Petition for Writ of Certiorari — General Dynamics Land Systems, Inc. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

upreme Court, U.S

; ae a

87-260 ) eta

No. JOSEPH F. SPANIOL,

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1987

GENERAL DYNAMICS LAND SYSTEMS, INC.

Petitioner,

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA AND ITS LOCAL 1200

Respondents.

GENERAL DYNAMICS LAND SYSTEMS, INC.

Petitioner,

WILLIAM E. BRock, SECRETARY OF LABOR AND

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BUTZEL LONG GUST KLEIN & VAN ZILE

A Professional Corporation

By: John P. Hancock, Jr. (Counsel of Record)

Carey A. DeWitt

i881 First National Building

Detroit, Michigan 48226

Telephone: (313) 963-8142

Counsel for Petitioner, General Dynamics Land

Systems, Inc.

BOWNE OF DETROIT

615 SECOND AVENUE - DETROIT, MICHIGAN 48226 - (313) 964-1330

QUESTIONS PRESENTED

Did The United States Court of Appeals For The District Of

Columbia Circuit Overstep The Bounds Of Its Reviewing Au-

thority When It Struck Down And Replaced A Significant And

Longstanding Interpretative Regulation (29 C.F.R. § 1910.5(f))

Promulgated By the Secretary of Labor Under The Occupational

Safety And Health Act That Was Not Challenged By Any Party?

II.

Did The Court of Appeals Fail To Give Proper Deference To The

Judgment Of The Occupational Safety And Health Review

Commission When It Ruled That The Commission’s Opinion

Applying And Distinguishing A Prior Decision Was Arbitrary

And Capricious?

TABLE OF CONTENTS

Page

SP LAPIS PURREIU REDD 6. ccc cet e neces ge i

pe Ra Sas a rerer errr ere ill

bom i 8 go 8 6, aaa reer irene l

pk ee an aire ee ass ips s fa 3

STATUTE AND REGULATION INVOLVED...... 3

EAT COP Tes GAG io oe encase create 4

REASONS FOR GRANTING THE WRIT......... 8

I. THE COURT OF APPEALS’S DECISION IM-

PROPERLY ENCROACHES UPON OSHA’S

AUTHORITY TO INTERPRET THE ACT .... 1]

Il. CON AGRA WAS PROPERLY CONSIDERED,

APPLIED, AND FACTUALLY DISTIN-

GUISHED BY THE COMMISSION .......... 2]

SEAINEES wi cease ncae eked pe ewe ene eee eee 30

TABLE OF AUTHORITIES

Page

A. Prokosch and Sons Sheet Metal, Inc., 8 O.S.H. Cas.

(B.N.A.) 2077 (Review Commission 1980)....... 9, 14, 20

American Maritime Assn. v. United States, 766 F.2d 545

ee a dia bia kb 6s 2 40 0460 oie: « 9,14

Brennan v. Butler Lime & Cement Co., 520 F.2d 1257

ig IE IRR BR 9, 13

Con Agra, Inc., McMillan Company Division, 1983 C.C.H.

O.S.H.D., § 26,420, p. 33,523, 11 OSHC (BNA)

ee een ig a0 keek tes abe ss 7, 9, 13, 19, 21-29

Conference of State Bank Supervisors v. Conover, 715 F.

2d 604, (D.C. Cir. 1983), cert. denied, 466 U.S. 927, 80

L.Ed. 2d 181, 104 S. Ct. 1708 (1984) .......... 9, 15, 16

Donovan v. A.A. Biero Constr. Co., 746 F.2d 894 (D.C.

RE 20

Environmental Protection Agency v. National Crushed

Stone Assn, 449 U.S. 64, 66 L.Ed. 2d 268, 101 S. Ct. 295

SETS ESE Pe 8, 14

Federal Housing Administration v. The Darlington, Inc.,

358 U.S. 84, 3 L.Ed. 2d 132, 79 S. Ct. 141 (1958) ... 16

Federal Election Comm'n v. Democratic Senatorial Cam-

paign Committee, 454 U.S. 27 (1981) .............. 16

Illinois State Board of Educatior v. Socialist Workers, 440

U.S. 173, 59 L.Ed. 2d 230, 99 S. Ct. 983 (1979) ..... 23

Johnson v. Robison, 415 U.S. 361, 39 L.Ed. 2d 389, 94 S.

ES TO 9,14

National Realty and Construction Company v. Occupa-

tional Safety and Health Review Commission, 489 F.2d

re 9, 13

Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 77

ge ee Ee 8) rr 16, 18-19

Phelps Dodge Corp., Morenci Branch, 9 O.S.H. Cas.

ES an 9, 13

memes

TABLE OF AUTHORITIES — (Continued)

Page

Sherwood Medical Indus., Inc., 9 O.S.H. Cas. (B.N.A.)

REE” 2s O'S Sac ac sas bcedens cbasesaeeee's 9, 13

Sun Ship Building and Dry Dock, 1973 O.S.H.D. §| 16,725,

A ar oo 55 pW k owns 050 6 6keenaebens 10, 14, 17-18

Ted Wilkerson, Inc., 1981 O.S.H.D. § 25,551, p. 31,855 9, 14

Todd's Shipyards Corp., 81 O.S.H.A.R.C. 69/A2, 9

B.N.A. O.S.H.C. 2031, 2034 1981 C.C.H. O.S.H.D.

4 25,516 at p. 31,812 (No. 77-2545, Review Comm.

SU Shen d isc ea eevee Fel cakuns gees bina ss 12, 24, 25

Tom's River Chemical Corp., 1978 O.S.H. Dec. (C.C.H.)

BS Bs 8 errr ere re rrr err re Tee 9,14

Udall v. Tallman. 380 U.S. 1, 13 L.Ed. 2d 616, 85 S. Ct.

IE 165 Ors eo 5s 0k Abe Neen ea aka woes sd 8, 9, 14, 16

United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 97

BO eS ee |: re ey ere 23

United States v. American Trucking Association, 310 U.S.

534, 84 L.Ed. 1345, 60 S. Ct. 1059 (1940) .......... 16

Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d

1, Be Pipette ieee \t gly ane nae tare an ee ee 9,18

Washington Assn for Television and Children v. F.C.C.,

Pe a ee Es od is oa Sk 000 4a 9, 14, 18

Webster v. Fall, 266 U.S. 507, 69 L.Ed. 411, 45 S. Ct. 148

SS eee Gala oe aCe rea b tees ek k ss awenrebaies 23

United States Statutes and Regulations:

EE ait an ccaN ek oto kh as Seeneoeween 1,4

rE isa accdn Gakcweus sede a, 34, $5

i CES ow onc csckesncesessemacoesans passim

es ek a a als 27

I i 5. soc x 4's'x na mgd we ARSON ee od 5

TABLE OF AUTHORITIES — (Continued)

Page

United States Statutes and Regulations:

SP Ce tb dea deeadasdaadas secede 3

ee NOD nn 5.k.d 3d Sen hs CORR eb we 5

poe ES Pr Teor ev ee eeeeeeerer eres. passim

pee | errr reer er rr er. 1, 23

ree Mp errr Terres 4-6, 12, 23-26

Be Gee es Oe PUTED ckcbciveceeaancvecses 12

Other Authorities:

Report of the Conference Committee, H.R. Rep. No. 91-

1765, 91st Congress, 2d Sess., 1970, p. 22, reprinted in

Legislative History of the Occupational Safety and

Health Act of 1970, 92nd Congress, Ist Sess. (Commit-

OO FU Berraas OA eas pt ore heek saa se Cha ee o> 16

Report of the Senate Labor and Public Weifare Commit-

tee, Senate Report No. 1282, 91st Congress, 2d Sess.,

BE Sins 5, Sevsiies Sibckdel peeked. cus 16-17

D. Morgan and M. Duvall, OSHA's General Duty Clause:

An Analysis of Its Use and Abuse, 5 Industrial Relations

LG SEE Bee NPGS sc hee KR Kara oN eka ecko 17

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

GENERAL DYNAMICS LAND SYSTEMS, INC., Peti-

tioner herein, requests that a Writ of Certiorari issue to the

United States Court of Appeals for the District of Columbia

Circuit to review whether the Court of Appeals overstepped the

bounds of its reviewing authority when it vacated a final order and

decision of the Occupational Safety and Health Review

Commission.

PROCEEDINGS BELOW

On November 29, 1983, the Secretary of Labor cited Gen-

eral Dynamics Land Systems, Inc. (“General Dynamics™)’ for an

alleged willful violation of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 651 et seg. (hereinafter the “Act”). The

Citation, attached hereto as Appendix A, contained two primary

parts: (1) an alleged willful violation by General Dynamics of the

“general duty clause,” Section 5(a)(1)? of the Act, and (2) a

single instance of alleged employee overexposure to 1,1,2 trichloro

1,2,2 triflouroethane in excess of the permissible limit prescribed

in 29 C.F.R. § 1910.1000(a) (2) and in violation of requirements

of administrative and engineering controls mandated by 29 C.F.R.

§ 1910.1000(e). See attached Appendix B.

‘General Dynamics Land Systems, Inc. is a wholly owned subsidiary of

General Dynamics Corporation. General Dynamics Land Systems, Inc. has no

subsidiaries or affiliates of its own that are not wholly owned. The Company was

improperly identified in the proceedings below in this case as “General Dynam-

ics Land Systems Division, Inc.”

? Section $(a)(1) of the Act, 29 U.S.C. § 654(a)(1), provides:

Each employer —

(1) shall furnish to each of his employees employment and a place of

employment which are free from recognized hazards that are causing or are

likely to cause death or serious physical harm to his employees;

General Dynamics contested the Citation, and the case was

assigned to an Administrative Law Judge (“ALJ”) of the Occu-

pational Safety and Health Review Commission (hereinafter the

“Commission”). A hearing was held at which the Secretary of

Labor (the “Secretary”) and General Dynamics presented evi-

dence and also at which the United Auto Workers (““UAW” or

the “Union”) elected party status as employee representative.

After the seventeen day hearing, the ALJ, on July 30, 1985,

issued a decision, attached as Appendix C, vacating the Citation

in its entirety. The Secretary and the Union then petitioned the

Commission for review of the ALJ’s decision. When no Commis-

sioner directed an internal review of the decision, the ALJ's

decision and order became a Final Order of the Commission. See

attached Appendix D.

On November 19, 1985, the Union filed a Petition for

Review with the United States Court of Appeals for the District

of Columbia Circuit. On November 20, 1985, the Secretary of

Labor filed a Petition for Review with the United States Court of

Appeals for the Eighth Circuit. The two cases were subsequently

consolidated in the Court of Appeals for the District of Columbia

Circuit (hereinafter the “Court of Appeals”).

On April 14, 1987, the Court of Appeals issued an opinion,

attached as Appendix E, granting both petitions for review. The

Court of Appeals vacated that part of the Commission’s order

that had vacated the Citation under the “general duty clause” of

the Act and remanded the cases back to the Commission with

instructions that the Commission address the merits of the

alleged general duty clause violation by General Dynamics. On

May 29, 1987, General Dynamics petitioned the Court of Appeals

for rehearing and/or rehearing en banc, which Petition was

denied. See attached Appendix F.

JURISDICTION

The Court of Appeals denied General Dynamics’ Petition for

Rehearing and/or Suggestion for Rehearing En Banc on June 18,

1987. This Petition for Certiorari is thus being filed within sixty

days thereafter.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254.

STATUTE AND REGULATION INVOLVED

29 U.S.C. § 654(a):

Each employer —

(1) shall furnish to each of its employees employment and a

place of employment which are free from recognized hazards

that are causing or are likely to cause death or serious

physical harm to his employment,

(2) shall comply with the Occupational Safety and Health

standards promulgated under this chapter.

29 C.F.R. § 1910.5(f):

An employer who is in compliance with any standard in this

part shall be deemed to be in compliance with the require-

ments of Section 5(a)(1) of the Act, but only to the extent

of the condition, practice, means, method, operation, or

process covered by the standard.

i a

STATEMENT OF THE CASE

This case arises from a citation issued to General Dynamics

by the Secretary of Labor for alleged willful violations of the

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et

seq. (the “Act”). The violations are alleged to have occurred

during the manufacture of M-1 Abrams tanks at the Detroit

Arsenal Tank Plant. M-1 Abrams tanks have internal hydraulic

systems that sometimes leak during assembly. General Dynamics’

employees have used a solvent called 1,1,2 trichloro 1,2,2

trifluoroethane (the “solvent” or “freon”) to clean up resulting oil

spills. On September 21, 1983, an employee of General Dynamics

was temporarily overcome allegedly by the fumes of the solvent,

despite the fact that according to the employee’s testimony, he

ventilated the area where the solvent was used for more than 45

minutes in accordance with extensive training provided by Gen-

eral Dynamics to its employees with respect to the proper use of

the solvent. See Decision of ALJ, Appendix C, pp. 21-22. Follow-

ing an investigation of this incident, the Occupational Safety and

Health Administration (“OSHA”) on November 29, 1983 cited

General Dynamics for an alleged violation of its Statutory duty

under subsection 5(a)(1) (the “general duty clause’’) to provide

safe working conditions and for alleged violations of OSHA’s

specific standards governing employee exposure to freon, 29

C.F.R. § 1910.1000(a) (2) and (e). See Appendix A.

