Petition for Writ of Certiorari — Martin v. Occupational Safety and Health Review Comm'n

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(\\ | Suprome Court, US,

89. 154] FIIsED

No. APR 2 1390

oe F. SPANIOL, JR, |

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

LiiZABETH H. DOLE, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, PETITIONER

OCCUPATIONAL SAFETY AND HEAL TH REVIEW COMMISSION,

AND

CEAL STEEL CORPORATION

PETITION FOR A WRIT OF CERTIORARI

1O THE UNTEED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KENNETH WW. SEARR

Solicitor General

Davin b. SHAPIRO

Deputy Solicitor General

CLiuborRD NE SEOWN

issistant to the Solimitor General

Departinent of Justice

Washington, D.C. 20530

(202) 633 J] 7

Rowiki Po DAVES

Solicitor of Labor

Vitis bb be Dian

lssociate Soliitor

CHAREES LBA N

Deputy Associate Solicitor

NEAkKA S. FLYNN

bilorne

Department of Labor

NWashtineton, DOC. 20210

QUESTION PRESENTED

Whether the Secretary of Labor, rather than the Occupa-

tional Satety and Health Review Commission, is entitled to

deference in the interpretation of a Department of Labor

regulation if the Secretary’s and the Commission's mterpreta-

tions of the regulation conflict.

(1)

OE LI re I er neny Were a

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Statutory and regulatory provisions involved .........

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Reasons tor granting the petition ...................

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TABLE OF AUTHORITIES

Cases:

Alford v. American Bridge Div., U.S. Steel Corp.,

642 F.2d 807 (Sth Cir. 1981), cert. denied, 455

fe feb en's. oera'd tb aeks en dees

Atlas Roofing Co. v. OSHRC, 430 U.S. 442

il eh a a

Bethlehem Mines Corp. \. Director, OWCP, 766

iP > 5) eR...” Sere

Bethlehem Steel Corp. v. OSHRC, 573 &.2d 157

NS nn a ce eau awaadwheswsveces

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410

ee es ke pe ee bandedienudssvece

Brennan \. Gilles & Cotting, Inc., 304 b.2d 1255

i as ck anise éeeeseeccvcsvtonebes

Brennan. OSHRC, 313 F.2d 713 (8th Cir. 1975). .

Brennan \. OSHRC & Kesler, 513 &.2d 553 (10th

EI ogc ask ccc wcccessvecececcesecncs

Brock \. Bechtel Power Corp., 803 F.2d 999 (9th

Cir. 19966) ..............-..706.. oo ,

Cases — Continued: Page

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d

PO as Me Ig kb voc dev ceeccdetnedcs. 10, 17

Brock v. Chicago Zoological Soc’y, 820 F.2d 909

PU ED eng ie oe Dnt 10

Brock v. Dun-Par Engineered Form Co., 843 F.2d

ee 10

Brock vy. Williams Enterprises of Georgia, Inc.,

832 F.2d 567 (11th Cir. 1987) ................. 10

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837

PE ee rere ere re Ue ett 11, 14

Cuyahoga Valley Ry. v. United Transp. Union,

I So ck 2, 12, 18

Dale M. Madden Constr., Inc. vy. Hodgson, 502

F.2d 278 (9th Cir. 1974) ..................... 13

Director, OWCP vy. Detroit Harbor Terminals,

Inc., 850 F.2d 283 (6th Cir. 1988) ............. 17

Director, OWCP vy. Mangifest, 826 F.2d 1318 (3d

MEE a te-A helena bacuBs Os cad uc wee. 10

Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61

PIN BS ooo oo oo oc vag ve een bd Gk: 10, 13

Donovan v. Adams Steel Erectors, Inc., 766 F.2d

eS, WU a 5 go on so: 0 obo vcs bb ck veces 10

Donovan v. OSHRC, 713 F.2d 918 (2d Cir. 1983)... 13

Dunlop v. Rockwell International, 540 F.2d 1283

RE er eer er Nee)” 15

Ford Motor Credit Co. v. Mithollin, 444 U.S. 555

TS eS ot he ee 12, 14

Immigration & Naturalization Service vy. Stanisic,

SI cg I eS 12

Lukman vy. Director, OWCP, No. 88-1733 (10th

- & & errr fee 11, 17

Marshall v. Western Elec., Inc., 565 F.2d 240 (2d

SN sp. ce ones 6 awe Uke lin... 10

Morrison-Knudsen Const. Co. v. Director, OWC P,

ee 17

Mullins Coal Co. \. Director, OWC ‘P, 484 U.S.

135 (1987)

Cases — Continued:

Peabody Coal Co.v. Blakenship, 773 F.2d 173 (7th

Cig. 19BS) .. cc cc cc cceees eee teers ‘3

Potomac Elec. Power Co. v. Director, OWCP, 449

U.S. 268 (1980) .......---55: veeeees settee

Saginaw Mining Co. Vv. Mazzulli, 818 F.2d 1278

(6th Cir. 1987) ......- eee eee eee eens

Udall vy. Tallman, 380 U.S. } (1965) ee keaeer es

United Steelworkers v. Schuylkill Metals Corp.,

828 F.2d 314 (Sth Cir. 1987) .. Seeeeeeceneees ss

Usery v. Hermitage Concrete Pipe Co., 584 F.2d

127 (6th Cir. 1978) .......-.--55- pene eeneees

Whirlpool Corp. ¥. Marshall, 445 U.S. 1 (1980) ...

Statutes, regulations and rule:

Black Lung Benefits Act of 1972, 30 U.S.C. 901

Cl SOG. wc vccrecccercreses Serle share hana

30 U.S.C. 932(a) (1982 & Supp. V 1987) ...-.

Federal Mine Safety and Health Act ot 1977, 30

hte Py Mepeeeeeeeer rrr

90 0).S.C. GEE... ceuves: tenes sae ts

30 U.S.C. 813-816 (1982 & Supp. V 1987) ....

Sk) a een ar nnn ete Sy

| ts | eee ee easranstae)

lonyshore and Harbor Workers’ Compensation

Act, 33 U.S.C. 9Ol ef Seg. . 6... 6 eee ere

338 U.S.C. GES isos: cneueemaes sees > ey

33 U.S.C. 919 (1982 & Supp. 1987) ...------

33 U.S.C. 921(b) (1982 & Supp. 1987) ......

33 U.S.C. G2Ne) .. wc cece cece eee eeees

33 U.S.C. 939 (1982 & Supp. V 1987)... ---

Occupational Safety and Health Act ot 1970,

Pub. L. No. 91-596, 84 Stat. 1590 (29 ULS.C.

eS epee rerrrers (ort ee

29 U.S.C. GSUD) 2... cere c cece rneens:

Page

w tv iv

Statutes, regulations and rule — Continued:

I oo 5. sw ni'cre Co ee be eccessccac

ee ne ee

IE cous cccvccdusedaucuveees 3,

re i cus ss ubacederecete

aso s-bskccencconcciceae

Se IED on ve ncyvcucvecdcucaveess

ee ED on c.ceeccacsccccveuccence 2,

ee 2,

29 U.S.C. 660 (1982 & Supp. V 1987) .......

29 U.S.C. 660(a) (1982 & Supp. V 1987) ....

I MED bccn ccccdccvcccccsaces

Ss oa os og wa cb bu vn e'e a ¥ e's

MP IID sonia ccvecceccvceveccees

Es , . . cob vs kus vceunecccus

CE svc cece ccssneduducncees

ET ee an sno s ha ckcscoctceuct

29 U.S.C.

I ID bv ccc cccwevvncecccsenes

20 C.F.R.:

Section

29 C.F.R.:

Section

Ee RS 4, 5, 6,

1910.134(e)(5) .. 2.2... 5, 6,

ss os vc cnr deuced see,

1910.102%c) 2.2.00. 0o eee.

ccc anne

eee

1910.1029%(g)(1) 0.20.00.

1910.1029%(g)3) ........00..... 4, 5, 6, 7,

1910.1029(g)(4) 0.00.

ce is a he cea tcaved oui

-~ Otte he eke Cow

Vil

Miscellaneous — Continued:

41 Fed. Reg. (1976):

sede adele btehocdidésstceus ceeens

pp. 46,742-46, 79D .. 0... cece cece eeees

H.R. Rep. No. 1291, 91st Cong. 2d Sess. (1970) ...

S. Rep. No. 181, 95th Cong., Ist Sess. (1977) .....

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) .....

Secretary of Labor:

Order No. 12-71, 36 Fed. Reg. 8754(1971)....

Order No. 8-76, 41 Fed. Reg. 25,059 (1976) . ..

Order No. 9-83, 48 Fed. Reg. 35,736 (1983) ...

Staff of the Senate Subcomm. on Labor of the

Senate Comm. on Labor and Public Welfare,

92d Cong., Ist Sess., Legislative History of the

Occupational Safety and Health Act of 1970

EE FE OPED b ccccnetvcvcnaseenveneveas

+ &

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No.

ELIZABETH H. DOLE, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, PETITIONER

Vv.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

AND

CEAIL STEEL CORPORATION

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the Secretary of Labor,

petitions for a writ Of certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App., wifra, la-1 1a) ts

reported at 891 F.2d 1495. The decision of the Occupational

Safety and Health Review Commission (App., i7t/ra, 14a-54a) ts

reported at 12 O.S.H. (BNA) 2067 and 1986-1987 O.S.H. Dec.

(CCH) © 27,691. The decision of the administrative law judge

(App., wifra, 35a-91a) is unreported.

JURISDICTION

The judgment of the court of appeals (App., wifra, 12a-13a)

was entered on December 22, 1989. On March 14, 1990, Justice

White extended the time for tiling a petition tor writ of cer-

tiorari to April 9, 1990. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Pertinent sections of the Occupational Safety and Health Act

of 1970 (29 U.S.C. 651(b)(3), 655, 658, 659, 660 (1982 & Supp.

V 1987), and 661) are reprinted at App., infra, 92a-110a.

Department of Labor regulations 29 C.F.R. 1910.134 and

1910.1029%g) are also reprinted at App., infra, 11 la-123a.

STATEMENT

t. In 1970, Congress enacted the Occupational Salety and

Health Act (OSH Act), Pub. L. No. 91-596, 84 Stat. 1590 (29

U.S.C. 651 ef seq.), “to assure so far as possible * * * safe and

healthful working conditions” for “every working man and

woman in the Nation.” 29 U.S.C. 651(b). Toward that end, the

OSH Act provides the Secretary of Labor with a broad array of

regulatory and enforcement responsibilities. Specifically, she

has authority to “promulgate, modify, or revoke any oc-

cupational safety or health standard” (29 U.S.C. 655(b)); to

grant variances from such standards to particular employers (29

U.S.C. 655(d)); and to conduct investigations and worksite in-

spections to assure compliance with health and safety re-

quirements (29 U.S.C. 657). The OSH Act also empowers her to

issue citations to employers whenever she believes that an

employer has violated the OSH Act or any standard, rule,

regulation, or order promulgated by the Secretary (29 U.S.C.

658); to propose civil penalties against cited employers (29

U.S.C. 659(a), 666); 10 prescribe abatement periods for cited

health and safety violations (29 U.S.C. 658(a), 659(c)); and to

seck injunctive relief in federal court from imminent dangers to

employee safety and health. 29 U.S.C. 662(a). See generally

Cuvahoga Valley Ry. v. United Transp. Union, 474 U.S. 3, 3-4

(1985); Whirlpool Corp. v. Marshall, 445 U.S. 1, 8-9 (1980);

Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 445-446 (1977)!

The Secretary has delegated many of her OSH Act responsibilities to the

Assistant Secretary tor Occupational Satety and Health, who heads the Occu-

In the OSH Act, Congress also created the Occupational

Safety and Health Review Commission (OSHRC) “for carrying

out adjudicatory functions.” 29 U.S.C. 651(b)(3). An employer

may contest the Secretary’s citation or notice of penalty before

the Commission; in addition, an employee or employees’

representative may challenge the time for abatement in the

Secretary’s citation. 29 U.S.C. 659%c). When a citation, penalty,

or abatement date is contested, the Commission must “afford

an opportunity for a hearing * * * [and] thereafter issue an

order, based on findings of fact, affirming, modifying, or

vacating the Secretary’s citation or proposed penalty.” 29

U.S.C. 65%); Atlas Roofing Co. v. OSHRC, 430 U.S. at 446.

The OSH Act vests the Commission with power to compel at-

tendance of witnesses, production of documents, and taking of

evidence. 29 U.S.C. 661(h) and (i).

The OSH Act limits the Commission’s rulemaking authority

to establishment of procedural norms for adjudicatory hearings

before the Commission and its administrative law judges. 29

U.S.C. 661(g). The Commission has no jurisdiction over peti-

tions to review the Secretary’s promulgation of a safety or

health standard; rather, the statute provides the courts of ap-

peals with authority to review challenges to standards. 29

U.S.C. 655(f). If the Commission affirms a citation, only the

Seeretary may seek enforcement Of the administrative order in

the court of appeals. 29 U.S.C. 660(b). The Secretary or an ag-

grieved party may seek judicial review of adverse Commission

decisions. /bid. All civil penalties assessed in final Commission

decisions are payable to the Secretary and are recoverable only

in a civil action brought by the Secretary in federal district

court. 29 U.S.C. 663, 666(/); Atlas Roofing Co. v. OSHRC, 430

U.S. at 447.

2. In 1976, the Secretary determined that coke oven emis-

sions are carcinogenic. Pursuant to her rulemaking authority

pational Satety and Health Administration (OSHA), an agency within the

Department of Labor that is responsible for enforcing the OSH Act. See

generally Secretary of Labor's Order No. 12-71, 36 Fed. Reg. 8754 (1971);

Order No. 8-76, 41 Fed. Reg. 25,059 (1976); Order No 9-83, 48 Fed. Reg.

35,736 (1983)

under the Act, she promulgated a standard governing occupa-

tional exposure to coke oven emissions. 41 Fed. Reg.

46,742-46,790 (1976); 29 C.F.R. 1910.1029. The standard re-

quires limiting employee exposure to a specified level of coke

oven emissions in a “regulated area” (29 C.F.R. 1910.1029(c)).

The standard also requires the use of engineering and work

practice controls to achieve that reduction (29 C.F.R.

1910.1029(f)). Of particular relevance for purposes of this case,

the standard permits the use of respirators as a method of com-

pliance in certain circumstances —for example, when controls

are not yet sufficient to reduce exposure to the permissible limit

(29 C.F.R. 1910.1029(g)(1)). The coke oven regulation includes

requirements concerning provision of respirators in such cir-

cumstances (29 C.F.R. 1910.1029%(g)), and one of these re-

quirements incorporates into the coke oven regulation a general

regulation regarding respirators. See 29 C.F.R. 1910.1029(g)(3)

(“The employer shall institute a respiratory program in accord-

ance with § 1910.134 of this part.”).

3. In August 1979, the Secretary conducted an inspection at

respondent’s coke oven facility in Pueblo, Colorado.? The

Secretary and respondent had previously reached a settlement

regarding citations issued to respondent for violations of the

coke oven emissions standard. App., infra, 19a. As a result of

the August 1979 inspection, the Secretary issued three addi-

tional citations. /d. at 90a-91a. One part of one citation is cur-

rently at issue. /d. at 3a, 36a-37a.

The inspection disclosed that respondent had conducted two

kinds of respirator tests with its employees. App., infra, 79a.

The first was a “positive/negative pressure test,” in which a

worker places the respirator on his face, inhales or exhales, and

checks for leakage along the respirator seal; it is not conducted

in a “test atmosphere.” /d. at 3a, 59a. The second was a “banana

oil” test, in which a worker, while wearing a respirator, is put in

* References in this petition to respondent are to respondent CHAI Steel

Corporation, which briefed and argued the case in the court of appeals

OSHRC was nominally a respondent in the court of appeals (pursuant to bed

R. App. P. 15), but did not participate in those proceedings

a “test atmosphere” and exposed to isoamy! acetate (“banana

oil”) in order to determine whether he can detect the odor of the

chemical despite the respirator. /d. at 3a, 38a, 59a. The

Secretary discovered that 28 of respondent's employees had

detected banana oil, but that respondent had failed to give them

different respirators. Instead, respondent had simply sent the

employees, with the same respirators, into a “regulated area.

Id. at 3a, 38a-39a, 78a. Some of these employees were exposed

to coke oven emission levels exceeding the permissible exposure

limit. Jd. at 8la-82a. Relying on the fact that “28 coke oven

employees working in the regulated area exposed to coke oven

emissions failed their respirator fit test and were not provided

with a different respirator which would fit” (id. al 37a), the

Secretary issued a citation for a “willful” violation of 29 C FER.

1910.1029%(2)(3)—the coke oven provision that incorporates the

respirator regulation in 29 C.F.R. 1910.134. The Secretary

assessed the maximum penalty of $10,000.’

4. Respondent contested the citation. A Commission ad-

ministrative law judge (ALJ) held five days ot hearings in

February 1980, and issued an opinion upholding the citation in

August 1981. The ALJ found that, as the Secretary charged, 28

employees detected banana oil in the banana oil lest and were

then sent into the coke oven areas without any adjustment in

their respirators. App., fra, 79a-82a. |

The Secretary maintained that Section 1910. 1029(2)3) of the

coke oven emissions standard, by incorporation of the

respiratory protection program requirement in 29 C.F.R.

1910.134¢e)— and 1910.134(e)(5) in particular* — requires

employers both to assure that each employee's respirator fits

properly by using a test atmosphere (as in the banana oil test)

and to provide a different type or size respirator i an

employee's equipment fails the test. App., “fra, 39a, 78a-79a.

A “willtal” violation is the most serious form of coil violation, and the

highest civil penalties are authorized for stich violations, violations may also

be characterized as “serious” and “not serious.” 290 S.C 666

9 C ER 1910 1340eK 8) provides, in part, that “[t}raming shall provide

the men an opportunity to handle the respirator, have uw titted properly, * * *

and, tinally, to wear Hom a test atmosphere”

Respondent detended on the ground that the standard did not

require testing in a test atmosphere at all, and that the

positive/negative tests fully satisfied the standard. /d. at

78a-79a.

The ALJ agreed with the Secretary. He concluded that the

pertinent regulation—29 C.F.R. 1910.134(e)(5)— requires

qualitative fit testing in a test atmosphere and that it imposed a

requirement that a respirator fit properly. App., infra, 79a.

