# Appendix — Whiskers v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1385%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1078 ## Text 78-919 | Frets No. 78- pec @ 1876 od IN THE Supreme Court of the United States OCTOBER TERM, 1978 AMERICAN IRON AND STEEL INSTITUTE, et al., Petitioners, V. 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 la 1b le 1d le 1f lg lh li Re: la 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 2a 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 V. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION UNITED STATES DEPARTMENT OF LABOR UNITED STATES OF AMERICA, Respondent UNITED STEELWORKERS OF AMERICA, AFL-CIO, Intervenor 3a 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. 4a 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 5a 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. 6a 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 >> 7a sure, prescribed protective clothing and hygiene facilities, the extent of the area to be regulated, engineering con- trols, and work practices. b 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.” 8a 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 9a 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 oe 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 V. 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: 1b 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 2b 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 V. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION UNITED STATES DEPARTMENT OF LABOR UNITED STATES OF AMERICA, Respondent UNITED STEELWORKERS OF AMERICA, AFL-CIO, Intervenor 3b 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. 4b 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 le 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, 2c the petition for rehearing is denied. Dated: July 12, 1978 By the Court, /3s/ Max Rosenn Judge 1d 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. le 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 2e 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- 3e 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- de 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 Be 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- 6e 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. * * * * Te 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. (c) No citation may be issued under this section 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. 8e (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. (c) Any employer who has received a citation for 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 9e $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. 1f 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. 2f “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. (c) Permissible exposure limit. The employer shall 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. 3f (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; (c) Larry car operator; (d) Luterman; (e) Machine operator, coke side; (f) Benchman, coke side; 4f (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 5f 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- 6f 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 7f 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- 8f 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; (c) Aspiration systems designed and operated to pro- 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 ; Of (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; (c) An adequate number of spare doors available for 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 (c) Establishment and implementation of a detailed 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; (c) Cleaning of oven doors, chuck doors and door jambs 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; (c) Regular inspection of the damper system, aspira- 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; (c) A report of the technology considered in meeting 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 (c) In work situations where feasible engineering and 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; OR 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 ; (c) Any recommended limitations upon the employee’s 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; (c) The purpose for and a description of the medical 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; (c) The type of respiratory protective devices worn, 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 reco [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1385%3A2. Public record. Not legal advice.