General Dynamics contested the citation and the matter was

referred to an Administrative Law Judge (“ALJ”). After a

seventeen day hearing, the ALJ issued a decision on June 30,

1985, which decision vacated the OSHA citation in its entirety.

See attached Appendix C.

With respect to the alleged violation of Section 5(a)(1), the

“general duty clause” of the Act, the ALJ stated that it was

questionable whether there was sufficient evidence to establish a

violation, Appendix C, p. 9, but he found in any case that the

general duty clause of the Act was inapplicable to the case, under

the Secretary’s preemption regulations, because the factual cir-

cumstances were governed by specific regulations set forth at 29

C.F.R. § 1910.1000(a)-(e). These regulations state the permissi-

ble levels of employee exposure to freon and state the measures

an employer must take to remain within such limits. 29 oe AG

§ 1910.1000(a) (the “freon standard”) provides that employers

must not expose employees to a time-weighted average of more

than one thousand parts per million of freon vapors during any

eight hour work shift of a forty-hour work week. See Appendix B.

In support of his conclusion that the general duty clause was

preempted by the more specific regulations governing employee

exposure to freon, the ALJ cited (1) the legislative history of the

Act, (2) the rule of statutory construction that the “specific takes

precedence over the general,” and (3) OSHA's preemption

regulation contained in 29 C.F.R. § 1910.5(c) (1)’ as it has been

interpreted by the Commission. Appendix C, pp. 9-12.

The ALJ further concluded that the Secretary had not

demonstrated that the employee who was allegedly overcome by

the fumes of the solvent on September 23, 1983 was exposed by

General Dynamics to an amount of solvent in excess of the level

permitted under the freon standard and accordingly vacated the

citation as to the alleged violations of 29 C.F.R. § 1910.1000(a)

and (e). See App. C, pp. 21-22.

The Secretary of Labor and the Union petitioned the Com-

mission for review of the ALJ’s decision. Because no Commis-

sioner directed an internal review of the decision, the ALJ’s

Decision became a Final Order of the Commission pursuant to 29

U.S.C. § 661(j). See Appendix D. The Union filed a Petition for

Review with the United States Court of Appeals for the District

of Columbia Circuit. The Secretary of Labor first sought review

with the United States Court of Appeals for the Eighth Circuit,

but his Petition was transferred to the Court of Appeals for the

329 C.F.R. § 1910.5(c)(1) provides in relevant part:

If a particular standard is specifically applicable to a condition, practice,

means, method, operation, or process, it shall prevail over any different

general standard which might otherwise be applicable to the same

condition, practice, means, method, operation, or process...

waite iiiaaiaiaiiis a

District of Columbia Circuit and consolidated with the Petition of

the Union.

Neither the Secretary of Labor nor the Union contested (in

the Court of Appeals) the Commission and the ALJ’s ruling that

General Dynamics did not violate the freon standard set out at 29

C.F.R. § 1910.1000(a) or the control requirements set forth in 29

C.F.R. § 1910.1000(e). Rather, they argued that the ALJ and the

Commission had erred in vacating the citation regarding the

alleged breach of the general duty clause of the Act on the basis

that Sections'1000(a)-(e), under 29 C.F.R. § 1910.5(f),* did not

“cover” the hazard in question and thus that such regulations did

not preempt the general duty clause.

On April 14, 1987, the Court of Appeals issued a unanimous

decision granting both petitions for review and vacating that part

of the Commission’s Final Order dismissing the general duty

clause citation against General Dynamics. The Court of Appeals

acknowledged in its opinion that no party in the case had

challenged the rule adopted in 29 C.F.R. § 1910.5(f) that an

employer who is in compliance with a specific safety or health

standard or regulation for a particular hazard “shall be deemed”

to be in compliance with the general duty clause of the Act as to

such hazard. See Appendix E, pp. 9-10. Nonetheless, the Court of

Appeals, sua sponte, struck down Regulation 1910.5(f), “con-

clud[ing] that the Act does not empower the Secretary, and

hence OSHA, to absolve employers who observe specific stan-

dards from duties otherwise imposed on them by the genera! duty

clause.” Appendix E, p. 13. In the place of Regulation 1910.5(f ),

the Court of Appeals created a rule that it found to be more in

accord with the statute, namely that preemption of the general

*29 C.F.R. § 1910.5(f) provides:

An employer who is in compliance with any standard in this part shall be

deemed to be in compliance with the requirements of Section 5(a) (1) of

the Act [the general duty clause], but only to the extent of the condition,

Practice, means, method, operation, or process covered by the standard.

(emphasis and bracketed material added)

duty clause occurs only when the employer does not “know” that

the specific standard is inadequate. App. E, pp. 15-16.

The Court of Appeals also concluded that the final Order of

the Commission was arbitrary and capricious in that it failed to

distinguish adequately the instant case from an allegedly contrary

ruling by the Commission in Con Agra, Inc., McMillan Company

Division, 1983 C.C.H. O.S.H.D., § 26,420, p. 33,523, 11 OSHC

(BNA) 1141. See Appendix E, pp. 18-19.

REASONS FOR GRANTING THE WRIT

A brief summary of the reasons on the basis of which

General Dynamics contends Certiorari should issue is offered at

this point. This case is appropriate for consideration by this Court

for two reasons. First, this case is of great public importance

because it concerns the issue of whether the Court of Appeals

may strike down and effectively replace with its own regulation a

regulation of long standing promulgated by the Secretary of Labor

stating a preemption rule regarding citations under the “general

duty clause” of the Occupational Safety and Health Act

(“OSHA” or the “Act”), 29 U.S.C. § 654(a)(1), where the

Secretary’s regulation is a reasonable construction of the Act.

The OSHA regulation in question, set out at 29 C.F.R.

§ 1910.5(f), provides:

An employer who is in compliance with any standard in this

part shall be deemed to be in compliance with the require-

ments of Section 5(a)(1) of the Act, but only to the extent

of the condition, practice, means, method, operation, or

process covered by the standard.

(emphasis added)

On April 14, 1987, the Court of Appeals, upon the request of

no party, struck down such regulation, “conclud[ing] that the

Act does not empower the Secretary, and hence OSHA, to

absolve employers who observe specific standards from duties

otherwise imposed on them by the general duty clause.” Opinion,

p. 13.

OSHA, however, the federal agency empowered with en-

forcement of the Act, has reached the interpretative conclusion

set Out in its preemption regulation, 29 C.F.R. § 1910.5(f), supra.

Given this fact, a court may not encroach upon the authority of

the agency and strike down and replace its regulation merely

because that court does not agree with the agency’s interpretation

of the statute. See Udall v. Tallman, 380 U.S. 1, 16, 13 L.Ed. 2d

616, 85 S. Ct. 792, (1965); Environmental Protection Agency v.

National Crushed Stone Assn, 449 U.S. 64, 84, 66 L.Ed. 2d 268,

101 S. Ct: 295 (1980); Johnson v. Robison, 415 U.S. 361, 369, 39

L.Ed. 2d 389, 94 S. Ct. 1160 (1974); American Maritime Assn v.

U.S., 766 F.2d 545, 560 (D.C. Cir. 1985); Conference of State

Bank Supervisors v. Conover, 715 F.2d 604, 623 (D.C. Cir.

1983), cert. denied, 466 U.S. 927, 80 L.Ed. 2d 181, 104 S. Ct.

1708 (1984); Washington Assn for Television and Children v.

F.C.C., 712 F.2d 677, 684 (D.C. Cir. 1983). Indeed, a reviewing

court must defer to reasonable statutory interpretations by the

Agency that is empowered to apply the Act, even if the court

would not adopt such interpretations itself. Udall, supra, 380

USS. at 16.

A second reason that consideration by this Court is appropri-

ate is that the decision of the Court of Appeals to strike down

Regulation 1910.5(f) conflicts with the position taken by the

Secretary of Labor (the party that drafted the regulation struck

down by the Court of Appeals), the Occupational Safety and

Health Review Commission, the Administrative Law Judge, the

Union, General Dynamics, and every court and Review Commis-

sion decision on this issue of general duty clause preemption, all

such entities and decisions having respected and applied the rule

set out in Section 1910.5(f) as a reasonable interpretation of

Congressional intent when Congress enacted 29 U.S.C. § 654(a).

See, e.g., Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d

Cir. 1977) (“superior notice” through specific standards “‘in-

stead” of general duty clause); Brennan v. Butler Lime & Cement

Co., 520 F.2d 1011, 1017 n.9 (7th Cir. 1975); National Realty

and Construction Company v. Occupational Safety and Health

Review Commission, 489 F.2d 1257, 1261 and n.9 (D.C. Cir.

1973); Con Agra, Inc., McMillan Company Division, 1983-84

O.S.H. Dec. (C.C.H.) § 26,420, at 33,523, 11 OSHC (BNA)

1141 (1983); Sherwood Medical Indus., Inc., 9 O.S.H. Cas.

(B.N.A.) 1405, 1406 (ALJ 1981) (Section 1910.1000 limits);

Phelps Dodge Corp., Morenci Branch, 9 O.S.H. Cas. (B.N.A.)

1222, 1223 (ALJ 1980) (same); Tom's River Chemical Corp.,

1978 O.S.H. Dec. (C.C.H.) | 23,122 (ALJ 1978) (same); A.

Prokosch and Sons Sheet Metal, Inc., 8 O.S.H. Cas. (B.N.A.)

2077, 2079 (Review Commission 1980); Ted Wilkerson, Inc.,

aaa )

1981 O.S.H.D. § 25,551, p. 31,855; Sun Ship Building and Dry

Dock, 1973 O.S.H.D. 4 16,725, at p. 21,474; Secretary's Initial

Brief to the Court of Appeals, p. 27; Secretary's Reply Brief, p. 2:

Union's Brief, p. 22; General Dynamics’ Brief, p. 39; Administra-

tive Law Judge’s Decision, Appendix C.

These arguments are discussed in detail infra, as is the Court

| of Appeals’s conclusion that the Con Agra decision, supra, was

not properly considered by the ALJ and Commission.

THE COURT OF APPEALS’S DECISION IMPROPERLY

ENCROACHES UPON OSHA’S AUTHORITY TO

INTERPRET THE ACT.

Petitioner respectfully contends that the Court of Appeals

has committed a grievous error. Left undisturbed, this decision

will render nugatory the preemption regulation promulgated by

the Secretary of Labor governing this dispute and thousands of

other similar present and future cases, a holding that will consti-

tute an improper judicial encroachment upon an administrative

agency’s authority and interpretative function.

Section 5(a) of the Occupational Safety and Health Act, 29

U.S.C. § 654(a), provides:

Each employer —

(1) shall furnish to each of its employees employment and a

place of employment which are free from recognized hazards

that are causing or are likely to cause death or serious

physical harm to his employment;

(2) shall comply with the Occupational Safety and Health

standards promulgated under this chapter.

After OSHA was enacted, the Secretary of Labor promul-

gated a regulation, set out at 29 C.F.R. § 1910.5(f), stating the

rule with respect to circumstances in which an employer might

arguably be subject to citation under both the Act’s “general duty

clause,” Section 5(a)(1), supra, and a specific standard promul-

gated pursuant to Section 5(a)(2) of the Act, supra. This

Regulation provides as follows:

An employer who is in compliance with any standard in this

part| shall be deemed to be in compliance with the require-

ments of section 5(a) (1) of the Act, but only to the extent of

the condition, practice, means, method, operation, or process

covered by the standard.

29 C.F.R. § 1910.5(f) (emphasis added).

There is no dispute that the issue addressed by Regulation

1910.5(f) is whether the general duty clause is applicable to cases

where a specific standard has been promulgated to address the

hazard in question.* This issue was long ago resolved in Review

Commission adjudications and by the Secretary’s preemption

Regulation, set out in Section 1910.5(f), by the rule that compli-

ance with a specific standard, where that specific standard ad-

dresses the hazard in question, is deemed to be compliance with

Section 5(a)(1) of the Act. This issue now, however, according

to the Court of Appeals, should be resolved by the rule developed

‘For example, in this case, the only issue below was whether the regulations

set out at 29 C.F.R. § 1910.1000(a) and (e) “covered” (see Section 1910.5(f) )

the risk of exposure to freon in an M-1 Tank under construction. The Secretary

and the Union agreed with General Dynamics that if sech regulations did cover

the risk, the general duty clause was preempted. See ail Briefs of all parties to

the Court of Appeals.

For the Court’s information, Section 1910.1000 of the OSHA regulations

seis out a detailed scheme establishing safety requirements relating to employee

exposure to the substance at issue here, freon, and many other substances. See

Appendix B. Sections 1910.1000(a)-(d) distinguish very carefully among the

treatments accorded to different substances. All of the substances included in

this regulation, including freon, are subject to “eight hour time weighted

exposure” limits. The eight hour weighted exposure limit for freon is one

thousand parts per million, under a formula set out in the regulation. Other

substances have different quantitative limits. Moreover, other substances are

subject to shorter term elevated exposure limits. Still others are subject to

“maximum peak” limits not to be exceeded at any time, even though the eight

hour weighted exposure might remain within the average. The regulation

specifically states, however, that exposure above the average at a point or points

in time is permissible for substances such as freon so long as the eight hour time

weighted average is not violated. See 29 C_F.R. 1910.1000(d) (1) (ii). Unlike

other substances, no “peak” limit is established for freon. Jd. 29 C.F.R.