“Since these test results show that the employees were not prop-

erly fitted, [respondent] was obligated to provide a different

respirator to those that failed the test.” /d. at 80a. The ALJ con-

cluded that the violation was willful and observed that respond-

ent’s “cynical disregard for the safety of its workers and * * *

deliberate disregard for the standard itself make[{] even the max-

imum penalty seem pitifully inadequate.” /d. at 82a.

5. Five years later, in September 1986, the Commission re-

versed the ALJ’s judgment. The Commission concluded that Sec-

tion 1910. 1029(g)(3) —the coke oven provision incorporating the

respirator standard —is a “training standard” and “does not re-

quire the employer to assure proper fit of an employee's

respirator.” App., infra, 40a. The Commission emphasized that

the next paragraph of the coke oven regulation—Section

1910. 1029%(g)(4) — explicitly requires that respirators fit properly;

thus, in the Commission’s view, Section 1910.102%g)(3) could

not, without redundancy, be read to require proper respirator fit

as well. App., infra, 40a, 41a. The Commission also concluded

that, on its own terms, the general respirator standard of Section

1910. 134 does not impose a requirement that an employer assure

respirator fit; the Commission stressed that Section 1910.134

refers to instruction and training and should be interpreted as a

training program. App., infra, 40a. Thus, the Commission inter-

preted Section 1910.134(e)(5) as “requiring the employer to in-

struct employees during training in such things as how to select a

respirator, how to put on a respirator, how to achieve a proper fit

and how to Obtain a face-piece seal” (App., infra, 41a), and as re-

quiring the employer to give an employee the opportunity to wear

the respirator in a test atmosphere during training. /bid. The

Commission concluded, however, that it does not require the

employer to insure that proper fit is achieved. /bid.

Inasmuch as respondent’s employees had received instruction

and an opportunity to wear respirators in a test atmosphere, the

Commission concluded that the requirements of Section

1910.134 had been met. App., infra, 45a. According to the

Commission, “{t}he fact that some employees detected the

banana oil while in the test atmosphere does not establish by

itself that the instructions or training Otherwise provided were

inadequate.” /bid. Accordingly, the Commission vacated the

citation. One Commissioner dissented.°

6. The Secretary petitioned for review. On December 22,

1989, the court of appeals denied the petition and upheld the

Commission’s determination. The court noted that an agency's

interpretation of a statute is entitled to deterence and must be

accepted if reasonable, and that such deference ts particularly

appropriate Where an agency “interprets its own administra-

tive regulations.” App., infra, 4a. The court then observed

that, although the Secretary had interpreted 29 C.F.R.

1910.1029(e)(3) as a testing standard for proper fit, the Com-

mission had interpreted it as a training standard. “The question

therefore arises: When the Secretary and Commission disagree

over the interpretation of an OSHA regulation, which view

prevails, .e., to whom is deference owed?” App., wifra, 4a.

Observing that the question is “an issue upon which the federal

cireuits are split” (ébid.), the court concluded that, “in the face -

of conflicting regulatory interpretations, deference ts properly

accorded to the interpretation of the Commission.” /d. at 2a.*

> The dissenting Commissioner reasoned that, regardless of whether Section

1910. 134 is a “training standard or a use standard,” the Secretary had estab-

lished a violation. App., w/ra, Sia. He mamntaimed that, even tt the standard ts

construed as a traming provision, the 28 employees who used respirators that

did not fit “were not trained to comprehend the proper tit of respirators, oF to

use the respuators properly.” Ad. at Sa. He also agreed that the violation was

appropriately Characterized ay “willtul.” Emphasizing that 28 employees tatled

the banana oil test, he noted that the conduct “demonstrates, at the very lee st,

plum indifference to employee satety.” dd. at S4a

OSHRC & Kester, 813 b 2d $53, $54 (1975), in which the court of appeals had

appeared to endorse the contrary rule and pay deference to the interpretation

of the Secretar’. Because, in the panel's view , the Commussion’s interpretation

Since in the court’s view the statutory language did not settle

the matter, the court consulted the legislative history. li noted

that Congress had decided against combining prosecutorial and

adjudicative authority in the Secretary, and had created the

Commission as an “autonomous, independent, and quasi-

judicial body.” App., infra, 6a. The court emphasized that the

“adjudicative function necessarily encompasses the power to

‘declare’ the law.” Jd. at 7a. Thus, the court concluded that

“where the Secretary has failed to convey the meaning of an

OSHA regulation to those charged with construing it, and

where the Commission has given the regulation an interpreta-

tion well within the plain meaning of the terms of the regula-

tion, we will defer to the interpretation of the Commission.”

Ibid.

The court of appeals took note of Potomac Electric Power

Co. v. Director, OW CP, 449 U.S. 268, 278 0.18 (1980) (Pepco),

in which this Court concluded that the interpretations of the

Benefits Review Board under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. 901 ef seg., were not

entitled to deference because the Board has only adjudicative,

and not policymaking, authority. The court of appeals viewed

this Court’s statement as “dicta” (App., fra, 8a) and, for two

reasons, distinguishable. First, Longshore adjudications are

nonaccusatory, “whereas OSHA requires accusatory proceed-

ings that may result in substantial penalties.” /bid. Second,

Longshore claims are brought by private citizens, not by the

government. /bid. The court concluded that the Longshore con-

text does not “implicate” Congress's concerns about vesting

prosecutorial and adjucative functions in a single governmental

entity, and that the “need for a strict separation of prosecutorial

and adjudicative functions is therefore far more acute in the

case of OSHA.” Jbid.

The court of appeals also siated that its decision did not give

“carte blanche” to the Commission; it observed that “[t}he

m that case Was not supported by the regulatory language, the panel did not

believe that Aesler established a rule applicable to this case. App. wifra, Sa

Secretary’s unique policy and rulemaking role requires that her

regulatory interpretations be accorded substantial weight by the

Commission and contravened only if clearly wrong or in the

presence of genuine ambiguity.” App., infra, 9a. However, if

there is “genuine ambiguity,” the court held, the reasonable in-

terpretation of the Commission will control. /bid. The court

also noted that, if the Secretary maintains that a different result

should prevail, she may amend or clarify the regulations

through rulemaking. /d. at 7a, Ila.

Turning to the merits of the specific interpretive question at

issue, the court ruled that the Commission did not unreasonably

interpret 29 C.F.R. 1910.1029(g)(3) to be a training standard

rather than a testing standard to ensure continuing proper fit.

App., ira, Ya-lla. Th@court found support for its position in

29 C.F.R. 1910. 134¢e)(5)’s reference to “training.” At the same

time, the court m@ted that “it is certainly possible to reach an

alternate interpretation of the ambiguous regulatory language.”

App., fra, lla. Nonetheless, applying its rule that it would

defer ‘to a reasonable Commission interpretation, the court

upheld the Commission’s decision.

REASONS FOR GRANTING THE PETITION

This Court should review the court of appeals’ holding that it

would defer to the Commission’s interpretation of an OSH Act

standard that the Secretary had promulgated rather than to the

Secretary’s interpretation. As the court of appeals’ opinion

recognizes, the circuits are in widespread conflict on the ques-

tion. Furthermore, in concluding that a purely adjudicatory

body (the Commission) rather than the policymaking and en-

forcement authority (the Secretary) is entitled to deference, the

court of appeals misapplied the principles underlying this

Court’s decisions on deference. Finally, the question is of con-

siderable importance. As this case illustrates, the court of ap-

peals’ rule frustrates the Secretary’s exercise of the policymaking

and enforcement duties entrusted to her by Congress.

1. The courts of appeals are severely divided on the question

of which entity —the Secretary or the Commission — 1s entitled

to deference under the OSH Act. The First, Fifth, Seventh, and

Eleventh Circuits have endorsed a rule favoring the Secretary’s

interpretation. Donovan v. A. Amorello & Sons, Inc., 761 F.2d

61, 64-66 (Ist Cir. 1985); Brock v. Chicago Zoological Soc’y,

820 F.2d 909, 912 (7th Cir. 1987); United Steelworkers v.

Schuylkill Metals Corp., 828 F.2d 314, 319-320 (Sth Cir. 1987);

Brock v. Williams Enterprises of Georgia, Inc.., 832 F.2d 567,

569-570 (11th Cir. 1987). Cf. Brock v. Cathedral Bluffs Shale

Oil Co., 796 F.2d 533, 537 & n.2 (D.C. Cir. 1986) (noting split

under OSH Act, and holding that, under the Federal Mine

Safety and Health Act, deference is accorded to the Secretary

rather than to the Federal Mine Safety and Health Review Com-

mission). In contrast, in addition to the Tenth Circuit in this

case, the Second, Fourth, Sixth, and Ninth Circuits defer to the

Commission. Marshall y. Western Elec., Inc. , 565 F.2d 240, 244

(2d Cir. 1977); Brennan v. Gilles & Cotting, Inc. , 504 F.2d 1255,

1261-1262 (4th Cir. 1974); Usery v. Hermitage Concrete Pipe

Co., 584 F.2d 127, 132 (6th Cir. 1978); Brock v. Bechtel Power

Corp., 803 F.2d 999, 1000-1001 (9th Cir. 1986).’

This division of authority undermines important values of

uniformity. Moreover, as this case illustrates, a deference rule is

often Outcome determinative, since the rule establishes which of

two reasonable, but conflicting, interpretations the court will

approve. See App., infra, lla (“While it is certainly possible to

reach an alternate interpretation of the ambiguous regulatory

” The court of appeals cited the Eighth Circuit as one of the Circuits favor-

ing deference to the Commission. App., infra, Sa (citing Brennan \. OSHRC,

513 F.2d 713, 715-716 (1975)). The Eighth Circuit’s most recent decision,

however, suggests that deference to the Commission is not appropriate. See

Brock \. Dun-Par Engineered Form Co., 843 F.2d 1135, 1137 (1988).

The Third Circuit has not articulated a clear deference rule governing cases

in Which there ts a conflict between the Secretary's and the Commission's inter-

pretations. Compare Bethlehem Steel Corp. \. OSHRC, 573 £.2d 157, 160

(1978) (suggesting that deference is inapplicable when Commission’s and

Secretary's interpretations conflict), with Director, OWCP \. Mangifest, 826

F.2d 1318, 1323 nt (3d Cir, 1987) (explaining Bethlehem Steel on the ground

that the Secretary had tailed to clarify an ambiguous regulation interpreted in

contlicting ways by the Commission). See also Donovan \. Adams Steel bre:

tors, Inc., 766 F.2d 804, 807 n.3 (3d Cir, 1985).

language * * *, we defer to the interpretation chosen by the

Commission.”); United Steelworkers v. Schuylkill Metals, 828

F.2d at 320 (“In this case, the standard of review determines the

outcome.”); Brennan v. Gilles & Cotting, 504 F.2d at 1262

(statute allows decision “either way” on question of whether a

general contractor is jointly responsible with subcontractor for

safety violations hazardous to subcontractor workmen, and

court defers to interpretation of Commission). In addition, the

existence of conflicting rules on this issue provides a strong in-

centive for forum shopping by the party seeking review of a

Commission decision. See 29 U.S.C. 660(a) (1982 & Supp. V

1987) (aggrieved party may obtain review of Commission order

in the circuit in which violation occurred, where the employer

has its principal place of business, or in the District of Columbia

Circuit). Thus, there is a substantial conflict in the circuits, and

a need for this Court to establish the governing rule.*

2. The decision below is incorrect. The court of appeals’

fundamental error is its failure to recognize that the Secretary is

entitled to deference because she is charged by Congress with

policymaking and rulemaking; the Commission is simply an ad-

judicatory agency. Judicial deference is rooted in a~proper

respect’ for the “legislative delegation to an agency” of

policymaking responsibility. Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 844 (1984). Thus, “considerable weight should be

accorded to an executive department’s construction of a

statutory scheme it is entrusted to administer” (/bid.), and the

dispositive question is Whether the agency’s “choice represents a

reasonable accommodation of conflicting policies that were

committed to the agency’s care by statute” (id. at 845) (internal

quotation marks omitted). Deference is appropriate because an

> The court of appeals’ suggestion that deference to the Commission ts ap-

propriate only when there » ambiguity in a regulation (App., /ra, 7a, Ya)

does not mimumize the reach of ty decision because deterence ty generally rele-

vant only when there ts ambiguity in the language of a regulation (or statute).

See abso LudAman \. Director, OWCP, No. 88-1733 ChOth Cir, Feb. 22, 1990),

slip op. $n 3 (noting that, “ijn Dole, we joined those Circuits which deter to

the Commission”)

agency’s interpretations are part of the policymaking respon-

sibility that has been delegated to the agency.®

As this Court has observed, “{iJt is the Secretary, not the

Commission, who sets the substantive standards for the work-

place,” and “enforcement of the Act is the sole responsibility of

the Secretary.” Cuyahoga Valley Ry. v. United Transp. Union,

474 U.S. at 6-7. In contrast, the Commission’s function “is to

act as a neutral arbiter and determine whether the Secretary’s ci-

tation should be enforced over employee or union objections.”

Id. at 7. A necessary component of Congress’s grant to the Sec-

retary of broad and exclusive authority to define, investigate,

and prosecute health and safety violations, see p. 2, supra, is the

authority to provide guidance for both OSHA compliance of-

ficers and affected employers and employees by developing

reasonable interpretations of the standards and regulations

issued under her rulemaking authority. Cf. Cuyahoga Valley

Ry. v. United Transp. Union, 474 U.S. at 7 (Commission may

not review Secretary’s decision to issue or withdraw a citation

because the Secretary’s authority to make such decisions is a

“necessary adjunct” of her power to set substantive standards

and issue citations).

In light of Congress’s explicit grant of authority to the Secre-

tary, not to the Commission, to promulgate standards for em-

ployee safety and health, it is clear that the Secretary’s interpre-

tation of her own regulations should receive deference. The

Commission does not write, or participate in any way, in the

formulation of health and safety standards. Cf. Mullins Coal

*"“When the construction of an administrative regulation rather than a

statute is in issue, deference is even more clearly in order.” Udull \ Tallman,

380 U.S. 1, 16 (1965). See also Ford Motor Credit Co. \. Milhollin, 444.US

555, 366 (1980). An administrative interpretation of a regulation is “ol con-

trolling weight unless it is plainly erroneous of inconsistent with the regula-

tion.” Bowles \. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1948); Udall

\. Laliman, 380 U.S. at 16-17. The particular deterence due an agency's inter-

pretation of ity regulation rests on the tact that the interpretation has been

provided by “the agency responsible for promulgating and admunistering the

regulation.” Jmmigration & Naturalization Service \. Stanisic, 998 US. 62, 72

(1969).

Co. v. Director, OWCP, 484 U.S. 135, 159 (1987) (“[ T]he Secre-

tary’s View is not only eminently reasonable but also is strongly

supported by the fact that Labor wrote the regulation.”). The

Commission is vested “with no direct policymaking functions

(Donovan v. OSHRC, 713 F.2d 918, 930 (2d Cir. 1983)), and

“{ujnlike the NLRB and the FTC, it has neither prosecution nor

enforcement powers,” Dale M. Madden Constr., Inc. v.

Hodgson, 502 F.2d 278, 280 (9th Cir. 1974). The Commission,

as an institution with a solely adjudicatory function, is not well

situated to develop broad expertise in administering an Occupa-

tional safety and health program, or in appreciating “the likely

practical outcomes” of different interpretations of particular

safety and health standards. Donovan v. A. Amorello & Sons,

Inc., 761 F.2d at 66. Because OSHRC reviews only contested

enforcement actions that the Secretary initiates — a tiny propor-

tion of OSHA’s overall activities '°—the Commission's vision

of the program is, of necessity, quite narrow. The Secretary, in

contrast, has gained a much wider and sharper perspective in the

course of developing new and revised standards, of monitoring

workplaces across the country for compliance, and of making

investigatory and prosecutorial decisions on the broad range of

health and safety issues that arise under the Act itself and the

standards she has promulgated.

Notwithstanding the Secretary's pivotal role, the court of ap-

peals concluded that deference to the Commission was ap-

propriate to protect the Commission’s role under the Act. ApP..

infra, 6a-7a. The court emphasized that since the Commission’s

adjudicative function encompasses a “power to ‘declare’ the

law,” deference to the Secretary’s interpretation of her regula-

tions, rather than to the Commission’s interpretation of them,

would undermine that power. /d. at 7a.

The court’s analysis is off the mark. As an initial matter, even

an avency entitled to deference on judicial review does not con-

clusively * ‘declare’ the law”; only the reviewing court may prop-

In tiscal year D988, less than two percent of the Secretary's citations were

contested: 174,396 violations were cited during that ime. Current Report, 18

O.S. H. Rep. 1668 (BNA) (Mar. 1, 1989)

erly exercise that function. See Ford Motor Credit Co. v.

Milhollin, 444.U.S. at 568 (noting the “ultimate judicial respon-

sibility to determine the law”). And the court of appeals’ state-

ment is incorrect even as to the more limited point that an ad-

judicatory agency must receive deference in its exposition of the

governing standard. The Commission’s pronouncement about

the meaning of the Secretary’s regulations are not based on the

exercise by the Commission of any regulatory function; as a

result, those pronouncements do not qualify for deference

under Chevron and its progeny. Moreover, deference to the

Secretary’s reasonable interpretation of her regulations — by the

Commission as well as by courts — is not inconsistent with an ad

judicatory function.'' When an adjudicatory body defers to a

reasonable administrative interpretation of a regulation or

Statute, it is not denigrating its adjudicatory authority; it is,

rather, exercising that authority in accordance with established

principles. Chevron, 467 U.S. at 842-845.

The court of appeals also relied on the OSH Act’s legislative

history, and in particular on the congressional determination to

separate the adjudicatory function from the enforcement func-

tion. App., infra, 6a-7a. This is a slender reed. The legislative

history reveals that Congress forged a compromise between bills

creating different administrative schemes: one approach would

have lodged enforcement authority in the Secretary, but placed

rulemaking as well as adjudication authority in separate boards

independent of the Secretary; the other approach would have

placed all three functions in the Secretary. In the end, Congress

provided the Secretary with authority to regulate and enforce,

and created the Commission to adjudicate contested citations. '?

