Appendix — Whiskers v. United States

Supreme Court brief1980

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78-919 | Frets

No. 78- pec @ 1876

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

AMERICAN IRON AND STEEL INSTITUTE, et al.,

Petitioners,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

et al.,

and

UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Respondents.

APPENDICES TO THE

PETITION FOR A WRIT OF CERTIORARI

Of Counsel:

ROBERT B. Morris MAX O. TRUITT, JR.

HACKER & Morris NEIL J. KING

1730 Rhode Island Ave., N.W. WILMER, CUTLER & PICKERING

Washington, D.C. 20036 1666 K Street, N.W.

(202) 833-1650 Washington, D.C. 20006

(202) 872-6000

December 9, 1978 Counsel for Petitioners

WILSON - EPES PRINTING COo., INC. - 789-0096 - WASHINGTON, D.C. 20001

J Ber ROBAK, seston

publ ert) sat "

INDEX OF APPENDICES

APPENDIX A—Opinion of the Court of Appeals (as

SISTER ERA aS RN

I oi siicivnchdnisigneelicdinanioienmnsnrnse

APPENDIX C—Order Sur Petition for Rehearing....

APPENDIX D—Order Extending Time to File Peti-

tion for Writ of Certiorari ................

APPENDIX E—Statutory Provisions Involved ...........

APPENDIX F—OSHA’s Coke Oven Emissions Stand-

APPENDIX G—Excerpts from OSHA’s Summary and

Explanation of the Standard ............

APPENDIX H—Report to the President on Prices and

Costs in the United States Steel In-

ek atnetannnmenannninn

APPENDIX I—Letter from Dennis K. Kade and

Charles I. Hadden to Thomas F.

Quinn, Clerk, United States Court of

Appeals for the Third Circu™ ..........

Page

Re:

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 76-2358, 76-2359, 76-2424, 76-2371, 76-2372,

76-2629, 76-2630, 77-1016, 77-1025, 77-1088

AMERICAN IRON AND STEEL INS‘ ITUTE

1000 16th Street, N.W.

Washington, D.C. 20036

JONES & LAUGHLIN STEEL CORPORATION

3 Gateway Center

Pittsburgh, Pennsylvania 15263

NATIONAL STEEL CORPORATION

2800 Grant Building

Pittsburgh, Pennsylvania 15219

SHARON STEEL CORPORATION

P.O. Box 291

Sharon, Pennsylvania 16146

SHENANGO INCORPORATED

P.O. Box 3030

Pittsburgh, Pennsylvania 15230

UNITED STATES STEEL CORPORATION

600 Grant Street

Pittsburgh, Pennsylvania 15230

WHEELING-PITTSBURGH STEEL CORPORATION

P.O. Box 118

Pittsburgh, Pennsylvania 15230

Petitioners in Nos. 76-2358 and 76-2871

REPUBLIC STEEL CORPORATION,

Petitioner in Nos. 76-2359 and 76-2372

BETHLEHEM STEEL CORPORATION

Bethlehem, Pennsylvania 18016

Petitioner in No. 76-2424

ARMCO STEEL CORPORATION

703 Curtis Street

Middletown, Ohio 45043

Petitioner in No. 76-2629

CRUCIBLE MATERIALS GROUP

COLT INDUSTRIES INC.

P.O. Box 88

Pittsburgh, Pennsylvania 15230

CYCLOPS CORPORATION

650 Washington Road

Pittsburgh, Pennsylvania 15228

INLAND STEEL COMPANY

30 West Monroe Street

Chicago, Illinois 60603,

Petitioners in No. 76-2630

YOUNGSTOWN SHEET AND TUBE COMPANY,

Petitioner in No. 77-1016

AMERICAN COKE AND COAL CHEMICALS INSTITUTE

1010 16th Street, N.W.

Washington, D.C. 20036

Petitioner in No. 77-1025

CF & I STee, CORPORATION,

Petitioner in No. 77-1088

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

UNITED STATES DEPARTMENT OF LABOR

UNITED STATES OF AMERICA,

Respondent

UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Intervenor

Petition for Review of a Standard of the

Occupational Safety and Health Administration

Argued January 5, 1978

Before ROSENN and HIGGINBOTHAM, Circuit Judges, AND

VAN ARTSDALEN, District Judge *

Max O. TRUITT, JR., ESQUIRE

MICHAEL S. SCHOOLER, ESQUIRE

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners in

Nos. 76-2358, 76-2371, 76-2424,

76-2629, 76-2630, 77-1016,

77-1025

Of Counsel:

ROBERT R. MorRRIS, ESQUIRE

HACKER & MorRIS

1730 Rhode Island Avenue, N.W.

Washington, D.C. 20036

RAYMOND T. CULLEN, ESQUIRE

MorGAN, LEWIS & BOCKIUS

123 South Broad Street

Philadelphia, Pa. 19109

DAVID J. TOOMEY, ESQUIRE

FRANK E. Morris, ESQUIRE

PENNIE & EDMONDS

330 Madison Avenue

New York, New York 10017

Attorneys for Petitioner in

Nos. 76-2359 and 76-2372

* Donald W. Van Artsdalen, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

Of Counsel:

EDWARD P. WEBER, JR., ESQUIRE

Republic Steel Corporation

P.O. Box 6778

Cleveland, Ohio 44101

JOSEPH W. SWAIN, JR., ESQUIRE

MONTGOMERY, McCRACKEN, WALKER & RHOADS

20th Floor, Three Parkway

Philadelphia, Pa. 19102

MILEs C. CorTEz, JR., ESQUIRE

WELBORN, DUFFORD, Cook & Brown

1518 United Bank Center

Denver, Colorado 80290

Attorney for Petitioner in

No. 77-1088

CARIN A. CLAUSS

Solicitor of Labor

BENJAMIN W. MINTz

Associate Solicitor for Occupational

Safety and Health

ALLEN H. FELDMAN

Assistant Counsel for Appellate

Litigation

DENNIS K. KADE

CHARLES I. HADDEN

Attorneys

United States Department of Labor

Washington, D.C. 20210

Attorneys for Respondents

GEORGE H. COHEN, ESQUIRE

BREDHOFF, GOTTESMAN, COHEN &

WEINBERG

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

JAMES D. ENGLISH, ESQUIRE

United Steelworkers of America

Five Gateway Center

Pittsburgh, Pa. 15222

Attorneys for Intervenor

Of Counsel:

BERNARD KLEIMAN, ESQUIRE

Suite 1910

One East Wacker Drive

Chicago, Illinois 60601

OPINION OF THE COURT

(Filed March 28, 1978)

(As Amended May 1, 1978)

ROSENN, Circuit Judge

These consolidated cases present petitions for review *

of a new health standard governing employee exposure

to coke oven emissions promulgated by the Secretary of

Labor (“Secretary”) on October 19, 1976, pursuant to

the Occupational Safety and Health Act (“the Act )y 29

U.S.C. § 651 et seq. In summary, the standard prescribes

particular controls and procedures to reduce coke oven

employees’ exposure in specified regulated areas to toxic

emissions in concentrations no greater than 0.15 mg. of

the benzene-soluble fraction of total perticatate matter

(BSFTPM) per cubic meter of air (0.15 mg/m ) present

during the production of coke averaged over an eight-hour

period. Additionally, the standard provides that if the

prescribed controls do not reduce emission concentrations

to the permissible exposure limit, employers would be re-

1 itioners are: American Iron and Steel Institute, Jones

& ei age: Company, National Steel Corporation, wis

Steel Corporation, Shenango, Inc., United States Steel Corpora ei

Wheeling-Pittsburgh Steel Corporation, the American ie a

Coal Chemicals Institute, Bethlehem Steel Corporation, hes -

Materials Group, Youngstown Sheet & Tube Company, os .

Steel Corporation, C F & I Steel Corporation, Cyclops Corporatio

and Inland Steel Company.

2The standard may be found in 41 Fed. Reg. 46742-46790, (to

be codified at 29 CFR § 1910.1029).

Under the Act, the Secretary of Labor is charged with ph wad d

responsibility for developing occupational safety and ee _

ards. In practice, however, he has delegated this func sey cot

Assistant Secretary of Labor for Occupational Safety an “sr

who is the chief administrative officer of the Occupational = rd

and Health Administration (OSHA). References in this opinio

the Secretary and OSHA are used interchangeably.

rat ’ provide respirators and to take additional steps

0 curtall excess emissions by conducting inde -

search and development. . oe

Petitioners, coke manufacturers and their tr

ciations, make three principal claims: (1) the cots

limit of 0.15 mg/m* (miligrams per cubic meter of air)

is invalid under the statute because there is no substan-

tial evidence of health need for the prescribed exposure

limit, and there is no evidence to Support the feasibility

of that limit; (2) the Secretary has exceeded his statu-

tory power by combining a performance standard with

specific required engineering and work practice controls

and by requiring the coke manufacturers to conduct open-

ended research to develop additional control technology, if

necessary, to achieve the permissible exposure limit: and

(3) there is no substantial evidence to support the need

for the specified various mandated controls and proce-

dures* suck as quarterly monitoring of employee expo-

3 Petitioners also contend that the Seer i

“a etary failed to i

neg requirements of due process for rulemaking ie so a

viding adequate notice of the standard. Our review of the record

ae ber CF & I relied was based upon the health statistics of

employees, while the studies upon which the Secretary relied

were based on approximately 59,000 and 35,000 employees. Th

vastly superior statistical ;

rational basis for the Secretary to disregard the C F & I study.

Finally, Republic Steel Co i in i

; ; + Corporation argued in its brief that -

—! — be used in an effort to comply with the cutiailaatbte

_ mo imit. The Secretary’s brief conceded that respirators

ugh not a first choice measure for reducing employees’ ex-

ee ee Menard 4 >>

sure, prescribed protective clothing and hygiene facilities,

the extent of the area to be regulated, engineering con-

trols, and work practices.

BACKGROUND

Coke is utilized primarily by steel producing companies

as a fuel in blast furnaces and foundries. It is the prod-

uct of the destructive distillation of coal usually produced

by heating coal in an inert atmosphere in a coke oven

battery.

A coke oven battery is a huge rectangular structure,

typically 200 or more feet long, 40 to 60 feet wide, and

up to 50 feet in height. The battery is subdivided by

refractory brick walls into a series of narrow ovens, ap-

proximately 18 inches wide and 13 to 20 feet high extend-

ing the full width of the battery. Between each oven are

heating flues that burn gas derived from the coal to main-

tain high temperatures. This heating process causes the

carbonization of the coal, resulting in the formation of

the coke, a pourous cellular substance, and various vola-

tile gases. Each oven is provided with three or four

charging holes in its roof through which coal is dropped

into the oven, and two doors, one at each end of the oven,

which are removed at the end of the coking cycle so that

the incandescent coke can be pushed from the oven into

the quench car. As the coal is coked, a considerable

amount of gas generates. Almost all of it is captured

and burned in the heating flues of the coke oven battery.

This gas is removed from each oven through one or two

vertical ducts, called stand pipes or ascension pipes,

which are connected by horizontal ducts, called goose-

necks, to one or two collector mains. In brief, coke pro-

duction consists of three distinct operations: “charging,”

“coking,” and “pushing.”

The charging process begins by loading coal into a larry

car which operates on a rail on top (“topside”) of the

battery. There are three or four coal hoppers or bins on

the larry car for transferring coal from a coal bunker

to the charging hold. After the coal is unloaded into the

oven, it is levelled to create a space between the coal and

the oven so the gas evolved during the coking process can

collect. To minimize escape of these gases, a process

called “charging on the main” has been developed. The

gases are forced out of the oven by “steam jet aspiration”

through a stand pipe and into a “gooseneck” for trans-

mittal to the collecting main. During the trip through

the gooseneck, the gases are sprayed with condensation

flushing liquor,” from the collecting main. Prior to

charging, a lid man removes the lids on the charging

holes of the empty oven. The larry car operator then

positions the car over the empty oven and he and the lid

man then let the coal out of a hopper into the oven.

The second operation in the coking process is the heat-

ing of the ovens. The ovens are heated from 14 to 36

hours at temperatures of 2000° F. or more. After the

heating 1s completed at the end of the coking cycle, the

coke is ready for the third operation, the removal (“push-

ing’) from the oven. A pusher machine on which is

mounted a mechanical ram for pushing the coal from

the oven Is stationed in front of the oven’s “push side

door.” The door is removed as is the door on the oven’s

opposite side, the “coke side door.” The ram forces the

coke out of the oven through the coke side door into a

railroad car, the “quench car.” The quench car carries

the hot coke to the “quench tower” where it is cooled

with water and then dumped onto the “coke wharf.”

Finally, it is then conve i

analy, 1 yed to the screenin j

sizing. It is then ready for use. ee

The hazards to coke oven em

ployees stem from th

escape of volatile gas byproducts, a danger present at all

three stages of the coking process. The composition of

the gas from the coke oven varies with the type of coal,

its moisture content, and the extent to which the coal has

been coked. The gas contains numerous hydrocarbons and

at varying times also includes particulate matter and

tars. Emissions can leak out into the work place areas

immediately adjacent to the ovens through the charging

hole during the charging process. Because coke oven bat-

teries are operated at extremely high temperatures and

are subject to considerable thermal stress which often

produces minute cracks in coke ovens, gas can leak from

the ovens during the coking process. Emissions also can

leak through the oven doors during the push, and from

the quench car while the coke is carried to the quench

tower. Finally, if for some reason the coal has not been

thoroughly coked by the time it is pushed, the uncoked

coal will precipitate a “green push” generating substan-

tial gas emissions and characterized by flames shooting

out of the coke mass with dense black smoke enveloping

the entire area of the battery.

Efforts to reduce employee exposure to coke oven emis-

sions began officially in 1969. The Secretary of Labor,

acting under the authority of the Walsh-Healey Act, 41

U.S.C. §$§ 35-45 (1970), adopted a 1967 recommendation

of the American Conference of Governmental Industrial

Hygienists that occupational exposures to “coal tar pitch

volatiles” (“CTPV”) be limited to 0.2 mg/m* on an eight

hour day.* In 1971, the Secretary adopted that standard

as an “established federal standard” pursuant to section

6(c) of the Act, 29 U.S.C. § 655(a) (1970). Later that

same year, the American Iron and Steel Institute

4 “Coal tar pitch volatiles” is a generic term and refers to organic

material present on particulate matter. Because benzene is a solvent

for such material, CTPV are in practice measured as the benzene-

soluble fraction of the total particulate matter (“BSFTPM”) found

in any environment.

10a

(“AISI”) petitioned the Secretary to develo

designed specifically for Pa Wing pas pgp

United Steelworkers of America petitioned the Secretary

to formulate a more stringent performance standard. The

petitions were both denied, pending expedited research

conducted by the National Institute for Occupational

Safety and Health (“NIOSH”) in the development of

criteria for an appropriate standard.

The NIOSH report was issueu in Februa

in essence, concluded that: (1) because prt ar th pe

te to determine safe coke oven emission levels

e existing 0.2 mg/m* coal tar pitch volatile standard

should be retained; (2) application of feasible engineer-

ing controls and work practices were the most efficient

means to control emission leakage.

In August 1974, the Secretary establishe

ee Committee on Coke Oven Simnlasioee gear

e NIOSH criteria report and to prepare recommenda-

ions for a new standard protecting employees from ex-

posure to coke oven emissions—as distinct from other

material falling within the broad coal tar pitch volatile

category. Members of the committee, experts in their

respective fields, included among their number an epi-

demiologist, a public health expert, industrial Viietablite

representing the employers, and union members, After

lengthy hearing, on-site inspections, and review of docu-

ments, the Advisory Committee submitted a majority and

dissenting 3500 page report in May 1975. Drawing upo

the various studies before him, the Secretary ublished

on July 24, 1975, his own “Proposed Standard” for cok

oven emissions. He set the proposed exposure limit at 0 3

mg of respirable particulate matter (“RPM”) per cubi

meter of air. The area to be regulated included an wake

plant area where the permissible exposure limit ne ex-

ceeded. Furthermore, the proposed standard identified

varlous engineering controls and work practices which

as ai tl

lla

seemed effective in curtailing emissions exposure although

such controls and procedures were not mandated under

the proposed standard. OSHA conducted hearings on the

proposed standard between November 1975 and May 1976

with respect to all issues.

The final standard was promulgated in October 1976.

As we noted earlier, it establishes a permissible exposure

limit to the benzene-soluble fraction of total particulate

matter (BSFTPM) of 0.15 mg/m’. The regulated area

covers the coke oven batteries, topside, push side, and

coke side, with their attendant machinery, the battery

ends, the quenching tower, wharf and screening station.