1910.1000(e), establishing a basis for separate citable violations, affirmatively

obligates the employer to take specific physical steps to contain exposure to

freon within safe limits. This section mandates “engineering controls,” “admin-

istrative controls,” “protective equipment,” and any and all other “protective

measures” necessary to maintain safe exposure levels, “whatever the circum-

stances or the nature of the employer's operation.” Todd's Ship Yard Corp.,

1981 C.C.H. O.S.H.D. § 25,516, p. 31,812.

On the basis of the coverage of Regulations 1910.1000(a) and (e), the

Commission concluded that the general duty clause was preempted. App. C., p.

12.

sua sponte by that court in the instant case, namely that if an

employer knows a particular safety standard is inadequate to

protect his workers against a specific hazard it is intended to

address, or that the conditions in his place of employment

are such that the safety standard will not adequately deal

with the hazards to which his employees are exposed, he has

a duty under section 5(a)(1) to take what ever measures

may be required by the Act, over and above those mandated

by the safety standard, to safeguard his workers . . . Scienter

is the key.

By the same token, absent such knowledge, an employer may

rely on his compliance with a safety standard to absolve him

from liability from any injury actually suffered by an em-

ployee as a consequence of a hazard the standard was

intended to address, and he will be deemed to have met his

obligation under the general duty clause with respect thereto.

In other words, compliance with a safety standard will not

relieve an employer of his duty under section 5(a) (1); rather

it satisfies that duty.

Opinion of the Court of Appeals, Appendix E, pp. 15-16 (empha-

sis added).

Until now, the rule set out in the Secretary’s preemption

regulation, Section 1910.5(f), has received the respect and defer-

ence of every judicial and administrative body considering such

regulation, and every party, without exception, in this case. See,

e.g., Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir.

1977) (“superior notice” through specific standards “instead” of

general duty clause); Brennan v. Butler Lime & Cement Co., 520

F.2d 1011, 1017 n.9 (7th Cir. 1975); National Realty and

Construction Company v. Occupational Safety and Health Re-

view Commission, 489 F.2d 1257, 1261 and n.9 (D.C. Cir. 1973);

Con Agra, Inc., McMillan Company Division, 1983-84 O.S.H.

Dec. (C.C.H.) 26,420, at 33,523, 11 OSHC (BNA) 1141; Sher-

wood Medical Indus., Inc., 9 O.S.H. Cas. (B.N.A.) 1405, 1406

(ALJ 1981) (Section 1910.1000 limits); Phelps Dodge Corp.,

Morenci Branch, 9 O.S.H. Cas. (B.N.A.) 1222, 1223 (ALJ

1980) (same); Tom’s River Chemical Corp, 1978 O.S.H. Dec.

(C.C.H.) § 23, 122 (ALJ 1978) (same); A. Prokosch and Sons

Sheet Metal, Inc., 8 O.S.H. Cas. (B.N.A.) 2077, 2079 (Review

Commission 1980): Ted Wilkerson, Inc., 1981 OS.H.D. q

25,551, p. 31,855; Sun Ship Building and Dry Dock, 1973

O.S.H.D. ¥ 16,725, at p. 21,474; Secretary's Initial Brief to the

Court of Appeals, p. 27; Secretary's Reply Brief, p. 2, Union's

Brief, p. 22; Administrative Law Judge’s Decision, Appendix C.

Nonetheless, the Secretary’s preemption regulation was re-

jected and struck down by the Court of Appeals on the basis that

the “the clear and unambiguous” language of the Act precluded

such a preemption rule. App. E, p. 13, pp. 11-12. The court

concluded that, rather than the preemption rule stated in Regula-

tion 1910.5(f), the proper rule was that “compliance with a safety

standard will not relieve an employer of his duty under section

5(a) (1); rather, it satisfies that duty,” “‘scienter” being “the key.”

Appendix E, p. 15-16. (emphasis added) (see full quotation

supra).

General Dynamics respectfully contends that it is certainly

not apparent from the language of the statute that the court’s

newly created rule of preemption based on “knowledge,” “relief,”

and “satisfaction” is a preferable construction of the statute. But

even this contention would miss the essential point in this case:

When faced with a problem of Statutory construction, this

Court shows great deference to the interpretation given the

Statute by the officers or agency charged with its

administration.

Environmental Protection Agency v. Nat'l Crushed Stone Assn.,

449 US. 64, 84 (1980) (quoting Udall v. Tallman, 380 U.S. 3

16 (1965)) (emphasis added); accord Johnson vy. Robison, 415

U.S. 361, 369 (1974): American Maritime Assn v. United States,

766 F.2d 545, 560 (D.C. Cir. 1985); Washington Association for

Television and Children v. F.C.C., 712 F.2d 677, 684 (D.C. Cir.

1983). This is an appropriate case for such judicial deference,

OSHA having been given the authority to interpret and apply the

statute.

The Court of Appeals’s conclusion that the intent of Con-

gress is clear from the language of OSHA to preclude preemption

of the general duty clause by specific regulations, App. E, pp. 11-

12, is, General Dynamics respectfully submits, simply unfounded.

While General Dynamics concedes that the presence of preclu-

sive language in the Act prohibiting preemption of the general

duty clause by a specific regulation would cause Section

1910.5(f) to be an impermissible interpretation of the statute, the

Act in question here contains no such language. Although the

Court of Appeals suggests that to find ambiguity in the statute on

this issue would be akin to finding an ambiguity in a “No

Smoking” sign, App. E at 11, General Dynamics contends that,

upon examination of the statute, this Court should observe that

the Act, far from clearly requiring the new “scienter” rule

announced by the Court of Appeals, does not even suggest such a

result.

In fact, a fair reading of Section 5(a) of the Act, 29 U.S.C.

§ 654(a), leads to the conclusion that there is a tension between

Section 5(a)(1) and Section 5(a)(2) of the Act, and that an

obvious unresolved issue on the face of these provisions is

presented, namely, which subsection governs in circumstances in

which either might conceivably apply. Specifically, that issue is

whether the employer must comply with the general duty clause

where compliance with a specific, promuigated standard under

Section 5(a)(2) would entail different behavior. Doubtless the

Secretary of Labor in promulgating Regulation 1910.5(f) recog-

nized that under the language of OSHA such an issue arose. It

must be asked what statutory language the court below has

concluded “clearly” resolves this issue.

At best, it could be said for the Court of Appeals’s “scienter™

interpretation that its view is one of “two arguably reasonable

interpretations of one statutory provision.” See Conference of

State Bank Supervisors v. Conover, 715 F.2d 604, 623 (D.C. Cir.

1983), cert. denied, 466 U.S. 927, 80 L.Ed. 2d 181, 104 S. Ct.

1708 (1984). Given this fact, absent contrary legislative history, it

was the duty of the Court of Appeals to accept the Agency’s

interpretation over its own, it “not (being) necessary for a court to

find that the agency’s construction is the only reasonable one or

even the reading the court would have reached if the question

initially had arisen in a judicial proceeding.” Federal Election

Comm'n v. Democratic Senatorial Campaign Committee, 454

U.S. 27, 39 (1981) (emphasis added); accord Udall v. Tallman.

380 U.S. 1, 16 (1965); Conover, supra, at 623. As this Court

noted in Norwegian Nitrogen Co. v. United States, 288 U.S. 294,

315, 77 L.Ed. 796, 53 S. Ct. 350, (1933),

[t]he practice has peculiar weight when it involves a con-

temporaneous construction of a statute by the men charged

with the responsibility of setting its machinery in motion, of

making the parts work efficiently and smoothly while they

are yet untried and new.

Accord Udall v. Tallman, 380 U.S. 1, 16 (1965); Federal Hous-

ing Administration v. The Darlington, Inc., 358 US. 84, 90, 3

L.Ed. 2d 132, 79 S. Ct. 141 (1958): United States y. American

Trucking Association, 310 U.S. 534, 549, 84 L.Ed. 1345, 60 S. Ct.

1059 (1940). As noted above, the interpretation of the Agency

here, OSHA, is set out in Regulation 1910.5(f).

The Court of Appeals’s error in finding the Act “clear” on its

face is critical because the legislative history of the general duty

clause (which the Court of Appeals stated it need not consider

because it found the statute clear, App. E, p. 11) is replete with

evidence (cited by General Dynamics to the Court of Appeals )

that the clause was intended by Congress to be preempted where

a specific standard addressed the hazard in question. See, e.g.,

Report of the Conference Committee, H.R. Rep. No. 91-1765,

9ist Congress, 2d Sess., 1970, p. 22, reprinted in Legislative

History of the Occupational Safety and Health Act of 1970, 92nd

Congress, Ist Sess. (Committee Print 197] ), p. 852 (the general

duty clause was intended to protect “employees who are working

under such unique circumstances that no standard has yet been

enacted to cover the situation” (emphasis in original) ); Report of

the Senate Labor and Public Welfare Committee, Senate Report

No.1282, 91st Congress, 2d Sess., 1970, p. 10, reprinted in

Legislative History, supra, at 150 (“[t]he general duty clause...

would simply enable the Secretary to insure the protection of the

employees who are working under special circumstances for which

no standard has yet been adopted”); Legislative History, supra

note 27, at 1217 (remarks of Representative Stieger) (“[i]t is

expected that the general duty requirement will be relied upon

infrequently and that primary reliance will be placed on specific

standards which will be promulgated under the Act”); see also D.

Morgan and M. Duvall, OSHA's General Duty Clause: An Analy-

sis of Its Use and Abuse, 5 Industrial Relations Law Journal 283,

288, 297 and n.79, 298 (1983). The Court of Appeals’s interpre-

tation of the Act is thus clearly contrary to the intention of

Congress in enacting OSHA. As a result, should this Court

conclude that Section 5(a) of the Act does not “clearly” require

that the general duty clause apply even where a standard has been

promulgated, the Secretary’s view, set out in Regulation

1910.5(f) and consistent with Congressional intent, must prevail.

There is no indication whatsoever in the legislative history, of

which General Dynamics is aware, that suggests that Congress

ever intended the rule precluding preemption in cases of actual

knowledge or scienter created by the Court of Appeals in its

decision here. As noted by the Review Commission in 1973,

[c]iting a respondent under the general duty requirement of

the Act is not appropriate where there exists a specific

occupational safety and health standard covering the con-

duct at issue .. . This principle was recognized by Congress

in the passage of the general duty requirement. The report of

the Senate Labor and Public Welfare Committee explains

the purpose of Section 5(a) (1) and its relationship to the

specific standards:

“The general duty clause in this Bill would not be a

general substitute for reliance on standards, but would

simply enable the Secretary to insure the protection of

Te opcusvinlaatninaiamaiusauapacanpeuaiimemmmaees

employees who are working under special circumstances

for which no standard has yet been adopted.”

Thus, where any occupational safety and health standard has

been promulgated under the authority of Section 6 of the

Act, which regulates a specific type of conduct, the com-

plainant must cite all alleged failures to comply with such

conduct under that particular standard, rather than the

general duty clause.

Congress delegated full responsibility for the promulgation of

occupational safety and health standards to the complainant.

It enacted Section 5(a)(1) only to cover those situations

which might not be treated by a standard promulgated by the

complainant.

Sun Ship Building and Drydock Co., 1973 OSHD 4 16,725, p. 21,

474 (Rev. Comm’n 1973) (footnote omitted; emphasis added).

This view is sensible because the specific “standards presum-

ably give the employer superior notice of the alleged viola-

tion...” Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 905

n.5 (2d Cir. 1977). (Of course, a rule such as the Court of

Appeals’s new “scienter’ rule, disregarding the advantages of the

specificity and objectivity of the particularized regulations issued

under Section 5(a)(2) of the Act, provides no such superior

notice. )

Moreover, because, as noted above, it has been the consistent

position, over the years and throughout this case, of the Secretary

and the Review Commission (as well as that of the other parties

in this case, the Union and General Dynamics), see citations

supra, that the general duty clause is preempted where a specific

standard addresses the hazard in question, deference to the

Secretary and Commission’s view is “enhanced.” See Washington

Association for Television and Children v. F.C.C., 712 F.2d 677,

684 (1983). As this Court noted in Norwegian Nitrogen Co. v.

United States, 288 U.S. 294, 315 (1933),

AREA REA SNR RS I RT PONT ESC STEEN TA

[t]rue indeed it is that administrative practice does not avail

to overcome a statute so plain in its commands as to leave

nothing for construction. True it also is that administrative

practice, consistent and generally unchallenged, will not be

overturned except for very cogent reasons if the scope of the

command is indefinite and doubtful. United States v. Moore,

95 U.S. 760, 763; Logan v. Davis, 233 U.S. 613, 627;

Brewster v. Gage, 280 U.S. 327, 336; Fawcus Machine Co. v.