'' Indeed, at the same time that the court of appeals stressed the importance

of the interpretive role to the Commission's adjudicatory tunction (App.,

Jra, 7a), the court also emphasized that the Commission should deter to the

Secretary's interpretation and reject u only tf “clearly wrong or in the presence

of genuine ambiguity.” Jd. at Ya.

‘* During consideration of the bill that ultimately became the OSH Act.

labor and management ad\ ocates Were at odds about whether the Secretary of

Labor, in addition to his prosecutorial role, should have power to promulgate

safety and health standards and adjudicate contested enforcement cases. The

Administration bili, supported by business interests, proposed creation ot

For purposes of the issue presented here, the critical point is

that Congress entrusted exclusive policymaking authority to the

Secretary; indeed, Congress explicitly rejected the proposal to

take that authority away from the Secretary.'? |

Thus, the legislative history does not suggest that Congress in-

tended the Commission to have broad interpretive powers. Like

the statute itself, this history indicates instead that the principal

purpose of creating the Commission was to ensure fair and

even-handed treatment of individual employers who have been

separate rulemaking and adjudication boards, both independent of the

Secretary, while the Senate and House committee bills, supported by organized

labor, combined all three functions in the Secretary. See S. Rep. No. _. Dist

Cong., 2d Sess. 8, 15 (1970), and H.R. Rep. No. 1291, 9ist Cong., 2d Sess.

17-20, 24 (1970), reprinted in Statt of the Senate Subcomm. on Labor of the

Senate Comm. on Labor and Public Welfare, 92d Cong., Ist Sess., legislative

History of the Occupational Safety and Health Act of 1970 at 148, 155, 847-850,

854 (Comm. Print 1971) [hereinafter J egisdative History), Senator Javits unsuc-

cessfully proposed in committee a compromise hereby the Secretary would

reeulate and enforce, and an independent three-person panel would adjudicate

(S. Rep. No. 1282, supra, at 55 reprinted in Legislative History 194), but he was

later successtul im obtaining its adoption on the Senate floor (/ eguslative History

381-393, 462-479). The creation of an independent een was in-

cluded in the House-passed bill Gd. at 1098-1101), and was ¢ the con-

ference commuttee Gd. 1147, 1165-1169).

' The OSH Act requires the President to appoint ¢ ‘oOmmMssioners “W ho by

reason of tramung, education, of experience are qualitied to carry out the func-

tions of the Commission ” 29 U.S.C. 661(a). Some courts have considered this

provision an indication that Congress intended to make OSHRC an expert

body. and have concluded that courts should theretore deter to ity expertise.

See, ee, Dunlop \. Rockwell International, 540 1 2d 1283, 1289-1290 (6th

Cu. 1976) But the provision is not an endorsement of any policy role for the

Commussion, rather, ut reflects congressional concern that the Commissioners

have some background in safety and health to assist them in carrying out then

adjudicative function. Indeed, the fact that the OSH Act does not require

Commission involvement in the formulation of standards or in the resolution

of the \ast majority of violations continms OSHRC'Ss lack of a policy role.

Thus, there bs no Commission review of the Secretary's mterpretation of the

OSH Act and regulations for the more than 98% of violations that employers

do not contest. See 29 U_S.C. 6594) and note 10, supra, Moreover, the OSH

Act permits attected persons to challenge the validity of standards that the

Secretary promulyates directly in the court of appeals, without ay review by

the Commission. 29 US-C. 6550)

cited for violations.'* This goal ‘s in no way undermined by re-

quiring deference to the Secretary’s interpretations of regula-

tions (or of the statute).

The conclusion that in this context the policymaking entity

rather than the adjudicatory entity should receive deference is

also supported by principles established in analogous contexts.

Referring to the Benefits Review Board and its adjudicatory role

under the Longshore and Harbor Workers’ Compensation Act,

33 U.S.C. 901 et seq., this Court stated that “the Benefits

Review Board is not a policymaking agency; its interpretation of

the LHWCA thus is not entitled to any special deference from

the courts.” Potomac Elec. Power Co. v. Director, OWCP, 449

U.S. 268, 278 n.18 (1980) (Pepco).'* Despite the court of

'* See, e.g, Legislative History 464 (Sen. Javits) (“The enforcement of

orders is an adjudicatory act, whereas the establishment of standards is a

deliberative act. There are serious penalties involved for the individual enter-

prise. It ts a case by case proposition. It does not apply across the board to

every member of industry.”); id. at 1147 (Sen. Wilhams) (separation of prose-

cutorial and adjudicative roles intended “to provide every assurance that

lairness and due process would be fairly served”). Critics of the combination

of all functions in the Labor Department had objected that Management

would perceive the Secretary , “traditionally * * * the vowe of labor in the ad-

ministration” (id. at 473 (Rep. Anderson)) as untair to businesses that were

cuted for violations (did (Sen. Holland)), and that the combination would

~ create “an undue concentration of power” with a potential for abuse 37 at 426

(Sen. Dominick)

'* The longshore and harbor workers’ compensation program (33 US ¢

9OL ef seg.) ws sumilar to the OSH Act in that one entity (the Secretary of

J abor) ts given policymaking and program functions (33 U S.C 939 (19RD &

Supp. V 1987), and another entity (the Benefits Review Board) is given ad-

judicatory authority (33 U.S.C. 921¢b)). The Secretary has delegated her

authoruy to the Director, Office of Workers’ Compensation. 20 C ER

701.201, 701.202. Deputy Commissioners subordinate to the Secretary (and

thus the Director) make mmial determinations on benefits clams (33 vu S¢

919 (1982 & Supp. V 1987), and their decisions may be appealed to the

Benetits Review Board (33 U.S.C. 921d). Unlike OSHRC. the Benetu

Review Board's members are appointed by the Secretary of Labor; ts dec

sions nevertheless constitute final agency action trom whach judicial review

may be sought by the Director and other agerieved parties. 33 US ¢ 9h

The Black Lung Benefits Act of 1972 G0U SC. 901 ex sey.) MCOTPOTates this

vwracture. See WL S.C. 932(a) (1982 A Supp. V 1987) (NvOTpPorating by

felerence certain administrative provisions of the Longshore Act) Potlow me

appeals’ asserted distinctions (App., infra, 7a-8a), this principle

is fully applicable to the OSH Act context because in both in-

stances Congress assigned policymaking responsibilities to the

Secretary. Neither the fact that the Secretary (rather than a

private citizen) brings OSH Act enforcement actions nor the

fact that in the OSH Act Congress separated that prosecutorial

function from the adjudicatory function undercuts this basic

identity. Similarly, under the Federal Mine Safety and Health

Act of 1977 (the MSH Act) (30 U.S.C. 801 ef seq.), the

Secretary of Labor, rather than the Mine Health and Safety

Review Commission, receives deference in the interpretation of

the Secretary's regulations. See Brock v. Cathedral Bluffs Shale

Oil Co., 796 &.2d at 537 n.2 (Scalia, J.) ("We see no reason to

depart trom the view we announced with regard to the Mine Act

*** which leaves interpretive discretion where i normally

resides, with the policy-maker rather than the adjudicator.”).'°

Pepoo, the courts of appeals have concluded that, because “the BRB'y tunc-

tom is more akin to that of a District Court, unlike other agencies’ polwwymak-

mg bodies,” due deference should be accorded to the views of the Director,

and not the Board, i cases of conthet over statutory of regulatory mterpreta-

tion between the Duector and the Board Alford \. Amerwan Bridge Div.,

CS. Swe! Corp, 642 F 2d 807, 809 & n.2 (Sth Cir, 1981), cert. demed, 455

US. 927 (1982). See abo Lakmun \. Director, OW CP, sip op. 5, Saginaw

Vine Co... Macculls, 818 F 2d 1278, 1283 (6th Cur. 1987), Peabody Coal

Co. \. Blankenshap, 773 F.2d 173, 17S Och Cur, 1985), Bethlehem Mines Corp.

\. Derector, OW CP, 766 F 2d 128, 130d Cir, 1985). CL Mullins Coal Co. v.

Derector, OW CP, 484 US. 138, 163-164 (1987) (Court adopts Secretary's

icasonable unterpretation of black lung regulation that she hay promulgated,

but also notes Board's agreement with Secretary), Morrison Anudsen Const.

Co. Deector, OW CP, 461 US. 624, 635 (1983) (shared “practice” of Board

and the Director » entitled to deference). But see Director, OW CP \. Detrou

Harbor Lermunals, Inc, 830 F 2d 283, 288 (oth Cu 1988) (newher Board nor

Director ps entitled to deference)

' The Federal Vie Satety and Health Act of 1977 extablished a structure

tor the maine satety and health program similar to the occupational yatety and

health provram. The Secretary of Labor is entrusted with rulemaking, in-

vestigate, and prosecutorial authors (OU S ¢ nt Revie (1982 & Supp.

V 1987p). and the Federal Mine Satety and Health Common has ad-

judicatne powers GOL SC. 81S, 823) The legistative history of the MSH Act

(which was passed seven seats after the OSH Act) continms that the Secretary

Under the OSH Act, as in these other contexts, the policymaker

should receive deference in the interpretation of the policy-

maker’s regulations.

3. The issue presented in this case is of considerable impor-

tance. As we have noted, a court’s deference rule is often out-

come determinative, and thus a rule favoring deference to the

Commission treads heavily on the policymaking and regulatory

role Congress sought to lodge in the Secretary. Cf. Cuyahoga

Valley Ry. v. United Transp. Union, 474 U.S. at 7 (“a pro-

cedure [that] would * * * allow the Commission to make both

prosecutorial decisions and to serve as the adjudicator of the

dispute * * * [would be] a commingling of roles that Congress

did not intend”). Moreover, the many decisions in the courts of

appeals on this issue (pp. 9-10, supra) reveal how trequently the

iss recurs. Although the court of appeals in this case suggested

that the Secretary can amend the regulation, the amending proc-

ess is burdensome and time-consuming, and if the Secretary's in-

terpretation of a regulation is reasonable, that process should

not be necessary.'’ Furthermore, the court’s requirement bars

enforcement of the Secretary's interpretation in the interim. In

this case, for instance, the court of appeals’ holding would

enable respondent to escape liability even though, under the

Secretary's reasonable interpretation of her own regulations, the

employer willfully violated the coke oven emissions standard by

requiring its workers lo use inadequate respirators in areas with

dangerously high emission levels.

ot Labor should recene deference ay an aspect of her policymaking and ad-

munmistrative responsibilities: “Since the Secretary of Labor » charged with

responsibility for mmplementing the Act, uo ts the intention of the Committee,

consistent with generally accepted precedent, that the Secretary's mterpreta-

tions of the law and regulations shall be given weight by both the C omission

and the courts.” S. Rep. No. 181, 98th Cong , Ist Sess. 49 (1977) See abso |

CFR. WS 86-4 (recommendation of Administrative Contereme of the

United States that legislation adopting a spli-entorcement model of agen

adjudication exphoitly provide that the adjudicatory agemy should deter to

the rule-making agency's uterpretations)

* To the extent that the same deference tule applics to statutory interpreta

tions, the Secretary cannot correct a Commission imterpretation sumply by

amending 4 regulation

In view of the division in the courts of appeals on a question

of such importance, the issue warrants this Court's review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respecttully submitted.

KiNNt il Wo STARR

Solicitor General

Davin L. SHAPIRO

Deputy Solicuor General

CLitORD ME SLOAN

Assistant to the Solwitor General

Rowtki P. DAVIs

Soliiuor of Labor

ALLEN HE brit DMAN

Associate Solicitor

CHARLES L. HADDEN

Deputy Associate Solicitor

NPAkKK S. FLYNN

Atfornes

Department of Labor

Arkiu 1990

APPENDIN A

UNITED STATES COURT OF APPLALS

TENTH CIRCUIT

No. 86-2641

biizvertn He. Dork, Sto rt tary oF Lb BOR. Pt TithOoNER

Vs.

Occtrrvtionat SAPELY AND HE at tit REVIEW Coxitission.

RESPONDENT

CEAL SILL CORPORATION. INTERVE NOR RESPONDENT

([HILED Dee. 22, 1989}

ON PETITION FOR REVIEW OF AN ORDER OF

HHt OCCUPATIONAL SAFETY AND TEALTIN REVIEW

COMMISSION (OSHRO No. 79-4786)

Before: Mloort and Battin & Circun Judges and

Dvxrciikty, District Judge.*

Brviivnk, Circum Judge.

* the Thontable Predermh \) Daugherty. Senor United States

Distrnt tudeo tor the Western Distrat of Oklahoma, sitting by

desi nat Py

(la)

| The Secretary of Labor (Secretary) appeals from a deci-

ston ot the Occupational Safety and Health Review Com-

Mission (Commission) vacating a citation charging CF&l

Steel Corporation (CF&I) with willfully violating 29

C.F.R. § 1910.102% 9,3). That regulation governs

employee exposure to coke oven emissions. The Secretary

argues that CF&I violated the Occupational Safety and

Health Act (OSHA) by failing to utilize atmospheric

testing, as envisioned by OSHA regulations, to insure that

respirators worn by its employees fit properly. The Secre-

lary turther comtends that her imerpretation of OSHA

regulations is entitled to deference. In contrast, CF&l

favors the Commission's interpretation of OSHA regula-

tions, which holds that atmospheric testing is not required

to msure respirator fit, and comtends that the

Commission's interpretation is entitled to deference.

Our jurisdiction arises under 29 U.S.C. $ 660(b). We

hold that, in the face of conflicting regulatory imterpreta-

lions, deference is properly accorded to the merpretation

of the Commission. Finding the Commission’s mMerpreta-

on of coke oven respiratory regulations to be reasonable,

We affirm.

Cr&I operated a sicel plamt near Pueblo, Colorado. As

part of ts steel-making operation, the company produced

coke, a coal derivative, to fuel ity blast furnaces. Coke

production creates carcimogenic sapors which are

dangerous to workers’ health. Acting pursuant to OSHA,

the Secretary promulgated regulations setting the mav-

imum allowable emissions for coke ovens and mandatiny

the use Of respirators whenever that level Was exceeded.

See generally 29 CER. § 19101029. These regulations

were upheld following a challenge by CE AI and other coke

producers. See American Iron & Steel Inst. v. OSH 4, 377

F.2d 825 (3d Cir. 1978), cert. dismissed, 448 U.S. 917

(1980).

In order to perform their protective function, respira-

tors must be titted properly on each employee. Although

there are several ways to test a respirator for proper fit,

two methods are relevant to this case: 1) positive/ negative

pressure testing Whereby the employee places the respira-

tor on his tace, inhales or exhales, and checks tor any

leakage of air along the seal; and, 2) atmospheric testing in

Which the employee wears a respirator in a room tilled

with noxious vapors, commonly known as “banana oil”

vapors, and tries to detect the odor.

CEAL conducted a training program in respirator usage

for its coke oven employees. A training tilm was produced

and shown instructing employees how to perform the

positive negative pressure test. CF&L also conducted at-

mospheric testing tor its employees, twenty-eight of whom

detected the odor of banana oil. CF&I allowed these

Iwenty-cight employees to return to work with the same

respirator.

The Secretary cited C&L tor tailing to equip the

iwenty-cight employees who detected banana oil with res-

pirators that tit. The ALJ attirmed the citation and, tind-

ing ChALa willful violator, tined the corporation $10,000.

On appeal, the Commission reversed the ALJ, holding

that 29 CLE LR. § 1910.1029(2)(3) only enunciates a train-

ing standard tor respirator usage, not a testing standard

for respirator fit.

Il.

Normally, an administrative agency's interpretation ot a

statute is entitled to considerable deference and should be

disturbed only if unreasonable. See Chapman v. Depart-

ment of Health & Human Serv., 821 F.2d 523, 527 Oth

Cir. 1987). Such deference is particularly appropriate

Where an agency interprets its own administrative regula-

tions. See Edwards v. Califano, 619 F.2d 865, 868 (10th

Cir. 1980). Even when two equally reasonable interpreta-

tions are present, the reviewing court must defer to the in-

terpretive choice of the administrative agency. Brennan vy.

OSHRC & Kesler, 513 F.2d 553, 554 (lOth Cir. 1975)

(Aes/er).

In the instant case, the Secretary and Commission

disagree over the proper interpretation of 29 C.F.R.

§ 1910.1029(2)(3). The Secretary contends that the regula-

tion requires atmospheric testing to assure that each

employee is properly fitted with a respirator while the

Commission interprets the regulation as requiring atmos-

pheric testing only in the course of training employees on

the proper application of respirators. The question

therefore arises: When the Secretary and Commission

disagree over the interpretation of an OSHA regulation,

Which view prevails, /.e., to whom is deference owed?

Whether judicial deference under OSHA is accorded to

the regulatory interpretations of the Secretary or the Com-

Mission is an issue upon Which the federal circuits are split.

The First, Fitth, and Seventh Circuits deter to the

Secretary. See United Steelworkers of Am. v. Schuvilkill

Metals Corp., 828 &.2d 314, 319-20 (Sth Cir. 1987); Brock

v. Chicago Zoological Soc’v, 820 b.2d YO9, 912 (7th Cir.

1987); Donovan v. A. Amorello & Sons, 761 &.2d 61,

64-66 (Ist Cir. 1985). See also Brock v. Cathedral Bluffs

Oil Co., 796 F.2d 533, 537, 537 n.2 (D.C. Cir. 1986) (de-

lerring to Secretary over Federal Mine Satety and Health

Review Commission in case brought under Federal Coal

Mine Satety and Health Act). In contrast, the Second,

Fourth, Sixth, Eighth and Ninth Circuits deter to the

Commission. See Brock v. Bechtel Power Corp. , 803 b 2d

999, 1000-01 (9th Cir. 1986); Userv v. Flermitaee Concrete

art

Pipe Co., 384 b&.2d 127, 132 (6th Cir. 1978); Marshall v.

Western Electric, 365 F.2d 240, 244 (2d Cir. 1977); Bren-

nan v. OSHRC, 313 F.2d 713, 715-16 (8th Cir. 1975);

Brennan vy. Gilles & Cotting, Inc. , 504 F.2d 1255, 1261-62

(4th Cir. 1974).