Quarterly monitoring of exposure levels for each shift in

each job classification in the regulated area is also pro-

vided. To reach the permissible limits, an extensive list

of engineering and work practices to be implemented at

each battery is ordered. Finally, the standard provides

that if the permissible exposure limit has not been met

after implementing all the specified controls, the employ-

ers must provide respiratory equipment and they must

undertake open-ended research and development until

they have developed technologies which will achieve com-

pliance.

In December 1976 petitioners AISI and American Coke

and Chemical Institute (“ACCI’”) applied to the Sec-

retary for a stay of the effective date of certain of the

standard’s provisions or for alternative relief. The Sec-

retary denied that petition in January 1977. Petitioners

then moved this court for a stay. The court granted an

interim stay pending decision on the motion, denied the

motion on February 18, 1977, and vacated the interim

stay. This petition for review, for which we have juris-

diction under section 6(f). of the Occupational Safety

and Health Act of 1970, 29 U.S.C. §655(f) (1970),

followed.

12a

We affirm the standard but vacate the sections per-

pti to research and development requirements and

the requirement of a qualitative fit test for respirators.

Il.

THE STANDARD OF REVIEW

Our standard of review in this case is statutorily man-

dated by section 6(f) of the Act, 29

sectio ; U.S.C.

which provides in pertinent part: Pseaes

The determination of the Secretary shall be con-

clusive if supported by substanti i

: al evid

record considered as a whole. ‘ischemia

In Synthetic Organic Chemical Manuf

acturers Vv. Bren-

nan, 503 F.2d 1155 (3d Cir.) cert. denied, 420 U.S. ‘928

(1970) (“SOCMA I”), this court set forth a five-step

process for reviewing the Secretary's

under section 6(f) : ys safety standard

(1) determine whether the Secretary’s notice of pro-

posed rulemaking adequately inf

of the action taken; ee ne SOREN

(2) determine whether the Se

cretary’s .

adequately sets forth reasons for his athens: ——

(3) determine whether the

é statement of reasons re-

flects consideration of factors relevant under the ae :

(4) determine whether prese :

ntl ,

were at least considered: a be y available alternatives

(5) determine whether substanti i

antial evidence in the

ane as a whole supports the Secretary’s determination

i . is based in whole or in part on factual matters

subject to evidentiary development. Jd. at 1160.

As is typical in the mutifaceted

al in character of judici

review of legislative standards resulting from Rave

Ceti

es Saad a Se ta

13a

rulemaking, we are concerned with intricate questions

pertaining to fact-finding, policy making, and statutory

construction. The framework around which we must

build our decision involves an examination of scientific

facts, economic considerations and statutory markings.

Underlying our approach to the questions presented is,

of course, a recognition of the congressional mandate

to protect the health of industrial employees and to

weigh the burdens of an important but currently be-

leaguered industry.

As we examine the regulation at issue in this case, it

is imperative to distinguish between determinations bot-

tomed on factual matters, and non-factual, legislative-like

policy decisions. It is only the former that we subject

to the “substantial evidence” test. The evidence in sup-

port of a fact-finding is “substantial” when “from it [the

evidence] an inference of the fact may be drawn reason-

ably.” B. Schwartz, Administrative Law 595 (1977). In

such a case, the reviewing court must uphold the finding

“even though [it] would justifiably have made a different

choice had the matter been before it de novo.” Palmer

v. Celebrezze, 334 F.2d 306 (8d Cir. 1964), quoting

Universal Camera Corp. v. Labor Board, 340 U.S. 474,

488 (1950).

III.

THE VALIDITY OF THE PERMISSIBLE

EXPOSURE LIMIT OF 0.15 MG/M* BSFTPM

In determining the validity of an exposure limit of

0.15 mg/m* BSFTPM, two major questions must be

addressed: Is there substantial evidence supporting the

conclusion that the ambient atmosphere of a coke oven

contains particulate matter to which there is no safe level

of exposure? Is the Secretary’s limit feasible as required

by section 6(b) (5)? We will discuss each of these ques-

tions in turn.

14a

A. Carcinogenicity and safe exposure levels

The record in this case supports the Secretary’s find-

ings, never disputed by any of the parties,’ that there is

substantial evidence that coke oven emissions are carcino-

genic. Dr. Eula Bingham, then associate professor of

environmental health at the University of Cincinnati’s

Medical School and chairman of the Secretary’s Advisory

Committee (now Assistant Secretary of Labor for OSHA),

concluded unequivocally in her testimony before OSHA

that “there is overwhelming scientific evidence that coke

oven emissions are carcinogenic,” and hence, “the ambient

atmosphere of coke ovens is a carcinogen rich environ-

ment.”

Evidence of carcinogenicity has been derived from

chemical analysis and various epidemiological studies.

Such studies indicate a significantly higher rate of

mortality among coke oven workers than the general

population. For example, the rate of mortality for lung

cancer among employees working on top of the coke oven

batteries for five or more years is ten times greater than

normal. Furthermore, the incidence of contracting var-

ious non-malignant respiratory diseases—bronchitis, em-

physema, pneumoconiosis—is also substantially increased,

particularly for long term workers.

Having established the existence of a health hazard cre-

ated by coke oven emissions, the Secretary endeavored to

ascertain a safe level of exposure. Edward Baier, Dep-

uty Director of NIOSH, testified in hearings that it is

impossible to set a safe threshold exposure limit above

zero for a carcinogen. In a 1970 report to the Surgeon

General entitled “Evaluation of Environmental Carcino-

5 For example, the senior environmental chemist and toxicologist

for Bethlehem Steel stated at the hearings that coke oven emissions

were “a cause” of observed excess incidents of lung cancer among

coke oven employees.

ee eee

at 26 fo

15a

gens” the Ad Hoc Committee on the Evaluation of Low

Levels of Environmental Chemical Carcinogens stated,

“no level of exposure to a chemical carcinogen should be

considered toxicologically insignificant for man. For car-

cinogenic agents a sate level for man cannot be estab-

lished by application of our present knowledge. The con-

cept of ‘socially acceptable risk’ represents a more realis-

tic notion.” The Ad Hoc Committee’s report substantially

summarizes the opinions of numerous experts that there

were no known safe exposure levels at the time to car-

cinogens. Finally, the majority report of the Secretary’s

Advisory Committee based its recommendations to the

Secretary on the finding that “eoke oven emissions are

carcinogenic and there is no scientific data to demonstrate

that there is a safe level of exposure to carcinogens... oe

The Secretary’s factual determination that coke oven

emissions are carcinogenic and that there is no absolutely

safe level of exposure to them is supported by substan-

tial evidence in the record. Therefore, we have no dif-

ficulty in concluding that the Secretary’s effort to meet

a perceived health need by establishing an exposure limit

to coke oven emissions was proper. The proprieties of

6 In discussing the permissible exposure limit, the report in per-

tinent part states:

Experimental data suggest that cocarcinogenic agents may play

a critical role in the development of lung cancer. In addition,

epidemiological evidence indicates that certain environmental

cofactors may potentiate the risk of developing lung cancer.

Experimental data and epidemiological evidence provide im-

portant clues as to the specific roles of the multiple chemical

agents and physical stresses in the complex environment of coke

ovens which result in the development of cancer.

% % x

Since coke oven emissions are carcinogenic and there is no

scientific data to demonstrate that there is a safe level of ex-

posure to carcinogens, the basis of this standard must be

“no exposure.” (Emphasis supplied. )

16a

setting the limit to 0.15 mg/m* BSFTPM, however, pre-

sents greater difficulties.’

B. Feasibility of the standard

Section 6(b) (5) of the Act requires, inter alia, that

the Secretary “shall set the standard which most ade-

quately assures, to the extent feasible, on the basis of

best available evidence, that no employee will suffer ma-

terial impairment of health or functional capacity even

if such employee has regular exposure to the hazard...

for the period of his working life.” 29 U.S.C. § 655(b)

(5) (1970). In attempting to formulate the lowest pos-

sible exposure limit, the Secretary is constrained by the

requirement of feasibility, both technological and eco-

nomic. American Federation of Labor v. Brennan, 530

F.2d 109, 122 (38d Cir. 1975). We will now examine

each aspect of the feasibility requirement.

(1) Technological feasibility

The Secretary set the exposure limit at 0.15 mg/m*

BSFTPM relying primarily on NIOSH tests conducted

at U.S. Steel’s Fairfield, Alabama plant—considered the

most modern and clean coke oven battery operating in the

United States. Fifty measurements were taken at various

job positions around the battery over a three-day period.

The NIOSH data showed that exposure levels were below

the 0.15 mg/m* BSFTPM level on at least one of the

days for each job classification tested. Although those

low-level readings constituted only one-third of the total

7 A level of zero exposure could not be set because there is some

naturally occurring background presence of the measured substance

in the air which cannot be removed from the environment. Because

benzopyrene (“BAP”) was one of the most potent components of

coke oven emissions and largely responsible for their carcinogenic

potency and is to some extent ubiquitous in the environment, the

Committee tailored its recommendation from zero to 0.02 ug (micro-

grams) /m'.

Na BTR Pee 6

17a

samples taken, the Secretary noted that the Fairfield

battery had not implemented all of the specific engineer-

ing controls that are now required in the standard. In

view of this data, along with data from other batteries,

in particular the Bethlehem Steel coke battery in J ohns-

town, Pennsylvania, where exposure in one job classifica-

tion dropped from 6.4 mg/m* to 0.38 mg/m* after new

engineering controls were implemented, and testimony

concerning new alternative coke production techniques

and emission controls, the Secretary concluded that the

prescribed standard was technologically feasible. To ac-

count for initial difficulties, the standard mandates that

while these controls are being implemented, or where the

standard is, for some reason, not technologically feasible,

then the health needs of coke oven employees require use

of respirators wherever the exposure limit is exceeded.

The petitioners advance several arguments support-

ing their contention that the prescribed exposure limit is

not feasible. First, petitioners attack the Secretary’s

reliance on the NIOSH test at the Fairfield batteries.

Petitioners suggest that if the measurements taken at

the newest, cleanest batteries indicate that the limit can

be met only one-third of the time, then not only would

it be difficult for the best batteries to meet the pre-

scribed limits, but it would be next to impossible for the

older batteries to meet it. Petitioners also contest the

validity of the data on which the Secretary relies. Coke

oven batteries are subject to different temperatures, wind,

and humidity, depending on their geographical location

and seasonal changes. Petitioners argue that the Fair-

field data, measuring exposure in one location and over

only three consecutive days, could not possibly yield an

accurate representation of the exposure levels at Fair-

field, let alone at batteries across the country under

materially different climactic conditions. Finally, pe-

titioners note that there is no evidence substantiating

18a

the Secretary’s faith in new and innovative controls and

production techniques “looming over the horizon’ to re-

duce emission levels. Expert testimony disclosed that

major new developments in coke production require a

minimum of ten years to implement. Petitioners argue

that section 6(b) (5) requires actual technological feasi-

bility, not a standard that might be attained through

developments now unforeseeable.

Our review of the extensive record indicates that the

substance of the petitioners’ argument may be substan-

tially sound but not necessarily the conclusions they draw.

The Secretary’s decision to establish a 0.15 mg/m® ex-

posure level, based on the evidence that coke oven emis-

sions are carcinogenic at any level of exposure—a find-

ing which the record substantially supports—was a policy

judgment on the basis of the best available evidence as

to what the industry could achieve in an effort to best

protect its coke oven employees. This decision is not a

factual determination for which we need find substantial

evidence in the record to support. Under the Act, the

Secretary’s task combines elements of legislative policy

determinations and fact finding. Industrial Union De-

partment AFL-CIO v. Hodgson, 499 F.2d 467, 476 (D.C.

Cir. 1974). In this instance, his ultimate determination

of the appropriate exposure level is a legislative de-

cision in the exercise of congressionally delegated powers.

Even though we might have drawn different inferences

from the information before the Secretary, his conclu-

sion was reasonably drawn from the record and, there-

fore, it must be upheld.

Our role in reviewing this exposure limit * has been de-

fined in two cases in two different circuits, Society of

Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d

* For an enlightening discussion of the problems judges face in

reviewing technical standards, see Judge Oakes’ article, The Judicial

Role in Environmental Law, 52 N.Y.U. L. Rev. 498 (1977).

oa i ibe nc ee NE St A he ct

din ice doin ~

op aa AT EN IA te i iO ea AEST

ne ae ees

19a

Cir.), cert. denied, 421 U.S. 992 (1975), and Industrial

Union Department, AFL-CIO v. Hodgson, 499 F.2d 467

(D.C. Cir. 1974). In Hodgson the D.C. Circuit reviewed

the Secretary’s standards regulating the atmospheric con-

centrations of asbestos dust in industrial work places.

In that case, as in this, the Secretary made his factual

determinations by analyzing often conflicting data and

drawing conclusions from it: reading the record to find

support for such conclusions was the proper reviewing

function. Jd. at 474. But there, as here:

The Secretary was obligated to establish some spe-

cific level as the maximum permissible exposure.

After considering all the conflicting evidence, the

Secretary explained the decision to adopt, over strong

employer objection, a relatively low limit in terms

of the severe health consequences which could re-

sult from overexposure. Inasmuch as the protection

of the health of employees is the overriding concern

of OSHA, this choice is doubtless good, but it rests

in the final analysis on an essentially legislative

policy judgment rather than a factual determina-

tion....

Id. at 475. The court concluded that because “judicial

review [of legislative-like decisions] inevitably runs the

risk of becoming arbitrary supervision and revision of

the Secretary’s efforts to effectuate the legislative pur-

poses in an area where various responses might each be

legitimate in the sight of congress,” Jd. at 448, it would

remand only those provisions of the standard which left

“nagging questions . . . as to the reason and rationale

for the Secretary’s particular choices.” Jd.

This line of analysis was followed in Society of Plas-

tics, supra. In that case, the Second Circuit reviewed

industry’s challenge to the Secretary’s standard govern-

ing employees’ exposure to vinyl chloride emissions. The

20a

Secretary had established a permissible exposure level of

one part per million (1 ppm) of vinyl chloride over an

eight-hour period, to be achieved primarily through

“feasible engineering and work practice controls,” id.

at 1307, or through the use of respirators where the 1

ppm level could not be reached. Jd. Even though no plant

had been able to reach the 1 ppm level by the time of the

adjudication, Justice Clark, sitting by designation, up-

held the standard as reasoned decision making, writing:

We cannot agree with petitioners that the standard

is so clearly impossibie of attainment. It appears

that they simply need more faith in their own tech-

nological potentialities, since the record reveals that,

despite similar predictions of impossibility regard-

ing the emergency 50 ppm standard, vast improve-

ments were made in a matter of weeks, and a variety

of useful engineering and work practice controls

have yet to be instituted.

Id. at 13809. As in Society of Plastics, supra, the record

here reveals that the coke oven industry also could with

some self-confidence and determination develop “their

own technological potentialities,” and achieve a variety of

improvements. The experience at the Fairfield and Beth-

lehem Steel batteries provides a sufficient basis for the

Secretary’s reasoned belief that the 0.15 mg/m* limit

could be met.

The Fairfield plant had been extensively rehabilitated

to include considerable, but not all, effective emission con-

trol technology, and its personnel had been trained in

abatement and operating procedures. NIOSH and USS.

Steel simultaneously monitored the plant over a three-day

period in seven different job classifications. More than

half of the 43 results reported did not exceed the existing

standard of 0.2 mg/m* and the NIOSH data disclosed that

exposure levels in every job classification monitored were

below 0.15 mg/m* of the BSFTPM on at least one of the

te OR

21a

three sampling days. Three job classifications were below

this level on more than one day and another three

measured “no detectable levels” in the monitoring sam-

ples for that day. U.S. Steel’s results also revealed levels

below 0.15 mg/m* BSFTPM in every sampled job classi-

fication on at least one testing day and all but two classi-

fications met this level on more than one day. NIOSH also

monitored worker exposure in five other coke plants for

two one-week periods and each of these plants reached

levels below 0.15 mg/m* BSFTPM for both rounds of per-

sonal sampling. Although this data was reported by coke

plants rather than job classification, other monitoring re-

sults show exposure levels below 0.15 mg/m* for almost

all job positions at plants other than Fairfield. Data sub-

mitted by Republic Steel, C F & I, and Koppers St. Paul,

Minnesota, plants also demonstrate an ability to achieve

levels below 0.15 mg/m* for numerous classifications.*®

Of course, many samples were recorded above these levels

but the evidence supports the Secretary’s conclusion that

the 0.15 mg/m* levels could be reached, particularly with

a motivated program to at‘ .in it and the application of

the recommended engineering controls and_ practices.°

Furthermore, many persons testified to innovative tech-

nology currently in the experimental stage readily adapt-

able to old batteries.