United States, 282 U.S. 375; Interstate Commerce Commn.

v. N.Y., N.H. & H.R. Co., 287 [U.S.] 178.

For this reason, the Court of Appeals’s decision is even more

startling.

Nor does the Review Commission’s decision in Con Agra,

supra, support in any sense the Court of Appeals’s creation of an

actual knowledge “‘scienter’”’ preemption rule. See Opinion, p. 15

(citing Con Agra). The Court of Appeals’s opinion emphasizes

Con Agra in the context of the “larger point that when an

employer is aware of a hazard that is not in fact addressed by a

specific standard, then of necessity that standard cannot be

deemed to have preempted his obligation under the general duty

clause.” App. E, p. 19. The Review Commission in Con Agra,

however, specifically endorsed the concept set out in Section

1910.5(f) that the general duty clause is preempted where a

specific standard exists to address the hazard in question:

We note that the purpose of the general duty clause is to

provide protection against recognized hazards where no duty

under a specific standard exists, and that specific promul-

gated standards will preempt the general duty clause, but

only with respect to hazards, conditions or practices expressly

covered by the specific standards. National Realty and Con-

struction Company v. OSHRC, 489 F.2d 1257, 1258, n.9

(D.C. Cir. 1973).

Con Agra, 1983 OSHD at p. 33,527 (emphasis added; many other

citations omitted). Thus, the issue in Con Agra, as it was in this

case before the Court of Appeals’s decision, was whether the

specific standard actually covered the hazard in question and

hence preempted the general duty clause, not whether, assuming

the employer knew the standard was inadequate, the employer

had an obligation under the general duty clause.

As a whole, it should be concluded that the Court of Appeals

exceeded its authority by striking down regulation 1910.5(f) and

then effectively creating its own regulation to replace that of the

agency. The issue in this case now is thus not whether a hazard

that the employer knows to be inadequately addressed by a

specific standard may be the object of a general duty clause

citation, but rather whether the Court of Appeals may encroach

upon the previously promulgated judgment of OSHA that regula-

tion of certain hazards pursuant to the general duty clause is

preempted where there are specific standards that address such

hazards. If the Court of Appeals disagreed with such agency

judgment, it should have suggested modification by the Agency of

the specific standards to effect more stringent future regulation of

the hazard at issue, rather than effect improper and unintended

application of the general duty clause. See, e.g., A. Prokosch &

Sons Sheet Metal, Inc., 8 O.S.H. Cas. (B.N.A.) 2077, 2081 (Rev.

Comm’n 1980); Donovan v. A.A. Biero Constr. Co., 746 F.2d 894,

905 (D.C. Cir. 1984) (“The Secretary is always free to promul-

gate new standards or interpretative rules to clarify existing

standards”’).

CON AGRA WAS PROPERLY CONSIDERED, APPLIED,

AND FACTUALLY DISTINGUISHED BY THE

COMMISSION.

The Court of Appeals found that the Commission had failed

to distinguish the decision of the Commission in Con Agra, Inc.,

McMillan Company Division, 1983 C.C.H. O.S.H.D., § 26,420,

p. 33,523, 11 OSHC (BNA) 1141. See App. E, pp. 17-19. The

decision of the Administrative Law Judge here, and the decision

of the Commission to reject the Secretary and the Union’s

contentions regarding Con Agra, however, are perfectly consistent

with the Commission’s earlier decision in Con Agra.

The Administrative Law Judge here carefully considered and

applied the Con Agra decision, finding, inter alia, that regulations

1910.1000(a) (2) and 1910.1000(e) together do address the haz-

ard at issue in this case and thus preempt the general duty clause.°

In his discussion regarding preemption of the general duty clause,

the Administrative Law Judge explicitly considered Con Agra as

follows:

In support of its position that 5(a)(1) is proper in this case,

Complainant cites the Commission decision in Con Agra,

Inc., 83 OSHRC, 5/C7, 11 BNA OSHC 1141, 1145, 1983-

84 CCH OSHD § 26,764 (No. 79-1146, 1983), where it is

Stated:

The failure to test in a confined atmosphere before

possible exposure of employees to toxic substances is a

violation distinct from continued exposure to known

quantities of substances listed in 1910.1000.

* The cases cited by the Commission in Con Agra, see Con Agra, p. 33,527,

state that various hazards, if left uncorrected, constitute Section 5(a) (1) general

duty clause violations. None of these cases, however, establishes that Section

5(a)(1) may be applied where a specific standard addresses the hazard in

question. Indeed, Con Agra states precisely the contrary. See supra.

The foregoing exception is not applicable to the facts in

this case because of the procedure followed by Palinc in

ventilating the atmosphere, and that the air contaminants

standard deals fully and completely with the hazard at issue,

which is employee use of tricholo trifluoroethane in produc-

tion of the M-1 tank. Also, in Con Agra, supra, the Com-

mission did not deviate from its precedent by again stating:

We note that the purpose of the general duty clause is to

provide protection against recognized hazards where no

duty under a specific standard exists, and that specific

promulgated standards will preempt the general duty

clause, but only with respect to hazards, conditions, or

practices expressly covered by the specific standard... .

Clearly, the circumstances of this case are governed

solely by the regulations at 29 CFR § 1910.1000 (a)-(d)

which set forth the limits of employee exposure to tricholoro

trifluoroethane. Protection is provided in any potential

hazards associated with employee use of the solvent by

specifically prescribed levels within which the employee may

safely work. /n addition, the employer is specifically notified

of the manner in which abatement is to be accomplished by

1910.1000(e), which requires . ..

administrative controls, engineering controls, personal

protective equipment or, “any other protective mea-

sures’ ...the employer must use one or more of the

specified measures to assure full protection for the

employees, whatever the circumstances or the nature of

the employer's operation...

The decision in this case recognizes that specific stan-

dards “are intended to be the primary method of achieving

the policies of the Act...” And further, “the standards

presumably give the employer superior notice of the alleged

violation and should be used instead of the general duty

clause whenever possible.” ... Necessarily, the employer

has a legal obligation to comply with safety regulations

specifically promulgated to accomplish the stated purpose of

the Act.

App. C, pp. 11-12.

This discussion by the Administrative Law Judge was quite

sensible in light of the circumstances of this case. As was

emphasized by the Judge, the present case involves the applica-

tion of not only the quantitative requirements of Section

1000(a) (2), but also of the qualitative requirements of Section

1000(e), which section mandates all necessary and effective

means to achieve full compliance with the standards set out in

Section 1000(a) (2). See 29 C.F.R. § 1910.1000(e).

Con Agra, however, did not consider the impact of Section

1000(e) (perhaps because, unlike the present case, where Gen-

eral Dynamics was cited under 1000(e), the employer in Con

Agra had not been so cited). Where a decision does not consider

an issue, it cannot be considered precedent on such issue. See

United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38, 97

L.Ed. 54, 73 S. Ct. 67, 69 (1952); Webster v. Fall, 266 U.S. 507,

511, 69 L.Ed. 411, 45S. Ct. 148, 149 (1925); J/linois State Board

of Education v. Socialist Workers, 440 U.S. 173, 184, 59 L.Ed. 2d

230, 99 S. Ct. 983, 989 (1979). In this case, because the impact

of the mandate of Section 1000(e), as described above, was not

considered in the Con Agra decision, Con Agra cannot be prece-

dent with regard to the issue of the applicability and significance

of Section 1000(e). Therefore, Con Agra did not in any manner

require that Section 5(a)(1) of the Act not be preempted with

respect to the hazard at issue here, and the ALJ’s emphasis of

Section 1000(e) in distinguishing Con Agra was quite reasonable.

Indeed, it is the presence of the controls obligation of Section

1000(e) that is the most substantial basis of the ALJ’s logical

conclusion that the general duty clause is inapplicable here.

The Court of Appeals has understated the significance of

Section 1000(e) of the regulations. See App. E, pp. 18-19. As the

Administrative Law Judge stated (see App. C, p. 12), Section

1000(e) requires controls and equipment sufficient to assure full

protection of employees to the degree specified in Section

1000(a), “whatever the circumstances or the nature of the em-

ployer’s operation.” (quoting Todd's Shipyards Corp., 81

O.S.H.A.R.C. 69/A2, 9 B.N.A. O.S.H.C. 2031, 2034, 1981

C.C.H. O.S.H.D. § 25,516 at p. 31,812 (No. 77-2545, Review

Comm. 1981) (emphasis added)). On this basis (which Con

Agra did not consider, as well as others, see General Dynamics’

Brief to the Court of Appeals, pp. 64-72), the ALJ explained his

decision as to preemption of the general duty clause. App. C, p.

12. General Dynamics respectfully contends that the Court of

Appeals failed to recognize that Section 1000(e) requires each

and every means necessary to address the hazard alleged by the

Secretary in this case. Section 1000(e) itself requires that the

employer address, by ventilation and/or other means, the condi-

tions here alleged, if such conditions would cause violation of the

limits established in Section 1000(a).

indeed, the Secretary has contended in this case that the very

controls General Dynamics was cited for not implementing under

the general duty clause are already required under Section

1000(e). The Secretary’s post trial Brief to the Administrative

Law Judge in this case states as follows:

Tank repairman Paling’s overexposure and serious injury

resulted from a failure of respondent to implement feasible

administrative or engineering controls to prevent or reduce

said exposure in violation of 29 C.F.R. 1910.1000(e). In

light of the confined space naiure of the M| Abrams tank, the

appropriate control would have been for respondent to have

implemented confined space entry procedures to address this

overexposure hazard and the potential chemical poisoning

and oxygen deficiency hazards associated with confined

space entry as heretofore previously discussed.

(D.C. Circuit Appendix (hereinafter “A”), pp. 107C, 107D)

(pp. 89-90 of Secretary’s Post Trial Brief) (emphasis added)

Thus, the Commission and General Dynamics are making the

point that the conceded requirement under Section 1000(e) that

all of the controls, the lack of which the Secretary contends was a

violation of the general duty clause, were already required under

Section 1000(e), in the event that the failure to adopt such

controls would result in a violation of Section 1000(a). Because

Section 1000(e) applies, “whatever the circumstances or the

nature of the employer’s operation,” Todd's Ship Yards, supra,

Section 1000(e), in combination with Section 1000(a), com-

pletely regulates and covers both the circumstances of quantita-

tive overexposure to freon and the measures necessary to prevent

such overexposure.

For example, as conceded by the Secretary, see quotation of

Brief supra, an employer might, if a “confined space” were

involved, be cited for not adopting a confined space entry proce-

dure under Section 1000(e). If there is a greater risk within a

confined space that overexposure could occur, the employer must,

under Section 1000(e), take protective measures to abate the

hazard. As a result, the rule that compliance with Sections

1000(a) and 1000(e) is deemed to be compliance with the

general duty clause, Section 1910.5(f), is not only an interpreta-

tion of OSHA entitled to respect generally, but it is also quite

sensible. As a test of this proposition, this Court might inquire

what control implementable to address the hazard alleged in this

case is not already required (and thus the proper subject of an

OSHA citation), if necessary to abate the hazard, under Section

1000(e). If the answer is “none,” the case for preemption of the

general duty clause is complete and unrebuttable.

The Court of Appeals rejected this basis of the ALJ's

distinction between the present case and Con Agra, stating that it

was not “persuaded by the Commission’s argument that this case

is distinguishable from Con Agra because subsection

1910.1000(e) of the regulations adequately addresses the special

measures required to safeguard employees working in confined

spaces.” App. E, p. 18 (emphasis added). The court noted that

section 1000(e) requires only measures to achieve compliance

with the quantitative limits in section 1000(a). App. E, pp. 18-

19. The Court of Appeals may thus have concluded that the

quantitative requirements of Section 1000(a) are themselves

inadequate to address an allegedly “known” risk that exposure

within the time weighted freon limit might be unsafe, and hence

that the general duty clause should apply. If the Court of Appeals

has so concluded, however, it has adopted an interpretation of the

Act at odds with the at least equally reasonable interpretation of

OSHA, which has, in its preemption regulation set out in Section

1910.5(f), long since decided this issue in favor of preemption. It

was not for the Court of Appeals to impose its own preference.

Moreover, Con Agra is distinguishable from the present

circumstances because, in the present case, the substance in an

M-1 tank that would pose a potential risk to the employee is

known. It is known because it is introduced by the employees

themselves. The Commission in Con Agra emphasized the fact

that the relevant employees were required to enter train cars not

knowing what, if any, substances might be inside. 1983 OSHD at

33,526. Thus, the risk (posed by “the failure to test,” see ALJ's

quotation of Con Agra, supra) in Con Agra was different from the

risk here, where the substance is both known’ and subject to

specific regulations. (Of course, the employer has an obligation to

determine the quantity of exposure, if such is necessary to comply

with the safety provisions of Section 1000(a) (2).)

Additionally, as the Administrative Law Judge concluded,

the inside of an M-1 tank under construction is not a confined

space for which special entry procedures are required. App. C, p.