The Secretary cites our decision in Aes/er, 513 F.2d at

$53, tor the proposition that this circuit defers to the

Secretary's regulatory interpretation over that of the Com-

mission. In Aes/er, we were faced with a dispute between

the Secretary and Commission over the effective date of

an abatement order under OSHA and concluded that the

Secretary's regulatory interpretation was proper. /d. at

$58. However, contrary to the arguments advanced by the

Secretary in the instant case, this court in Aes/er did not

reach its conclusion merely by adopting the Secretary's

reasonable interpretation; we considered the respective

views of the Secretary and Commission and tound the

Commission's interpretation unsupported by the

regulatory language. The resu/t otf Aes/er should not be

mistaken as an endorsement of an approach which always

deters to the Secretary over the Commission. For in the

subsequent case of Marshall v. Cities Serv. Otl Co., 577

b.2d 126, 131 (Oth Cir. 1978), we adopted the legal con-

clusions of the Commission over those proposed by the

Secretary. Thus, the question of whether, in the face of

conflicting regulatory interpretations, deference properly

is accorded to the Secretary or Commission has not been

addressed in the cireurt,

Statutory authorization tor the Occupational Satety and

Health Review Commission is provided in 29 U.S.C.

$ 661. Composed of persons specially qualified “by reason

of ramming, education, or experience,” 29 U.S.C. § 661(a),

the Commission serves in an adjudicative capacity when-

ever an employer elects to challenge a citation issued by

the Secretary. 29 U.S.C. § 659(c). However, as evidenced

by the split within the federal circuits, whether the Com-

mission or Secretary is empowered with final interpretive

authority over OSHA regulations remains unclear trom

the statutory language. We therefore consult the legislative

history behind the Commission as a “secondary source” to

help us determine the Commission’s statutory powers vis-

a-vis the Secretary. See Miller v. Commissioner, 836 F.2d

1274, 1282-84 (10th Cir. 1988) (reliance on legislative

history is more justifiable where statute is unclear and

legislative history is consulted with specific question in

mind). Because the legislative history concerning the Com-

mission’s enactment is relatively uniform and clear, such

history provides a reliable indicator of Congressional in-

tent and should be accorded weight by this court. See id. at

1282.

When tirst proposed, the Occupational Satety and

Health Act vested the power to adjudicate alleged satety

violations with the Secretary. See S. 2193, 9ist Cong., Ist

Sess. § 6 (1969), reprinted in Senate Comm. on Labor and

Public Weltare, 92d Cong., Ist Sess., Legislative History

of the Occupational Safety and Health Act of 1970, at

11-13 (1971) (Legislative History). However, in response

to business concerns that combining prosecutorial and ad-

judicative authority in the Secretary would produce deci-

sions biased against employers, Congress created the

Commission by adopting a thoor amendment which

withdrew adjudicative authority trom the Secretary. See

id. at 463-64. Congress envisioned the Commission as an

autonomous, independent and quasi-judicial body. /d. at

462, 465. Subsequent judicial iterpretation has empha-

sized that the prosecutorial power vested in the Secretary

remains separate and distinct trom the adjudicative power

vested in the Commission. See, e.g., Cuvahova ballev Ry.

v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam)

(Commission's review of Secretary’s decision to dismiss

citation constituted an improper encroachment upon the

Secretary's prosecutorial prerogative).

Congress sought to endow the Commission with the

normal complement of adjudicative powers possessed by

traditional administrative agencies. Legislative History at

462, 465; Gilles & Cotting, 504 F.2d at 1262. Such an ad-

judicative function necessarily encompasses the power to

“declare” the law. /d. at 1261-62. Accordingly, where the

Secretary has tailed to convey the meaning of an OSHA

regulation to those charged with construing i, and where

the Commission has given the regulation an interpretation

well within the plain meaning of the terms of the regula-

tion, we will deter to the interpretation of the Commis-

sion. See Brennan v. OSHRC, 513 F.2d at 715-16. It the

Secretary believes that the Commission has interpreted a

regulation in a manner inconsistent with OSHA’s goals, it

may be necessary to amend or clarity that regulation. See

id. at 716.

Iwo circuits rely upon a tootnote in Potomac Electric

Power Co. v. Director, OWCP, 449 U.S. 268, 278 1.18

(1980), tor the proposition that the Commission’s inter-

pretations are not entitled to deference because the Com-

mission is only charged with adjudication. Schuvikill, 828

b.2d at 319; Chicavo Zoological, 820 F.2d at 912.

Potomac Llectric volved an injured worker's claim tor

benetits under the Longshoremen’s and Harbor Workers’

Compensation Act. 33 U.S.C. § 901-950. The ALJ and

the Benetits Review Board departed trom the settled con-

struction of the Act and determined that the injured claim-

amt Was entitled to an ongoing recovery. Potomac Electric

449 US. at 272. The Supreme Court held that the Board’s

mterpretation contravened the plain language of the Act,

its legislative history and all prior decisional authority and

consequently reversed the D.C. Circuit’s decision uphold-

ing the Board’s interpretation. /d. at 279-80. Included in

footnote 18 of the Court’s opinion was the following dicta:

“It should also be noted that the Benefits Review Board is

not a policymaking agency; its interpretation of the

1 HWCA thus is not entitled to any special deference from

the courts.” /d. at 278 n.18.

This language makes specific reference to the Benefits

RevieW Board created under the Longshoremen’s Com-

pensation Act; it would be presumptuous for us to extend

the Supreme Court's language outside the context in which

it arose. Moreover, the structural, historical and theoreti-

cal differences between the Review Board and the Com-

mission turther distinguishes this case from Potomac Elec-

tric. The Longshoremen’s Compensation Act mandates

nonaccusatory adjudication of injured workers’ claims

Whereas OSHA requires accusatory proceedings that may

result in substantial penalties. While the Commission

resulted from Congressional concern that the prosecuto-

rial and adjudicative functions not be vested in one

governmental entity, no such concerns are implicated by

the Longshoremen’s Compensation Act where the prose-

cutorial function is carried out by a private citizen. The

need for a strict separation of prosecutorial and adjudica-

live functions is therefore far more acute in the case of

OSHA than under the Longshoremen’s Compensation

Act. Compare Potomac Electric, 449 U.S. at 278 1.18 (no

deference to adjudicative agency in action brought by

claimant under Longshoremen’s Compensation Act) witht

Cuvahoga Valley, 474 U.S. at 7 (Secretary’s prosecutorial

function under OSHA must remain separate and distingt

from Commission’s adjudicative role). See eeneralls

Asimow,, When the Curtain Falls: Separation of functions

in the Federal Administrative Agencies, 81 Colum. 1.

Rev. 759, S03 (LYST).

Although we hold that, under OSHA, deterence ts prop-

erly accorded to the regulatory interpretations of the Com-

mission, We recognize that another result may prevail un-

der a different statutory framework. We turther stress that

our holding not be construed as a carte blanche tor the

Commission to overturn settled regulatory interpretations

of the Secretary. The Secretary’s unique policy and rule-

making role requires that her regulatory interpretations be

accorded substantial weight by the Commission and con-

travened only if clearly wrong or in the presence of genu-

ine ambiguity. Because we find the regulations in the in-

stant case to be ambiguous, we deter to the interpretation

enunciated by the Commission, insotar as it ty reasonable.

Employee exposure to coke Oven emissions is governed

by 29 CLE-R. § 1910.1029. Generally, comphance with

permissible exposure limits may not be achieved by the use

of respirators except in limited cases where abatement ts

not technologically teasible. 29 C.F.R. § 1910. 1029(2)(1).

Where respirators are necessary, however, the employer

shall select, provide and assure the use of the appropriate

respirator based upon the airborne concentration of coke

oven emissions. /d. With respect to traming and testing of

respirators, OSHA regulations provide m pertinent part:

(3) Respirator program. The employer shall insti-

lule a respiratory protection program im accordance

with § 1910.134 of this part.

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

that the respirator issued to the employee exhibits

niniwnum facepiece leakage and that the respirator ts

tiited properly.

29 CER. § 19101029203), (4). The incorporated

§$ 1910134. cntithed “Respiratory Protection,” contains

10a

general regulations governing respirator use in all indus-

tries and includes a discussion of atmospheric testing:

For the safe use of any respirator, it is essential that

the user be properly instructed in its selection, use,

and maintenance. Both supervisors and workers shall

be so wsiructed by competent persons. Training shall

provide the men an opportunity to handle the

respirator, have it fitted properly, test its face-piece-

lo-tace seal, Wear it in normal air for a long familiar-

ly period, and, finally, to wear it in a test atmo-

sphere.

29 C.E.R. § 1910.134(e%5) (emphasis supplied). The

Secretary argues that the incorporation of § 1910.134 into

§ 1910.1029%( 23) mandates atmospheric testing to insure

the proper tit of cach employee's respirator. Conversely,

the Commission held that § 1910.134(e5) is merely a

traming standard only applicable when teaching employ-

ces how to apply their respirators, not a testing standard to

imsure proper fit.

Satety legislation is to be liberally construed to eftec-

tuate the congressional purpose of improving health and

salety in the workplace. Whirlpool Corp. v. Marshall, 445

U.S. 1, 13 (1980). Moreover, OSHA regulations provide

that general standards supplement specific ones by tilling

those gaps remaining after the promulgation of specitic

standards. Jexas E. Prod. Pipeline Co. v. OSHRC, 827

F.2d 46, 49 (7th Cir. 1987); 29 CER. § 1910. S5(c). Never-

theless, H cannot be said that the Commission's interpreta-

tion Of § 1910.1029(2)(3) in this case was unreasonable.

The plain wording of the incorporated § 1910. 134¢e,5)

prescribes that atmospheric testing is mandated in the

“traimng” of employees. The Commission theretore Con-

cluded reasonably that CRA was not required to utilize

ongomg atmospheric testing to insure the proper tit of

lla

each employee's respirator. While it ts certainly possible to

reach an alternate interpretation of the ambiguous

regulatory language contained in 29 C.F.R. §1910.1029,

we deter to the interpretation chosen by the Commission.

lt the Secretary maintains that a different result: should

prevail under OSHA, she should amend or clarity these

regulations through the rulemaking process.

AFFIRMED.

lla

APPENDIN B

UNITED STATES COURT OF APPEALS

POR THE TENTH CIRCUIT

No. 86-2641

(OSHRCE No. 79-4786)

biizapein H. Dot. Sto rt tary oF L vworR. PE TitboNeR

Oc cCUPATIONAL SVltiy AND Heb at tet REV EE W Conttission

RESPONDENT

~ ACChAL SILEL CORPORATION, INTERVENOR RESPONDENL

JUDGMENT

bt ntered December 22, 1989

Betore: Moorxt and Batbook Circunm Judges and

Dvt Gut kiy, District Judge.*

Bai book, Circuit Judge.

* The Honorable brederkk Vo Daugherty, Semor Cnmed States

Distrnt Judge tor the Western Distrat of Oklahoma, siting by

desiznation

b3a

This cause came on to be heard upon petition tor review

of an order of the Occupational Satety and Health Review

Commission. The matter was heard on the administrative

record of the Occupational Satety and Health Review

Commission and was argued by counsel.

Upon consideration whereot, tts ordered that the order

ot the Occupational Satety and Health Review Commis-

sion is attirmed. Accordingly, the petition tor review ts

denied.

Entered tor the Court

» Robert L. Hoeckes ea

Rowekt L. Horcatr. Clerk

I4a

APPENDIN ©

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

i825 K STREET, NW.

4th FLOOR

WASHINGTON, D.C. 20006

OSHRC Docket No. 79-4786

SECRETARY OF LABOR, COMET AINANI

CEREAL Sitti CORPORATION. RESPONDENE

UNITED STEEL WORKERS OF Axieki 4. AFL-CIO,

Lon at 2102, At thorizip Exviprovit REPRESENTATIVE

DECISION

BLEEFORE: Buckity. Chairman; Riapik and Wait

Commissioners.

BY THE COMMISSION:

This case ts betore the Occupational Satety and Health

Review Commission under 29 U.S.C. § 6614), section

12(j) of the Occupational Satety and Health Act of 1970,

29 U.S.C. $$ 651-678 (the Act”). The Commission is an

adjudicatory agency, independent of the Department ot

Labor and the Occupational Satety and Health Adminis.

tration (“OSHA”). It was established to resolve disputes

arising out of enforcement actions brought by the Secre-

15a

tary of I abor under the Act and has no regulatory tunc-

tions. See section 10(c) of the Act, 29 U.S.C. § 659%c).

CHAI Steel Corporation (“CFA”) operates a sicel plant

near Pueblo, Colorado. At this plant, CFAL also operated

a coke oven facility to produce coke for use in its steel-

making. Following an inspection of its coke oven tacility,

several citations were issued to CF&I that alleged viola-

tions of the coke oven emissions standard. CF Al contested

these citations and the case was assigned to former Admin-

istrative Law Judge Quentin P. McColgin, Jr. After a

hearing on the merits, the judge affirmed some citations

and affirmed some in part. CF&I and the authorized

employee representative, the United Steelworkers of

America, AFL-CIO, Local 2102 (the Union”) obtained

review of the judge's decision. '

CPAL coased operations at this coke plant on ot about December

1). PON?) While this case was pending on review, we granted the

Secretar’. motion to withdraw a ctation m another case mvobing

this cmphner CF Al Steel Corp, OSHRC Docket No. St 454. Our

order im that Case Was based in part on the Secretary's assertion that he

was “whormed by Cownsel for (CORAL) and the authorized employee

representanve that (CPAT) has permanently ceased operation of ity

coke oven tacthts on (Pueblo, Colorado [” In a notice tihed with all

parties in this Case. We fequested mformation on: ¢h) whether the coke

overs mmvolved here had ceased operations, (2) whether the abatement

roquarcmicnts of These Cialiotis Were Moot, amd (3) what sstes, fo amy,

remared wm dispute. By pout stepulation of the pattics, we Were mM

tormed that the Coke oven tacthty cited mn the case hay ccaved opeta-

thom and that (PAD had “ne mtention” of resumng operations mm the

“tosecable turare ” the parties abo stipulated the abatement re

qunements of the citations were moot but that “pipe Cats apon

review. themselves. and the Corresponding penalties are the only issues

subyout to Comte dispute”

16a

Back ground

1. CF&IS Coking Operation

CF&I produced coke in three adjoining batteries: Bat-

tery B, containing 65 ovens, was located at the south end

of the configuration; Battery C, containing 47 ovens, was

in tac middle; and, Battery D, containing 31 ovens, was on

the north end. Each oven contained in the batteries was

approximately 2 feet wide, 20 feet high and 120 feet long.

Pinion walls, made of masonry, were located at the ends

of cach battery. These pinion walls extended vertically

trom ground level and served as structural supports tor the

series Of ovens contained within cach battery. The pinion

walls ranged in width trom three to six feet thick. In-

termediate pinion walls were located between baticries B

and C and between C and D. The outer pinion walls were

at the ends of baticrics B and D. There were coal bins or

bunkers adjacent to and beyond the outer prmon walls on

the north and south ends of the batteries. Door repair

shops were also located beyond the outer walls, below the

coal bins on what is known as the “bench level” of the

battery.

The coking cycle begins with the introduction of coal in-

to the coke oven. This procedure, called charging, is car-

ried out by a larry car which operates on rails that run the

length of the top or “topside” of the battery. The larry car

receives coal from one of the coal bins or bunkers located

south of the outer pinion wall on Battery B and north of

the prmon wall on Battery D. The larry car then moves

along topside to the oven to be charged, the lids on the

tops of ovens are removed, and the coal is dropped into

the oven.

Atter the lids are replaced, the coal is heated tor 16 to 20

hours at approxwmmately 1100 C (2000 £). When the coal is

coked, tt rs then ready to be pushed trom the oven. Doors

on both sides of the oven, the “push side” and the “coke

l/a

side,” are removed. A “pusher machine” then travels along

tracks on the “push side” of the battery and uses a

mechanical ram to push the coke into the quench car,

located on the tracks on the “coke side” of the oven.

The coke is then removed trom the battery area, cooled,

and transterred to the coke whart. It then ts stored tor use

in steelmaking. After the push, the oven doors on both

sides of the battery are inspected to determine whether

their chaission-limiting seals have been damaged during the

coking. Damaged doors are returned to one of the door

repair shops located below the coal bunkers at bench level.

2. OSIAS Coke Oven Emissions Standard

The coke oven emissions standard was adopted by

OSHA alter extensive rulemaking proceedings. It was

published on October 22, 1976, and became eflective on

January 20, 1977. 41 Fed. Reg. 46,742-90 (1976). The

standard that tinally was adopted was published with an

extensive preamble. The preamble explained the standard,

discussed how ut differed trom the standard originally pro-

posed, and summarized the comments received during the

notice-and-comment rulemaking proceedings.

The tinal standard requires employers to establish engi-

neering controls and work practices to reduce employees’

exposure to coke oven emissions to 150 micrograms per

cubic meter (150 ug/m') averaged over any eight-hour

period. This 150 ug/m? permissible exposure limit (PEL)

may not be exceeded in specific “regulated areas” on and

near the battery. Although other standards regulating

toxic and hazardous substances in Subpart Z of 29 C.F_R.

Part 1910 use the term “regulated area,” the coke oven

cussions standard ts umique in its definition of the term.

It identities specific Work areas on the coke oven battery as

revulated areas. In contrast, other standards in Subpart Z

detine a “regulated area” as one where the substance being

regulated is “manufactured, processed, used, repackaged,

released, handled or stored,” e.g., 29 C.F.LR.

$$ 1910.1003-1910.1016, or where employee exposure to

the substance in question exceeds the PEL for that

substance. &.g., 29 C.F.R. §§ 19101018, 19101044,

1910.1045, 1910.1047. This decision not to define a

“regulated area” on the basis of ambient coke oven emis-

sion levels was deliberate.’