8In developing a record on which the agency could confidently

evaluate the standards’ feasibility, the Secretary contracted with

a consulting firm to analyze the ability of the coking industry to

comply. The analysis relied on raw data collected from coke pro-

ducers, their suppliers, industry trade associations, labor unions,

and government agencies. It concluded that the pertinent proposed

engineering controls were technologically feasible.

® An illustration of the technological feasibility of the standard

is Bethlehem Steel’s experience in reducing emission levels at its

Johnstown plant. A drastic drop in emission concentration in larry

car cabs from an average of 3.0 to 0.09 mg/m* was accomplished

by filtering air in the cabs and exercising other controls and work

practices. The mere filtering of air in the larry car cabs was suffi-

cient to reduce the level from 0.71 to 0.10 mg/m‘.

22a

As this court noted in Atlantic & Gulf Stevedores v.

OSHA, 534 F.2d 541 (8d Cir. 1976), “it may become evi-

dent that a particular safety and health standard is econ-

omically or technologically infeasible, or otherwise un-

reasonable, only after employees have made a good faith

effort to comply.” Jd. at 550. Finally, if the exposure

limit cannot be met at a certain battery, even after the

engineering controls and work practices variance are im-

plemented, section 6(d) prudently sets up certain proce-

dures for obtaining a variance from a standard.”

We believe the Secretary has made, at least, a reasoned

decision in setting the exposure limit at 0.15 mg/m* and

we have no “nagging question” about the rationale sup-

porting his choice. Therefore, we hold that the prescribed

limits meet the technological feasibility requirement of

section 6(b) (5).

(2) Economic feasibility

In the effort to safeguard the health and safety of

employees in the industrial establishments throughout the

land, there is nonetheless a very practical necessity to

weigh economic costs. Congress did not intend to elim-

inate all health hazards to industrial employees at the

price of crippling an industry or rendering it extinct.

The role economic considerations are to play in review of

the Secretary’s standard was enunciated in Industrial

Union Department AFL-CIO v. Hodgson, supra, at 477-

78, and adopted for this circuit by Judge Gibbons in

American Federation of Labor v. Brennan, supra, at 122-

23. In Hodgson Judge McGowan stated:

There can be no question that OSHA represents a

decision [by Congress] to require safeguards for the

10 29 U.S.C. § 655(d) (1970) provides in pertinent part:

An affected employer may apply to the Secretary for a rule

or order for a variance from a standard promulgated under

this section.

ST ak sree Be eP.

Ce ae OR A SEN

eee

23a

health of employees even if such measures substan-

tially increase production costs... . [Blut prac-

tical considerations can temper protective require-

ments. Congress does not appear to have intended to

protect employees by putting their employers out of

business—either by requiring protection devices un-

available under existing technology or by making

financial viability generally impossible... .

Standards may be economically feasible even

though, from the standpoint of employers, they are

financially burdensome and affect profit margins ad-

versely. Nor does the concept of economic feasibility

necessarily guarantee the continued existence of

individual employers. It would appear to be con-

sistent with the purposes of the Act to envisage the

economic demise of an employer who has lagged be-

hind the rest of the industry in protecting the health

and safety of employees and is consequently finan-

cially unable to comply with new standards as quickly

as other employers.

To develop a record on which the Secretary could con-

fidently evaluate the standard’s feasibility, the Depart-

ment of Labor contracted with a consulting firm to an-

alyze the coke industry’s financial ability to comply with

the proposed standard. This material was developed by a

team of economists from the University of Utah. In ad-

dition, the Secretary was able to draw on an economic

study commissioned by the AISI to determine the finan-

cial impact of the proposed standard.

These studies indicate that the standard would have an

adverse impact on the coke oven industry. Estimates of

the total annual cost to industry of compliance range from

$240,000,000 to $1,280,000,000™ including capital and

11 Counsel for Republic Steel stated in oral argument that industry

accepts the $240,000,000 figure.

24a

operating and maintenance costs. Petitioners note that loss

of coke production resulting from allocation of resources

to meet the standards would add $980,000,000 to the

direct cost. The studies also indicate that an additional

10 million man-hours would be required to meet the stand-

ard. From a consumer’s perspective, the cost of steel, ac-

cording to the study, would likely rise about one-half of

one percent.

These annual costs, petitioners contend, will inflict a

severe blow to an industry already heavily burdened by

financial pressures and aggressive competition from for-

eign producers. AISI’s study found that between 1976

and 1983, the coke industry will require 39.3 billion dol-

lars in overall capital financing, of which as much as 23

billion dollars must be externally financed. The ultimate

impact of an additional financial burden might well be a

cutback on expansion of the steel industry and, conse-

quently, an increase of imported steel. Petitioners fur-

ther note that OSHA’s inflationary impact statement in-

dicated that earnings per share in the industry would de-

cline approximately 13 percent.

The Secretary was well aware of the costs to the coke

and steel industry the emissions standard would gener-

ate. But the Secretary noted that record evidence demon-

strated that the steel industry has been stable and profit-

able, with after tax earnings of seven major and five

smaller steel producers exceeding $857 million per year.

Furthermore, the Secretary noted the absence of any testi-

mony from the industry spokesmen that the standard

would imperil the existence of the coke industry as an

affirmation of the healthy state of the industry. 41

Fed. Reg. 46748.

Although we are very sensitive to the financial impli-

cations of the standard and have endeavored to carefully

weigh its effect upon the well-being of the industry, we

are not persuaded that its implementation would precipi-

tate approaching the “massive dislocation,” American

25a

Federation of Labor v. Brennan, supra, at 123, which

would characterize an economically infeasible standard.

The Secretary had sufficient data from which he could

properly balance the cost to industry against the health

needs of its employees. The Secretary concluded :

[C]lompliance with the standard (even if the higher

cost estimate were used) is well within the financial

capability of the coking industry. Moreover, although

we cannot rationally quantify in dollars the benefit

of the standard, careful consideration has been given

io the question of whether these substantial costs are

justified in the light of the hazards. OSHA concludes

that these costs are necessary in order to adequately

protect employees from the hazards associated with

coke oven emissions.

41 Fed. Reg. 46751.

We find no basis to conclude the Secretary has not

fulfilled his duty to inquire into the economic feasibility of

the standard, nor are we persuaded that the standard is,

in fact, infeasible. We also attach significance to the

United Steelworkers’ strong support of the standard. If

the standard turns out in reality to be economically in-

feasible, their members will perhaps suffer as much, if

not more than, any other interested party. Accordingly,

we hold that the permissible exposure limit of 0.15 mg/m*

BSFTPM also meets the economic feasibility requirement

of section 6(b) (5).

26a

IV.

THE POWER OF THE SECRETARY TO COMBINE

A PERFORMANCE STANDARD WITH MAN-

DATED CONTROLS AND PROCEDURES AND TO

REQUIRE RESEARCH AND DEVELOPMENT

A. Performance standard combined with controls and

procedures

Petitioners contend that combining a performance

standard with mandatory controls and procedures exceeds

the Secretary’s power. In support of their attack on this

“doubie-barrelled” standard, petitioners point to the

statutory grant of power, section 6(b) (5), which states

“whenever practicable, the standard promulgated shall be

expressed in terms of objective criteria and of the per-

formance desired.” 29 U.S.C. § 655(b) (5) (1970). Then,

petitioners point to section 6(b) (7) which states: “where

appropriate, such standard shall also prescribe . . . con-

trol of technological procedures.” 29 U.S.C. § 655(b)

(7) (1970). Petitioners argue that when a perform-

ance standard has been adopted under section 6(b) (5)

the additional imposition of specific engineering controls

under section 6(b) (7) to achieve that level is clearly

not “appropriate” because “[sletting forth inflexible

requirements of particular methods would be effective

only if the Secretary could anticipate all possible prob-

lems and devise a uniform approach appropriate to each.”

Industrial Union Department v. Hodgson, supra, at 484.

Furthermore, petitioners note that the Secretary rejected

imposition of specific controls in the proposed rules. Pe-

titioners argue that because the record contains no evi-

dence to rebut that prior conclusion, and because the

standard makes no effort to explain the change, the

Secretary is foreclosed from requiring industry to apply

controls he had previously rejected. SOCMA I, supra,

at 1160.

27a

Petitioners’ contention as to the propriety of the

“double-barrelled standard” is devoid of support. First,

section 6(b) (5) authorizes the Secretary to set “the

standard which most adequately assures .. . that no em-

ployee will suffer material A of health.” 29

U.S.C. § 655(d) (5) (1970). We discern nothing in the

language cited by petitioners in sections 6(b) (5) and

(7) to indicate lack of power to combine a performance

standard with controls and procedures. Second, peti-

tioners’ reliance on the language from Hodgson is mis-

leading for while the court approved non-mandatory con-

trols for certain aspects of a plan to reduce asbestos

concentrations, the decision did uphold a standard in

which the Secretary combined a maximum permissible

exposure level with certain required work practices. 499

F.2d at 483. Third, because the statutory objective is to

adequately assure that employees will not suffer ma-

terial impairment of health while at work, it becomes

self-defeating to bar the use of reasonable and effective

engineering controls and work practices to achieve such

purpose.

Furthermore, we disagree with petitioners’ contention

that the Secretary failed to explain his policy reversal

in requiring work practices and engineering controls.

At 41 Fed. Reg. 46760 the Secretary stated:

(T]he final rule, unlike the proposal requires spe-

cific minimum engineering and work practice con-

trols for byproduct coke ovens, which constitute about

99% of the coking industry. OSHA believes this

approach is appropriate because (1) while there are

some differences among the 65 coke oven plants with

236 coke oven batteries, their design and operation

are similar; and (2) much of the technology which

is required by the final rule has been available for

some time.... [Wle are confident that as described

more fully below the specified controls will signif-

28a

cantly reduce employee exposures and that these

controls represent minimum controls which are neces-

sary to protect employee health.

Based on the record developed in the informal

rulemaking proceedings, including the advisory

committee, the agency has determined that the en-

gineering controls and work practices specified be-

low are the essential minimum constituents of an

effective emission control program and that they

are technologically feasible on nearly all of the

existing coke oven batteries.

We believe the Secretary’s policy decision to require im-

plementation of work practices and engineering con-

trols in combination with a performance standard is

supported by the record and that discussion of the re-

quirement in the standard meets the SOCMA I test of

supplying a reasoned analysis reflecting considerations

of relevant factors.

B. Required research and development

The Secretary’s standard requires that if, after im-

plementation of all the required controls, the permissible

exposure limit has not been met by January 20, 1980,

employers shall research, develop and implement any

other engineering and work practice controls neces-

sary to reduce exposure to or below the permissible

exposure limit... .

41 Fed. Reg. 46785.

Petitioners attack this requirement contending that

requiring employers to engage in unlimited research and

development is not authorized by the Act. Although the

Secretary may “raise standards which require improve-

ment in existing technologies or which require the de-

velopment of new technology,” Society of Plastics In-

29a

dustry, Inc. v. OSHA, supra, at 1309, petitioners note

that the Secretary’s technology-forcing power is limited

to technology that “looms on today’s horizon.” American

Federation of Labor v. Brennan, supra, 530 F.2d at 131.

The petitioners also contend that the requirement is

fatally vague, providing no indication of the limit or

magnitude of the employer’s obligation. The Govern-

ment maintains that the requirement is valid “technology-

forcing” and that it is not fatally vague.

29 U.S.C. § 665(b) (5) grants authority to the Sec-

retary to develop and promulgate standards dealing with

toxic materials or harmful agents “based upon research,

demonstrations, experiments, and such other information

as may be appropriate.” Under the same statutory pro-

vision the Secretary is directed to consider the latest

scientific data in the field. As we have construed the

statute, the Secretary can impose a standard which re-

quires an employer to implement technology “looming on

today’s horizon,” and is not limited to issuing a standard

solely based upon technology that is fully developed to-

day. Nevertheless, the statute does not permit the Sec-

retary to place an affirmative duty on each employer

to research and develop new technology. Moreover, the

speculative nature of the research and development pro-

visions renders any assessment of feasibility practically

impossible. In holding that the Secretary lacks statutory

authorization to promulgate the research and develop-

ment provision, we note in passing that we need not

reach petitioners’ challenge to the provision as fatally

vague. Accordingly, we hold the research and develop-

ment provision of the standard to be invalid and un-

enforceable.

30a

THERE IS SUBSTANTIAL EVIDENCE IN THE REC-

ORD TO SUPPORT THE VARIOUS MANDATED

CONTROLS AND PROCEDURES

Conceding the usefulness and record support of many

of the Secretary’s mandated controls and procedures, pe-

titioners nevertheless contend that several of them are

wholly without support in the record. In particular, they

point to: (1) the frequency of monitoring, (2) the

protective clothing and hygiene facilities and practices,

(3) the regulated area definition, (4) the requirement

to employ the following engineering controls and work

practices: (a) cleaning of flues and related equipment

at least weekly, (b) mechanized gooseneck and stand

pipe cleaners, (c) inspection of gooseneck and stand

pipes, oven roofs, steam aspiration systems, and steam

nozzles and liquor sprays before each charge, (d) filtered

air to door machine cabs. Furthermore, petitioners con-

tend that as to the inspection, cleaning, and maintenance

provisions, the Secretary did not request information on

all possible problems that might be encountered with

such provisions, and hence, they must fail.

Petitioners also challenge the requirements of a

quantitative fit test for respirators. The Government’s

brief conceded that the provision was unsupported and

indicated that it would not be enforced. In light of that

concession, we strike down that provision.

Having searched the record thoroughly, we find suffi-

cient basis to uphold the Secretary’s mandated controls

and procedures. Although our review indicates that one

or more of the controls may not be practicable at some

of the batteries, we note that the controls are mandated

3la

“except to the extent that the employer can establish that

such controls are not feasible.” 41 Fed. Reg. 46785.”

Finally, petitioners’ argument that the inspection,

cleaning, and mainten nce provisions do not fall within

the scope of the propused standards is without merit.

Petitioners are correct that the proposed rule did not

request information as to all possible problems that

might be encountered with such provision. But the pro-

posed rule did state:

On the basis of the record, compiled by the advisory

committee and OSHA’s current compliance activity

under the existing standard, it is apparent that it

is technologically feasible to reduce employee ex-

posure to or below the permissible exposure limit

through the implementation of engineering, work

practice, and personal protective controls. Informa-

tion is requested as part of the proceeding as to the

feasibility of reaching the permissible exposure limit

solely through the use of engineering controls and

supplementary work practices including the question

of retrofitting existing coke oven batteries with new

technology. In addition, information is sought as to

any specific difficulties associated with the supple-

mentary work practices and personal protective con-

12 Petitioners contend that the burden of proof to establish the

need for a section 6(d) variance, 29 C.F.R. § 1905.11(b) (4), is vir-

tually impossible to carry. The regulation reads in pertinent part:

An application [for a variance] ... shall include: (4) a state-

ment showing ‘how the conditions, practices, means, methods,

operations, or processes used or proposed to be used would

provide employment and places of employment to employees

which are as safe and healthful as those required by the st and-

ard from which a variance is sought.

Considering the Secretary’s mandated concern for the health of

industrial employees, we do not find this burden of proof for a

variance from a proper OSHA health standard to be unreasonable

or imposing an undue hardship.

32a

trols which might affect the feasibility of reducing

exposure to the permissible exposure limit.

In the preceding paragraph the proposed rule stated:

In order to provide some information and guidance

as to the technology currently available and its ap-

plication to existing and rehabilitated or new bat-

teries, a list of some engineering controls and work

practices is included as appendix B to the standard.

40 Fed. Reg. 32273.

Appendix B listed the engineering controls and work

practices, now part of the standard, that the Secretary

felt would be effective in controlling coke oven emissions.

40 Fed. Reg. 32281-82. We believe this gave petitioners

sufficient notice of the controls and procedures ultimately

required in the standard.

VI.

INCLUSION OF NON-COKE OVEN EMPLOYERS

WITHIN THE SCOPE OF THE STANDARD

Petitioners contend that because the proposed stand-

ard afforded no notice to non-coke oven employees that

they would be covered by the standard, the Secretary

failed to comply with minimum requirements of due

process. Petitioners assert that there was no explana-

tion why independent contractors, who repair, maintain

or otherwise service the batteries, were included within

the standard, that there was no consideration of alterna-

tive measures designed exclusively for independent con-

tractors, and that there was no consideration of the

feasibility of applying the standards to independent con-

tractors. Petitioners therefore conclude that inclusion

of non-coke oven employers in the standard’s coverage

runs afoul of the SOCMA I test for upholding the

Secretary’s standard.