9. Con Agra is thus inapplicable by its very terms. See ALJ's

quotation of Con Agra, supra. The Administrative Law Judge

found specifically that the

record indicates . . . that the basic criteria for identifying a

confined space requiring safe entry procedures is the extent of

enclosure and inadequacy of natural ventilation to purge the

atmosphere. In the instant case, Mr. Paling testified that the

[3] hatches and drains were open when he ventilated the

space for up to an hour as part of his normal procedure. The

"In this case, the Secretary concedes that the hazard relates to “freon.” See

Brief of Secretary to Court of Appeals, p. 21; see also Citation, App. A.

conditions under which he worked suggest safe operating

procedures were being employed which included purging of

the atmosphere by mechanical ventilation.

App. C, p. 9 (bracketed material and emphasis added). Thus, by

virtue of the fact that three hatches and the drains to the tank

were open during the procedure, id., p. 23, “natural ventilation”

was obtained. In addition, any danger that might have required

some entry procedure, even if the M-1 tank were a confined

space, was eliminated by the mechanical ventilation procedure.

Id., p. 9. Thus, as to the applicability of the Con Agra decision,

the ALJ found that the “hazard” considered in Con Agra, an

unventilated, closed, and “confined” atmosphere, did not exist? in

the present case. See App. C, p. 11 (“The foregoing [Con Agra]

exception is not applicable to the facts in this case because of the

procedure followed by Paling in ventilating the atmosphere .. .”).

If the hazard was different, as the ALJ found it was, see id., the

ALJ could sensibly conclude that the specific standard covered

the “hazard” that was present—“employee use of [freon] in

production of the M-1 Tank.” See same paragraph of ALJ

decision, App. C, p. 11.

Moreover, the Administrative Law Judge specifically con-

cluded that “the designated spaces at the plant which were

approved by the parties for safe confined entry procedures did not

include the M-1 tanks.” App. C, p. 22 (finding of fact no. 6).

Indeed, the OSHA Compliance Officer who conducted three

inspections of the work place before the citation was issued “at no

time, advised respondent that employee use of the solvent in the

tanks presented a potential hazard.” Jd. at 22 (finding of fact no.

7). These findings of fact by the ALJ are conciusive in light of the

substantial evidence in the record supporting them. See 29 U.S.C.

§ 660(a). (See, e.g, (A 184) (TR-98) (before the issuance of

the citation in dispute, the local Union never considered the tank

a confined space or requested General Dynamics to do so); (A

438, 447) (TR-1344, 1442) (inventory of plant confined spaces

did not indicate that an M-1 tank constituted a confined space in

either a married or unmarried configuration); (A 249, 252-53,

254-55) (TR-437, 440-441, 442-443) (OSHA Compliance Offi-

cer never advised General Dynamics that he believed the tank

was a confined space or that there was any potential for hazard

inside the tank).)

Indeed, several significant requirements for a determination

of the existence of a confined space were simply not satisfied with

respect to the M-1 Abrams tank. As the Secretary conceded at

page 7 of his Brief to the Court of Appeals, see n.6, confined

spaces usually have “only a manhole for entry.” (citing Section

2.2, A.N.S.I. standard Z 117.1-1977) (A 1299-1311) (Gov. Ex.

35a). Not only are there three exits and additional drains in the

M-1 Abrams tank ( see App. C, p. 23, finding of fact no. 13), but,

as noted above, the three exits and the drains in the tank are and

were open during the procedure in question. See App. C, p. 23,

finding of fact no. 13.

Moreover, a tank or other vessel under construction cannot

constitute a confined space. See A.N.S.J. Standard (A 1299-

1311); (Gov. Ex. 35a, Section E 2.2 (1)). Further, the M-!

Abrams tank is intended for human occupancy, an intention that

under NIOSH and MIOSHA standards takes the M-1 Abrams

out of the definition of “confined space.” (A 1312-1388, 1429-

1444, 280) (Gov. Ex. 35b, 35d, 35e) (TR581). Indeed, the

proposed OSHA standard not only indicates that an item in-

tended for continuous human occupancy cannot constitute a

confined space, but such standard also explains how the phrase,

“continuous human occupancy,” should be construed:

‘Confined space’ means a tank, vessel, silo, vault, pit, open

top space more than four feet, or any other enclosed space

that is not designed for continuous human occupancy and

has one or more of the following characteristics . .. Spaces

covered by the standard are those that are not designed for

humans to work in routinely, e.g., for a regular shift, but

which may have to be entered for specific work related

purposes.

(A 1389-1428) (Gov. Ex. 35c, Proposed Standard, pp. 3, 16.)

Even the Secretary’s witness, Mr. Morgan, conceded that under

some circumstances, the M-1 tank is continually occupied by

General Dynamics employees. (A 280-2) (TR-581-83) Mr.

Morgan also agreed that the M-1 tank is undoubtedly intended

for continuous human occupancy. (A 282) (TR-647)

Given the above, there was ample support in the record for

the Administrative Law Judge’s conclusion that the M-] Abrams

tank did not constitute a confined space requiring safe entry

procedures. Thus, the ALJ’s distinction between Con Agra, where

such a confined space was found to be present, and the present

case was sensible.” Indeed, this Court should conclude both that

the ultimate decision of the Commission in Con Agra is distin-

guishable from the present circumstances and that the underlying

policy in Con Agra of preemption where a specific standard

applies has been satisfied here, as the Administrative Law Judge

found. App. C, pp. 11-12.

‘The Court of Appeais’s statement that “the issue whether M1 tanks, hulls,

and assembly line pits had been ventilated could be relevant to the outcome of a

section 5(a)(1) adjudication, but not to whether such an adjudication need be

made at all,” App. E, p. 19, ignores the fact that ventilation precluded a finding

of the same hazard of “confined space” requiring entry procedures necessary

(but not sufficient) for an analogy to the holding in Con Agra. See App. C, p. 11.

In any case, contrary to the Court of Appeals’s reading of Con Agra, that case

does not make the “larger point,” announced by the Court of Appeals, that an

employer's “aware|ness]" or scienter is the deciding issue as to preemption of

the general duty clause. Rather, the Commission in Con Agra explicitly

recognized the rule that the general duty clause absolutely does not apply where

a specific standard exists to address the hazard:

We note that the purpose of the general duty clause is to provide protection

against recognized hazards where no duty under a specific standard exists,

and that specific, promulgated standards wil! preempt the general duty

clause, but only with respect to hazards, conditions or practices expressly

covered by the specific standards.

1983 CCH O.S.H.D. at 33,527 (emphasis added).

CONCLUSION

For the foregoing reasons, General Dynamics requests that

this Court grant its Petition for a Writ of Certiorari, reverse the

decision of the United States Court of Appeals for the District of

Columbia Circuit, and remand this matter to the Occupational

Safety and Health Review Commission for dismissal as originally

ordered by the Commission.

Respectfully submitted,

John P. Hancock, Jr. (Counsel of Record)

Carey A. DeWitt

BUTZEL LONG GUST KLEIN & VAN ZILE

A Professional Corporation

1881 First National Building

Detroit, Michigan 48226

Telephone: (313) 963-8142

Counsel for Petitioner, General Dynamics

Land Systems, Inc.

No.

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1987

GENERAL DYNAMICS LAND SYSTEMS, INC.

Petitioner,

Vv.

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA AND ITS LOCAL 1200

Respondents.

GENERAL DYNAMICS LAND SYSTEMS, INC.

Petitioner,

Vv.

WILLIAM E. Brock, SECRETARY OF LABOR AND

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Respondents.

APPENDIX

BUTZEL LONG GUST KLEIN & VAN ZILE

A Professional Corporation

By: John P. Hancock, Jr. (Counsel of Record)

Carey A. DeWitt

1881 First National Building

Detroit, Michigan 48226

Telephone: (313) 963-8142

Counsel for Petitioner, General Dynamics Land

Systems, Inc.

BOWNE OF DETROIT

615 SECOND AVENUE - DETROIT, MICHIGAN 48226 - (313) 964-130

INDEX TO APPENDICES

Appendix : , Page

A U.S. Department of Labor, Occupational Safety

and Health Administration, Citation and Notifi-

cation of Proposed Penalty, November 29, 1983 A-1 — A-7

B 29 Code of Federa! Regulations § 1910.1000, (7-

1-86 Edition), pp. 653-660.................. B-1 — B-23

C Administrative Law Judge’s Decision and Order,

fp 7 a ene ore Ss te C-1 — C-22

D Occupational Safety and Health Review “’om-

mission’s Notice of Final Order, Septem cr 24,

ae RMN ES rene garage rye Din OW Cir aa aA D-!

E United States Court of Appeals for the District

of Columbia Circuit Opinion, April 14, 1987 .. E-] — E-i9

F United States Court of Appeals for the District

of Columbia Circuit Orders, June 18, 1987.... F-1 — F-2

APPENDIX A

A-|

Appendix A

U.S. DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION

CITATION AND NOTIFICATION OF PENALTY

231 W. Lafayette-Rm. 628

Detroit, Michigan 48226

Telephone: (313) 226-6720

CERTIFICATE NO. P-440268-333

1 ISSUANCE DATE: 11/29/83

2 OSHA NUMBER: P5716 285

3 REGION: 05

4 AREA: 1260

5 PAGE: | OF 4

6 TYPE OF VIOLATION(S): Willful

7 CITATION NO.: 1

INSPECTION DATE: 9/29/83 thru 11/28/83

INSPECTION SITE: 28251 Van Dyke Road

Warren, MI 48090

TO: General Dynamics—Land Systems Division

P. O. Box 18016

Warren, Michigan 48090

Attn: J. S. Acharya

Plant Manager

THE LAW REQUIRES that a copy of this Citation be posted

immediately in a prominent place at or near the location of the

violation(s) cited below. The Citation must remain posted until

the violations cited below have been corrected, or for 3 working

days (excluding weekends and Federal holidays) whichever is

longer.

This citation describes violations of the Occupational Safety and

Health Act of 1970. The penalty(ies) listed below are based on

these violations. (You must correct the violations referred to in

this citation by the dates listed below and pay the penalties

proposed, unless within 15 working days excluding weekends and

A-2

Appendix A

Federal holidays) from your receipt of this citation and penalty

you mail a notice of contest to the U.S. Department of Labor

Area Office at the address shown above. (See the enclosed

booklet which ouilines your responsibilities and courses of action

and should be read in conjunction with this form.)

ITEM NUMBER

STANDARD, REGULATION DATE BY WHICH

OR SECTION OF THE ACT VIOLATION MUST

VIOLATED; DESCRIPTION BE CORRECTED PENALTY

The issuance of this citation does not

constitute a finding that a violation of the

Act has occurred unless there is a failure

to contest as provided for in the Act or, if

contested, unless the citation is affirmed

by the Review Commission.

The violations described in this citation

are alleged to have occurred on or about

the day the inspection was made unless

otherwise indicated within the descrip-

tion given below:

] 1/11/84 $9,000

Public Law 91-596 Section 5(a){1): The

employer did not furnish employment

and a place of employment which were

free from recognized hazards that were

causing or likely to cause death or serious

physical harm to employees in that:

Employees working in the Heavy Re-

pair, Test and Adjust, Marriage, M-1

Hull Line, and Engine Test areas were

required to spray or pour varying quan-

tities of 1,1,2 trichloro 1,2,2 trifluoro-

ethane into the turret, driver’s, and

engine compartments of M-1 tanks

and immediately enter these compart-

ments to perform clean-up and other

routine tasks thereby exposing them-

selves to the hazard of asphyxiation

and/or chemical poisoning. A confined

space entry procedure, specific for

these operations, had not been imple-

aN.

Appendix A

ITEM NUMBER

STANDARD, REGULATION DATE BY WHICH

OR SECTION OF THE ACT VIOLATION MUST

VIOLATED; DESCRIPTION BE CORRECTED _—~PENALTY

mented when toxic compounds were

introduced into the vehicles. The pro-

cedure shall include at ieast the follow-

ing:

(1) Written procedures covering a

permit system, ventilation, at-

mospheric testing, rescue pro-

cedures, and employee training.

(2) The completion and posting of

a confined space entry permit

which requires authorization

and approval in writing that

specifies the location and type

of work to be done and certifies

that all existing hazards have

been evaluated by a qualified

person and necessary protective

measures have been taken to

insure the safety of each

worker.

(3) Mechanical ventilation of the

confined space prior to entry

and continued ventilation to

provide a safe atmosphere.

(4) Testing the atmosphere of the

confined space prior to entry

and on a regular basis for pres-

ence of sufficient oxygen (19.5

percent) and absence of haz-

ardous levels of toxic or com-

bustible gases or vapors.

(5) Emergency rescue procedures

with a requirement that trained

personnel are available and are

..suoned outside the confined

space with proper equipment to

provide for the rescue of per-

sons entering the space. Such

A-4

Appendix A

ITEM NUMBER

STANDARD, REGULATION

OR SECTION OF THE ACT

VIOLATED; DESCRIPTION

DATE BY WHICH

VIOLATION MUST

BE CORRECTED PENALTY

equipment must include safety

harness and life lines with pro-

visions for hoisting employees

from the confined space. If en-

try is required for rescue, the

rescuing employee must be

equipped with approved air

supplied respiratory equipment

and other appropriate personal

protective equipment.

(6) Training of any and all employ-

ees required to enter the con-

fined spaces after toxic

compounds have been intro-

duced into the vehicle. This

training shall include proce-

dures required prior to entry

and the hazards associated with

work in confined spaces.

