decision of the Eighth Circuit, cited supra, involving Respondent's Omaha plant:

* * * The biological monitoring did not eliminate or even reduce the hazard; it merely disclosed it. Although testing of the blood and urine is the most important test for each individual, the use of air sampling tests is the most efficient and practical way for the Secretary to check for a hazard. * * *

n14 As the Secretary's brief points out (p. 8), Respondent's biological monitoring report (RX 11) shows that employees with high lead levels continued to work for many months without change of position. See Tr. 146-8.

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It remains to be determined whether [*29] there were feasible engineering controls that Respondent could have utilized to reduce lead exposures. It should be noted that Respondent's own witness (Tr. 208) agreed with the Secretary that engineering controls are preferable to administrative controls, although the Secretary's regulation, by use of the word "or" in 1910.93(e), does not require the use of one over the other. The Secretary argues that the engineering improvements must be tried whether they are effective or not. His counsel states in his brief (p. 10):

* * * The fact that some of them may not succeed is no excuse for not attempting them. The Act specifically requires that they be attempted prior to justification for going to the use of other protective equipment, such as respirators. * * *

In my opinion such a position overlooks the fact that the standard requires only engineering controls that are feasible. However, the record does demonstrate, I believe, that feasible engineering controls are available to reduce lead exposure at the following cited locations:

1. Loaders in the zinc fume loading area (Sub-item 4)

2. Crane operator in the new deal shed (Sub-item 5) n15

3. Feederman in the new deal [*30] shed (Sub-item 6).

These conclusions are based primarily on the testimony of Professor Caplan and the Secretary's witness, Gatzemeier. It is evident, however, that the problems in implementing engineering controls in the dross plant, the D & L plant and the furnace area are more complex than Mr. Gatzemeier had appreciated. Professor Caplan, on the otherhand, in effect conceded that effective controls could have been utilized in the other lead areas cited. Mr. Torrey's statement to the effect that engineering know-how now exists to effectively reduce air contaminants in virtually any kind of operation, however, is so sweeping and general that it does not meet the burden of proof imposed on the Secretary on this phase. Thus, the Secretary of Labor sustained the allegations of Sub-items 4, 5 and 6 of Item 1 of the citation. Having failed to demonstrate that there were feasible controls to reduce excessive lead exposures with respect to Sub-items 1, 2 and 3, it was appropriate for employees referred to therein to wear appropriate respirators. As the record indicates that Respondent's employees were wearing respirators, Sub-items 1, 2 and 3 of Item 1 must be vacated. n16

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n15 The supplying of fresh, filtered air to the crane cab for five and one-half hours should operate to reduce effectively the lead exposure to the crane operator even though he does not spend all of his time there.

n16 See Tr. 49, 195. There is no indication that the protective equipment worn by Respondent's employees was ineffective in reducing air contaminants.

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With respect to Item 6, 29 C.F.R. 1910.93(a)(j)(3) simply requires that medical examinations be made available to employees exposed to airbone concentrations of asbestos fibers beginning on January 31, 1973. The stipulated evidence -- that some employees worked in the area of asbestos and no examinations were provided -- establish that the standard was violated. Respondent's only defense is that the levels of asbestos was so low that medical examinations would have served no purpose. Here again, Respondent is arguing for an interpretation of the standard that is contrary to the express language of the standard, and the contention must be rejected. n17

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n17 In making such argument (Resp's Reply, Resp's Br., pp 17-21, Prop. Finding 14) Respondent relies on air samples it took and its view that proposals and comments with respect to a standard must be taken into account in interpreting it (RX 1, Tr. 112-16; RX 1, 218-9).

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The matter of penalty was resolved by the parties and need not be determined. Dale M. Madden Construction, Inc. v. Secretary of Labor, F.2d (9Th Cir. 1974); Secretary of Labor v. OSAHRC (Brent Towing Co., Inc.), 481 F.2d 619 (5th Cir. 1973).

Conclusions of Law

Based on the foregoing, the following conclusions of law are entered:

1. Respondent is now, and at all times mentioned herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and that the Commission has jurisdiction of the parties and the subject matter.

2. It was established that Respondent violated 29 C.F.R. 1910.93(e) with respect to lead in the areas of the zinc fume loaders (Sub-item 4), the crane operator (Sub-item 5) [*33] and the feederman (Sub-item 6).

3. Violation of 29 C.F.R. 1910.93(e) with respect to lead was not established with respect to the areas cited in Sub-items 1, 2 or 3 as employees in such areas were wearing protective equipment and it was not shown that controls for such areas were feasible.

4. It was not established that Respondent violated 29 C.F.R. 1910.93(e) as to zinc oxide as it was not shown that there was any excessive exposure of zinc oxide fume.

ORDER

Based on the foregoing, and the whole record, it is ORDERED that:

1. Sub-items 1, 2, 3 and 7 of Item 1 of Citation No. 2 dated September 19, 1974 be VACATED.

2. Sub-items 4, 5 and 6 of said Item 1 be AFFIRMED.

3. That the penalty for Item 1 and 6 ($30 and 0) be AFFIRMED.

Harold A. Kennedy, Judge, OSAHRC

Dated: September 3, 1974