SSS Sin eS MERE

33a

We are not wholly persuaded by this argument. From

a purely practical perspective, it would make little sense

to apply a health standard to only one group of em-

ployees; employees of independent contractors suffer the

effects of carcinogens as well. To protect maintenance

and repair workers, the standard provides that com-

pliance with the exposure limit may be achieved using

only respirators “in work operations such as maintenance

and repair activity in which engineering and work prac-

tice controls are technologically not feasible. 41 Fed.

Reg. 46787. We read this provision as applicable to

and intended for independent contractors. .

In the proposed standard, submission of written con-

sents, data, and arguments were requested from “any

interested party.” 40 Fed. Reg. 32268. Moreover, the

proposed standard stated that coverage was to extend

to “employee exposure” to coke oven emissions, without

in any way limiting that coverage to coke-oven employees.

40 Fed. Reg. 32273. In a matter of such vital importance,

however, we find it difficult to conclude that the notice

given to the coke producers constituted notice of the

proposed standards to the non-coke-oven employers.

We recognize that there are serious problems unique

to those independent contractors engaged in the con-

struction, maintenance, and repair of coke oven bat-

teries. In this petition, filed by coke producers to re-

view the feasibility of these regulations, the independent

contractors have not even filed an amicus brief. Because

we are well aware of the adverse impact full application

of the standard to independent contractors might entail,

and because the standard does not specifically address

the particular problems faced by independent contractors,

we’ have serious reservations concerning the broad con-

struction of the standard’s applicability to independent

contractors contained in the March 3, 1977, letters by

the Acting Assistant Secretary of Labor, Bert Concklin

34a

(App. 6519). The petition for review, therefore, insofar

as it applies to the non-coke-oven employers will be re-

manded for further proceedings not inconsistent with

this opinion.

VIL.

CONCLUSION

Accordingly, the petitions for review will be denied

and the Secretary’s coke oven emissions standard affirmed

except: (1) insofar as the Secretary requires the peti-

tioners to research and develop any other engineering

and work practice controls necessary to reduce exposure

to or below the permissible exposure limit, 29 C.F.R.

§ 1910.1029f(1) (i) (b), £(1) (ii) (b), £(1) (iii) (b), (f)

(6) (iii) ), (2) the provision relating to the requirement

of a quantitative fit test for respirators. 29 C.F.R.

§ 1910.1029(g) (4) (i)), and (8) application of the stand-

ard to non-coke-oven employers. As to the first two men-

tioned requirements, the applicable sections of the coke

oven emissions standard will be vacated, and as to the

last requirement, we remand for further proceedings con-

sistent with this opinion.

Each party to bear its own costs.

TO THE CLERK:

Please file the foregoing opinion.

/s/ Max Rosenn

Circuit Judge

So RAS EL te CANN Ace Ea eaten aR ee ta Se We ew

Sar raat a

Re:

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 76-2358, 76-2359, 76-2424, 76-2371, 76-2372,

76-2629, 76-2630, 77-1016, 77-1025, 77-1088

AMERICAN IRON AND STEEL INSTITUTE

1000 16th Street, N.W.

Washington, D.C. 20036

JONES & LAUGHLIN STEEL CORPORATION

3 Gateway Center

Pittsburgh, Pennsylvania 15263

NATIONAL STEEL CORPORATION

2800 Grant Building

Pittsburgh, Pennsylvania 15219

SHARON STEEL CORPORATION

P.O. Box 291

Sharon, Pennsylvania 16146

SHENANGO INCORPORATED

P.G. Box 3030

Pittsburgh, Pennsylvania 15230

UNITED STATES STEEL CORPORATION

600 Grant Street

Pittsburgh, Pennsylvania 15230

WHEELING-PITTSBURGH STEEL CORPORATION

P.O. Box 118

Pittsburgh, Pennsylvania 15230

Petitioners in Nos. 76-2358 and 76-2371

REPUBLIC STEEL CORPORATION,

Petitioner in Nos. 76-2359 and 76-2372

BETHLEHEM STEEL CORPORATION

Bethlehem, Pennsylvania 18016

Petitioner in No. 76-2424

ARMCO STEEL CORPORATION

703 Curtis Street

Middletown, Ohio 45043

Petitioner in No. 76-2629

CRUCIBLE MATERIALS GROUP

COLT INDUSTRIES INC.

P.O. Box 88

Pittsburgh, Pennsylvania 15230

CYCLOPS CORPORATION

650 Washington Road

Pittsburgh, Pennsylvania 15228

INLAND STEEL COMPANY

30 West Monroe Street

Chicago, Illinois 60603,

Petitioners in No. 76-2630

YOUNGSTOWN SHEET AND TUBE COMPANY,

Petitioner in No. 77-1016

AMERICAN COKE AND COAL CHEMICALS INSTITUTE

1010 16th Street, N.W.

Washington, D.C. 20036

Petitioner in No. 77-1025

C F & I STEEL CORPORATION,

Petitioner in No. 77-1088

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

UNITED STATES DEPARTMENT OF LABOR

UNITED STATES OF AMERICA,

Respondent

UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Intervenor

ON PETITIONS FOR REVIEW OF AN ORDER OF THE

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

UNITED STATES DEPARTMENT OF LABOR

Present: ROSENN and HIGGINBOTHAM, Circuit Judges and

VAN ARTSDALEN, District Judge*

AMENDED JUDGMENT

This cause came on to be heard on the certified list

in lieu of the record from the Assistant Secretary of La-

bor for Occupational Safety and Health, United States

Department of Labor, and was argued by counsel on

January 5, 1978.

On consideration whereof, it is now here ordered and

adjudged by this Court that the petitions for review of

the Order of the Occupational Safety and Health Admin-

istration, United States Department of Labor, promul-

gated October 19, 1976, be, and the same are hereby de-

nied and the Secretary’s coke oven emissions standard

affirmed except: (1) insofar as the Secretary requires the

petitioners to research and develop (as defined in the

court’s opinion) any other engineering and work practice

controls necessary to reduce exposure to or below the per-

missible exposure limit, 29 C.F.R. § 1910.1029(f) (1) (i)

(b), (f) (1) (ii) {b), (£) (1) (iii) (b), and (f) (6) (iii), (2)

the provision relating to the requirement of a quantitative

fit test for respirators. 29 C.F.R. § 1910.1029 (g) (4) (i),

and (3) application of the standard to non-coke-oven em-

ployers. As to the first two mentioned requirements, the

applicable provisions of the coke oven emissions standard

* Donald W. Van Artsdalen, United States District Judge for the

Eastern District of Pennsylvania, sitting by.designation.

are vacated, and as to the last requirement, the cause is

remanded for further proceedings consistent with the

opinion of this Court. Each party to bear its own costs.

ATTEST:

/s/ Thomas F. Quinn

| Clerk

May 1, 1978

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-2358/9, 76-2371/2, 76-2424, 76-2629/30,

77-1016, 77-1025, and 77-1088

AMERICAN IRON AND STEEL INSTITUTE, et al.

Vv.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

et al.

UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Intervenor

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS,

ROSENN, HUNTER, WEIS, GARTH, and HIGGIN-

BOTHAM, Circuit Judges, and VAN ARTSDALEN,

District Judge *

The petitions for rehearing filed by American Iron and

Steel Institute, et al., and Republic Steel Corporation in

the above entitled case having been submitted to the

judges who participated in the decision of this court

and to all other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular active serv-

* Sitting by designation.

ice not having voted for rehearing by the court en banc,

the petition for rehearing is denied.

Dated: July 12, 1978

By the Court,

/3s/ Max Rosenn

Judge

APPENDIX D

‘SUPREME COURT OF THE UNITED STATES

No. A-294

AMERICAN IRON & STEEL INSTITUTE, et al.,

Petitioners,

Vv.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

et al.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner (s),

IT Is ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and

the same is hereby, extended to and including December

9, 1978.

/s/ Wm. J. Brennan, Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this 3 day of October, 1978.

APPENDIX E

Provisions of the Occupational Safety and Health Act:

1. Section 3(8) (29 U.S.C. § 652(8)):

(8) The term “occupational safety and health

standard” means a standard which requires con-

ditions, or the adoption or use of one or more

practices, means, methods, operations, or process-

es, reasonably necessary or appropriate to pro-

vide safe or healthful employment and places of

employment.

2. Section 5 (29 U.S.C. § 654):

(a) Each employer—

(1) shall furnish to each of his employees em-

ployment 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;

(2) shall comply with occupational safety and

health standards promulgated under this chapter.

(b) Each employee shall comply with occupational

safety and health standards and all rules, regulations,

and orders issued pursuant to this chapter which

are applicable to his own actions and conduct.

. Section 6 (29 U.S.C. § 655):

(a) Without regard to chapter 5 of Title 5 or to

the other subsections of this section, the Secretary

shall, as soon as practicable during the period begin-

ning with the effective date of this chapter and end-

ing two years after such date, by rule promulgate

as an occupational safety or health standard any

national consensus standard, and any established

Federal standard, unless he determines that the prom-

ulgation of such a standard would not result in im-

proved safety or health for specifically designated

employees. In the event of conflict among any such

standards, the Secretary shall promulgate the stand-

ard which assures the greatest protection of the

safety or health of the affected employees.

(b) The Secretary may by rule promulgate, mod-

ify, or revoke any occupational safety or health stand-

ard in the following manner:

(1) Whenever the Secretary, upon the basis

of information submitted to him in writing by

an interested person, a representative of any or-

ganization of employers or employees, a national-

ly recognized standards-producing organization,

the Secretary of Health, Education, and Welfare,

the National Institute for Occupational Safety

and Health, or a State or political subdivision,

or on the basis of information developed by the

Secretary or otherwise available to him, deter-

mines that a rule should be promulgated in

order to serve the objectives of this chapter, the

Secretary may request the recommendations of

an advisory committee appointed under section

656 of this title. The Secretary shall provide

such an advisory committee with any proposals

of his own or of the Secretary of Health, Edu-

cation, and Welfare, together with all pertinent

factual information developed by the Secretary

or the Secretary of Health, Education, and Wel-

fare, or otherwise available, including the results

of research, demonstrations, and experiments. An

advisory committee shall submit to the Secre-

tary its recommendations regarding the rule to

be promulgated within ninety days from the date

of its appointment or within such longer or chort-

er period as may be prescribed by the Secre-

tary, but in no event for a period which is

longer than two hundred and seventy days.

(2) The Secretary shall publish a proposed

rule promulgating, modifying, or revoking an

occupational safety or health standard in the

Federal Register and shall afford interested per-

sons a period of thirty days after publication

to submit written data or comments. Where an

advisory committee is appointed and the Secre-

tary determines that a rule should be issued, he

shall publish the proposed rule within sixty

days after the submission of the advisory com-

mittee’s recommendations or the expiration of

the period prescribed by the Secretary for such

submission.

(3) On or before the last day of the period

provided for the submission of written data or

comments under paragraph (2), any interested

person may file with the Secretary written ob-

jections to the proposed rule, stating the grounds

therefor and requesting a public hearing on

such objections. Within thirty days after the

last day for filing such objections, the Secretary

shall publish in the Federal Register a notice

specifying the occupational safety or health

standard to which objections have been filed and

a hearing requested, and specifying a time and

place for such hearing.

(4) Within sixty days after the expiration of

the period provided for the submission of written

data or comments under paragraph (2), or with-

in sixty days after the completion of any hear-

ing held under paragraph (3), the Secretary

shall issue a rule promulgating, modifying, or

revoking an occupational safety or health stand-

ard or make a determination that a rule should

not be issued. Such a rule may contain a pro-

vision delaying its effective date for such period

(not in excess of ninety days) as the Secretary

determines may be necessary to insure that af-

fected eniployers and employees will be informed

of the existence of the standard and of its terms

and that employers affected are given an op-

portunity *o familiarize themselves and their

employees with the existence of the requirements

of the standard.

(5) The Secretary, in promulgating standards

dealing with toxic materials or harmful physical

agents under this subsection, shall set the stand-

ard which most adequately assures, to the extent

feasible, on the basis of the best available evi-

dence, that no employee will suffer material im-

pairment of health or functional capacity even

if such employee has regular exposure to the

hazard dealt with by such standard for the period

of his working life. Development of standards

under this subsection shall be based upon re-

search, demonstrations, experiments, and such

other information as may be appropriate. In

edition to the attainment of the highest degree

of health and safety protection for the employee,

other considerations shall be the latest available

scientific data ‘m the field, the feasibility of the

standards, and experience gained under this and

other health and safety laws. Whenever prac-

ticable, the standard promulgated shall be ex-

pressed in terms of objective criteria and of the

performance desired.

* Ld & *

(7) Any standard promulgated under this

subsection shall prescribe the use of labels or

other appropriate forms of warning as are nec-

essary to insure that employees are apprised of

all hazards to which they are exposed, relevant

symptoms and appropriate emergency treatment,

and proper conditions and precautions of safe use

or exposure. Where appropriate, such standard

shall also prescribe suitable protective equipment

and control or technological procedures to be

used in connection with such hazards and shall

provide for monitoring or measuring employee

exposure at such locations and intervals, and in

such manner as may be necessary for the pro-

tection of employees. In addition, where ap-

propriate, any such standard shall prescribe

the type and frequency of medical examinations

or other tests which shall be made available, by

the employer or at his cost, to employees ex-

posed to such hazards in order to most ef-

fectively determine whether the health of such

employees is adversely affected by such exposure.

In the event such medical examinations are in

the nature of research, as determined by the

Secretary of Health, Education, and Welfare,

such examinations may be furnished at the ex-

pense of the Secretary of Health, Education, and

Welfare. The results of such examinations or

tests shall be furnished only to the Secretary

or the Secretary of Health, Education, and Wel-

fare, and, at the request of the employee, to his

physician. The Secretary, in consultation with

the Secretary of Health, Education, and Wel-

fare, may by rule promulgated pursuant to sec-

tion 553 of Title 5, make appropriate modifica-

tions in the foregoing requirements relating to

the use of labels or other forms of warning,

monitoring, or measuring, and medical examina-

tions, as may be warranted by experience, infor-

mation, or medical or technological developments

acquired subsequent to the promulgation of the

relevant standard.

(8) Whenever a rule promulgated by the Sec-

retary differs substantially from an existing

national consensus standard, the Secretary shall,

at the same time, publish in the Federal Register

a statement of the reasons why the rule as adopt-

ed will better effectuate the purposes of this

chapter than the national consensus standard.

* a * *

(e) Whenever the Secretary promulgates any

standard, makes any rule, order, or decision, grants

any exemption or extension of time, or compromises,

mitigates, or settles any penalty assessed under this

chapter, he shall include a statement of the reasons

for such action, which shall be published in the

Federal Register.

(f) Any person who may be adversely affected

by a standard issued under this section may at any

time prior to the sixtieth day after such standard is

promulgated file a petition challenging the validity

of such standard with the United States court of

appeals for the circuit wherein such person resides

or has his principal place of business, for a judicial

review of such standard. A copy of the petition shall

be forthwith transmitted by the clerk of the court

to the Secretary. The filing of such petition shall

not, unless otherwise ordered by the court, operate

as a stay of the standard. The determinations of the

Secretary shall be conclusive if supported by sub-

stantial evidence in the record considered as a whole.

* * * *

4. Section 9 (29 U.S.C. § 658):

(a) If, upon inspection or investigation, the Secre-

tary or his authorized representative believes that

an employer has violated a requirement of section

654 of this title, of any standard, rule, or order

promulgated pursuant to section 655 of this title,

or of any regulations prescribed pursuant to this

chapter, he shall with reasonable promptness issue

a citation to the employer. Each citation shall be

in writing and shall describe with particularity the

nature of the violation, including a reference to the

provision of the chapter, standard, rule, regulation,

or order alleged to have been violated. In addition,

the citation shall fix a reasonable time for the abate-

ment of the violation. The Secretary may prescribe

procedures for the issuance of a notice in lieu of a

citation with respect to de minimis violations which

have no direct or immediate relationship to safety

or health.

(b) Each citation issued under this section, or a

copy or copies thereof, shall be prominently posted, as

prescribed in regulations issued by the Secretary,

at or near each place a violation referred to in the

citation occurred.

after the expiration of six months following the oc-

currence of any violation.

. Section 17 (29 U.S.C. § 666) :

(a) Any employer who willfully or repeatedly vio-

lates the requirements of section 654 of this title,

any standard, rule, or order promulgated pursuant

to section 655 of this titie, or regulations prescribed

pursuant to this chapter, may be assessed a civil

penalty of not more than $10,000 for each violation.

(b) Any employer who has received a citation for

a serious violation of the requirements of section

654 of this title, of any standard, rule, or order

promulgated pursuant to section 655 of this title, or

of any regulations prescribed pursuant to this chap-

ter, shall be assessed a civil penalty of up to $1,000

for each such violation.

a violation of the requirements of section 654 of this

title, of any stardard, rule, or order promulgated

pursuant to section 655 of this title, or of regulations

prescribed pursuant to this chapter, and such viola-

tion is specifically determined not to be of a serious

nature, may be assessed a civil penalty of up to

$1,000 for each such violation.