The alleged violations below have been

grouped because they involve similar or

related hazards that may increase the

potential for illness.

29 CFR 1910.1000(a) (2): Employee(s)

were exposed to material(s) in excess of

the 8-hour time weighted average

limit(s) listed for the particular mate-

nal(s) in Table Z-1 of subpart Z of 29

CFR part 1910:

(a) Employees were exposed to 1,1,2

trichloro 1,2,2, trifluoroethane in

excess of 1,000 ppm for an 8-hour

TWA in that an employee was

found unconscious in M-1 Tank,

Hull Number 163 located at Bay

L-23 on 9/21/83 at approxi-

mately 4:50 p.m. due to this expo-

*Step | $9,000

Immediately

A-5

Appendix A

ITEM NUMBER

STANDARD, REGULATION DATE BY WHICH

OR SECTION OF THE ACT VIOLATION MUST

VIOLATED; DESCRIPTION BE CORRECTED _—~PENALTY

sure. Calculated range of exposure

was approximately 1,200 to 5,000

ppm TWA.

Possible means of abatement in-

clude but are not limited to:

1. Exhaust ventilation.

2. Substitution of non-toxic com-

pound.

Excess exposure to 1,1,2

trichloro 1,2,2 trifluoroethane

can lead to heart arythmia

and/or narcosis.

2b *Step 2

29 CFR 1910.1000(e): Feasible adminis- 1/11/84

trative or engineering controls were not

determined and implemented to reduce

employee exposure (s):

(a) In Bay L-23 an employee cleaning *Step 3

inside M-1 Tank #163 was over- 5/28/84

exposed to 1,1,2 trichloro 1,2,2,

trifluoroethane and feasible ad-

ministrative and/or engineering

controls had not been imple-

mented.

*Step 1 — Effective respiratory protec-

tion shall be provided and used by em-

ployee(s) as an interim protective

measure.

*Step 2 — Submit to the Area Director a

written detailed plan of abatement outlin-

ing a schedule for the implementaticn of

engineering and/or administrative mea-

sures to control employee exposures to

hazardous substances as referenced in

this citation. This plan shall include, at a

minimum, target dates for the following

A-6

Appendix A

ITEM NUMBER

STANDARD, REGULATION DATE BY WHICH

OR SECTION OF THE ACT VIOLATION MUST

VIOLATED; DESCRIPTION SE CORRECTED _—~PENALT)

actions which should be consistent with

the dates required by this citation:

(a) Evaluation of the extent and loca-

tion of hazard source;

(6) Evaluation of control measure op-

tions;

measure(s);

een Ma ee a ae etre te

(d) Determination of control measure

design: i

(e) Ordering and delivery of equip- :

ment and materials;

(f) Installation of control measures;

(g) Training of employees in the

proper operation and maintenance

of the newly implemented control

measures; and

(h) Assurance of effective perform-

ance of control measures.

*Step 3 — Correction shall be completed

by the implementation of feasible engi-

neering and/or administrative controls

and their effectiveness at achieving com-

pliance verified.

All proposed control measures shall be

approved for each particular use by a

competent industrial hygienist or other

technically qualified person. Ninety (90)

day progress reports required during the

abatement period.

$18,000

A-7

Appendix A

AREA DIRECTOR

/ms

/s/ CHARLES E. BURIN

NOTICE TO EMPLOYEES — The

law gives an employee or his represen-

tative the opportunity to object to any

abatement date set for a violation if he

believes the date to be unreasonable

The contest must be mailed to the

U.S. Department of Labor Area Of-

fice at the address shown above within

15 working days (excluding weekends

and Federal holidays) of the receipt

by the employer of this citation and

penalty.

EMPLOYER DISCRIMINATION

UNLAWFUL — The law prohibits

discrimination by an employer against

an employee for filing a complaint or

for exercising any nghts under this

Act. An employee who believes that

he has been discriminated against may

file a cOmpiaint no later than 30 days

after the discrimination with the U.S.

Department of Labor Area Office at

the address shown above.

EMPLOYER RESPONSIBILITIES AND COURSES OF ACTION — The

enclosed booklet outlines employer responsibilities and courses of action and

should be read in conjunction with this notification

CITATION AND NOTIFICATION OF PENALTY

OSHA-2 REV. 5/75

APPENDIX B

B-]

Appendix B

PARTS 1900 TO 1910

Revised as of July 1, 1986

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

Subparts U—Y [Reserved]

Subpart Z—Toxic and Hazardous Substances

AUTHORITY: Secs. 6 and 8, Occupational Safety and Health

Act, 29 U.S.C. 655, 657; Secretary of Labor’s Orders Nos. 12-71

(36 FR 8754), 8-76 (41 FR 25059), or 9-83 (48 FR 35736), as

applicable; and 29 CFR Part 1911.

Section 1910.1000 Tables Z-1, Z-2, Z-3 also issued under 5

U.S.C. $53.

Section 1910.1000 not issued under 29 CFR Part 1911,

except for “Arsenic” and “Cotton Dust” listings in Table Z-1.

Section 1910.1002 not issued under 29 U.S.C. 655 or 29

CFR Part 1911; also issued under 5 U.S.C. 553.

Sections 1910.1003 through 1910.1018 also issued under 29

U.S.C. 653.

Section 1910.1025 also issued under 29 U.S.C. 653 and 5

U.S.C. S36.

Section 1910.1043 also issued under 5 U.S.C. 551 et seq.

Sections 1910.1045 and 1970.1047 also issued under 29

U.S.C. 653.

Sections 1910.1499 and 1910.1500 also issued under 5

U.S.C. 553.

SouRcE: 39 FR 23502, June 27, 1974, unless otherwise

noted. Redesignated at 40 FR 23073, May 28, 1975.

§ 1910.1000 Air contaminants.

An employee's exposure to any material listed in table Z-1,

Z-2, or Z-3 of this section shall be limited in accordance with the

requirements of the following paragraphs of this section.

(a) Table Z-1:

(1) Materials with names preceded by ‘‘C’’—Ceiling Values.

An employee’s exposure to any material in table Z-1, the name of

which is preceded by a “C” (e.g., C Boron trifluoride), shall at no

time exceed the ceiling value given for that material in the table.

B-3

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

(2) Other materials—8-hour time weighted averages. An

employee’s exposure to any material in table Z-1, the name of

which is not preceded by “C”, in any 8-hour work shift of a 40-

hour work week, shall not exceed the &-hour time weighted

average given for that material in the table.

(b) Table Z-2: (1) 8-hour time weighted averages. An

employee’s exposure to any material listed in table Z-2, in any 8-

hour work shift of a 40-hour work week, shall not exceed the 8-

hour time weighted average limit given for that material in the

table.

(2) Acceptable ceiling concentrations. An employee’s expo-

sure to a material listed in table Z-2 shall not exceed at any tirne

during an 8-hour shift the acceptable ceiling concentration limit

given for the material in the table, except for a time period, and

up to a concentration not exceeding the maximum duration and

concentration allowed in the column under “acceptable maxi-

mum peak above the acceptable ceiling concentration for an 8-

hour shift”.

(3) Example. During an 8-hour work shift, an employee

may be exposed to a concentration of Benzene above 25 p.p.m.

(but never above 50 p.p.m.) only for a maximum period of 10

minutes. Such exposure must be compensated by exposures to

concentrations less than 10 p/m so that the cumulative exposure

for the entire 8-hour work shift does not exceed a weighted

average of i0 p/m

listed in table Z-3, in any 8-hour work shift at a 40-hour work

week, shall not exceed the 8-hour time weighted average limit

given for that material in the table.

(d) Computation formulae:

(1) (i) The cumulative exposure for an 8-hour work shift

shali be computed as follows:

Where:

E is the equivalent exposure for the working shift.

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

C is the concentration during any period of time 7 where the

concentration remains constant.

T is the duration in hours of the exposure at the concentration C.

The value of E shall not exceed the 8-hour time weighted average

limit in table Z-1, Z-2, or Z-3 for the material involved.

(ii) To illustrate the formula prescribed in paragraph

(d)(1) (i) of this section, note that isoamyl acetate has an 8-hour

time weighted average limit of 100 p.p.m. (table Z-1). Assume

that an employee is subject to the following exposure:

Two hours exposure at 150 p/m

Two hours exposure at 75 p/m

Four hours exposure at 50 p/m

Substituting this information in the formula, we have

(2X150+2X75+4X50) + 8=81.25 p/m

Since 81.25 p.p.m. is less than 100 p.p.m., the 8-hour time

weighted average limit, the exposure is acceptable.

(2) (1) In case of a mixture of air contaminants an employer

shall compute the equivalent exposure as follows:

Em=(Ci+LitCo+ Le)+... (Ca+Ln)

Where:

Em is the equivalent exposure for the mixture.

C is the concentration of a particular contaminant.

L is the exposure limit for that contaminant, from table Z-1, Z-2, or

Z-3.

The value of Em shall not exceed unity (1).

§ 1910.1000

B-5

Appendix B

29 CFR Ch. XVII (7-1-86 Edition)

(ii) To illustrate the formula prescribed in paragraph

(d)(2) (i) of this section, consider the following exposures:

Actual 8-hour time

concentra- weighted

Material tion of 8- average

hour exposure

exposure limit

Acetone (Table Z-1) ............. 500 p/m....... 1,000 p/m

2-Butanone (Table Z-])........... rere 200 p/m

SOS SU ED v6.8 5 otice nts | eee 200 p/m

Substituting in the formula, we have:

Em=500~+ 1 ,000+45+200+40= 200

Em=0.500+0.225+0.200

Em=0.925

Since Em is less than unity (1), the exposure combination is

within acceptable limits.

(e) To achieve compliance with paragraphs (a) through (d)

of this section, administrative or engineering controls must first be

determined and implemented whenever feasible. When such

controls are not feasible to achieve full compliance, protective

equipment or any other protective measures shall be used to keep

the exposure of employees to air contaminants within the limits

prescribed in this section. Any equipment and/or technical mea-

sures used for this purpose must be approved for each particuiar

use by a competent industrial hygienist or other technically

qualified person. Whenever respirators are used, their use shall

comply with § 1910.134.

B-6

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

TABLE Z-]