The coke oven emissions standard also provides that if

the prescribed engineering and work controls do not

reduce emission levels in the regulated area to the PEL,

employers must supply employees with respirators. The

preamble to the coke oven emission standard states that

the fit Of respirators is to be tested qualitatively and quan-

titatively. 41 bed. Reg. 46,773-74. Respirator fit testing

Was discussed extensively by the parties in this case. The

record shows that a qualitative fit test is subjective in that

leakage is detected by the wearer of the respirator. A

quantitative fit test iy more precise in that leakage is meas-

The tinal standard’s treatment of revulated areas difters

sigmificantly trom the approach of the standard orwinally proposed

by the Seeretary. 40 Bed. Reg. 32,268.77 (1975). The originally pro

posed regulated area provision did not mention the battery ends or the

screening station. The preamble does not explain why “batters ends”

was added to the tinal standard. It does state generally that all areas

specitied as “regulated areas” m the tinal standard were associated

with mereased health risk. 41 bed. Rev. 46,756 (1976). In addition to

designating specitic Work areas as regulated areas, the proposed stan

dard also provided that a revulated area be established im “any other

coke plant work area where the permissible exposure bint is

e\weeded.” The preamble to the tinal standard stated that this ap

proach to designating regulated areas was deleted because “fajny area

where the permissible exposure limat could be exceeded, would. by

definition already be a part of the [regulated area}. 41 bed. Ree

46,757. Its quite clear theretore that under the tial standard,

regulated areas must be designated mm specitic work areas and por by

reterenece to Whether the PEL is exceeded

19a

ured by an instrument that compares the contaminant level

inside and outside the respirator tace piece. The preamble

confuses these tests and describes qualitative testing as

quantitative testing. 41 Fed. Reg. 46,774.

The validity of the coke oven emissions standard was

challenged in the United States Court of Appeals tor the

Third Circuit by several members of the coke-producing

industry, including CF&L. The Third Circuit generally

upheld the validity of the standard; however, the provision

of the standard that required annual “quantitative testing”

of respirators, Which bears on our resolution of one cita-

tion here, Was invalidated by the court. American lron and

Steel Institute v. OSHA, 577 #.2d 825, 838-9 (3d Cir.

1978) (4/87). OSHA subsequently amended the stan-

dard to delete the quantitative fit test requirement. 50 Fed.

Rev. 37,352-54 (1985).

3. Enforcement of the standard at CL&TS plant

During review of the standard, the Third Circuit litted a

lemporary stay of enforcement of the standard. During

May and July of 1977, OSHA inspected CF&Is coking

operation. As a result of the inspection, CR&L was cited

lor several violations of the coke oven emissions standard,

The parties entered into a settlement agreement that re-

solved all disputed issues. This settlement was approved by

the Commission and became a tinal order on June 14,

1979.

On August 1, 1979, alter the abatement date agreed

upon in the settlement had passed, OSHA conducted a

follow-up inspection to detemmine if the previously cited

conditions had been abated. As a result of the tollow-up

inspection, OSHA issued the citations now belore us,

20a

Citation 1: 29 CER. & 191010290020), “Battery bnds”

The citation alleges that CEA&I violated section

1910. 1029(d)(2)) by tailing to establish certain areas and

machinery of the coke plant as “regulated areas.” These

were the topside north and south coal bin areas, the bench

level north and south door repair facility, and nos. 1-3

push cars and larry cars. Section 1910.1029(d)(2)0) pro-

vides:

(d) Reeulated areas.

* » »

(2) The employer shall establish the tollowing

as regulated areas:

(i) The coke oven battery including top-

side and its machinery, pushside and its machinery,

coke side and its machinery, aad the battery ends; the

Whart; and the screening station;

(Emphasis added.)

There is no dispute that ChAL did not establish the

north and south coal bin areas and the north and south

door repair tacilities as regulated areas. As already noted,

these cited areas were beyond the outermost pinion walls.

There also is no dispute that the larry cars and push cars

Were not designed as regulated areas when located beyond

the pinion walls. The parties do dispute, however, whether

the cited work areas and machinery are part of the “batters

ends” and, thus, part of the regulated area. As we have

already noted, if an area or machinery ts designated as a

“regulated area,” employees in the area may not be ev.

posed to coke oven emissions in excess of the 180 ug m!

PEL, and the employer must take other protective meas-

ures, cluding medical surveillance and provision of pro-

lective equipment. '

' The standard required employers to provide quarterly mionmtormne

ow the exposure levels of cmplosees m the tevulated area,

> 1910 1029¢1 i) and Gand, and monthly medical suns cillance tor these

2la

1. acts

Compliance officer Gerald Ryan conducted the initial

inspection as well as the follow-up inspection that resulted

in the present citations. Based on conversations with

CEAL’s management and his review of CFAI’s records,

Ryan determined that CF&l “no longer” considered the

cited areas to be regulated areas. It appears that when the

initial Inspection was conducted, the cited areas were des-

ignated as regulated areas by CF&l. Compliance officer

Ryan thought that CF&L had misinterpreted OSHA’s “res-

pirator break” policy, described in OSHA Instruction STD

1-4.3, and that as a result, it had deregulated areas on the

battery Where emissions sampling showed that the PEL

was not evceeded.* These deregulated areas were described

emplovees, § 1YLO 1029Q)01)0). Employees who work tn the area must

wash them hands and tace before cating, and shower at the end of

then shitt. Section 1910. 10290 (2.0) & G40). These employees abso

must be tramed revarding the hazards of emissions and the protective

Heasures tequircd by the standard. Section 1910. LO29°K 010). Smok-

my and drinking ate prohibited m the regulated areas. Section

LYLO. PO290 WS WD.

‘ dustruction SED 14.3 was issued on April 19, 1979. approx

mately three months betore this imspection. 1978-79 CCH

Devclopments Binder © 11,678. Its purpose was to “clarity the com-

Plunce procedures tor determmmg an effective tespiator program

lor the coke oven emusstons standard.” Phts instruction states in part:

| \t this time any employee in the regulated area must wear a

respirator except m the lunch rooms of mn tiltered an loca-

tions and except as provided below

4 tEmplovees m the regulated areca need not wear a

respirator in clearhly delineated areas that have been shown by an

sampling to be Comsistentl below the permissible exposure level

(Eby ot Que mm! OS how TWA) Such locations may mchude

hares dices, such as the push side bench of small areas, such as the

bench level between batteries

Phe distraction abe states that duc to the discomtort and meoonve

Niche associated with weary a respirator, wearers Could remove fes

22a

by CF&l as “respirator break areas.” In Ryan’s view, respi-

rator break areas were still part of the regulated area.

John Winkley, CF&I’s Manager of Air and Water Qual-

uy Control, and James Oliver, assistant superintendent of

the Coke Plant, testified that the steelmaking industry con-

sidered the “battery end” to be the pinion wall. Winkley

stated: “[tlo my knowledge, the ends of the batteries are

detined by the location of the pinion walls at the end of the

series Of [coke] ovens.” His definition was based on his

engineering experience and conversations “with other coke

plant operating personnel.” According to Oliver, “[t}he

end of the battery is customarily detined as being . . . the

pinion wails, the extremity of the pinion wall.” Oliver's

definition Was apparently based on observation of numer-

ous batteries.

Winkley and Oliver also testified that the coal bin and

the door repair facility were not included in the regulated

area because they were “beyond the ends of the battery.”

According to assistant superimtendent Oliver, these areas

were also designated as “respirator break areas” because

sampling tn these areas showed that emissions were “con-

sistently” below the PEL. CF&L required employees in the

cited “respirator break areas” to Wear protective clothing.

Respirators were to be worn only in the presence of visible

emissions. The consumption of tood and drinks was pro-

hibited in these areas but smoking was allowed.

puators tor a “briet rest period” of tor “essential work Conversations”

m areas that Were-not below the PEL so long as the respirator way

worn tor a sulfhoent period to reduce exposure below the PEL. bi

nally, the mstruction states the tollowmg regarding “batters ends”:

Battery ends melude, but are not hinted to, the Coal loading area

between Dattenics on Lopside and bench level (and not pust pron

wall to prmon wall) In general, all parts of the batters aboue

ground level are within the regulated area

23a

The parties did not focus very closely on whether CE&I

was required to designate the cited push cars and larry cars

as regulated areas. The comphance officer testitied that

this machinery should have been designated as regulated

areas When located beyond the pinion walls because Mt was

contaminated with coke oven emissions when present on

the battery. Assistant superintendent Oliver stated that

when the cited cars Were not in use Or Were being repaired,

they were beyond the pimion walls and theretore not con-

sidered part of the regulated area. He stated that when

these cars were within the battery walls they were con-

sidered part of the regulated area.

2. the judge's decision

The judge concluded that CEFAI had violated the stand-

ard by tailing to designate the cited locations and

machinery as regulated areas. Although the judge tound

that “[t}he battery end ts considered throughout the indus-

iry to be the pinion wall,” he concluded that the Secretary

did not use the term in the sense understood by industry

and theretore that tacilities and machinery located beyond

the prmon wally must be considered part of the regulated

area.

Based on an aerial photo of the coke plant, the judge

reasoned that “anyone, except possibly a member of the

coke oven industry” would consider CEA series of coke

batteries as a “single structure.” Because of the proximity

of the cited areas to the coke ovens, he concluded that

these arcas should be considered part of the “battery ends”

and therctore a regulated area.

Ciumy the preamble to the standard, the judge turther

found that “fijt [was] the express mtention of the promul-

gators of the standard to include wathin the regulated

areas, all work areas wherem the permissible cxposure

lumat to Coke oven cmssions Could be exceeded.” Although

24a

he tound no evidence of sampling results taken at the door

repair tacilities and coal bins, the judge did tind that

samples taken in the immediate vicinity of these areas ap-

proached or exceeded the PEL. See note 5, fra. He con-

cluded that the PEL “could” have been exceeded in these

locales and, thus, that they should have been designated as

regulated areas. He abo tound that a statement in the

preamble —that “[t}he larry car receives a load of coal

trom the coal bunker at the end of the battery” — provided

“[mjajor support” tor concluding that, in using the term

“battery ends,” OSHA intended to include facilities be-

yond the pinion walls, such as coal bunkers, as part of the

regulated area.

The judge reyected CFATI's argument that the larry cars

and push cars should not be considered part of the regu-

lated areas when positioned beyond the pinion walls. Ac-

cording to the judge, this machinery could be contami-

nated by coke oven emissions even when moved beyond

the prmon walls. Without explanation, he concluded that

there Was “need tor some, but not necessarily all, the pro-

lective requirements that come into play by designating the

machimes as regulated areas.”

’ 3. The parties’ arguments ,

C EAI argues that the judge's broad mmterpretation of the

term “battery ends” is contrary to the industry's detmition

of the term and siolates the rule of construction that the

words of a regulation should be given their “comments

understood” meanmeg. In this regard, CEAL poms out that

the judge exphonly tound that “[tjhe battery end ts con

sidered throughout the industry to be the pron wall.”

According to CEAIL, the other reasons advanced by the

judge tor broadly imterpreting the term “battery ends” are

untounded. CEAL tint argues that the pudge’s tinding that

the batters “looks” lhe a single structure represents a lay-

25a

man’s view of the structure that disregards indusiry’s view.

li next contends that, contrary to the judge's tindings, the

preamble does not provide support for a broad imterpreta-

thon of the term “battery ends.” CEA concedes that the

preamble does state that “coal bunkers” are located at the

“end of the battery” but argues that this statement was

taken out of context by the judge and that u merely re-

tected a very general statement used in discussing the cok-

ing process and not a definition of the term “battery end.”

CEAL next contends that section 1910. 1029(d (2) speciti-

cally enumerates the areas that must be regulated under

the standard. It asserts that the pudge misread the standard

by finding that a regulated area exists wherever the PEL

could be exceeded. CF AIL asserts that this approach to des-

iwnating a regulated area was not followed im the final

standard and cites the language trom the preamble in sup-

port. Inany event, CEA contends that the record contains

samphng results trom both door repair tacilitics and that

these results were both below the PEL.

The umon argues that the pinion walls are not the “bat-

tery ends.” It asserts that “it the Secretary had imtended the

regulated area to be defined by the pinion walll,] that ts

what the regulation would have said since that ts the term

used by the industry.” In the umon’s view, “battery ends”

refers to the area and structures attached to the pimon

walls that comtam the cuted coal bins and door repair

areas. The union pomts out that the pinion walls are three

to tN foot thick and that they are noi work areas.

Relying on the preamble, the union further asserts that

OSHA excluded areas on and fear the battery trom the

regulated arca coverage only where there was no epidemio-

lovical evidence of excess health risk. Ht comtends that the

preamble and standard require that certaim job classifica-

thos must be montored quarterly because thes are assoct-

ated with excess health risks. Smice certam of the employees

26a

in these positions — such as coke oven paichers, repairmen,

and maintenance personnel — work on the batteries as well

as im cited areas beyond the pinion walls, it submits the

cited areas should also be considered part of the regulated

area. The union also argues that evidence showing that the

PEL could be exceeded in the disputed areas demonstrates

the need tor establishing these areas as regulated.

Finally, the union contends that even if the Commission

narrowly construes “battery ends” as pinion walls and con-

cludes that the door repair tacilities and coal bunkers were

not regulated areas, the citation must be affirmed as to the

ened larry cars and push cars because the standard re-

quires “topside and its machinery [and] pushside and its

machinery” to be established as regulated areas without

reference to the “battery ends.”

Although the Secretary concedes that the term “batters

ends” has no plain meaning and is undetined by the stan-

dard, he submits that language contained in the preamble

to the coke oven standard demonstrates that it) was

OSHA's “clear intention” to include facilities and machin-

ery located beyond the pinion wall within the regulated

area Like the union, the Secretary contends that the

preamble’s statement that “[t}he larry car receives a load of

coal trom the coal bunker at the end of the battery” (em-

phasis supplied by the Secretary) demonstrates the intent

oO melude areas such as the coal bunkers within the

regulated areas. He turther asserts the preamble and the

standard’s detinition of regulated area show that OSHA

intended to melude large areas on and near the battery in

the regulated area and not a three-to-six-foot wide wall

\coording to the Secretary, a broad imerpretation of bat

tery ends also is appropriate because CEALS sampling

results show that coke oven emissions “can and do exceed

the (PEL) in areas beyond the pinion walls.” He points out

27a

that CEAL recovnized that the disputed areas and machin-

ery Were part of the regulated area because, prior to the ts-

suance of OSHA Instruction Sid. 1-4.3 (see note 4, supra)

and when the mitial inspection of its facility was con-

ducted, CEAL had designated these areas as regulated

areas. Finally the Secretary argues that his construction of

the standard should be controlling because tis reasonable.

4. Discussion

lo determine whether ChAL violated the standard by

tailing to establish the door repair and coal bin areas as

“regulated areas,” we must determime whether they were

part of the “battery ends.” In construing the standard, we

are mindtul of several principles. We must look first to the

language of the standard. See Bunee Corp., 86 OSAHRC

, 12 BNA OSHC 1785, 1789, 1986 CCH OSHD

€ 27,568, p. 35,804 (No. 77-1622, 1986), and cases cited.

Second, although legislative history and other extrinsic

aids to imterpretation may be used to determine the intent

of the dratter, standards should be construcd im a way that

does not deprive employers of tai notice of the require-

ments of the law. See ad., 12 BNA OSHC at 1790-91, 1986

CCH OSHD at p. 35,806, and cases cited. See also Usery

v. Aennecott Copper Corp., 377 §.2d Vihd, titlY (bth

Cu. 1977), Bethlehem Steel Corp. vo OSHRO, 373 b.2d

187, 161-162 Gad Cir. 1978); Diamond Roofine Co. v.

OSHIRC, 528 F.2d 645, 650 (Sth Cir. 1976); Lisbon Con-

tractors, Ine., 84 OSAHIRG 19 Al, LE BNA OSHC 1971,

1973.74, 1984 CCH OSHD © 26.924, p. 34,500 (No.

SO-97, 1984) We tind that the languave of the standard

and tts legislative history shed no light on the question be-

tore us, and that the construction of the standard tor

Which the Secretary argues would deprive employers of the

lun notice of then obhwations that duc process of law re-

28a

quires. We therefore construe the term in the manner that

this record shows it is understood by the coke oven in-

dustry.

The standard does not define the term “battery ends.”

Moreover, as the Secretary observes, the term has no plain

meaning. Yet, the judge found, and neither the Secretary

nor the union disputes, that “[t}he “battery end’ is con-

sidered throughout the industry to be the pinion wall.”

The judge and the parties have, however, looked to other

sources as Interpretive aids.

Relying on the preamble to the standard, the union and

the Secretary argue, and the judge found, that OSHA in-

tended to establish regulated areas wherever the PEL tor

coke oven emissions was exceeded. Because of the pro

muy of the cited areas to the coke ovens and because

CEAT’s monitoring data purportedly showed that the PEI

“could be exceeded” in the cited areas, the judge deter.

mined that the cited areas should be considered regulated

areas.

This argument iy directly contrary to the legislative

history of the standard. The portion of the preamble rehied

on by the Seeretary, the union, and the judge states:

Both the proposed standard and the Advisory Com

mittee report also established “any coke plant area

where the [PEL] ty exceeded ay an RA [regulated area]

(hx. ba, p. 322278; 3, p. 18). The final standard dows

not follow that approach. The permissible exposure

limit of this standard only applies in the RA. (See

discussion of Permissible Exposure Limit) Amy area

Where the permissible exposure lant Could be excocd

ed, would, by detimition already be a part of the RN

Areas of the coke plant outside of the R.A are covered

by the existing CTPV standard. (See discussion of

Scope and Application).

41 bed. Reg. at 46,757 (emphasis supplied). As can be seen

trom this excerpt, regulated areas under the tinal standard

were to be established by work areas and mor by whether

the PEL is ot “could be” exceeded. Although the approach

followed by the judge and urged by the Secretary and the

union Is consistent with the proposed standard and with

other OSHA health standards, it is Clearly inconsistent

with the coke oven emissions standard as finally adopted.