(d) Any employer who fails to correct a violation

for which a citation has been issued under section

658(a) of this title within the period permitted for

its correction (which period shall not begin to run

until the date of the final order of the Commission in

the case of any review proceeding under section 659

of this title initiated by the employer in good faith

and not solely for delay or avoidance of penalties),

may be assessed a civil penalty of not more than

$1,000 for each day during which such failure or

violation continues.

(e) Any employer who willfully violates any

standard, rule, or order promulgated pursuant to

section 655 of this title, or of any regulations pre-

scribed pursuant to this chapter, and that violation

caused death to any employee, shall, upon conviction,

be punished by a fine of not more than $10,000 or by

imprisonment for not more than six months, or by

both; except that if the conviction is for a viola-

tion committed after a first conviction of such per-

son, punishment shall be by a fine of not more than

$20,000 or by imprisonment for not more than one

year, or by both.

(f) Any person who gives advance notice of any

inspection to be conducted under this chapter, with-

out authority from the Secretary or his designees,

shall, upon conviction, be punished by a fine of not

more than $1,000 or by imprisonment for not more

than six menths, or by both.

(g) Whoever knowingly makes any false state-

ment, representation, or certification in any applica-

tion, record, report, plan, or other document filed

or required to be maintained pursuant to this chapter

shall, upon conviction, be punished by a fine of not

more than $10,000, or by imprisonment for not more

than six months, or by both.

(h) Any employer who violates any of the posting

requirements, as prescribed under the provisions of

this chapter, shall be assessed a civil penalty of up to

$1,000 for each violation.

(i) The Commission shall have authority to assess

all civil penalties provided in this section, giving due

consideration to the appropriateness of the penalty

with respect to the size of the business of the em-

ployer being charged, the gravity of the violation,

the good faith of the employer, and the history of

previous violations.

(j) For purposes of this section, a serious viola-

tion shall be deemed to exist in a place of employ-

ment if there is a substantial probability that death

or serious physical harm could result from a con-

dition which exists, or from one or more practices,

means, methods, operations, or processes which have

been adopted or are in use, in such place of em-

ployment unless the employer did not, and could not

10e

with the exercise of reasonable diligence, know of the

presence of the violation.

(k) Civil penalties owed under this chapter shall

be paid to the Secretary for deposit into the Treas-

ury of the United States and shall accrue to the

United States and nay be recovered in a civil action

in the name of the United States brought in the

United States district court for the district where

the violation is alleged to have occurred or where the

employer has its principal office.

APPENDIX F

OSHA’s Coke Oven Emissions Standard, codified in 29

‘C.F.R. §1910.1029 (1977) (originally published in 41

Fed.Reg. 46784-90 (Oct. 22, 1976) ):

(a) Scope and application. This section applies to

the control of employee exposure to coke oven emissions,

except that this section shall not apply to working con-

ditions with regard to which other Federal agencies ex-

ercise statutory authority to prescribe or enforce stand-

ards affecting occupational safety and health.

(b) Definitions. For the purpose of this section: “Au-

thorized person” means any person specifically authorized

by the employer whose duties require the person to enter

a regulated area, or any person entering such an area

as a designated representative of employees for the pur-

pose of exercising the opportunity to observe monitoring

and measuring procedures under paragraph (n) of this

section.

“Beehive oven” means a coke oven in which the prod-

acts of carbonization other than coke are not recovered,

but are released into the ambient air.

“Coke oven” means a retort in which coke is produced

by the destructive distillation or carbonization of coal.

“Coke oven battery” means a structure containing

a numper of slot-type coke ovens.

“Coke oven emissions” means the benzene-soluble frac-

tion of total particulate matter present during the de-

structive distillation or carbonization of coal for the

production of coke.

“Director” means the Director, National Institute tor

Occupational Safety and Health, U.S. Department of

Health, Education, and Welfare, or his or her designee.

“Emergency” means any occurence [sic] such as, but

not limited to, equipment failure which is likely to, or

does, result in any massive release of coke oven emissions.

“Existing coke oven battery” means a battery in opera-

tion or under construction on January 20, 1977, and

which is not a rehabilitated coke oven battery.

“Rehabilitated coke oven battery” means a battery

which is rebuilt, overhauled, renovated, or restored such

as from the pad up, after January 20, 1977.

“Secretary” means the Secretary of Labor, U.S. De-

partment of Labor, or his or her designee.

“Stage charging” means a procedure by which a pre-

determined volume of coal in each larry car hopper is

introduced into an oven such that no more than two

hoppers are discharging simultaneously.

“Sequential charging” means a procedure, usually auto-

- matically timed, by which a predetermined volume of

coal in each larry car hopper is introduced into an oven

such that no more than two hoppers commence or finish

discharging simultaneously although, at some point, all

hoppers are discharging simultaneously.

“Pipeline charging” means any apparatus used to

introduce coal into an oven which uses a pipe or duct

permanently mounted onto an oven and through which

coal is charged.

“Green plush” [sic] means coke which when removed

from the oven results in emissions due to the presence

of unvolatilized coal.

assure that no employee in the regulated area is ex-

posed to coke oven emissions at concentrations greater

than 150 micrograms per cubic meter of air (150 »g/m*),

averaged over any 8-hour period.

(d) Regulated areas. (1) The employer shall estab-

lish regulated areas and shall limit access to them to

authorized persons.

(2) The employer shall establish the following as reg-

ulated areas:

(i) The coke oven battery including topside and its

machinery, pushside and its machinery, coke side and

its machinery, and the battery ends; the wharf; and the

screening station ;

(ii) The beehive oven and its machinery.

(e) Exposure monitoring and measurement—(1) Mon-

itoring program. (i) Each employer who has a place of

employment where coke oven emissions are present shall

monitor employees employed in the regulated area to

measure their exposure to coke oven emissions.

(ii) The employer shall obtain measurements which

are representative of each employee’s exposure to coke

oven emissions over an eight-hour period. All measure-

ments shall determine exposure without regard to the

use of respiratory protection.

(iii) T? » employer shall collect full-shift (for at least

seven continuous hours) personal samples, including at

least one sample during each shift for each battery and

each job classification within the regulated areas includ-

ing at least the following job classifications:

(a) Lidman;

(b) Tar chaser;

(d) Luterman;

(e) Machine operator, coke side;

(f) Benchman, coke side;

(g) Benchman, pusher side;

(h) Heater;

(t) Quenching car operator;

(j) Pusher machine operator;

(kK) Screening station operator;

(1) Wharfman;

(m) Oven patcher;

(n) Oven repairman;

(0) Spellman; and

(p) Maintenance personnel.

(iv) The employer shall repeat the monitoring and

measurements required by this paragraph (e) (1) at least

every three months.

(2) Redetermination. Whenever there has been a pro-

duction, process, or control change which may result in

new or additional exposure to coke oven emissions, or

whenever the employer has any other reason to suspect

an increase in employee exposure, the employer shall

repeat the monitoring and measurements required by

paragraph (e)(1) of this section for those employees

affected by such change or increase.

(3) Employee notification. (i) The employer shall

notify each employee in writing of the exposure measure-

ments which represent that employe’s exposure within

five working days after the receipt of the results of

measurements required by paragraphs (e) (1) and (e)

(2) of this section.

(ii) Whenever such results indicate that the repre-

sentative employee exposure exceeds the permissible ex-

posure limit, the employe shall, in such notification, in-

form each employee of that fact and of the corrective

action being taken to reduce exposure to or below the

permissible exposure limit.

(4) Accuracy of measurement. The employer shall

use a method of monitoring and measurement which

has an accuracy (with a confidence level of 95%) of not

less than plus or minus 35% for concentrations of coke

oven emissions greater than or equal to 150 »n»g/m’*.

(f) Methods of compliance. The employer shall con-

trol employee exposure to coke oven emissions by the

use of engineering controls, work practices and respira-

tory protection as follows:

(1) Priority of compliance methods—(i) Existing coke

oven batteries. (a) The employer shall institute the en-

gineering and work practice controls listed in paragraphs

(f) (2), (f) (8) and (f) (4) of this section in existing

coke oven batteries at the earliest possible time, but not

later than January 20, 1980, except to the extent that

the employer can establish that such controls are not

feasible. In determining the earliest possible time for

institution of engineering and work practice controls, the

requirement, effective August 27, 1971, to implement

feasible administrative or enginereing controls to reduce

exposures to coal tar pitch volatiles, shall be considered.

Wherever the engineering and work practice controls

which can be instituted are not sufficient to reduce em-

ployee exposures to or below the permissible exposure

limit, the employer shall nonetheless use them to reduce

exposures to the lowest level achievable by these controls

and shall supplement them by the use of respiratory pro-

tection which complies with the requirements of para-

graph (g )of this section.

(b) The engineering and work practice controls re-

quired under paragraphs (f) (2), (f) (3) and (f) (4) of

this section are minimum requirements generally ap-

plicable to all existing coke oven batteries. If, after im-

plementing all controls required by paragraphs (f) (2),

(f)(3) and (f) (4) of this section, or after January

20, 1980, whichever is sooner, employee exposures still

exceed the permissible exposure limit, employers shall

research, develop and implement any other engineering

and work practice controls necessary to reduce exposure

to or below the permissible exposure limit except to the

extent that the employer can establish that such con-

trols are not feasible. Wherever the engineering and

work practice controls which can be instituted are not

sufficient to reduce employee exposures to or below the

permissible exposure limit, the employer shall nonethe-

less use them to reduce exposures to the lowest level

achievable by these controls and shall supplement them

by the use of respiratory protection which complies with

the requirements of paragraph (g) of this section.

(ii) New or rehabilitated coke oven batteries. (a) The

employer shall institute the best available engineering

and work practice controls on all new or rehabilitated coke

oven batteries to reduce and maintain employee exposures

at or below the permissible exposure limit, except to the

extent that the employer can establish that such controls

are not feasible. Wherever the engineering and work

practice controls which can be instituted are not suffi-

cient to reduce employee exposures to or below the per-

missible exposure limit, the employer shall nonetheless

use them to reduce exposures to the lowest level achiev-

able by these controls and shall supplement them by the

use of respiratory protection which complies with the re-

quirements of paragraph (g) of this section.

(b) If after implementing all the engineering and

work practice controls required by paragraph (f) (1) (ii)

(a) of this section, employee exposures still exceed the

permissible exposure limit, the employer shall research,

develop and implement any other engineering and work

practice controls necessary to reduce exposure to or be-

nt eee

low the permissible exposure limit except to the extent

that the employer can establish that such controls are

not feasible. Wherever the engineering and work prac-

tice controls which can be instituted are not sufficient

to reduce employee exposures to or below the permissible

exposure limit the employer shall nonetheless use them

to reduce exposures to the lowest level achievable by

these controls and shall supplement them by the use of

respiratory protection which complies with the require-

ments of paragraph (g) of this section.

(iii) Beehive ovens. (a) The employer shall institute

engineering and work practice controls on all beehive

ovens at the earliest possible time to reduce and main-

tain employee exposures at or below the permissible ex-

posure limit, except to the extent that the employer can

establish that such controls are not feasible. In deter-

mining the earliest possible time for institution of en-

gineering and work practice controls, the requirement,

effective August 27, 1971, to implement feasible ad-

ministrative or engineering controls to reduce exposures

to coal tar pitch volatiles, shall be considered. Wherever

the engineering and work practice controls which can

be instituted are not sufficient to reduce employee ex-

posures to or below the permissible exposure limit, the

employer shall nonetheless use them to reduce exposures

_to the lowest level achievable by these controls and shall

supplement them by the use of respiratory protection

which complies with the requirements of paragraph (g)

of this section.

(b) If, after implementing all engineering all engi-

neering and work practice controls required by para-

graph (f) (1) (iii) (a) of this section, employee exposures

still exceed the permissible exposure limit, the employer

shall research, develop, and implement any other engi-

neering and work practice controls necessary to reduce

exposures to or below the permissible exposure limit ex-

cept to the extent that the employer can establish that

such controls are not feasible. Wherever the engineering

and work practice controls which can be instituted are

not sufficient to reduce employee exposure to or below the

permissible exposure limit, the employer shall nonethe-

less use them to reduce exposures to the lowest level

achievable by these controls and shall supplement them

by the use of respiratory protection which complies with

the requirements of paragraph (g) of this section.

(2) Engineering controls—(i) Charging. The employer

shall equip and operate existing coke oven batteries

with all of the following engineering controls to control

coke oven emissions during charging operations:

(a) One of the following methods of charging:

(1) Stage charging as described in paragraph (f) (3)

(i) (b) of this section; or

(2) Sequential charging as described in paragraph

(f) (3) (i) (b) of this section except that paragraph (f)

(3) (i) (6) (3) (tv) of this section does not apply to

sequential charging; or

(3) Pipeline charging or other forms oi enclosed

charging in accordance with paragraph (f) (2) (i) of this

section, except that paragraphs (f) (2) (i) (b), (d), (e),

(f) and (h) of this section do not apply;

(6) Drafting from two or more points in the oven

being charged, through the use of double collector mains,

or a fixed or moveable jumper pipe system to another

oven, to effectively remove the gases from the oven to the

collector mains;

vide sufficient negative pressure and flow volume to

effectively move the gases evolved during charging into

the collector mains, including sufficient steam pressure,

and steam jets of sufficient diameter ;

(d) Mechanical volumetric controls on each larry car

hopper to provide the proper amount of coal to be

charged through each charging hole so that the tunnel

head will be sufficient to permit the gases to move from

the oven into the collector mains;

(e) Devices to facilitate the rapid and continuous flow

of coal into the oven being charged, such as stainless steel

liners, coal vibrators or pneumatic shells;

(f) Individually operated larry car drop sleeves and

slide gates designed and maintained so that the gases

are effectively removed from the oven into the collector

mains;

(g) Mechanized gooseneck and standpipe cleaners;

(h) Air seals on the pusher machine leveler bars to

control air infiltration during charging; and

(1) Roof carbon cutters or a compressed air system

or both on the pusher machine rams to remove roof

carbon.

(ii) Coking. The employer shall equip and operate

existing coke oven batteries with all of the following

engineering controls to control coke oven emissions dur-

ing coking operations;

(a) A pressure control system on each battery to ob-

tain uniform collector main pressure;

(6) Ready access to door repair facilities capable of

prompt and efficient repair of doors, door sealing edges

and all door parts;

replacement purposes;

(d) Chuck door gaskets to control chuck door emis-

sions until such door is repaired, or replaced; and

(e) Heat shields on door machines.

10f

(3) Work practice controls. (i) Charging. The em-

ployer shall operate existing coke oven batteries with all

of the following work practices to control coke oven emis-

sions during the charging operation:

(a) Establishment and implementation of a detailed,

written inspection and cleaning procedure for each bat-

tery consisting of at least the following elements:

(1) Prompt and effective repair or replacement of all

engineering controls;

(2) Inspection and cleaning of goosenecks and stand-

pipes prior to each charge to a specified minimum

diameter sufficient to effectively move the evolved gases

from the oven to the collector mains;

(3) Inspection for roof carbon buildup prior to each

charge and removal of roof carbon as necessary to pro-

vide an adequate gas channel so that the gases are ef-

fectively moved from the oven into the collector mains;

(4) Inspection of the steam aspiration system prior

to each charge so that sufficient pressure and volume is

maintained to effectively move the gases from the oven

to the collector mains;

(5) Inspection of steam nozzles and liquor sprays

prior to each charge and cleaning as necessary so that the

steam nozzles and liquor sprays are clean;

(6) Inspection of standpipe caps prior to each charge

and cleaning and luting or both as necessary so that

the gases are effectively moved from the oven to the

collector mains; and

(7) Inspection of charging holes and lids for cracks,

warpage and other defects prior to each charge and re-

moval of carbon to prevent emissions, and application of

luting material to standpipe and charging hole lids where

necessary to obtain a proper seal.

lif

(6b) Establishment and implementation of a detailed

written charging procedure, designed and operated to

eliminate emissions during charging for each battery,

consisting of at least the following elements:

(1) Larry car hoppers filled with coal to a prede-

termined level in accordance with the mechanical volu-

metric controls required under paragraph (f) (2) (i) (d)

of this section so as to maintain a sufficient gas passage

in the oven to be charged;

(2) The larry car aligned over the oven to be charged,

so that the drop sleeves fit tightly over the charging

holes; and

(3) The oven charged in accordance with the follow-

ing sequence of requirements:

(i) The aspiration system turned on;

(it) Coal charged through the outer-most hoppers,

either individually or together depending on the capacity

of the aspiration system to collect the gases involved;

(77) The charging holes used under paragraph (f)

(3) (i) (b) (3) (ii) of this section relidded or otherwise

sealed off to prevent leakage of coke oven emissions;

(iv) If four hoppers are used, the third hopper dis-

charged and relidded or otherwise sealed off to prevent

leakage of coke oven emissions;

(v) The final hopper discharged until the gas channel

at the top of the oven is blocked and then the chuck door

opened and the coal leveled;

(vi) When the coal from the final hopper is discharged

and the leveling operation complete, the charging hole

relidded or otherwise sealed off to prevent leakage of coke

oven emissions; and

(vii) The aspiration system turned off only after the

charging holes have been closed.