Substance p/m* mg./M?>

I os ss 20-000 so aceceen 200 360

PI ooh v0ss4sennaneenes 10 25

PE sc aeadcctasnueane 5 | 20

PI CROs oss paws ee ee 1,000 2,400

PIP SAS Std dco caddnesdanet 40 70

Acetylene dichloride, see 1, 2-

SND 6 oo osc cacentecsuebs vavaveng eee nek eas aneenleene

Acetylene tetrabromide............ ] 14

Pe rca ed Nea bana diners 0.1 | 0.25

Po PTET ora ee 0.3

PI So = bs is a as rhe a> Lice eb oacen een 0.25

Allyl alcohol—Skin ............... 2 5

PI icin eccndaacaswedes J | 3

C Allylgiycidyl ether (AGE)....... ed 45

Allyl propyl disulfide .............. 2 12

2-Aminoethanol, see Ethanolamine ..|................. | a letace iii cae wee aa

po ee re 0.5 2

ORI as 8 6 ne de sa os wad 6 6% 50 35

Ammonium sulfamate (Ammate)...}................ | 15

IE IE a os eihccwwond scxtanes 100 | 525

OCC AMIT QEGIMNE . oo. ev cinecs. 125 650

I is 6h an pk eee 5 | 19

Anisidine (0, p-isomers)—Skin .....)................ 0.5

Antimony and compounds (as Sb) ..|................ 0.5

ANTU (alpha naphthyl thiourea) ...|..............-. | 0.3

Arsenic organic compounds (as As) .}|................ | 0.5

Pb aa ian who ts deen nes 0.05 0.2

pe rrr Pree errr, eon | 0.2

Barium (soluble compounds) .......}................ | 0.5

pen, Ge SUNN «ow ce cia a ae ee

IID .c'sas + <0 a -a'vaie ca cP baw seb ease awees |

Benzyl chloride l |

| TE LEE e Cee errr 8 eee

IN 5 00a 4,4 a oa a ob a ng es a ee eee | 15

PRG GEURITEGE ww cence 1; 3

DE ona cw acces SO Ee 0.1 | 0.7

B-7

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-!1 — Continued

Substance p/m* mg./M°>

Bromoform—Skin ................ 0.5 5

Butadiene (1, 3-butadiene) ........ 1,000 2,200

Butanethiol, see Butyl mercaptan ....|................. | prayer ee es

eee 200 590

2-Butoxy ethanol (Butyl Cello- |

ee 50 240

Butyl acetate (n-butyl! acetate) ..... 150 710

ee 200 | 950

eee eee 200 950

GR Sec basa scans sacs. 100 300

PT Lee eee 150 450

reer eee 100 300

C Butylamine—Skin .............. 5 | 15

C tert-Butyl chromate (as CrO3)— |

CTU a wasstssscncrbosevssviacsvecces 0.1

n-Butyl glycidyl ether (BGE) ...... 50 270

mutyl MIOTOROIAN. .. 2.5 ............ 10 35

p-tert-Butyltoluene................ 10 60

EES oar | 5

ss 53h cho dswxebhedsaveddceecsosd 2

EE , ree | 5

Gils ad ceed css aacacbdelenes 3.5

RNS ns rete co veess xs 5,000 9,000

Carbon monoxide................. 7” 55

EEE Oe 0.5

Chlorinated camphene—Skin .......}................ | 0.5

Chlosinated Giphenyl oxide .........)................ | 0.5

ied ccc ive eee ses « 1 | 3

eS eee 0.1 0.3

C Chlorine trifluoride ............. 0.1 0.4

C Chloroacetaldehyde............. 1 | 3

a-Chloracetcphenone (phenacylchlo- |

a NE ree 0.05 0.3

Chlorobenzene (monochlorobenzene) 75 350

o-Chlorobenzylidene malononitrile

I St ee 0.05 | 0.4

Chlorobromomethane ............. 200 | 1,050

B-8

Appendix B

Occupational Safety and Heaith Admin., Labor § 1910.1000

TABLE Z-1 — Continued

Substance p/m* | mg./M?>

2-Chloro- | ,3-butadiene, see |

SU AEEN oo 5532s. Mis a y.0'ek 0a 5 wate Rmke as whe Uaubeuates

Chlorodipheny! (42 percent Chlo-

NS ee fe bn eke es l

Chlorodiphenyl (54 percent Chlo- |

AN ick acai a oy CB we wd x wad we xn vod 0.5

1-Chloro, 2,3-epoxypropane, see

Say en nnn ia ivsnkeea

2-Chloroethanol, see Ethylene

eB eh ey So | rae eee ees eae

Chloroethylene, see Vinyl chloride ...|................. | Citededwawe ee

C Chloroform (trichloromethane) . . . 50 240

1-Chloro-1-nitropropane ...... 20 | 100

Chloropicrin ............ ne eae 0.1 | 0.7

Chloroprene (2-chloro-1,3- butadi-

ean 25 | 90

Chromium. sol. chromic, chromous

GS ES) a a aaa ee | 0.5

ky a oN ss woe bo nv'ee dada | |

Coal tar pitch volatiles (benzene

soluble fraction) anthracene, |

BaP, phenanthrene, acridine,

ee Saree | 0.2

Cobalt, metal fume and dust .......)................ | 0.1

ea Bens i vRiw Gd excuses she's 5 0.1

ne eeiewt § | l

Cee ae CD... se ee see ¢ |

RN sw so kc sa a o0c ud oaaec meclsesas ce 1S

Cresol (all isomers)—Skin......... 5 | 22

Crotomeldebyde .................. 2 6

Cumene—Skin................... 50 | 245

ee eer nan 5

SS ee 300 1.050

Cyclohexanol .................. 50 | 200

ESE ne ear 50 200

| Pen aren 300 | 1,015

B-9

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-] — Continued

Substance p/m* | mg./M?>

Cyclopentadiene......3....2...5-- 75 | 200

Ds i ce gba daa haeaabew san rea lewelnes 10

oS epee Tiepenerene |

I, a ie vas ae panes seb vans sesevaus eens ]

Decaborane—Skin...............- 0.05 0.3

I ccc cad ccccacsccPancsstenes nanan | 0.1

Diacetone alcohol (4-hydroxy-4-

methy!-2-pentanone)............ 50 | 240

1,2-diaminoethane, see Ethylene-

VAS SEAMLESS SPOT COTE CEPECCTE OLE TL LY, | eh eer ety

ee 0.2 | 0.4

ee ere eee 0.1 0.1

Dibuty]l phosphate ................ l | 5

Dibutylphthalate ...............-cefecee ee eeeeeeenes 5

C o-Dichlorobenzene.............. 50 | 300

p-Dichlorobenzene........... eas 75 | 450

Dichlorodifluoromethane........... 1,000 ; 4,950

1.3-Dichloro-5,5-dimethyl hydantoin .|.............+6. | 0.2

1,1-Dichloroethane ..............- 100 400

],2-Dichloroethylene .............. 200 790

C Dichloroethyl ether—Skin ....... 15| 90

Dichloromethane, see Methylen-

CN Ral ikiwanspa eases bh acne ee cone eaaws (uSsa Ss aaeaer

Dichloromonofluoromethane........ 1,000 4,200

C 1,1-Dichloro-1-nitroethane ....... 10 60

1,2-Dichloropropane, see Propylene- |

Ne i nnaw soe deacsusnesbeeqeens perce eee ee ee ee es

Dichlorotetrafluoroethane ........... 1,000 | 7,000

ES SEAT OT LOE EE, CREP PE EOE EES TOT | 0.25

Diethylamine ..............--..-- 25 75

Diethylamino ethanol—Skin ....... 10 | 50

Diethylether, see Ethyl ether........|..-.-- 0-002 e secre be eee ee ence eres

Difluorodibromomethane .......... 100 860

C Diglycidyl ether (DGE)......... 0.5 | 2.8

Dihydroxybenzene, see Hydro-

quinone .........-;. Lod Aa Paes hk Ld SAAR ERS errr ry err Tre

Diisobutyl ketone............----: 50 | 290

B-10

Appendix B

Occupational Safety and Health Admin., Labor

TABLE Z-1 — Continued

§ 1910.1000

Substance

p/m* | mg./M2>

Diisopropylamine—Skin ...........

Dimethoxymethane, see Methylal....

Dimethyl acetamide—Skin.........

Dimethylaminobenzene, see Xyli-

= a

Dimethylaniline (N-dimethyl- ani-

SESS, aa

Dimethylbenzene see Xylene........

Dimethyl 1|,2-dibromo-2,2-dichlor-

oetnyl phosphate, (Dibrom) ......

Dimethylformamide—Skin.........

2,6-Dimethylheptanone, see

Diisobutyl kentone ..............

1,1-Dimethylhydrazine—Skin ......

Dimethyiphthelate ................

Dimethylsulfate—Skin ............

Dinitrobenzene (all isomers)— Skin .

Dinitro-o-cresol—Skin.............

Dinitrotoluene—Skin ..............

Dioxane (Diethylene dioxide)— Skin

Diphenylmethane diisocyanate ......

(see Methylene bispheny! isocyanate

SEE chad GNknen 6iccevesss

Dipropylene glycol methy!

ia. vam aacicndcsess

Di-sec. octyl phthalate (Di-2-

ethylhexylphthalate) ............

Paes un wceccccesess

Epichlorhydrin-—Skin .............

EE re

1,2-Epoxypropane, see Propylen-

AS te : a

2,3-Epoxy-1-propanol, see Glycidol ..

pits

ee eo ore i

B-11

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-1 — Continued

Substance p/m* mg./M°>

Ethanethiol, see Ethylmercaptan.....|..... 2.6.6.6 6005: | eed coweseeers 5

errr rr errr 3 6

2-Ethoxyethanol—Skin ............ 200 | 740

2-Ethoxyethylacetate (Cello-solve

acetate) —Skin................. 100 | 540

NE ci tah isicesnscescess = 1,400

Ethyl acrylate—Skin .............. 25 100

Ethyl alcohol (ethanol) ........... 1,000 | 1,900

Ethylemnime . ow... ccc cece enees lu 18

Ethyl sec-amy! ketone (5- methyl-

S-heptamone) ..........2 ee eee 25 | 130

Ethyl benzene .............0-0ee- 100 435

Ethyl bromide ..............000.- 200 | 890

Ethyl butyl ketone (3- Heptanone).. mi 230

Ethyl chioride...............-005- 1,000 2,600

PN EE isc cbc dascvcconnvens 400 1,200

Ethyl formate ...............-+5:- 100 300

C Ethyl mercaptan ............... 10| 25

eee 100 | 850

Ethylene chlorohydrin—Skin ....... 5 | 16

Ethylenediamine .............---. 10 25

C Ethylene glycol dinitrate and/or |

Nitroglycerin—Skin....... ae 4 2 | l

Ethylene glycol monomethy! ether

acetate, see Methyl cellosolve |

eg che ecdaddcccadcctcveenbesceteswadsuewer

Ethylene imine—Skin ............. 0.5 1

Ethylidine chloride, see 1,!- Dich- |

i i SP rrr) rrr rr ec.

N-Ethylmorpholine—Skin ......... 20 | 94

eed CeCe ues batheer eed cdes¥eeege | 15

ae. ee nen. er l

NS ens us) deandhoiviedeincsvatey | 2.5

DE os, Cl pause lacsacesenee 0.1 | 0.2

B-12

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

TABLE Z-1 — Continued

Substance p/m* mg./M?>

Fluorotrichloromethane............ 1,000 | 5,600

POSE Garhi iwecsccccece 5 9

Furfural—Ghin................... S| 20

a 50 200

Glycidol (2,3-Epoxy-l- propanol). . 50 | 1S0

Glycol monoethy! ether, see 2-

te Ore higss kacthwoncovessceeddns | Sdnsthnowssdaees

Guthion®, see Azinphosmethyl ......|................. pes eecceneceeees.

EE ee | 0.5

ES a ne val 0.5

Heptane (n-heptane) ............. $00 | 2.000

Hexachloroethane—Skin .......... 1 | 10

Hexachloronaphthalene—Skin ......|................ | 0.2

Hexane (n-hexane)............... 500 1,800

I SG esd yon acc cesses 100 410

Hexone (Methy! isobutyl ketone) ... 100 410

sec-Flenyl scetate................. 50 300

Hydrazine—Skin ................. l 1.3

Hydrogen bromide.............. 3 10

C Hydrogen chloride.............. 5 | 7

Hydrogen cyanide—Skin ....... a 10| 1]

Hydrogen peroxide (90%) ......... ] 1.4

Hydrogen selenide ........... .... 0.05 | 0.2

nae Wy kG oasbbe.cials nee keane s¥uvicbiic | 2

8 YE OS Ee erren ren 0.1 |

ee. a nas ace acelin » wah Mblciainlamieion | 10

ds sea ace eenecsss 100 525

EE 100 | 260

SE fans oss kod eeede ee 150 700

ae 100 300

ee 25 140

isopropyl acetate ................. 250 950

SUD ooo oo cc nccnccces 400 980

Se has cat cls caw bn 5 12

POE sc iW ena ws ccccceccscs 500 2,100

Isopropyl glycidyl ether (IGE) ..... 50 240

-13

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-] — Continued

Substance p/m* | mg./M*>

ees es Cs yd ia 0.5 | 0.9

SE sok is ast cad éeatssheseksteeseaeesea 0.5

SD CNGRRS RO Feerre errr | 0.025

L.P.G. (liquified petroleum gas) .... 1,000 | 1,800

Magnesium oxide fume ........ 66.) eee eee eens | 1$

en osc cécbhehenevenebbsteee | 15

OMROEG GUEIES «wc ccc cceeces 0.25 | ]

0 ees err er rr | 5

ED a Sates nncaccsanens 25 100

Methanethiol, see Methy! mercaptan .|................. | pisdl big arelne acRen

PPP PEPE ee Peer eeeey) VIP TEEEEe reer ee | 15

2-Methoxyethanol, see Methy!

i oo cide reederdescakuy sviiaaenensdesee | sibphee's a rGaat eel

RUN NOD op ce sncdsccrsnacees 200 | 610

Methy! acetylene (propyne)........ 1,000 | 1,650

Methyl acetylene-propadiene |

lg 1,000 | 1,806

Methyl acrylate—Skin ............ 10 | 35

Methylal (dimethoxymethane) ..... 1,000 | 3,100

Methyl alcohoi (methanol) ...... 200 | 260

RIE ecko cs caeesseee 10 | 12

Methyl amy! alcohol, see Methy!

isobutyl carbinol ......... 2. cece cb cece cee ees eeees | ad 5 ate ee a a

Methyl (n-amyl) ketone (2- Hepta- |

ON S Keebcias éhnegeeeecseds 100 ! 465

C Methyl bromide—Skin.......... 20 | 80

Methyl! buty! ketone, see 2-

ed ec es hb an dsb eda eenenewben snes PA er ro

Methyl! cellosolve—Skin ........... 25 | 80

Methyl cellosolve acetate—Skin .... 25 | 120

Methyl! chloroform...............- 350 | 1,900

Methylcyclohexane ............... 506 | 2,000

Methyicyclohexanol............... 100 | 470

B-14

Appendix B

Occupational Safety and Health Admin., Labor

TABLE Z-] — Continued

§ 1910.1000

Substance p/m* mg./M?>

o-Methylcyclohexanone—Skin . . . . 100 | 460

Methyl! ethyl ketone (MEK), see 2- |

Sn es | ecankawed seueees

waetnyl formate ... 3.2... ......... 100 | 250

Methyl iodide—Skin.............. 5 | 28

Methyl isobutyl carbinol—Skin ..... 25 | 100

Methyl isobutyl ketone, see Hexone..|................. PPR ere ee

Methyl isocyanate—Skin .......... 0.02 | 0.05

C Methyl mercaptan.............. | 10) 20

Methyl methacrylate.............. | 100 | 410

Methyl propyl ketone, see 2-

PUI Fhi ers s ows vic nce 0 | eR ER ETE ON eS aes ake teen

C# Methyl styrene ............... | 100 | 480

C Methylene bispheny! isocyanate | |

OE aan ee 0.02 | 0.2

Molybdenum: |

Soluble compounds ........... Puen hoe nee | 5

Insoluble compounds .......... RSE A ee. 15

Monomethyl aniline—Skin......... | 2 | 9

C Monomethyl hydrazine—Skin .... | 0.2! 0.35

Morpholine—Skin ........... ness | 20 70

i) ee | 100 | 400

a ee 10 | 50

ee 0.001 | 0.007

Nickel, metal and soluble cmpds, | |

eo eee ae an IO Ate ]

Nicotine—Skin................. | Me Cae ki eee l 0.5

Nitric acid | | 2| §

RN ee ei | 25 | 30

p-Nitroaniline—Skin.............. | | 6

Nitrobenzene—Skin .............. | 1 | 5

p-Nitrochlorobenzene—Skin........ | Poin wie os a

PRIRPOOINMNE: iw oe ess | 100 | 310

C Nitrogen dioxide ............... 5 | 9

Nitrogen trifluoride ............... 10, 29

C Nitroglycerin—Skin ............ 0.2 | 2

PU sa vp a oS Sa cat 100 | 250

B-15

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-1 — Continued

Substance p/m* | mg./M°>

]-Nitropropane................55- 25 | 90

2-Nitropropane............--+605: 25 | 90

Nitrotoluene—Skin ..........-..-. 5 | 30

Nitrotrichloromethane, see Chloropiciq ...........-.+5: Sy reer ere

Octachloronaphthalene—Skin.......)...-- 000s eee eres | J

Re a 500 | 2,350

‘oo ee! Sri $

Osmium tetroxide................- PRPs tye | 0.002

ed see vencaReka ese mane wel Pe |

Oxygen difluoride................: 0.05 | |

Pre in Cee e ee 0.1 | 0.2

Pare@uet—Siih. 0. ccc bec eect renee eect | 0.5

Parathion—Skin . oo... cece Sarre ey, An | 0.)