See note 2, supra. binding the preamble very clear on this

pom, We must reject this basis for concluding that the

cited areas are encompassed by the term “battery ends.” >

We also do not find that the preamble’s isolated state-

ment that coal bunkers are “at the end of the batiery,” pro-

vides “[mjajor support” for concluding that, in using the

term “battery end,” the Secretary intended to regulate

taciities beyond the pinion walls. This statement is con-

tained im a general description of a typical coking opeta-

tion and clearly is not definitional. It is the only mstance

Based on this record, atts far trom cheat whether the PEE was con

wetently excooded m the cated area. Relying on f viwbut © 2? the pudee

‘ated that ne sampling resulty were produced tor cuher the door

repanon coal ben atcas but that samples taken mn the north and south

larch “Com” and did exceed the PET C ontars to what the

Hides tow. there are sampling results mm evidence tor the north and

wth dow repan areas See Evhaib R70) These results show that on

emt septate cates an the Latter part of 1979. the doo ropa Lactites

were sampled ©) the 16 samples reported, mone c\cooded the 180

we m PEL the biehest beme 123 ae mi’ These records alo show

that thee teorthy ated soeathy heh roms wong semgyod 24 tres botwoen

Wd, 19°9 aad Docomber, 1979 \lthoweh same taken at the

wert ty Hers fener was 28 ae a, as toned by the paddee. the roman

me 2) samp. were below the 180 ae a! PEE wath 16 of thes tonal

hho “Mie oy

Wha

of such usage im the 43-page, triple-columned preamble to

this standard. We decline to wring an inference of intent

trom such an otthand and twolated statement.

OSHA Instruction STD 1-4.3, a policy directive on

respirator programs for coke oven batteries, see note 4,

supra, also tails on this record to coms meme)ly show an in-

temt by the drafters to encompass areas beyond outer

pion wally wihin the “battery ends.” This directive

discusses at length when “respirator break areas” may be

established in a regulated areca. In discussing that subject,

ut abo states that:

Baticry ends include, but are not limited to, the coal

loading arca between batteries on topside and bench

level (and not just pinion wall to pinion wall). In.

general, all parts of the battery above ground bevel are

within the regulated area.

(Emphasis added.) This brict Passage canmat be said on

this record to be comtrofling. First, the record here con-

ams no evidence that OSHA Instruction SID 1-4.3

reflects the iment of the drafters of the coke emissions

Mandard. The mstruction was issucd over three years alter

the standard was published. Newher the instruction not

the record shows, and the Secretary's bret does not repre-

semt, that the drafters of the imstruction were abo the

dratters of the standard of that they comulhted wah the

vandard’s dratters. Like the reypuratot break-area policy ut

eMablished (see note 4, supra), the mstruction’s discussion

of the term “battery ends” was only a brict divresseon trom

the rest of the instruction, and Could well have been only

an atterthought by cntorcement persomnel. Second, the imn-

Sruction does not address the situation posed by the facts

of this case. Although the mstruction states that batte: y

ends include coal loading arcay outside prmon wall, the

battery ends bemg discussed are those between battetics, a

configuration that ts tar different than that existing at

CEAI’s plant. At best, this view would mean that coal

loading areas between operating coke ovens would be

regulated. It provides no support, however, for an argu-

mem that the term “battery ends” encompasses exterior

coal loading areas beyond the outer pinion walls. Indeed,

the very fact that the instruction stated that interior coal

loading areas were within the battery ends, but did not say

the same about exterior coal loading areas, would tend to

indicate that the author of the instruction understood that

the standard did not encompass evicrior coal loading

areas.

We also decline to ascribe significance to the interpreta-

tion of the standard proftered in the brict submitted by the

Secretary. This standard ts one of the tew standards that

was dratted by OSHA.® Inasmuch as the intent of OSHA

in dratting the standard must be considered along with

considerations of fair notice im construing the standard,

Wwe cannot ignore the construction placed on a standard by

those in OSHA who dratted ut. Such a construction would

obviously have considerable probative value in determin-

inv the effect of the standard. However, the brict does not

represemt that uw was written or reviewed by lawyers who

consulted with the dratters of the standard of participated

m the dratting of the standard. See New England Tele-

phone & Telegraph Co. v. Public Urilities Commission,

" The vast majyorts of the standards adopted under the Not were

dratted by pri ate organizations rather than by OSHIA OSHEN was re

quied by section Gta) of the Act to adopt privately dratted standards

Without substantive Change. See note 12 wifra and accompanying test

Nan of the standards that had been dratted by COSHEN of the old

Bureau ot Labor Standards and adopted under section (abot the Act

as established tederal stamdaids were abo dered barechy trom

porvatels dratted stamdards. See veneralls Dun Par bl avineered borm

Co, No TY 2553 Chuly WW, 1986) ship op at dl, 14 A on LO, surveyeny

the hastens and der athon of CSPEN standards)

32a

742 b.2d 1, 11 (ist Cir. 1984) (on rehearing) [The FCC's]

‘views’ here do not reflect agency policy reached alter

debate|] among stat! or commissioners. Rather, as tar as

we can tell, they simply represent the General Counsel's in-

terpretation of the statute; they are contained only in his

briet.”). CY. Investment Company Institute v. Camp, 401

JS. 617, 626-28 (1971 counsel's of PEt In Htigation are

“hardly tantamount to an administrative interpretation”

Of a@ statute).

Finally, we cannot agree with the judge’s view that the

cited areas are part of the battery ends because the coke

oven tacility — extending trom the north door repair and

coal bin area to the south door repair and coal bin

areas — “looks like a single structure.” Acknowledging that

he was adopting the “single structure” interpretation ad-

vanced by the Secretary and the union, the judge tound

that “[aJnyone, except possibly a member of the coke oven

industry... would likely view such tacilities as one struc-

ture... 2” As CE&L points out, however, the judge’s inter-

pretation is based on a layman’s view of its facility.

Neither the judge’s observation as to the physical contin-

ully of the tacility nor his resultant interpretation of the

term “battery” ends retlects industry’s understanding ot

usave Of this term, but instead employs an untutored

observation to supplant the meaning of a term that is well-

understood by individuals who are mtimately tamuilias

with coking operations and who, ultimately, are respon-

sible tor complying with the standard. Given the unrebut-

ted evidence that industry considered the battery ends to

be the pinion walls, we cannot adopt an interpretation that

is based solely on the appearance of a coke oven to an un

tutored eye.

We shall therefore apply the usual canons of con-

struction here. [wo well-settled rules of interpretation

guide our decision. The first rule iy that a word that is a

term of art in a particular discipline should be construed

accordingly where the statute or regulation being con-

strued applies to the particular discipline. Corning Glass

Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 2231

(1974). See United States v. Cuomo, 525 F.2d 1285, 1291

(Sth Cir. 1976), and cases cited therein. See also 2A C.

Sands ed., Sutherland on Statutory Construction §§ 45.08

at 23, 47.7 at 137, 47.29 at 150 (1973). The second rule ts

that which we have noted above —that standards ought

not be construed in a manner that deprives employers of

fair notice of the requirements of the law.

The record here amply demonstrates that the only in-

dividuals who readily understood the term “battery ends”

were coke producers. They considered the “battery ends”

io be the pinion walls. The Secretary and the union argue

that the coke producers’ reading of these terms yields an

incongruous result because employers would then be re-

quired to designate a three-to-six-toot wide wall as a

revulated area. However, given the rather tormidable

evidence of mdustry’s understanding of this term and

OSHA's tailure to inform employers that uw intended this

term to be applied in a different sense, it ts inappropriate

io construe “battery ends” in a sense that differs trom in-

dustry’s understanding of the term. As already stated,

employers are entitled to tam notice of them respon-

sibilities under the Act. Standards cannot be construed to

mean What an agency mtended but did not adequately ex-

press. Diamond Roofing, 328 b.2d at 649. “The test is not

what [the Secretary) might possibly have mtended but

What he sand.” Bethlehem Steel, 373 b.2d at ol. As

34a

Justice Frankturter observed with regard to the interpreta-

tion Of statutes:

Even when it has spoken, it is as true of Congress as

of others that what ts said ty what the listener hears.

Some Reflections on the Reading of Statutes, 47

Colum.L.Rev. 527 (1947). Here, the record shows that

When OSHA said “battery ends,” the employer heard

“pinion walls” because its industry considers these terms

synonymous and because OSHA gave the industry no

notice in the standard that the term was not used im the

sense He understood.

Ihe Secretary asserts that ChAT heard and understood

precisely what he claims OSHA intended by “battery ends”

because the record also shows that the cited areas and

equipment had at one time been designated as regulated

areas. It appears that when CHEAT was first inspected by

OSHA in 1977, the cited areas and equipment were des

wnated as regulated areas; however, tollowing this in

spection, CRAL departed trom this policy. The assistant

superintendent of the coke plant, Oliver, testitied that

some time alter the standard was promulgated, on a date

that he could not recall, a determination was made that the

ced areas Were not part of the regulated area. This

evidence, Hots submitted to us, demonstrates that the

employer understood precisely what the standard re

quired.

An employer who ts actually aware of a standard’s re-

quirements may not claim that the standard tails to pro

vide adequate notice of its requirements. See Diebold, Ine.

vo Marshall, 385 b.2d 1327 (6th Cir. 1978). We do not,

however, tind that evidence that the cited areas Were Once

desivnated as regulated areas is sullicient to overcome

CEALS and the coke oven madustry’s contrary mterpreta-

thon mn this case.

35a

Accordingly we tind that the standard does not require

areas beyond the outermost pinion walls to be designated

as regulated areas, and we reverse the judge’s tinding of a

Violation,

We next consider whether CF&IL violated the standard

by tailing to designate the push cars and larry cars as

designated areas. Nevther the parties nor the judge tocused

closely on this aspect of the citation. The record shows

that ChAT considered these cars part of the regulated areas

when they were between the pinion walls. They were not

designated as revulated areas when they were positioned

beyond the pinion walls, in the vicinity of the door repair

and coal bin areas. The judge tound that CEAL violated

the standard by tailing to regulate these cars because they

“could be expected to be contammated with coke oven

emissions even when they have been moved beyond the

pinion wally... .” Without elaborating, he noted, “there

is need for some, but not necessarily all, the protective re-

quirements that come into play by designating the

machines as regulated areas.”

We reject the judge’s adoption of an intermediate posi-

tion —declarmg that some but not all of the protections

applicable to regulated areas shall apply when machinery

is beyond the outer pimion walls. The Commission cannot

construe this standard to require less or more than the pro-

tections imposed by its words without substituting its view

of occupational health policy tor that of the Secretary. See

wenerally Lisbon Contractors, 1 BNA OSHC at 1973,

1984 CCH OSHD at p. 34,500. The question is instead

controlled by the language of the standard and the stand-

ard’s detimition of “coke oven battery.”

In describing the machinery that ts to be included in the

“revulated area,” the standard reters to “[t}he coke oven

battery tichuding topside and ity machinery, push side and

ws machinery, coke side and ts machmers a

36a

Although the standard thus reters to coke oven machinery

such as the larry cars and push cars, it does so m con-

nection with the topside, the pushside and the coke side.

The standard does nor state that the larry cars and push

cars are themselves “regulated areas” when they are no

longer in the coke oven battery —defined by section

1910. 1029(b) as “a structure containing . . . slot-type coke

ovens” —or the battery ends. We therefore find that the

judge erred in concluding that the standard required this

machinery to be regulated when positioned beyond the pi-

nion walls.

Here the record shows that CFA&L treated the machinery

as part of the regulated area when it was positioned be-

tween the outer pinion wally on the three batteries

operated at ts taciity, Batteries B, C, and D. This is all

that the terms of the standard require. Accordingly, we

vacate the portion of the citation alleging that CFA&l

violated this standard by tailing to designate this

machinery as regulated areas.

Citation 2: Sections 1910. 1029(23) and 1910. 134(e 5),

Respiratory Program.

CEAIL was also cited tor a violation of 29 CER.

§ 1910.102% 23), which imeorporates by reference 29

C.F.R. § 1910.134.° The citation alleges that:

— Sectron PYEO 10290213) provides

> 1910. 1029 OC ode Oven cHtsscons

(yd) Respuratorns protection

(3) Resyurutors proeram he cmplover shall wititute a

hey ators Protection provram m aw cormdame woh > 9h 1 ot

this part

The employer did not institute a respiratory pro-

lection program in accordance with 1910.134 of this

part, im that: respirator training did not provide the

men an opportunity to have their respirator fitted

properly and test its face-piece-to-face seal:

a) 28 coke oven *yees Working in the regulated

area exposed to coke oven emissions failed their

respirator tit test and were not provided with a dif-

ferent respirator which would fit.

” ~ 7

The specitic provision of the respirator standard that

allegedly was violated is section IYO. 1344005), which

slates:

§ 1910.134 Respiratory protection.

* * =

(ec) C se of respirators.

» -~ ~

(5) bor sate use of any respirator, it is essential that

the user be properly instructed in its selection. use,

and mamtcnance. Both supervisors and workers shall

be so instructed by competent persons. | ramimg shall

provide the men an opportunity to handle the

respirator, have ut titted properly, test its Lace-piece-

tO-face seal, Wear Hin normal air for a long tamuhiart-

ty pertod, and, tinally, to wear it in a test atmosphere.

Comphance officer Ryan testified that betore they were

assigned to the regulated areas, CHAI cmaplovees were

given a resprator, told when to use it, and shown how to

PCLLOrM a Positive negative pressure test.” They were ako

* Soothes Set ANSE Z858.2-1969. cotubed “Practices tor

. . a

Respirators Protection.” exphams how te test toe Lacpce hakave

shown 4 film illustrating the various types of respirators,

thei use and proper function, use of a banana oil (isoamy!

acetaic) atmosphere tor fitting, and how to place and

fasicn a respirator properly, including tightenmyg tor good

int. Ryan testified that CEAIL abo gave the employees a

banana oil test. Ryan stated that at the settlement con-

ference that tollowed his 1977 inspection, he told CHAT

that resprators should be fitted in banana oil oF writant

smoke. He testified that the traminyg til shown to newly

hired CEA employees stated that Hf an employee detected

the presence of banana oil, a new respirator would be sup

phed. During the mspection, Ryan learned that this was

no being done. He stated that CEAI's plant superimen-

demt and safety director told him that employees whe

detected banana oil while wearing then respirators im the

ies atmosphere’ were nevertheless sent to work in the

‘regulated areca withowt bemyg titted with a differen

with o peste of HevatNe Pressute test HM wate

(1) Pesmtinve Presse Lest € howe the estialatnn vale and oo

hale gently mite the taccpiece Phe tace ta os commendorod sate tu

oy oa sheht feestne prose cap be bat ap wende th

icp’ Sih any ndeme of cute and leabaee of an at the

ah bor meet tesperatens. thi method of leak teotoe 1 geet

hat the Weatet fet tommerne the hahatice 0 al weet ated thon

actully teplace & ater the teow

(2) Nevatne Presse bow € be ' ln thet a4

stiietat on siitiductoal ithe Ta LL vo

mf j jit. iba tty 1 filivah TL ; ' ta j

bag frotith wh teed the Pecath 1 ! j

respuator. According to Ryan, CF&I’s management told

him that this practice was followed throughout the coke

oven mdusiry. Ryan also stated that records supplied to

OSHA by CEA&I’s industrial hygiene stalt showed that

prior to the mspection, twenty-eight employees, who

worked im the regulated area, smelled banana oil while

Wearing respirators in a test atmosphere bul were not sup-

phed with different respirators.

In his bret, the Secretary argues that section

1910.1 34e5), as incorporated by section 1910. 1029(¢\3),

requires the employer to assure that the respirators worn by

is employees are “tuted properly.” He maintains that a

qualitative ti test conducted in a test atmosphere of irritant

smoke on banana oil is required. Ht the employee tails the

lest because he can detect the substance surrounding the

respirator, the Secretary states that the employer must then

provide the employee with a properly fitting respirator or

remove hun trom the workplace. The union agrees with this

argument.

CTAIL contends that nether a banana oil of rina

snoke test bs mandatory under section 1910.134¢e5). tn

is siew Ht Comphed wih the standard by providing a

protic Hevalive pressure test to cmployees at the outset of

heen congrhers ment

Ihe judge townd that C EAL willtully violated section

1910 102% e Kd) by tase fo provide respuatons with a dit

herent size Lacepiece to cmphovees who tailed the banana

mtest. the padge repected CEAIS argument that ad

HST Eth Ot a PetINe Nev atIve Pressure test complies

With section P91 DMGeHS) since ths test ns met done ma

kh ditthephete as tequncd by the standard He abe

teased that Dy Lathing to replace the resperatons of these

cmiplosces whe tated the banana of test, CP AL had tated

her egy with the “titted properly” requarcmendt of sex

feo DVI Dados

The gravamen of the alleged violation is CLEATS tatlure

to assure that employees in the regulated area were equip:

ped with respirators that tit, which the Secretary asserts

must be determined through use of a test atmosphere. The

Secretary cites section 1910. 1029¢2)03), which Is part of the

“Respiratory protection” section of the coke oven emits:

sions standard. However section 1910, 102908 1400), which

is also a part of the general “Respiratory protection” pec

tion, specifically covers the fit of respirators. TH pros tiles

that “the employer shall assure that the respirator issued to

the employee exhibits minimum taceptece leakage and that

the respirator is fitted properly.” In our opimon, section

1910. 1029 eK 41) ts specifically applicable to the cited

condition and should have been cited by the Secretary in

stead of section 1910. 102908104).

We read section 1910, 102924) as a traming standard,

it does not require the employer to assure proper Hil ot an

employee's respirator, Section 1910, L029 gS) requires the

employer to establish a respiratory protection prognan i

compliance with section 1910134. Section T9TO Teh),

entitled “Requirements tor a mimmal acceptable

program,” states that the user shall be “wnsrrin ted and

drained ii the proper use of respirators and then lita

tions.” (bmphasis added) At no place does section

1910. 1 34¢b) state that the emphover mist assure proper tl

ot respirators The Secretary nevertheless tetets te

lone age section P9hO DMG) Concerning proper fl

and a test atmosphere om support ot fs ar gement (hat se.

trom PPT PO29 CT) requires the crph ever bo asstire pepe

resprator tH. We de not agree. Section 19h tT er

utes Pistttic thet fer tisets mm the sehectnom, toc, atid

Hii Ot Teoh ates ft thet states that Uh aneeiee

shall prowide the emphovees “an opper tunity” be anetiy

other thoes, “handle the resperater, Dave a fitted prerpet

I. test ts face prce tee fave seal Pl) ee

4la

lest atmosphere.” We imterpret section 1910. 134¢e)(5) as

requiring the employer to instruct employees during train-

ing in such things as how to select a respirator, how to put

on a respirator, how to achieve a proper ti and how to ob-

tain a tace-piece seal. The employees must also be given

hands-on-expericnce with the respirators during traming.

Accordingly, cach employee must be given a respirator

and the opportunity to wear u, including the chance to

wear the respirator in a test atmosphere, during training.