12f

written charging procedure, designed and operated to

eliminate emissions during charging of each pipeline or

enclosed charged battery.

(ii) Coking. The employer shall operate existing coke

oven batteries pursuant to a detailed written procedure

established and implemented for the control of coke oven

emissions during coking, consisting of at least the fol-

lowing elements:

(a) Checking oven back pressure controls to maintain

uniform pressure conditions in the collecting main;

(6) Repair, replacement and adjustment of oven doors

and chuck doors and replacement of door jambs so as to

provide a continuous metal-to-metal fit;

each coking cycle so as to provide an effective seal ;

(d) An inspection system and corrective action pro-

gram to control door emissions to the maximum extent

possible; and

(e) Luting of doors that are sealed by luting each cok-

ing cycle and reluting, replacing or adjusting as neces-

sary to control leakage.

(ili) Pushing. The employer shall operate existing

coke oven batteries with the following work practices

to control coke oven emissions during pushing operations:

(a) Coke and coal spillage quenched as soon as prac-

ticable and not shoveled into a heated oven; and

(6) A detailed written procedure for each battery

established and implemented for the control of emissions

during pushing consisting of the following elements:

(1) Dampering off the ovens and removal of charging

hole lids to effectively control coke oven emissions during

the push;

13f

(2) Heating of the coal charge uniformly for a suf-

ficient period so as to obtain proper coking including

preventing green pushes;

(3) Prevention of green pushes to the maximum extent

possible ;

(4) Inspection, adjustment and correction of heating

flue temperatures and defective flues at least weekly and

after any green push, so as to prevent green pushes;

(5) Cleaning of heating flues and related equipment

to prevent green pushes, at least weekly and after any

green push.

(iv) Maintenance and repair. The employer shall op-

erate existing coke oven batteries pursuant to a detailed

written procedure of maintenance and repair established

and implemented for the effective control of coke oven

emissions consisting of the following elements:

(a) Regular inspection or all controls, including goose-

necks, standpipes, standpipe caps, charging hold lids and

castings, jumper pipes and air seals for cracks, misalign-

ment of other defects and prompt implementation of the

necessary repairs as soon as possible;

(6b) Maintaining the regulated area in a neat, orderly

condition free of coal and coke spillage and debris;

tion system and collector main for cracks or leakage, and

prompt implementation of the necessary repairs;

(d) Regular inspection of the heating system and

prompt implementation of the necessary repairs;

(e) Prevention of miscellaneous fugitive topside emis-

sions;

(f) Regular inspection and patching of oven brick-

work;

14f

(g) Maintenance of battery equipment and controls

in good working order;

(h) Maintenance and repair of coke oven doors, chuck

doors, door jambs and seals; and

(t) Repairs instituted and completed as soon as pos-

sible, including temporary repair measures instituted and

completed where necessary, including but not limited to:

(1) Prevention of miscellaneous fugitive topside emis-

sions; and

(2) Chuck door gaskets, which shall be installed prior

to the start of the next coking cycle.

(4) Filtered air. (i) The employer shall provide posi-

tive-pressure, temperature controlled filtered air for larry

car, pusher machine, door machine, and quench car cabs.

(ii) The employer shall provide standby pulpits on the

battery topside, at the wharf, and at ther screening sta-

tion, equipped with positive-pressure, temperature con-

trolled filtered air.

(5) Emergencies. Whenever an emergency occurs, the

next coking cycle may not begin until the cause of the

emergency is determined and corrected, unless the em-

ployer can establish that it is necessary to initiate the

next coking cycle in order to determine the cause of the

emergency.

(6) Compliance program. (i) Each employer shall

establish and implement a written program to reduce

exposures solely by means of the engineering and work

practice controls required in paragraph (f) of this section.

(ii) The written program shall include at least the

following:

(a) A description of each coke oven operation by bat-

tery, including work force and operating crew, coking

time, operating procedures and maintenance practices :

Dea MAO: sae, Leisceninr tice

15f

(6) Engineering plans and other studies used to de-

termine the controls for the coke battery;

the permissible exposure limit:

(d) Monitoring data obtained in accordance with para-

graph (e) of this section;

(e) A detailed schedule for the implementation of the

engineering and work practice controls required in para-

graph (f) of this section; and

(f) Other relevant information.

(iii) If, after implementing all controls required by

paragraph (f) (2)-(f) (4) of this section, or after Janu-

ary 20, 1980, whichever is sooner, or after completion

of a new or rehabilitated battery the permissible exposure

limit is still exceeded, the employer shall develop a de-

tailed written program and schedule for the development

and implementation of any additional engineering con-

trols and work practices necessary to reduce exposure to

or below the permissible exposure limit.

(iv) Written plans for such programs shall be sub-

mitted, upon request, to the Secretary and the Director,

and shall be available at the worksite for examination

and copying by the Secretary, the Director, and the au-

thorized employee representative. The plans required un-

der paragraph (f)(6) of this section shall be revised

and updated at least every six months to reflect the cur-

rent status of the program.

(7) Training in compliance procedures. The employer

shall incorporate all written procedures and schedules

required under this paragraph (f) in the information and

training program required under paragraph (k) of this

section and, where appropriate, post in the regulated

area.

16f

(g) Respiratory protection—(1) General. (i) Where

respiratory protection is required under this section, the

employer shall provide and assure the use of respirators

which comply with the requirements of this paragraph

(g). Compliance with the permissible exposure limit

may not be achieved by the use of respirators except:

(a) During the time period necessary to install or

implement feasible engineering and work practice con-

trols; or

(6) In work operations such as maintenance and re-

pair activity in which engineering and work practice

controls are technologically not feasible; or

work practice controls are not yet sufficient to reduce ex-

posure to or below the permissible exposure limit; or

(d) In emergencies.

(ii) Notwithstanding any other requirement of this

section, until January 20, 1978, the wearing of respirators

shall be at the discretion of each employee where the em-

ployee is not in the vicinity of visible emissions.

(2) Selection. (i) Where respirators are required

under this section, the employer shall select, provide and

assure the use of the appropriate respirator or combina-

tion of respirators from Table I below.

—— —

vitae

eee Nt iAP imahiar tine

17f

TABLE I

RESPIRATORY PROTECTION FOR COKE OVEN EMISSIONS

Airborne concen-

tration of coke

oven emissions Required respirator

(a) Any concentration........ (1) A Type C supplied air respirator

operated in pressure demand or

other positive pressure or continu-

ous flow mode; or

(2) A powered air-purifying particulate

filter respirator for dust and mist or

(3) A powered air-purifying particulate

filter respirator or combination

chemical cartridge and particulate

filter respirator for coke oven emis-

sions.

(6) Concentrations not (1) Any particulate filter respirator for

greater than 1500 dust and mist except single-use res-

ps/ms. pirator; or

(2) Any particulate filter respirator or

combination chemical cartridge and

particulate filter respirator for coke

oven emissions; or

(3) Any respirator listed in paragraph

(g)(2)(i)(@) of this section.

(ii) Not later than January 20, 1978, whenever res-

pirators are required by this section for concentrations

not greater than 1500 »g/m*, the employer shall provide,

at the option of each affected employee, either a particu-

late filter respirator as provided in paragraph (g) (2) (i)

(6) of this section, or a powered air-purifying respirator

as provided in paragraph (g) (2) (i) (a) of this section.

(iii) The employer shall select respirators from among

those approved for protection against dust and mist by the

National Institute for Occupational Safety and Health

(NIOSH) under the provisions of 30 CFR Part 11, except

that not later than January 20, 1979, the employer shall

18f

select respirators from among those approved by NIOSH

for protection against coke oven emissions.

(3) Respirator program. The employer shall institute

a respiratory protection program in accordance with

§ 1910.134 of this part.

(4) Respirator usage. (i) The employer shall assure

that the respirator issued to the employee exhibits mini-

mum facepiece leakage and that the respirator is fitted

properly. The employer shall perform quantitative fit

tests annually for each employee who uses a non-powered,

particulate filter respirator.

(ii) The employer shall allow each employee who uses

a filter respirator to change the filter elements whenever

an increase in breathing resistance is detected and shall

maintain an adequate supply of filter elements for this

purpose.

(iii) The employer shall allow employees who wear

respirators to wash their face and respirator facepiece to

prevent skin irritation associated with respirator use.

(h) Protective clothing and equipment—(1) Provision

and use. The employer shall provide and assure the use

of appropriate protective clothing and equipment, such

as but not limited to:

(i) Flame resistant jacket and pants;

(ii) Flame resistant gloves;

(iii) Face shields or vented goggles which comply with

§ 1910.133(a) (2) of this part;

(iv) Footwear providing insulation from hot surfaces

for footwear;

(v) Safety shoes which comply with § 1910.136 of this

part; and

19f

(vi) Protective helmets which comply with § 1910.135

of this part.

(2) Cleraning [sic] and replacement. (i) The employer

shall provide the protective clothing required by para-

graphs (h)(1) (i) and (ii) of this section in a clean

and dry condition at least weekly.

(ii) The employer shall clean, launder, or dispose of

protective clothing required by paragraphs (h) (1) (i)

and (ii) of this section.

(iii) The employer shall repair or replace the protec-

tive clothing and equipment as needed to maintain their

effectiveness.

(iv) The employer shall assure that all protective cloth-

ing is removed at the completion of a work shift only in

change rooms prescribed in paragraph (i) (1) of this

section.

(v) The employer shall assure that contaminated pro-

tective clothing which is to be cleaned, laundered, or dis-

posed of, is placed in a closable container in the change

room.

(vi) The employer shall inform any person who cleans

or launders protective clothing required by this section,

of the potentially harmful effects of exposure to coke

oven emissions.

(i) Hygiene facilities and practices—(1) Change

rooms. The employer shaii provide clean change rooms

equipped with storage facilities for street clothes and sep-

arate storage facilities for protective clothing and equip-

ment whenever employees are required to wear protective

clothing and equipment in accordance with paragraph (h)

(1) of this section.

(2) Showers. (i) The employer shall assure that em-

ployees working in the regulated area shower at the end

of the work shift.

20f

(ii) The employer shall provide shower facilities in ac-

cordance with § 1910.141(d) (3) of this Part.

(3) Lunchrooms. The employer shall provide lunch-

room facilities which have a temperature controlled, posi-

tive pressure, filtered air supply, and which are readily

accessible to employees working in the regulated area.

(4) Lavatories. (i) The employer shall assure that

employees working in the regulated area wash their hands

and face prior to eating.

(ii) The employer shall provide lavatory facilities in

accordance with § 1910.141(d) (1) and (2) of this Part.

(5) Prohibition of activities in the regulated area.

(i) The employer shall assure that in the regulated area,

food or beverages are not present or consumed, smoking

products are not present or used, and cosmetics are not

applied, except that these activities may be conducted

in the lunchrooms, change rooms and showers required

under paragraphs (i) (1)-(i) (3) of this section.

(ii) Drinking water may be consumed in the regulated

area.

(j) Medical surveillance—(1) General requirements.

(i) Each employer shall institute a medical surveillance

program for all employees who are employed in a regu-

lated area at least 30 days per year.

(ii) The program shall provide each employee covered

under paragraph (j) (1) (i) of this section with an op-

portunity for medical examinations in accordance with

this paragraph (j).

(iii) The employer shall inform any employee who re-

fuses any required medical examination of the possible

health consequences of such refusal and shall obtain a

signed statement from the employee indicating that the

employee understands the risk involved in the refusal

to be examined.

21f

(iv) The employer shall assure that all medical ex-

aminations and procedures are performed by or under the

supervision of a licensed physician, and are provided

without cost to the employee.

(2) Initial examinations. At the time of initial as-

signment to a regulated area or upon the institution of the

medical surveillance program, the employer shall provide

a medical examination for employees covered under para-

graph (j) (1) (i) of this section including at least the

following elements:

(i) A work history and medical history which shall

include smoking history and the presence and degree of

respiratory symptoms, such as breathlessness, cough,

sputum production, and wheezing; .

(ii) A 14”x17” posterior-anterior chest x-ray and In-

ternational Labour Office UICC/Cincinnati (ILO U/C)

rating;

(iii) Pulmonary function tests including forced vital

capacity (FVC) and forced expiratory volume at one

second (FEV 1.0) with recording of type of equipment

used ;

(iv) Weight;

(v) A skin examination;

(vi) Urinalysis for sugar, albumin, and hematuria;

(vii) A sputum cytology examination; and

(viii) A urinary cytology examination.

(3) Periodic Examinations. (i) The employer shall

provide the examinations specified in paragraphs (j) (2)

(i)-(vi) of this section at least annually for employees

covered under paragraph (j) (1) (i) of this section.

(ii) The employer shall provide the examinations speci-

fied in paragraphs (j) (2) (i)-(viii) of this section at least

22f

semi-annually for employees 45 years of age or older

or with five (5) or more years employment in the regu-

lated area.

(iii) Whenever an employee who is 45 years of age

or older or with five (5) or more years employment in

the regulated area transfers or is transferred from em-

ployment in the regulated area, the employer shall con-

tinue to provide the examinations specified in paragraphs

(j) (2) (i)-(viii) of this section semi-annually, as long

as that employee is employed by the same employer or a

successor employer.

(iv) Whenever an employee has not taken the examina-

tions specified in paragraphs (j) (3) (i)-(iii) of this sec-

tion with the six (6) months preceding the termination

of employment the employer shall provide such examina-

tions to the employee upon termination of employment.

(4) Information provided to the physician. The em-

ployer shall provide the following information to the

examining physician:

(i) A copy of this regulation and its Appendixes;

(ii) A description of the affected employee’s duties as

they relate to the employee’s exposure;

(iii) The employee’s exposure level or estimated ex-

posure level;

(iv) A description of any personal protective equip-

ment used or to be used; and

(v) Information from previous medical examinations

of the affected employee which is not readily available

to the examining physician.

(5) Physician’s written opinion. (i) The employer

shall obtain a written opinion from the examining physi-

cian which shall include:

(a) The results of the medical examinations;

23f

(6) The physician’s opinion as to whether the em-

ployee has any detected medical conditions which would

place the employee at increased risk of material impair-

ment of the employee’s health from exposure to coke oven

emissions ;

exposure to coke oven emissions or upon the use of pro-

tective clothing or equipment such as respirators; and

(d) A statement that the employee has been informed

by the physician of the results of the medical examina-

tion and any medical conditions which require further

explanation or treatment.

(ii) The employer shall instruct the physician not to

reveal in the written opinion specific findings or diagnoses

unrelated to occupational exposure.

(iii) The employer shall provide a copy of the written

opinion to the affected employee.

(k) Employee information and training—(1) Training

program. (i) The employer shall institute a training

program for employees who are employed in the regu-

lated area and shall assure their participation.

(ii) The training program shall be provided as of

January 27, 1977 for employees who are employed in the

regulated area at that time or at the time of initial

assignment to a regulated area.

(iii) The training program shall be provided at least

annually for all employees who are employed in the regu-

lated area, except that training regarding the occupa-

tional safety and health hazards associated with expo-

sure to coke ovén emissions and the purpose, proper use,

and limitations of respiratory protective devices shall be

provided at least quarterly until January 20, 1978.

(iv) The training program shall include informing each

employee of:

24f

(a) The information contained in the substance in-

formation sheet for coke oven emissions (Appendix A) ;

(6) The purpose, proper use, and limitations of res-

piratory protective devices required in accordance with

paragraph (g) of this section;

surveillance program required by paragraph (j) of this

section including information on the occupational safety

and health hazards associated with exposure to coke oven

emissions;

(d) A review of all written procedures and schedules

required under paragraph (f) of this section; and

(e) A review of this standard.

(2) Access to training materials. (i) The employer

shall make a copy of this standard and its appendixes

readily available to all employees who are employed in

the regulated area.

(ii) The employer shall provide upon request all mate-

rials relating to the employee information and training

program to the Secretary and the Director.

(1) Precautionary signs and labels—(1) General. (i)

The employer may use labels or signs required by other

statutes, regulations or ordinances in addition to, or in

combination with, signs and labels required by this para-

graph.