However, section 1910. 134¢e)(5) does not, as the Secretary

asserts, require that the employer assure proper tit of the

respirator oF specity how this is to be done. As we noted

previously, section [910 102908 1 4)0) Covers this salety re-

quirement.”

li ws a well established principle of statutory con-

viructhion that a statute or regulation must be read as a

whole and that all parts of a statute, if at all possible, are

to be given ellect. See Sunpler Tune Recorder Co., 85

OSATIRG , 12 BNA OSHC 1591, 1594 0.6,

1YSS), Northwest Aivlines, Inc., 80 OSAHRC 87/BS, 8

W487 (No. 13649, 1980). Here the Secretary's own stand.

aids make a distinction between Laing im respirator use

and aude oof proper resprator tints Section

IYO P0290 1) Froquites the establishment of a respirator

prvi program While secthon IYO 1029 eM 4D re.

quires Fespinators to be fitted property. I would theretore

Noted sclrhohe te section ESTO P29 be dite ted pron edhod that

qeeaneiihatine Tet loots shall fhe pertotmned annaally tot cach cope

She tee ab tee peetecned, pearticahete filter pesperaton Dh pron nnn

wa itt bh dheote by the O0S0 Comet ated aa debetod fy the Secretary

stinced th W/NS7 in titent “wited kK. » OrgsZ (PRS) fh he mee feo

7S pieheu i? ' S tetas

42a

be anomalous to equate ramming with proper respirator ti

See United States Steel Corp., 77 OSATIRG 64 CB, §

26,225 (Nos. OBIS & 10849, 1977). Indeed to mterpret

section 1910. 1029 08103) as requiring the employer to assure

proper resprrator tt would read owt of the standard any

meanime to TYLO 102908 M4)

Moreover, the source standard trom which section

1910.134 was derned makes clear that use of a test at

mosphere to determine respirator titty not mandatory. In

this case, the source standard is ANSI Z88.2-1969. LT the

section 1910.1 d40e05), the ANSI source standard requires

the use of a test atmosphere tor the traming of cmployees

ANSI 788.2-1969, § 7.4. Thowever, the ANSE santos

standard does not state that the employer must assure pro

per respirator tit during traning; ut abo makes cleat that a

kM atmosphere bs wot mandatory tor determine

laceprece tit Dhe ANSI provision states that “|[ppfotential

users OF respirators s/rowld also be required to test then

lacepiece Tn by wearmge the resprraton ander toalistte tes

conditions.” (biphasis added.) ANSI Z88.2-1969, 5 7.5

bike most ANSI standards, ANSE 788. 2.1969 comtanis a

proviston explamng the sigmiticanmce of the words “shall

and “should.” Secthon 1.4 states

| ; Shall apical Shonild” I tis prearst mes «off tes

wiamdard ate mandators m nature where the word

dha

“shall” ws used and advmory m nature where the word

“should” ws used

Since the ANSI source standard does not require the use of

a test atmosphere to determine respirator ti, we do not in

tcrpret the OSHA standard to require use of a test at

mosphere to determme respuator tit

ln the mstant case, CRA rained the apphoability of sec

on «61910 102% e401), and the compliance officer

acknowledged that u apphed. He also acknowledged that

he might have cued the wrong siandard.'' The Secretary,

Sovteen P9hO | iten S) was adopted wader soothe (1a) of the Act

\iithoet tovard to the comment and tence tobomak pe pars Pvtentes anf

othe fb) and the \deestratne Praedere At, St SO 8 S84

bin the roan & cannot be selstanteally anaditiod trom os we eT Ae

fhetualel, th CIN7TRE SHS) Ctl”, Ota oh IVD, Cocwrrwe

{ ¢ teeter A Sow de SLOSS NEIROG Y VD DORN VOIR 146

I hy LD) iL Mtns ahd tee in ‘ om hv hole nw 4m

An biases ' Tit weir tii mat atict tte Ghanitutine Tt teow

pre Psbe ‘a whom Py tle ws wil at ae \ pr May tation

drrev tod tispe tots fot te chown soot P9hO PM ie nm dn The Coen

phate ott Pohl, PME LET, Was Chto Th Dr le

ti 1 agyaret i t rocsl fees Protest com CPNEE AS PP ett ter cw THA wa bt

‘ , ‘“ | shetedd CAtefeee MF PSY ORD Edie ch Wie shake

ib A od / feu tend C ohe non paghMarvet nw ts

pias | » peti teva i ‘ mua hee cua Sil tae Se

im prouctod putty hate Ththet tov athe 1 te pcan

Pe ont The stateharad tere thy chow ties The pron coune bow Quan

' ot Seok thee tecemad dhs mee veep t tlie peri crn

ihe QhamtHative tevperatet TM boston COSETN teetemds tu

! | jr.t He tuhowwkn + t Peed ts nee ’ ti ie ; Peat eats bey

7 b toupeenne ~ cpeecetet al tel tendon seh ay

1 ‘eit it “% yn ah ; ' ' | rh.

44a

however, did not move to amend, see note 15, mira, and

continues to allege a violation of section 1910 1029()(3).'4

We theretore must address whether the Sfetary has proven

a Violation of section 1910 1029 2% 3).

heytatets are “praperly titted.” nh met te be catered be any es cut,

the tut sontemce of the tandard had mot boon wreck down bs the

HM court ft theretore Comtmued to be un cflect whem the Citations in

this case were ead and the dinootne medicates that @ Commmucd Lo re

quate quahtatne tit toxtieny

* The Secretany hay takon moomntont positions regard the m

horpretation of vote 1900 TE ites be the 1979 vor ot CISEEA'S Jy

hevireal Huvgnene brctd Operations, Vanwal, Ch SU, socom b ies as

mt lamwary 1. 19%). roprodwocd mm COM Pmplovmen Satety A

Health Gunde, GSPN Licht Operanoms Miewwal aed fodustisl

Vracted ity comphance officers that “reyperatos tit” Gam be Checked bs

ee ot the fodhow ony mcthads

i) Postine Preware bow [Edctarhod mestrectnoens Omuttcd |

imp Negatne Preware fev [retard = mestructions

mntiod |

tn) Mametactarer'S hestractems Podhew the dirocros provided

by the roytatet manmetactwncr Phe hentia ftir} is net

poretiod te ave] wrtateme homacah to test Lape ti

1.) Chemical Somme composers mit exc tritant smoke oF

mnt acetate fenana onl} tor the royperaten fetteme test

Vithowgh CS00A docs met rocommmend ame Ghomecals. non a

COME PM The ated tee stated dnootly peodebers a unidess thc

poteenseibe oxperne bets are CK Oododd

The \iaral westemctod thx enim officer that whom be obscric

ctor oes tee hott repre pect fetteee. fhe ts thee wow OF Peete schon t

enh Meow atir< Pe gerseters ye “ic tow! oe otha Him Tins! _ ised !

the cmphoyer ay described mm paragraph «(aba aed on)

After the hearse on thes Case. the Socrctans peed wm part t

hoegttest feet Conteh pt coobeery ul “hat te to Mifved a

Se ae ee ee ,

ee SB ce Se. ee Tr

teste tea ~ That directive ty hetracte € PE? > vee YN

iM atten fest P.O ape : " Le

i ,

45a

The Secretary alleges a violation of section

1910. 1029(2)(3) because twenty-eight employees were not

given a proper fitting respirator afier failing the banana oil

test. The mere fact that employees entered a test at-

mosphere and encountered facepiece leakage does not

mean, however, that their training Was inadequate. Indeed

the Seeretary’s respirator expert, Dr. Pritchard, testified

that every respirator leaks to one degrge or another and

that the odor threshold between individuals tor detecting

banana oi varies. Dr. Pritchard also noted that an

employee could smell banana oil because he does not place

the mask on his face properly, and not because the mask

size is Incorrect. In order to prove a violation of section

1910. 134¢e05) the Secretary must show that employees

were not adequately instructed in the proper selection, use,

and maintenance of respirators of Were not permitted to

handle the respirator under certain conditions. Ch&l had

4 trang program that included imsitruction in the selec-

tion and use of respirators and the avoidance of facepiece

leakage. Employees were given an opportunity to handle

the respirator under various conditions and to wear it in a

lest atmosphere under the guidance of an industrial

hygienist. The fact that some employees detected the

banana oil while in the test atmosphere does not establish

by itsell that the instructions or training otherwise pro-

vided were madequate. We thus conclude that the

Secretary tailed to establish a violation of 29 CLELR.

§ 1910. 102% 23). Accordingly, we vacate the citation for

violation of this standard. '

Siive the parties did not expressly of nuphedly consent to try a

Vihation of secthon IYIO LOM H+), we Comlude um would be wn

proper to amend to allege a sichstion of this standard. See

Ve Willans bore Co, 84 OSATIRE tt BNA OST

464

Citation 3; Smoking and Training.

ltems two and three of this citation are in dispute. tem

2 of the ciation alleges that Ch&L violated 29 C E.R.

§ 1910.10290(5)1) by allowing two employees to smoke

in the north and south coal bin and door repair areas dur-

ing OSHA's inspection. This standard states:

(i) The employer shall assure that in the reeulated

ured, ood 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 uader paragraphs (i)(1)-(iQ3) of

this section.

(Emphasis supplied.) There is no dispute that the

employees in question Were smoking in these areas. There

also is no dispute that these areas are beyond the pinion

wall. The judge affirmed this item based on his conclusion

that these areas were part of the “battery ends” and, thus,

part of the regulated area. As explained above, we con-

clude that the areas in question — the north and south door

repaw and coal bin facilities are not part of the

“regulated area” because they are beyond the “batters

ends.” Accordingly, we reverse the judge's decision and

Vacate this item.

ltem 3 of this citation involves an alleged violation of

the employer training standard at 29 CER.”

S IYO. L029 KD). Tem 3 alleges:

29 CER 1YLO. 1029 KK: The employer did not in

stitute an effective taming program tor Coke oven

employees Working in the regulated area or at the tine

Of mitial assignment to the regulated area, mm that:

a) New employees, with no prior work experience

in the revulated area, did not recenve ddequate

474

on-the-job training on the proper work prac-

lice and written procedures to minimize Coke

Oven eMissions prior lo assignment in’ the

revulated area.

Saal * »

6) Employees with experience in the regulated

area, did not receive adequate instructions and

on-the-job training in the proper work prac-

tices and written procedures to minimize Coke

Oven eMissions prior LO assignment to a new

job position they have not worked before.

The cited standard provides:

th) Eimplovee information and training — (1) Trainine

program.

* * *

(i) The training program shall be provided as of

January 27, 1977 tor employees who are employed in

the regulated area at that time or at the time of initial

ussizment to a regulated area.

Essentially, this item alleges that CEA&L violated the

viandard by tailing to provide “written instructions” and

“on the job" training to new employees upon assignment

to the regulated area as well as to “experienced” employees

upon re-assigniment in the regulated area. The judge deter-

mined that the standard required employers only to pro-

Vide WILLEN Instructions to employees upon their “initial

assignment to the battery.” He therefore aftinmed this

eilation to the extent that it alleged that CLA violated the

‘andard by failing to provide written instructions to

cinployees Who were newly -assizned to the regulated area.

He vacated this item to the extent that it ableved that Ch&I

viohited the standard by tailing to provide (1) “on-the-job”

48a

training to employees newly assigned to the regulated area,

(2) written instructions to expericneed employees who

Were re-assigned to different positions on the battery, and

(3) “on-the-job” training to experienced employees who

were reassigned to new positions on the battery.

CHAI does not take issue with the judge's partial al-

lirmanece of this ttem.'® Relying on various portions of the

preamble, the union, however, asserts that the standard

requires more eXtensive training tor newly-asstzned gid

experienced employees.'” Although tt concedes that the

standard does not state all of the types of tramuing that

employers must provide, H asserts that “reasonable and

feasible” tramimng must be made available and cites several

cases, including /lorne Plhanbing & Heatine Co. vy.

OSHRC, 528 b.2d 564 (Sth Cir. 1976), tor support. The

Secretary also asserts that the standard requires on-the-job

* The Secretary did not petition tor review of the judge's partial

Vacation of the item.

The union cites the following language trom the preamble mi sup

port ol its cham that more extewsive tating Was required:

“A mayor portion of the effort m the comtrol of coke oven ens

stons Hivelyes Work practices. These include regular miypection,

maintenance, Cleaning and repan of all the equipment and strict

adherence to prescribed schedules. bayplovees mist be properts

trained in such work practices and thew unportance Lhe proper

tramvng of all emplovees will require tine’

41 bed. Rew. at 46,761 (omiphasis supplied by unos

“Such a written prowtam assures that all the chomonts ate con

sidered and can De used tot only to ev abate the ChhOCU Chess ot

aire pProvtath buat ativce Cee Chai CUPP bow Se ee

plomecnting the oh Hite Poqibotenl, Tle WEE Loh pot an Comb

sprectly jorby assivnents, beanie bods ated a ote bolt ca boprerl

thie SSstonh tan ibix ppt atihie Chew f jrohadin mi thee th fs atl Ph

pourtncubhar phan

40 tod Rew at 46°67 tones apy t i }

49a

training tor new and experienced employees. He also relies

on the preamble and argues that only through such train-

ing can the employer be assured the employees knew the

proper work practices.

As the judge tound, the text of the standard requires

that employees be provided with written instructions only

upon their “initial assignment” to the regulated area. The

preamble to the standard also does not state or imply that

employers are required to provide anything more than in-

ial training to employees who are newly assigned to the

regulated area. We theretore agree with the judge's conclu-

sion that ChAT did not violate the standard by tailing to

provide on-the-job traiming to new employees and written

Instruction as Well ay on-the-job training to experienced

employ Ces.

The cases cited by the union in support of its argument

also are apposite. In none of the cases did the Conmis-

son or the courts read an additional training requirement

Hilo an employee training standard. Rather, these cases

held that in order to sustain a defense that it neither knew

hot could have Known of the occurrence of a violation, an

cmiployer must show that it provided “reasonable and

leasible” traiming ton employees. Based on the loregoing,

We altinmn the pudge’s decision to vacate that portion of the

viation Which alleged that C&L violated section

IY1O T0290 DG) by tailing to provide on the-pob tram.

hy Fo new and experienced emplovees and written ustruc-

Hons Lo cxpertonced employees.

\ccordingly), We Vacate citations 1, 2. nem 2 of Citation

4, awd thom: Foot Cotation 3} to the extent that n allowed that

Ihe cluplover Was requicd to do more than allow em

Plovees LO review the written procedures tor thei job when

initially assigned to the regulated area.

FOR LEE COMMISSION

» Ray H. Darling, Jr.

Ray H. Dariing, Ie

bE xccutive Secretary

Daitpo: SEP. 12, 1986

Sla

WALL, Commissioner, dissenting in part:

1 agree with the Commission’s disposition of citations |

and 3. LT respecttully dissent, however, trom the decision to

Vacate cHation 2, concerning training in the wearing of

respirators. | conclude that section 1910. 134¢eK5) applies,

that Ht was violated, and that the violation was willful.

lo restate the facts of this issue, during the course of

tramime in the wearing of respirators, some of CF&I'S

employees Wore respirators in a test atmosphere of banana

oil, Twenty-eight of the emplovees reported smelling the

banana oil, which indicated that thei respirators did not

tt properly. They were not supplied with respirators that

did tt; rather they were sent to work in a toxic atmosphere

Wearing respirators that were demonstrably unsuited for

the purpose.

The majority emphasizes that the standard in question,

vontamed im paragraph 1910. 134¢e%5), is a tramime stand-

atid. TE don't take serious issue with this because, whether it

isa tranny standard or a use standard the evidence clearly

demonstrates that it was violated. The governing stand-

aid, paragraph 1910. 10292), is headed “Resprratory Pro-

ka tion ~ Paragraph (23) requires that “The employer

shall mstitute a respiratory protection program m accord.

ance with S901 of this Part” Paragraph | 4(b) is

headed “Requirements for a Minwnal Ac eplable Pro-

era. ~ Paragiaph 1910.1 340003), the standard which was

vttod mm the case. is headed “Ose of Respurators.” Para

Staph COWS), an ity pertinent part, states that “her sate we

ot aH fosmtatet. ato esscntial that the usc be property

_ Westrutod en its ne’ lramene shall provide the

HOH An opp tunt\ bo handle the resp ation, Mave a fetted

preg’, ain kh Meal Ho a tes atrmonsphere ”

il beapebicasds tho

S2u

C&L does not deny that 28 employees failed a so-called

“banana oil test,” and were then sent into the area ol coke

oven emissions with respirators that obviously did not tt.

Phis clearly establishes that the 28 employees Were Hol

provided with respirators that fit, were not trained to com

prehend the proper fl ot respleators, or to use the

respirators properly. Thus, even if paragraph onene

(eS) is construed as a respirator training standard, the 28

employees certainly were nol trained in the use ol

respirators. Nor could it seriously be argued that this was a

minimal acceptable program.

Ihe suggestion that CF&L could have been cited unde

paragraph 1910. 1029(2)(4) does not alfect my conclusion.

Ch&L may have breached another respirator standard as

well, but this does not mean that it was not properly cited

under paragraph 1910, 134(e)O). Ihe 1910. 134(e 05) Sine

tion alleged a failure to train in the use of respirators and,

expressly, that employees did not have an opportunity lo

have their respirators fitted properly. Phe gravamen of the

charge concerns the initial fitting of respirators, a process

that is ordinarily associated with the indoctrination ol

training phase of respirator Use, Although the tacts ef thts

case might also support a violation of 1Y10. lO29e HF), the

respirator usage standard, the Secretary has a legitimate

concern about the initial fit of respirators, and chose to

alleve that the employees Were not trained properly unde

paragraph 1910. 134(e5). Phas is within hits prosecutorial

discretion, and is not grounds for vacating the ciation,

Revarding the use of banana oil, the question ol

whether 4 banana oil test was required, or what test ts re

quired, is beside the pout. Whether Respondent wats te

quired to use the banana oil test, it did use the banana oil,

and it demonstrated that the respirators did not fit. Given

this Knowledge, by whatever test the knowledge was ob

tained. it can hardly be said that the employees Werte

53a

properly trained in the use of respirators. The purpose of

paragraph 1910.134(e)(5) is to ascertain whether the

respirator provides protection (have it fitted properly),

and to prepare employees to work and function in a toxic

environment.