(ii) The employer shall assure that no statement ap-

pears on or near any sign required by this paragraph

which contradicts or detracts from the effects of the re-

quired sign.

(iii) The employer shall assure that signs required

by this paragraph are illuminated and cleaned as neces-

sary so that the legend is readily visible.

isms

25f

(2) Signs. (i) The employer shall post signs in the

regulated area bearing the legends:

DANGER

CANCER HAZARD

AUTHORIZED PERSONNEL ONLY

NO SMOKING OR EATING

(ii) In addition, not later than January 20, 1978, the

employer shall post signs in the areas where the per-

missible exposure limit is exceeded bearing the legend:

DANGER

RESPIRATOR REQUIRED

(3) Labels. The employer shall apply precautionary la-

bels to all containers of protective clothing contaminated

with coke oven emissions bearing the legend:

CAUTION

CLOTHING CONTAMINATED WITH

COKE EMISSIONS

DO NOT REMOVE DUST BY

BLOWING OR SHAKING

(m) Recordkeeping—(1) Exposure measurements. The

employer shall establish and maintain an accurate record

of all measurements taken to monitor employee exposure

to coke oven emissions required in paragraph (e) of this

section.

(i) This record shall include:

(a) Name, social security number, and job classifica-

tion of the employees monitored;

26f

(b) The date(s), number, duration and results of each

of the samples taken, including a description of the sam-

pling procedure used to determine representative employee

exposure where applicable;

if any;

(d) A description of the sampling and analytical meth-

ods used and evidence of their accuracy; and

(e) The environmental variables that could affect the

measurement of employee exposure.

(ii) The employer shall maintain this record for at

least 40 years or for the duration of employment plus 20

years, whichever is longer.

(2) Medical surveillance. The employer shall establish

and maintain an accurate record for each employee sub-

ject to medical surveillance as required by paragraph (j)

of this section.

(i) The record shall include:

(a) The name, social security number, and description

of duties of the employee;

(b) A copy of the physician’s written opinion;

ical examination under paragraph (j) (1) (ii) of this sec-

tion; and

(d) Any employee medical complaints related to expo-

sure to coke oven emissions.

(ii) The employer shall keep, or assure that the exam-

ining physician keeps, the following medical records:

(a) A copy of the medical examination results includ-

ing medical and work history required under paragraph

(j) (2) of this section;

27f

(b) A description of the laboratory procedures used

and a copy of any standards or guidelines used to inter-

pret the test results;

(d) The x-rays for the most recent five (5) years;

(e) Any x-ray with a demonstrated abnormality and

all subsequent x-rays;

(f) The initial cytologic examination slide and written

description ;

(g) The cytologic examination slide and written de-

scription for the most recent 10 years; and

(h) Any cytologic examination slides with demon-

strated atypia, if such atypia persists for 3 years, and all

subsequent slides and written descriptions.

(iii) The employer shall maintain medical records re-

quired under paragraph (m) (2) of this section for at

least 40 years, or for the duration of employment plus 20

years, whichever is longer.

(3) Availability. (i) The employer shall make avail-

able upon request all records required to be maintained

by paragraph (m) of this section to the Secretary and

the Director for examination and copying.

(ii) The employer shall make available upon request

records of employee exposure measurements required by

paragraph (m) (1) of this section for inspection and copy-

ing to affected employees and their designated representa-

tives.

(iii) The employer shall make available upon request

employee medical records required to be maintained by

paragraph (m) (2) of this section to a physician desig-

nated by the affected employee or former employee.

28f

(iv) The employer shall make available upon request

records of employee exposure measurements required by

paragraph (m)(1) of this section for inspection and

copying to former employees and their designated repre-

sentatives which indicate the former employees own expo-

sures.

(4) Transfer of records. (i) Whenever the employer

ceases to do business, the successor employer shall receive

and retain all records required to be maintained by para-

graph (m) of this section.

(ii) Whenever the employer ceases to do business and

there is no successor employer to receive and retain the

records for the prescribed period, these records shall be

transmitted by registered mail to the Director.

(iii) At the expiration of the retention period for the

records required to be maintained under paragraphs

(m) (1) and (m) (2) of this section, the employer shall

transmit these records by registered mail to the Director

or shall continue to retain such records.

(n) Observation of monitoring—(1) Employee obser-

vation. The employer shall provide affected employees or

their representatives an opportunity to observe any meas-

uring or monitoring of employee exposure to coke oven

emissions conducted pursuant to paragraph (e) of this

section.

(2) Observation procedures. (i) Whenever observation

of the measuring or monitoring of employee exposure to

coke oven emissions requires entry into an area where

the ues [sic] of protective clothing or equipment is re-

quired, the employer shall provide the observer with and

assure the use of such equipment and shall require the

observer to comply with all other applicable safety and

health procedures.

(ii) Without interfering with the measurement, ob-

servers shall be entitled to:

29f

(a) An Explanation of the measurement procedures;

(b) Observe all steps related to the measurement of

coke oven emissions performed at the place of exposure;

and

(o) Effective date. This standard shall become effec-

tive January 20, 1977.

(p) Appendixes. The information contained in the ap-

pendixes to this section is not intended, by itself, to create

any additional obligations not otherwise imposed or to

detract from any existing obligation.

pt diy so ale sai r

SS) ai Sid ane ieee ae i o/

APPENDIX G

Excerpts from OSHA’s Summary and Explanation of

the Standard, 41 Fed. Reg. 46751-84 (Oct. 22, 1976):

The following sections discuss the individual require-

ments of the standard. Each section includes an analysis

of the record evidence, the recommendations of the Ad-

visory Committee and NIOSH, and the policy considera-

tions underpinning the decisions on the particular pro-

visions of the standard. After consideration of all the

evidence in the record, the final standard sets a permis-

sible exposure limit to coke oven emissions of 150 pg/m*

benzene soluble fraction of total particulate matter pres-

ent during the destructive distillation or carbonization

of coal. In addition, the standard specifies minimum en-

gineering controls and work practice controls designed

to reduce exposures to coke oven emissions. Additional

controls and work practices are required where necessary

and written compliance programs must be developed.

Other portions of the standard including those on respi-

rators, protective clothing, hygiene facilities, and expo-

sure monitoring have been revised and clarified as de-

scribed in detail below.

* * * *

A series of permissible exposure limits to BSFTPM

have been considered in the course of the rulemaking.

These range from a level of 0.56 mg/m* (560 »g/m’)

to a level of 0.05 mg/m* (50 »g/m’‘).

The 0.56 mg/m* level has been recommended at dif-

ferent times by various industry participants as rep-

resenting a safe level of exposure (Ex. 149, p. 66; 151).

The level is taken from the major epidemiological study

relating exposure to BSFTPM to excess mortality among

coke oven workers (Ex. 8-29). According to the study,

the data therein provide certain rough estimates of what

would constitute a safe level of exposure. The study gave

an example of a worker exposed to less than 0.56 mg/m*

for a period of 30 years who would accumulate 200 mg/

m*—months of exposure, a level which the data indicate

would not increase the risk of lung cancer. The study

concluded that a level of 0.2 mg/m° is probably adequate

protection since it would allow for increased exposure of

those workers with over 30 years of work experience

at the coke ovens.

At the rulemaking hearing, Dr. Redmond, one of the

authors of the study, explained why 0.56 mg/m* should

not be used as a safe level of exposure. First, the model

of carcinogenesis used in the study, the instantaneous

cancer model, does not incorporate the concept of a latent

period, which is inherent in current theories of carcino-

genesis (TR 421). Dr. Redmond reported that analysis

of the data using a latent period model lead to the con-

clusion that there was no exposure level that could be

considered safe (TR 422).

Second, even accepting the instantaneous cancer model

as used in the study, there was an insufficient number of

white workers in the population to permit independent

verification of the lung cancer excess that had been

observed for blacks (TR 422).

Third, the excess cancer risk reported for coke oven

workers was relative to the rates for the steelworker

population. The lung cancer rate of the steelworker pop-

ulation tends to be the same as other Allegheny County

(site of the study) populations, yet steelworkers tend to

have higher lung cancer rates than the United States

population as a whole (TR 1014). Hence, even if a level

of 0.56 mg/m* would reduce the risk of lung cancer for

coke oven workers to that experienced by the steel-

workers, coke oven workers would still be at a greater

risk than the United States population as a whole.

Fourth, the time period of 30 years upon which 0.56

mg/m* was based was used only by way of example (TR

1013), and in no way represents the maximum time

that many workers spend in the coke oven environment

(T 1014). As mentioned in the study itself, a lower

level would be required to protect workers who were

employed longer than 30 years (Ex. 8-29).

Fifth, the 0.56 mg/m* level is based upon the fact that

the cumulative exposure interval of less than 200 mg/m*—

months exhibits no increased risk (Ex. 8-29). However,

the value for the lung cancer rate for each interval is

the average weight for the entire interval, and it is cus-

tomary to use the mid-point of each interval as repre-

senting the average exposure (TR 1012). By taking the

mid-points of the sub-intervals listed (Ex. 8-29, Table V),

and weighting for the number of employees within each

of these intervals, it can be determined that the average

exposure for the interval is 77 mg/m*—months (TR

1012). Following the customary practice of using the

mid-point determined average exposure (77 mg/m*—

months) would reduce the “safe” exposure for a 30-year

period of 0.56 mg/m* by a factor of 77/200 to approxi-

mately 0.22 mg/m* (TR 1012-3).

Finally, two sets of exposure data were available for

use in this study, one from the State of Pennsylvania,

which was used, and the other from AISI (TR 1018).

The exposure levels of the AISI data were consistently

lower than the levels used in the study (Ex. 8-18, Table

VII-3; T 1013). Had these lower exposure levels been

used in the study, then the average exposures of the in-

tervals would have been correspondingly lower (TR

1013). Hence, the 0.56 mg/m* level which was derived

by dividing 200 mg/m*—months by 360 months (30

years) would also have been correspondingly lower.

Dr. Land’s analysis of the excess risk associated with

exposure at the 0.5&mg/m* level also reveals that this is

not even close to a safe level (Ex. 82, Table 3). At an

exposure level of 0.5 mg/m*, (the closest lower level

examined to the suggested 0.56 mg/m*) from age 20 to

age 65 or death, assuming a linear dose-response, with a

dose model incorporating zero, five, ten and fifteen year

lag periods the estimated excess risks are 0.0468, 0.0510,

0.0593, and 0.0708 respectively with relative risks of 99%

to 151% greater than the normal lifetime risk of lung

cancer mortality (Ex. 83, Table 3). Assuming a quad-

ratic dose-response, at the same exposure level, for the

same lag periods the estimated excess risks are 0.0179,

0.0222, 0.272, and 0.0372 respectively (Ex. 82, table 3).

The relative risks for this model run from 38% to 79%

greater than normal risk (Ex. 82, Table 3).

On the basis of Dr. Redmond’s explanation of the rea-

sons for not using 0.56 mg/m* as a safe exposure level,

the calculation by Dr. Land of the excess risks of lung

cancer associated with exposure at this level, and the evi-

dence in the record demonstrating the feasibility of re-

ducing exposures to significantly lower levels, OSHA re-

jects the suggestion that setting the permissible exposure

limit at 0.56 mg/m? BSFTPM would provide an adequate

measure of employee protection.

The existing standard (29 CFR 1910, 1000, Table Z-1

for the benzene-soluble fraction of coal tar pitch volatiles,

which is viewed as BSFTPM, sets a maximum permissi-

ble exposure at 0.2 mg/m* (200 ug/m®). The criteria

Document (Ex. 2-18, p. II-2) included a recommendation

that the existing standard for coal tar pitch volatiles be

retained as an index of workers’ exposure and as a meas-

ure of the effectiveness of engineering controls and oper-

ating procedures. As noted earlier, Dr. Redmond con-

cluded that her study indicated that this was probably an

adequate level of protection (Ex. 8-29, p. 388). In fact,

the recalculation of the 0.56 mg/m* (560 ug/m®) level

using the customary mid-point analysis resulted in a level

of approximately 0.22 mg/m’ (220 ug/m*) (TR 1012-3).

However, Dr. Redmond did report that analysis of the

data using a latent period model led to the conclusion that

there was no exposure level that could be considered safe

(TR 422).

The analysis performed by Dr. Land supported this

conclusion (Ex. 82, Table 3). At all of the investigated

exposure levels (.05-1.00 mg/m* BSFTPM), dose models

(0, 5, 10 and 15 year lag) and dose-response models

(quadratic and linear) a statistically significant excess

risk of lung cancer (Ex. 82, Table 3) was found. For

example, according to Dr. Land’s calculation (Ex. 82,

Table 3), assuming a quadratic dose-response model and

latency periods of zero, five, ten, and fifteen years, the

excess risks of lung cancer associated with OSHA’s cur-

rent standard of 0.2 mg/* [sic] are 0.0029, 0.0036, 0.0045

and 0.0061 respectively. The corresponding relative risks

are 6.2%, 7.7%, 9.5%, and 13.1% greater than the nor-

mal risk. Assuming a linear dose-response model, the

excess risks for the same latency periods are 0.0191,

0.0209, 0.0244, and 0.0294 respectively with correspond-

ing relative risks of 41%, 45%, 52%, and 68% greater

than the normal risk.

Putting the above calculations into more general terms,

Dr. Land said (TR 3858),

As a final statement, I would just also point out

that it has not been my task to weigh the costs of

reducing coke oven emissions against excess risks as-

sociated with not doing so; but it is possible to note

from these analyses that the estimated excess risks

corresponding to average coal tar pitch volatile levels

around .2 milligrams per cubic meter of air, which,

I believe, corresponds roughly to the proposed stand-

ard, are not negligible, even for those dose response

models and latency assumptions that give the small-

est estimates of risk.

Then from the point of view of choosing a safe level

of exposure, the permissible exposure limit should be set

at zero. However, based on the evidence in the record,

OSHA does not believe that a zero standard for exposure

to coke oven emissions is technologically feasible. In fact,

it is clear that for any of the indicator substances con-

sidered, certain quantities of each substance are present

in the ambient environment as a result of natural phe-

nomena and as artifacts of human activity.

The Advisory Committee recognized this issue and pro-

posed that the standard be set at a level equivalent to

“background” for B(a)P as the next best approach to a

zero standard. The Chairperson of the Committee ex-

plained this approach as follows (Ex. 14):

Since coke oven emissions are carcinogenic and

there is no scientific data to demonstrate that there

is a safe level of exposure to carcinogens the basis

of this standard must be “no exposure.” It is true,

however, that in the ambient environment, there are

certain compounds arising from various combustion

processes which are the same as those arising from

coking operations.

The basis of this standard is no permissible expo-

sure over background levels as measured in repre-

sentative urban environments removed from the in-

fluence of coke oven emissions * * *.

This limit is based on an evaluation of the best

available scientific evidence, and on a judgment that

the health and safety of employees must be protected

to the fullest possible extent.

The proposal, while based on a different indicator sub-

stance from B(a) P was an effort to establish a respirable

particulate standard roughly equivalent to background

consistent with the Advisory Committee recommendations.

While a permissible exposure limit equal to zero plus

background would represent the lowest level theoretically

possible, OSHA believes that the record shows such an

approach is not feasible. Even if such a number could

be determined, achieving a standard of zero plus back-

ground would require that the emissions from a coke oven

be effectively zero so as not to increase employee exposure

above background levels. There has been no evidence pre-

sented that would convince OSHA that such a complete

elimination of coke oven emissions can be achieved by

existing or future technology.

OSHA finds that the determination of an appropriate

permissible level of employee exposure to coke oven emis-

sions relies in part on the record of this proceeding and

in part on policy considerations which lead the Agency

to conclude that in dealing with a carcinogen or other

toxic substance for which no safe level of exposure has

been demonstrated, the permissible exposure limit must

be set at the lowest level feasible. Such a determination

involves a measure of subjective judgment which OSHA

believes is justified by the nature of the hazard being

dealt with and the intent of the Act. Section 6(b)5 pro-

vides that the standards for toxic substances shall be

feasible. That section further provides that:

In addition to the attainment of the highest de-

gree of health and safety protection for the employee,

other considerations shall be the latest available sci-

entific data in the field, the feasibility of the stand-

ards, and experience gained under this and other

health and safety laws.

OSHA has determined that 150 ug/m* is the level

which most adequately assures, to the extent feasible, the

protection of coke oven workers. Several factors have

been considered in making this determination and are

discussed below.

The estimated excess risks of lung cancer mortality

due to occupational exposure to BSFTPM at the 150

ug/m* ievel are less than the risks from exposure at the

level of the existing standard, 0.2 mg/m* (200 y»g/m*)

according to interpolations performed by OSHA from Dr.