This is clear not only trom the language of the test at-

mosphere provision of 1910.134(e)(5), but also from the

ANSI standard which is the source of the OSHA standard.

As the majorily notes, We may generally not construe an

OSHA standard adopted under section 6(a) of the Act, 29

U.S.C., § 663(a), in a way that is different from its ANSI

ancestor. Under the 1969 ANSI standard, the positive and

negative pressure tests were only fie/d tests. Section 7.5 of

the ANSI standard states that “[t]o assure proper protec-

tion, the facepiece tit shall be checked by the wearer each

time he puts on the respirator. This may bé done by

following the manufacturer’s facepiece-ftitting instructions

such as these simple fle/d tests: . . . .” (Emphasis added.)

What then tollows in sections 7.5(1) and (2) are detailed

descriptions of the positive and negative pressure tests.

The test atmosphere procedure is described next as a

means tor employees “to fest facepiece fit by wearing the

respirator under realistic test conditions.” ANSI section

7.5, third paragraph (emphasis added). The passage goes

on to state that if an employee does not detect the odor of

banana oil, “he has a good tit.” Thus, the ANSI standard

contemplates that the “test atmosphere” provision of the

tramimg standard ts a means for filling a respirator proper-

ly during tramimege. Another portion of this same para-

graph demonstrates that training the employee in the

achievement of proper fit is not all that the standard ex-

pects. The third paragraph of section 7.5 makes clear that

the results of a banana oil test could well require the

employer to provide another respirator to the employee if

S4iu

the first allows the employee to smell banana oil. That

paragraph states in part:

It [the respirator wearer] detects the odor [ot banana

oil}, he should retreat to fresh air, readjust the

facepiece, and repeat the test. H leakage ts sull noted,

it can be concluded that this particular respirator will

not protect the wearer. The wearer should not con-

tinue to tehten the headband straps until they are un

comfortably tight, sunply to achieve a gas-tight fu UU

fitted too tightly, the wearer will not wear the

respirator or will wear ittitting comfortably loose and

will not have a gas-tight seal. (Emphasis added)

Phat a respirator’s straps may not be tightened by the

employee after a point means that unless the employer

monitors the result of the banana oil test and provides a

different respirator, there can be no assurance that ay

amount of employee training will help an employee

achieve proper ft.

L also tind that the violation was willful. A violation ts

willful if it is committed voluntarily with either an imten

tional disregard tor the requirements of the Act or plain

indifference to employee satety. Sunplex Time Recorde

Co., 85 OSATIRG , 12 BNA OSHC 1591, 1595, 1985

training film, CEAL informed employees that they would

be provided with a different respirator i they ftatled the

banana oil test. It clearly understood that the tit ot

respirators Was to be evaluated in a “test atmosphere.” El

administered banana oil tests, yet tailed to provide dil

ferent respirators to at least 28 employees who tailed

Ihese 28 employees then were sent to the regulated area

and in several instances Were exposed to toxic coke oven

emissions above the permissible exposure limit without

proper respiratory protection. This conduct demonstrates,

at the very least, phan indifference to employee satety

SSa

APPENDIX D

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

OSHRC Docket No. 79-4786

SECRETARY OF LABOR, COMPL AINANI

CEAL STEEL CORPORATION. RESPONDENI

AND UNITED STEEL WORKERS OF AMERICA, AFL-CIO,

bocat 2102, AUTHORIZED Exiptoyet REPRESENTATIVE

DECISION AND ORDER

Quentin P. McColgin, Administrative Law Judge:

[his is a proceeding under section 10(c) of tie Occupa-

tional Satety and Health Act of 1970 (the Act), 29 U.S.C.

§ 659(c), involving alleged violations of section 5(a)(2) of

the Act, 29 U.S.C. § 654(a)(2).' Jurisdiction over the par-

lies and the subject matter is admitted in the pleadings.

Hearings in this matter were conducted in Pueblo, Co-

lorado commencing February 25, 1980 and ending Febru-

ary 29, 1980. The affected employees were represented

throughout these proceedings by the United Steelworkers

of America, AFL-CIO, the authorized employee represen-

tative (AER).

“bach employer shall comply with Occupational Satety and

Health Standards promulgated under this chapter.”

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At phe canclusion of the hearings, the parties were in

vited to submit proposed findings of fact, conclusions of

law and briets in support thereot as well as reply bricts.

(Tr. 894)2 All parties submitted briets; however, com

plainant did not submit proposed findings of fact or con-

clusions of law. Subsequently, respondent and the AER

submitted reply briefs. Thereatter, respondent tiled a let

ter dated May 30, 1980 containing further argument. In

the absence of objection by the other parties, this letter

Was not stricken from the record even though it was unau

thorized under the prescribed bricting schedule. By order

dated June 8, 1980, the other parties were granted an op

portunity to respond to the matters contained in respond

ent’s May 30, 1980 letter. The letter dated June 2, 1980

from the AER constitutes the only submission responsiye¢

to that authorization.

Having heard and observed the witnesses who testified

during the hearings, and having considered the pleadings,

the admissions and the other evidence presented at hearing

together with the post-hearing submissions by the parties,

the undersigned hereby makes the findings, conclusions

and order set forth below. To the extent that proposed

findings of fact or proposed conclusions of law have not

been adopted in this decision, they are rejected as berg in

accurate or unnecessary to the disposition of this case. Lo

the extent that there are any pending motions which have

Hol beer xpressly vranted herem, they are DENIED.

hic tolhows bbbreviations shall be used mn this decishon

7 brates rp

( C omplamant’s b habit

iN Respondent's bE stiabat

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FINDINGS OF FACT

1. Respondent’s plant is located near Pueblo, Col-

orado and js a tully integrated steel mill. (Pleadings)

2. Within this plant, respondent operates a coke plant.

(Pleadings)

3. Respondent has three adjoining coke oven batteries

designated as Batteries B, C and D. Battery B is located on

the south end of the configuration, Battery C is in the mid-

die, and Battery D is located on the north end. (Tr.

678-679, C-3, R-36)

4. At each end of each of respondent’s three batteries

is a pinion wall. (Tr. 728-729, R-59)

5. A pinion wall is composed of large blocks of refac-

tory (Tr. 686), tive to six feet wide (Tr. 729), which ex-

tends vertically trom ground level to topside and which

basically serve as a bulkhead. (Tr. 728, R-59)

6. The “battery end” is considered throughout the in-

dustry to be the pinion wall. (Tr. 679-680, 728)

7. Respondent does not have any coal loading areas

between its batteries. (Tr. 240)

8. Respondent established the pushcar machines and

the Larry car machines as regulated areas when they were

being operated between the south pinion wall of Battery B

and the north pinion wall ot Battery D. (Tr. 727-728)

Y. Respondent did not establish the push car machines

and the Larry car machines as regulated areas when they

were positioned beyond the pinion walls. (Tr. 727-728)

10. Immediately north of the north pinion wall of Bat-

tery D and separated by a small, open area is the lunch-

room and toreman’s office. (Tr. 735, 736, 738, R-59)

1}. Above the aforesaid toreman’s office and lunch-

room tacilities is the north coal bin area which is on the

same horizontal plane as the topside of Batteries B, C and

D. (Ir. 735, 736, C-1, C-3, R-? and R-58)

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12. Imatediately north of the foreman’s office and -

lunchroom described above is the north door repair tacili-

tv which is on the same horizontal plane as the office, and

the lunchroom. (Tr. 737, R-58, R-61 and R-62, R-61 and

R-62)

13.) Immediately south of the south pinion wall of Bat-

tery Bis substantially the same configuration of facilities,

positioned inversely, as are located north of the north

pinion wall of Battery D. (Tr. 700, C-3)

I4. The coke ovens and other facilities described

above essentially consist of the tollowing three levels:

a. Ground level where the tracks for the pusher

machine and quench car are located (R-61 and R-62);

b. Bench level where the door machine tracks

run, the lunchroom, the foreman’s office, the door

repair tacilities and the doors to the coke ovens are

located (R-61 and R-62; and

c¢. Topside where the Larry car tracks and coal

bins are located. (C-1, R-4, R-7, R-28 and R-30)

15. The tracks at ground level and bench level extend

trom the south end of the south door facility to the north

end of the north door tacility. (C-3, R-2 and R-61)

16. The tracks at topside extend trom the south end ot

the south coal bin area to the north end of the north coal

bin area. (Tr. 548, C-1l and R-7)

17. Push car machine Nos. 1, 2 and 3 constitute

machines that are operated on the push side of

respondent's Batteries B, C and D. (Tr. 140, 329, 556, RS

and R-34)

IS. Larrys car machines Nos. 1, 2 and 3 constitute

machines that are operated on topside of Batteries B, ¢

and D. (Ir. 737, 326, 553 and R-6)

19. By virtue of their exposure to coke Oven chiisstons

while in operation, pushcar machines 1, 2 and 3 and

larry-car machines |, 2 and 3 are contaminated. (Ir.

143-144)

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20. Doors to respondent’s coke ovens are con-

laminated with coke oven emissions (Tr. 813)

21. Coke oven emissions in excess of the permissible

exposure limit’ have occurred in respondent’s facilities

Which are beyond the pinion walls of Batteries B, C and D.

(C-22) ;

22. The respirator training provided to respondent’s

employees prior lo assignment to regulated areas consisted

of the provision of respirators, coupled with instructions

on its use and how to do a positive/negative fit test. (Tr.

101, 102, 772 and 773)

23. Qualitative fit testing in a test atmosphere was not

provided to respondent’s employees prior to their initial

assignment in regulated areas. (Tr. 103, 819)

24. The positive negative fit test does not meet the re-

quirement Of testing in a test atmosphere. (Tr. 462)

25. The two most common types of test agents which

eel the test atmosphere requirement are lsoamyl acetate

(banana oil) and irritant smoke. (Tr. 459)

26. Irritant smoke is a less subjective; hence, a more

reliable testing agent than isoamyl acetate. (Tr. 461, 490)

27. Because a positive negative pressure fit test can

easily give a false indication of fit, itis an unreliable means

of determining whether a respirator fits properly. (Tr.

462-463)

2s. It the testing agent is smelled during a qualitative

Hit test, the respirator does not fit properly.

29. Respondent tailed to provide and assure the use of

appropriate protective clothing by its employees. (Tr. 39,

274, 411)

30. Respondent's employee who was not provided

With appropriate protective clothing, was exposed to the

hazard of thames and extreme heat generated by the coke

ovens. (Tr. 39-40, 440, C-2)

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31... Respondent’s employees who were not provided

with appropriate protective clothing, were exposed to the

hazard of coke oven emissions which could collect on their

clothing. (Tr. 81-82, 95, 274, 286, 411, C-2)

32. Respondent failed to assure that smoking products

Were not present or used in the regulated area. (Ir. 59 &

248)

33.) Respondent’s training program which was pro-

vided prior to the initial assignment of employees to the

regulated area, did not include a review of the written pro-

cedures pertaining to work practices. (Ir. 100-101)

CONCLUSIONS OF LAW

1. Respondent violated 29 C.F.R. § 1910. 1029¢d)(2)0)

in that it did not establish the machinery and areas

specified in Citation No. 1, Item No. 1, as regulated areas.

2. The aforesaid violation was serious.

3. Respondent tailed to comply with 29° CPLR.

§$ 1910.134(e)(5) in that respondent’s respirator traiming

program did not provide respondent’s employees an op-

portunity to have their respirators titted properly.

4. The tailure of respondent to comply with the

aforesaid provision of the Respiratory Protection stand-

ard (29 C.ELR. § 1910.134), constitutes a violation of 29

CPLR. § 1YL0.1029(2)03).

3. The atoresaid violation constitutes a willful viola

tion within the intent and meaning of the Act.

6. Respondent violated 29 C.F.R. § 19TO.10290h)1)0)

in that it failed to provide appropriate protective clothing

to Ws employees.

7. The atoresaid violation constitutes a repeated viola

tion within the intent and meanimyg of the Act.

8. Respondent violated 29 CLbLR. § 1YTO.1O0290)05)0)

in that respondent titled to assure that smoking products

Were NOL present or uscd in the regulated area.

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| 9. The aforesaid violation constitutes a repeated viola-

tion within the intent and meaning of the Act.

10. Respondent violated 29 C.F.R.

N 1910. 1029(k)(1)(ii) in that the training program that was

provided to employees prior to their initial assignment to

the regulated area, did not include information concerning

the written procedures specified under 29 C.F.R.

§ 1910.1029(f)(7).

| 11. The atoresaid violation constitutes a repeated

Violation within the intent and meaning of the Act.

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»* DISCUSSION

Citation No. 1, Mem No. |

Phe first charge involves an alleged serious violation ol

29 C.F.R. § 1910.1029(d)(2)0) which provides:

The employer shall establish) the following as

regulated areas: (1) The coke oven battery including

topside and its machinery, push side and its

machinery, coke side and its machinery, and the bat-

tery ends; the whart; and the screening station.

The specific allegations, as set forth in Citation No. 1,

liem No. 1, are:

29 C.LELR. § 1910.1029(d)(2)0): The employer did not

establish the following areas of the Coke Plant as

regulated areas:

(a) Push car machine Nos. 1, 2 and 3;

(b) larry car machine Nos. 1, 2 and 3;

(ec) topside north coal bin area;

(d) topside south coal bin area;

(ft) bench level south door repair tacility.

Complainant proposes a penalty of $1,000.00 tor this

Mem.

Respondent does not dispute that the machinery

specified in the citation were not established as regulated

areas When they were positioned im certam areas. Re-

spondent also does not dispute that the tour specitied

work areas Were not established as regulated areas. bur

ther, respondent does not dispute that its employees had

access to the machinery and areas which complamant con

tends should have been regulated. Nevertheless, respond

ent does dispute whether the standard requires that the

machinery and areas be established as regulated areas.

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In essence, respondent argues for a narrow interpreta-

tion of what is included under the standard as “battery

ends.” In support of this position, respondent relies upon

29 C.F.R. § 1910.1029(b) which defines coke oven battery

as “a structure containing a number of slot-type coke

ovens” coupled with the unrefuted evidence that the in-

dustry considers the “battery ends” to be the pinion walls.

Complainant and the AER argue for a broader inter-

pretation of the standard. They argue that the “battery

ends” include the coal bin areas and the door repair

facilities Which are beyond the pinion walls. The essence of

this argument is that all of these facilities, as well as the

coke ovens themselves, are One continuous structure;

hence, the coal bin areas and the door repair facilities

should be considered to be the “battery ends” as that term

is used in the standard.

Thus, as stated by respondent, the critical issue

presented here is what is meant by the term “battery ends”

as that term is used in the standard.

The provision which prescribes the establishment of

regulated areas and defines such areas is the key to the en-

lire coke oven emission standard. As described in the

Statement of basis and purpose tor the coke oven emission

standards entitled “Exposure to Coke Oven Emissions”

(Preamble), 41 Fed. Reg. 46,742-90 (1976), it defines the

areas Wherein access is limited to authorized persons. 41

bed. Reg. at 46,756. It further serves to reduce the inges-

tion Of coke oven emissions by prohibiting the presence or

consumption of tood or beverages, the presence or use of

smoking products and the application of cosmetics in the

areas defined as regulated areas. 41 Fed. Reg. at 46,776.

Similarly, it requires, for those who work in the defined

regulated areas, the use of hygiene practices and the provi-

sion of hygiene facilities (washing and showering facilities)

so that coke emissions that are collected on employees will

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be removed and not subsequently ingested. 41 Fed. Reg. al

46,776.

After considering the evidence and argument presented,

the undersigned hay determined to adopt the single struc-

ture interpretation advanced by complainant and the

AER. The basis for this determination is that the battery

looks like a single structure; that it was the intent of the

promulgators of the coke oven emission standard to in-

clude within the regulated areas, Work areas which are

beyond the pinion walls of respondent’s batteries; and that

the purposes of the standard are best served by a broad in-

terpretation of what is included in the term “battery ends,”

as that term is used in 29 C.F.R. § 1910.1029(d)(2)0).

The most graphic evidence that respondent's facilities,

beginning with the south door repair tacility and extending

to the north door repair tacility, constitute a single struc-

ture is the aerial photograph depicted in C-2. Indeed,

anyone, except possibly a member of the coke oven in-

dustry, would likely view such facilities as One structure

despite the differences in the skyline created by the vertical

extension of the coal bins beyond that of the other

facilities comprising the structure. Nevertheless, these dit-

ferent facilities are all accessible to one another at one oF

more levels and are in close proximity to the ovens tor

reasons of efficiency or are required to be in close proximi

ly to the ovens for reasons of health and safety.

Major support tor the determination that the pro-

mulgators of the standard intended to include, within the

term “battery ends,” facilities which aretocated beyond

the pinion walls is presented in the Preamble. Here, the

“coal bunkers” are described as being located “atthe bat-

tery ends.” 41 bed. Reg. at 46,743. A “C ‘oal bunker,”

which is primarily referred to in this case as a “coal bin,” Is

a facility where coal is stored for transter into special cars

(Larry cars) that operate on raily at the top of the batter)

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(topside). 41 Fed. Reg. 46,743, (Tr. 548, R-4) From there

the coal is transferred by the Larry car to the individual

coke Ovens where it is deposited into the ovens from the

lop. It is clear from the record that these coal bunkers

(coal bins) could not be expected to be located within the

pinion walls of a battery. Instead, they would ordinarily

be located either between the coke oven batteries (but out-

side the pinion walls that enclose each battery) or “at the

battery ends.” In either case, the coal bunker would be

beyond the pinion walls of the coke oven battery. Thus, it

is clear that the Secretary, in using the term “battery ends,”

contempl .ted facilities and workplaces that were located

beyond the pinion walls. It is further clear that the

Secretary, in using the term “battery ends,” in 29 C.F.R.

§ 1910.1029(d)(2)(i) contemplated that such areas include

the coal bunkers.

It is the express intention of the promulgators of the

standard to include within the regulated areas, all work

areas W herein the permissible exposure limit to coke oven

emissions could be exceeded. 41 Fed. Reg. at 46,757.

Here, respondent’s own documents show that the permis-

sible exposure limit has been exceeded in the facilities

W hich are beyond the pinion walls of respondent’s bat-

teries. (C-22) For this reason, it is believed necessary and

app

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