Land’s calculations (Ex. 82, table 3). Thus, for the same

hypothetical individual that has been used in the preceed-

ing examples, assuming a linear dose-response model and

latency periods of zero, five, ten and fifteen years, the

excess risks at the 150 »g/m* level of exposure are 0.0145,

0.0159, 0.0184, and 0.6223, respectively. The correspond-

ing relative risks of 1.034, 1.048, 1.053, and 1.477 times

the normal risk. Assuming a quadratic dose-response

model, the excess risks are 0.0016, 0.0020, 0.0025, and

0.0034 respectively, with corresponding relative risks of

1.034, 1.043, 1.053, and 1.072 times the normal. The low-

ering of the permissible exposure limit clearly represents

a lowering of the risks associated with exposure to coke

oven emissions.

The level of 150 yg/m* is a feasible one. Although

the industry generally has failed to utilize emissions con-

trol technology which has been available for some time

(e.g. stage charging has been in existence since 1961

(Ex. 2-37c; 2-19) ) and have exceeded the existing per-

missible exposure limit of 0.2 mg/m*® (Ex. 68), exposure

levels below 150 y»g/m* have been reached at various

times on various batteries for various job classifications

(Ex. 49E; 51A; 2-146; 2-223).

The strongest evidence of this performance is the

NIOSH study of U.S. Steel’s Fairfield, Alabama plant

(Ex. 2-223, table 1). For all of the seven job categories

tested, on at least one of the three days during which

samples were taken, exposure levels were below the 150

yg/m* level. Three job categories (larryman, cokeside

helper, and quench car operators) registered below this

level on two days. Furthermore, for three of the job

a 8

categories (pushside door machine operator, pushside

helper, and quench car operator) no detectable level of

exposure was measured. OSHA is mindful that many

of the measurements taken by NIOSH at Fairfield show

levels above 150 y»g/m*, however, the Agency believes

that the lower measurements are a strong indication

that these levels are attainable.

OSHA recognizes that Fairfield is generally considered

to be the best coke plant in terms of controlling emis-

sions. In fact, EPA uses Fairfield as a data base for

their new source performance standards for coke plants

(TR 1971). However, even Fairfield does not utilize all

of the specific engineering controls that OSHA believes

are effective in reducing exposures and have been re-

quired in this standard. For example, Fairfield has no

filtered-air cabs or standby pulpits (TR 2066). Nor does

Fairfield have all of the additional controls that are not

specifically required, but may be helpful, such as canopies

to capture and remove door emissions (TR 3078). OSHA

believes, therefore, that by utilizing all of the required

controls and additional existing controls, Fairfield could

be doing even better.

OSHA also believes that other coke plants can follow

Fairfield’s lead. Fairfield is a rehabilitated battery (Ex.

41A), which suggests that existing batteries can like-

wise be rehabilitated to perform with similar success.

New batteries should be able to do even better, since they

are not faced with the space, design and other constraints

sometimes imposed by rehabilitation of a battery.

Furthermore, as the Courts of Appeals have empha-

sized, OSHA is not restricted by the status quo. Stand-

ards may be set which require improvements in existing

technologies or which require the development of new

technology, and OSHA is not limited to setting standards

based solely on devices already fully developed (see e.g.,

10g

Society of Plastics Industry v. U.S. Department of Labor,

509 F.2d 301 (c.A.2, 1975) [sic] cert. denied).

OSHA agrees with the statement of David J. Burton,

the contractor who performed the technological and eco-

nomic feasibility studies, that “* * * implementation of

the standard and of efforts to control employee exposure

will undoubtedly create an atmosphere in which new

and innovative control technology will be developed.”

(Ex. 116, p. 4).

In fact, there is new and innovative control technology

looming on the horizon. For example, there was extensive

testimony at the rulemaking hearings on the effective-

ness and feasibility of new door sealing techniques which

may lead to the almost total elimination of door leaks

(Ex. 30; 66F; Ex. 144, App. A, p. 77). As another

example, there was testimony regarding new techniques

for the quenching of coke which could greatly reduce the

emissions resulting from the pushing process (Ex. 30;

33; 38D). Further, there was testimony concerning al-

ternative methods of coke production (Ex. 2-61, p. 128-

160). |

OSHA has carefully considered the issue of economic

feasibility in the course of this rulemaking and is con-

vinced that the control measures which are necessary

for the reduction of employee exposure to the permissible

exposure limit are well within the economic capabilities

of the industry (see Economics). Therefore, OSHA finds

that the level of 150 »g/m* is economically, as well as

technologically, feasible.

Therefore, pursuant to OSHA’s authority to force

technology and in consideration of the evidence of new

technology looming on the horizon, OSHA has deter-

mined that it is appropriate to allow for the factor of

technology forcing in ascertaining that the 150 p»g/m’

level is feasible. OSHA believes that this level is not

rerrerrers ek a

1lg

infeasible by virtue of being at or below background

levels, which would effectively require the emission-free

operation of coke ovens. The reasons for this are three-

fold. First, the National Air Sampling Network esti-

mate of benzene-soluble organic matter background levels

(approximately 10 »g/m*) is significantly lower than the

permissible exposure limit (Ex. 14). These measure-

ments are, however, taken with different samplers, (high

volume) and over a longer (24 hour) time period, and

may not be directly translatable to sampling methods

which are required by the standard. Second, the measure-

ment of “no detectable levels” at Fairfield suggests that

background falls below the limit of detectability (ap-

proximately 20 »g/m*) of the sampling method (Ex. 2-

223). Third, as stated earlier, there is general agree-

ment that BSFTPM is the indicator substance whose

measurement is least affected by interference from back-

ground (TR 1928; TR 2493-4). It should be noted that

OSHA acknowledges that the 150 ,»g/m* level is not

absolutely safe and that the risks associated with lower

levels of exposure which were considered (e.g. 50 »g/m?

and 100 »g/m*) are correspondingly lower. However, as

an exercise of rational Agency discretion, OSHA has

determined that based upon the evidence available at

this time, a permissible exposure limit lower than 150

pg/m* may not be feasible. This, of course, does not

preclude the possibility that the level will be lowered in

the future if the evidence available at that time estab-

lishes that it would be feasible to do so.

* * * *

9. Written plans for compliance. In order to insure

compliance with this standard, employers are required

to establish and implement two written programs. First,

a written program must be drafted which describes, in

detail, current operating procedures as well as projected

engineering controls and work practices, specifically de-

12g

lineated in the standard, which will reduce employee ex-

posures to or below the permissible exposure limit. Such

a written program will set forth specific time frames by

which the engineering controls and workpractices will

be in place. If the employer has implemented all re-

quired controls and practices within specified time frames,

and permissible exposure limits are nonetheless exceeded,

then the standard requires the formulation and imple-

mentation of a second written program—compelling the

employer to utilize any existing technology and to develop

new technology necessary to achieve full compliance with

the standard.

OSHA derives legal support for a technology-forcing

standard from the rulings of the Courts of Appeals (See

e.g., Society of Plastics Industry v. U.S. Department of

Labor, 509 F. 2d 301 (C.A. 2, 1975) cert. denied; AFL-

CIO v. Brennan, 580 F. 2d 109, 121-122 (C.A. 3, 1975).

Moreover, the coke oven emissions standard marks the

first attempt by the Secretary to combine the specificity

of a standard which particularizes required engineering

controls and work practices with the flexibility which

permits employers to tailor their written programs to the

exigencies of their batteries. In addition, the specificity

of the final standard finds further support in section 6

(b) (7) of the Act which states in pertinent part: “Where

appropriate, such standard shall also prescribe suitable

protective equipment and control or technological pro-

cedures to be used in connection with such hazards * * *”

(Emphasis added.) Furthermore, a standard which speci-

fies a compendium of required controls and practices is

promulgated in cognizance of similar plans which have

been developed in the context of litigation (Ex. 68J; 68K).

Nevertheless, although these agreements marked an im-

portant first step under the former general, nonspecific

CTPV standard, they further underscore the necessity for

a uniform standard of compliance which directs employers

13g

to specific abatement programs and allows the Secretary

more easily to monitor an employer’s progress in achiev-

ing full compliance.

Another issue for discussion under this section involves

the efficacy of OSHA’s enforcement procedures in insur-

ing uniform compliance with the requirements of this

standard. The Advisory Committee recommended a pro-

cedure, apart from the citation mechanism, for OSHA

review and approval of an employer’s written plans. The

agency has determined that the alternative compliance

strategy described below will more adequately insure uni-

form compliance, especially within the context of limited

OSHA resources which preclude the advance approval of

all abatement plans.

Thus, as detailed in OSHA’s Industrial Hygiene Man-

ual, citations will be issued for the failure to comply with

the requirements of the standard. The citation will set

forth “standard alleged violation elements” (SAVE) in-

cluding specific time frames by which the cited employer

must come into initial (development of a plan), inter-

mediate (hiring an expert consultant, ordering requisite

materials, etc.) and final compliance (specific controls in

place). During the course of implementation, OSHA will

periodically monitor the employer’s progress in order to

ensure compliance with the elements of the citation. Fur-

ther appropriate enforcement action will be taken if the

permissible limit is still exceeded and the employer fails

to develop and implement a technology-forcing program.

The Department is cognizant of the concerns of the

unions aid the Advisory Committee that the implementa-

tion of this standard thruugh the traditional enforcement

mechanism may lead to its inconsistent application by

OSHA field staff. We would offer several responses.

First, such variegated interpretation would not be obvi-

ated by any pre-citation plan approval process. Indeed,

the same personnel would be reviewing the plan’s efficacy

14g

regardless of the enforcement or pre-enforcement context

in which it was presented. Second, OSHA simply does

not have the resources in sufficient numbers to review

every coke oven plan required by this standard. Rather,

the agency must rely on the deterrence achieved through

periodic general inspections and the intensive review and

monitoring which will follow such inspections. Third, in

the impiementation of this standard, field personnel will

be advised by a Technical Advisory Unit based in the

National office which will gather all coke oven informa-

tion and coordinate all coke oven citation and settlement

policy.

Finally, a difficult compliance issue presented by the

promulgation of the new standard involves its relation-

ship, within the context of enforcement, to the employer’s

legal obligations under the prior standard (29 CFR

1910.1000, 1002). The present standard, at paragraph

(f) (1) (i) requires the implementation of specific engi-

neering controls and work practices at the earliest possi-

ble time but no later than January 20, 1980. To this

end, employers are presently required to develop written

programs and to implement specific controls. However,

the agency recognizes that employers had a iegal obli-

gation under the prior standard to reduce coke oven

emission exposures by means of feasible engineering

and administrative controls. It is not the intention of the

agency, through the promulgation of this standard, to

vitiate the legal requirements under the old standard

Rather, OSHA views the two standards as representing

continuum of enforceable obligations which have been

crystallized in the standard’s promulgation.

More specifically, in evaluating whether the employer

has instituted controls at the earliest possible time,

OSHA compliance personnel would consider not only the

employer’s performance under the new standard but also

his prior obligations under its predecessor. It is OSHA’s

15g

view that recalcitrant employers who have implemented

only a few or no controls or work practices under the

prior CTPV standard should not benefit from a newly

extended time frame established under the new standard.

Rather, cognizant of their prior legal obligations, such

employers would be subject to citation under the new

standard for failure to implement controls at the earliest

possible time.

* * * *

APPENDIX H

Council on Wage and Price Stability, Report to the

President on Prices and Costs in the United States Steel

Industry (October 1977), xi:

“EXECUTIVE SUMMARY

“The United States steel industry was hard hit by

the deep recession of 1974-75 and the sluggish recov-

ery of world steel demand that followed. The con-

tinuation of depressed economic conditions might well

be expected for an industry whose major markets are

within the highly cyclical durable goods producing

sector. ...

“Steel has been a problem sector of the U.S. econ-

omy for nearly two decades. The problems are evi-

dent in that:

—Current capacity utilization rates in the indus-

try are near 80 percent compared to a peak

of 97 percent in 1973. Profit rates are less

than half of 1974 peak levels.

—The U.S. balance of trade in steel has shifted.

In 1955, the U.S. exported more steel than it

imported; today imports are supplying nearly

18 percent of domestic requirements and our

exports of steel are negligible.

—Finished steel prices have risen substantially

in excess of the increase in other industrial

prices.

Within the last two years these factors have come

together to worsen economic conditions in one of the

nation’s more basic industries.”

APPENDIX I

U.S. DEPARTMENT OF LABOR

OFFICE OF THE SOLICITOR

WASHINGTON, D.C. 20210

April 26, 1978

Thomas F. Quinn

Clerk,

United States Court of Appeals

for the Third Circuit

21400 U.S. Courthouse

601 Market Street

Philadelphia, Pennsylvania 19106

Re: AISI, et al. v. OSHA, Nos. 76-2358, etc.

Dear Mr. Quinn:

On March 28, 1978, a three-member panel of this Court,

composed of Circuit Judges Rosenn and Higginbotham,

and District Judge Van Artsdalen sitting by designation,

issued its opinion and judgment in the above case. Sub-

sequent to this decision, the petitioners, by letter dated

April 18, called the Court’s attention to what they char-

acterized as “three unintentional errors or inconsistencies

that . . . should be corrected prior to issuance of the

printed Opinion.” The Court thereafter directed the re-

spondent Secretary of Labor and intervenor AFL-CIO to

respond to the industry’s contentions by April 25. This

letter constitutes the Secretary of Labor’s response.

1. The Secretary agrees with petitioners that the

Court intended to vacate the requirement for quantitative

fit testing rather than qualitative fit testing which was

referenced in the opinion and judgment. Although the

particular provision vacated contained a requirement for

both qualitative* and quantitative? fit testing, it was only

quantitative fit tests that petitioners challenged (AISI

opening brief, pp. 37-38) and on which the Secretary ad-

mitted error (Secretary’s brief, p. 81 and n. 47). Ac-

cordingly, the inadvertent reference to qualitative fit

testing in the opinion and judgment should be corrected

to reflect that it is only the portion of the provision estab-

lishing a quantitative fit testing requirement which has

been vacated.

2. The Secretary does not agree with petitioners’ con-

tention that, with respect to the application of the stand-

ard to non-coke oven employers, the Court intended to

state that “the standard will be vacated” instead of “the

petition for review will be denied.” Since the decision

expressly recognized “it would make little sense to apply

a health standard to only one group of employees [when]

employees of independent contractors suffer the effects of

carcinogens as well” (slip opinion, p. 31), it seems clear

to us that the Court did not intend to deprive non-coke

oven (independent contractor) employees of the vital pro-

tections afforded by this standard. Indeed, the Court

specifically read the respirator requirements “as applica-

ble to and intended for independent contractors.” Ibid.

Moreover, in both the conclusion of the opinion (ibid.) and

the judgment, the Court explained that it was remanding

the standard insofar as it applied to non-coke oven em-

ployers “for further proceedings consistent with this

opinion,” rather than vacating as it had done with two

other provisions. Thus, it is clear that the Court in-

tended to require only some form of supplemental pro-

ceedings on the issue of the application of this standard

*“The employer shall assure that the respirator issued to the

employee exhibits minimum facepiece leakage and that the respira-

tor is fitted properly.” 29 CFR 1910.1029(g) (4) (i).

?“The employer shall perform quantitative fit tests annually for

each employee who uses a nonpowered, particulate filter respirator.”

29 CFR 1910.1029(g) (4) (i).

to non-coke oven employers. Petitioners are therefore in-

correct when they suggest that the Court intended to

vacate the standard. It is the intent of OSHA to re-

examine the letter referred to in the Court Opinion, as

well as the portions of the program directive dealing with

the application of the coke oven standard to non-coke oven

employers, and to make any necessary changes, or con-

duct other proceedings, as appear appropriate in light of

the Court Opinion.

3. Finally, the Secretary strongly opposes petitioners’

request that the Court now vacate additional provisions

of the standard requiring employers to utilize controls

beyond those specifically mandated in the regulations.

While the Court held that the Secretary could not place

an affirmative duty on each employer to research and de-

velop new technology and thus vacated 29 CFR 1910.1029

’ Those additional provisions include 29 CFR 1910.1029(f) (1) (i)

(b), which applies to existing coke batteries and provides:

The engineering and work practice controls required under

paragraphs (f)(2), (f)(8) and (f)(4) of this section are

minimum requirements generally applicable to all existing

coke oven batteries. If, after implementing all controls re-

quired by paragraphs (f) (2), (f)(3) and (f)(4) of this sec-

tion, or after January 20, 1980, whichever is sooner, employee

exposures still exceed the permissible exposure limit, employ-

ers shall research, develop and implement any other engineering

and work practice controls necessary to reduce exposure to or

below the permissible exp

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