SIN ii cians ine dea venes ss | 0.005 | 0.01

Pentachloronaphthalene—Skin ...... PTO E STS ee ore | 0.5

Pentachlorophenol—Skin ...... Nan Mbadtaia salen @ Smee 0.5

I ea a ee ae | 1,000 | 2,950

eer eee | 200 | 700

Perchloromethy! mercaptan ..... ve 0.1 | 0.8

Perchlory! flouride ............---. 31 13.5

Petroleum distillates (naphtha) ... | 500 | 2,000

Phenol—Skin ............ ye 7 19

p-Phenylene diamine—Skin ........ | Rats 6 ei nara 0.1

Phenyl ether (vapor)..........-. | i | 7

Pheny! ether-biphenyl mixture (va- |

NSS ARS Ce ED | 1 | 7

Phenylethylene, see Styrene......... | a eae re eae wes

Phenyl glycidyl ether (PGE) ....... 10 | 60

Phenylhydrazine—Skin............ 5 | 22

Phosdrin (Mevinphos®)—Skin......}...-.---+5 seed 0.1

Phosgene (carbonyl chloride) ...... 0.1 | 0.4

a. Pe eee oe 0.3 | 0.4

Phosphoric acid ............ ccs eee pense e eee eeeeeees |

Phosphorous (yellow) .........--+sfereeeeereeees ; | 0.1

Phosphorus pentachloride .......-.-}s-s-seeeeeeeeees |

Phosphorus pentasulfide.........-..b.---..eeeees as | ]

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

TABLE Z-1 — Continued

Substance p/m* mg./M?>

Phosphorus trichloride............. 0.5 3

Phthalic anhydride................ 2| 12

PME TIN 5 sk idc ba ccddnendabecaccadaevads 0.1

Pival® (2-Pivalyl-1,3- indandione) ...|................ 0.)

Platinum (Soluble salts) as Pt......|................ 0.002

AO A ee 1,000 | 1,800

n-Propyl acetate............. , 200 | 840

Propyl alcohol ................... | 200 | 500

n-Propyl nitrate ...... ee Pe Oy 25 110

Propylene dichloride ............ 75 | 350

Propylene imine—Skin ........... 2 5

go 100 240

Propyne, see Methylacetylene .......|............. 4

Ps oy i Pew aan | A Bee e een ite | 5

Pe W'a o' i's ointc3 ChE er 5 | 15

Quinone Puseawie cas eens 0.1) 0.4

Rhodium, Metal fume and dusts,

—' eae eS, 0.1

Soluble salts as 0.00]

Eee crira Pana 4 onion 15

Rotenone (commercial) ... | 5

Selenium compounds (as Se) 0.2

Selenium hexafluoride . . 0.05 0.4

Silver, metal and soluble com- |

pounds........ abetoa ay seh BAS Be PORE) he AN 0.01

Sodium fluoroacetate (1080)—Skin .}. 0.05

Sodium hydroxide .. SO Oe? x e 2

Stibine eae 0.) 0.5

Stoddard solvent .. 500 2.900

Strychnine | 0.15

Sulfur dioxide 5 13

Sulfur hexafluoride | 1 000 6,000

Sulfuric acid ee m ® ; ]

Sulfur monochlorvide nay eet | 1 | 6

Sulfur pentafluonde........... 0.025 | 0.25

Suifury! fluonde 5 20

B-17

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-] — Continued

Substance p/m* | mg./M?>

a eer rey Sr ere | a

po ph ee et re CA One 10

ph a Nk Sareea a er | 5

po OL ter eer 0.2

pT ee ally ES A eae! | 0.!

Tellurium hexafluoride ............ 0.02 | 0.2

PENS Faas var bec e cea OM OES 0.05

C Te Ga coc cceessans’ | l | 9

1,1,1,2-Tetrachloro-2,2- |

GIO oo gino wk cn csnces 500 | 4,170

1,1,2,2-Tetrachloro-1,2- |

PT ET ere rrr | 500 | 4.170

1,1,2,2-Tetrachloroethane—Skin .... | 5 | 35

Tetrachloromethane, see Carbon |

I Ae ra os pk is ERs

Tetrachloronaphthalene—Skin ...... Aye eee | 2

Tetraethyl lead (as Pb)—Skin...... Due aa ees 55 + 0.075

ce Pere re eree | 200 | 590

Tetramethyl lead (as Pb)—Skin ....}............... | 0.075

Tetramethy! succinonitrile—Skin.... | 0.5 | 3

Tetranitromethane | 1| ®

Tetry! (2,4,6-trinitrophenyl- methyl- |

nitramine)—Skin ............... ee | 1.5

Thallium (soluble compounds )— |

ee eS epee | Oa 0.1

Fe. 3 deicaseasaeaens Peatowi sss Basse Rex n eee ss. 5

Tin (inorganic cmpds, except oxides .|....... 2

Tin (organic cmpds) .............. Lae oe 0.1

C Toluene-2,4-diisocyanate ........ | 0.02 | 0.14

o-Toluidine—Skin ................ | S| 22

Toxaphene, see Chlorinated cam-

CO Bee Oe ee Qe ee SEEVAG Rass sss.

Tritutyl phosphate ................ lo Oe are | 5

1,1,1-Trichloroethane, see Methy]

rN RES ah rae Sie Sem

B-18

Appendix B

yccupational Safety and Health Admin., Labor § 1910.1000

TABLE Z-1 — Continued

Substance p/m* | mg./M°>

1,1,2-Trichloroethane—Skin........ 10} 45

po EA Te, re es rae | 15

Trichloromethane, see Chloroform ...|............. Tee hore

Trichloronaphthalene—Skin ........).........c00000. l 5

1,2,3-Trichloropropane ............ 50 | 300

1,1,2-Trichloro 1,2,2-Trifluoroethane 1,000 | 7,600

PIN 63.5 ho Koc bis creeks 25 100

Trifluoromonobromomethane ........ 1,000 | 6,100

2,.4,6-Trinitrophenol, see Picric acid ..j................. Se rey 2

2,4,6-Trinitrophenylmethyl- nitra- |

I er ewaes eae ee ee per, Seay

Trinitrotoluene—Skin ...... es Pee Pe! : 1.5

bo SPECTRE ETT CLEC ee TTT eee | 0.1

IIE 56.6 6 6s ikon « eidhe U6 de Jae eee ems | 3

PE bee ado eed vas eek aes es 100 | 560

Uranium (soluble compounds)......,.............45. 0.05

Uranium (insoluble compounds) ....}..............5. 0.25

C Vanadium:

| eae ert oe bs 2c 0.5

re As et ree | 0.1

Vinyl benzene, see Styrene ....... SAE Pater tye Berrerree

Vinyleyanide, ste ACTYIONIIFIIG .... . i)... cc ccsn: seo tna bata

Se re ere oe 100 | 480

Wk ise cess | ra 0.1

Aylene (xyiol) ........... ore 100 | 438

MYM —BAAG . wees aees 5 25

POOR Wass Pa ewa paw ae he pe es Or crane | |

Zinc chlonde fume | |

Tae GENES TOME. 6. ks hice ne i a RK Op hn | 5

Zirconium compounds (as Zr)...... 5

This standard applies in cotton yarn manufacturing until compli-

ance with § 1910.1043(c) and (e) is achieved.

*Parts of vapor or gas per million parts of contaminated air by

volume at 25° C. and 760 mm. Hg pressure.

bApproximate milligrams of particulate per cubic meter of air.

B-19

Appendix B

§ 1910.1000 29 CFR Ch. XVIi (7-1-86 Edition)

TABLE Z-1 — Continued

(No footnote “c” is used to avoid confusion with ceiling value

notations. )

4An atmospheric concentration of not more than 0.02 p.p.m., or

personal protection may be necessary to avoid headache.

‘This 8 hour time weighted average is for respirable dust as

measured by a vertical elutriator cotton dust sampler or equivalent

instrument. This time weighted average applies to the cotton waste

processing operations of waste recycling (sorting, blending, cleaning, and

willowing) and garnetting.

B-20

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

TABLE Z-2

Acceptable maximum peak above

8-bour time Acceptable the acceptance ceiling concen-

weighted ceiling tration for an 8-hour shift

Material average concentration Concentration | Maximum duration

Benzene (Z37.40- |l0p.p.m...... Po. 50 p.p.m ....| 10 minutes.

1969).

Beryllium and 2 pe./M? 5 pg./M? .| 25 pog./M3. .| 30 minutes

beryllium com-

pounds (Z37.29-

1970)

Cadmium fume 0.1 mg./M?...| 0.3 mg./M?3

(Z37.5-1970). :

Cadmium dust 0.2 mg./M?...| 0.6 mg./M? |

(Z37.5-1970). |

Carbon disulfide 20 p.p.m.. 30 pp.m...... 100 p.p.m .. | 30 minutes

(Z37.3-1968).

Carbon tetrachlo- {10 p.p.m 25 p.p.m .| 200 p.p.m ...| 5 minutes in any

ride (Z37.17- | 4 hours

1967).

Chromic acid and | ............. 1 mg./10M?3 ;

chromates

(Z37.7-1971).

Ethylene dibromide |20 p.p.m...... 30 p.p.m 50 p.p.m |S minute

(237.31-1970).

Ethylene dichlonde |50 p.p.m...... 100 p.p.m..... 200 p.p.m ...| 5 minutes in any

(Z37.21-1969). | 3 hours

Formaidehyde |3 p.p.m 2 RSG 10 p.p.m | 30 minutes

(Z37.16-1967). |

Hydrogen fluoride /3 POMP. cicd eetcie ace |

(Z37.28-1969). | |

Hydrogen sulfide | Were AO PPM. 50 p.p.m ....| 10 minutes once

(Z37.2-1966). | | only if no

other measura-

| ble exposure

| occurs

Jn penn eneneeecnestemetenennnenenneneneneereneeerese SS —_

B-21

Appendix B

§ 1910.1000 z9 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-2 — Continued

Acceptable maximum peak above

8-hour time Acceptable the acceptance ceiling concen-

weighted ceiling tration for an 8-hour shift

Material average concentration Concentration | Maximum duration

Fluoride as dust ee diel pate ddd Ee aeeserd verwe

(Z37.28-1969).

lg ks SE re MY oho esr sca vsiep ad

1971).

Methyl chlonde 100 p.p.m..... 200 p.p.m..... 300 p.p.m ...| 5 minutes in any

(Z37.18-1969). 2 3 hours.

Methylene chloride |500 p.p.m..... 1,000 p.p.m 2,000 p.p.m..| S minutes in any

(Z37.23-1969) 2 hours

Organo (alkyl) 0.01 mg./M®° . .| 0.04 mg. /M°

mercury

{Z37.30-1969)

Styrene (Z37.15- | 100 p.p.m 200 p.p.m .| 600 p.p.m ...| 5 minutes in any

1969). | 3 hours

Tetrachloroethylene |...do........ eo pp yey 300 p.p.m | § minutes in any

(Z37.22-1967). | 3 hours

Toluene (Z37.12- |200p.p.m..... 300 p.p.m..... 500 p.p.m | 10 minutes

1967)

Trichlorethylene 100 p.p.m..... 200 p.p.m 300 p.p.m ...} 5 minutes in any

(Z37.19-1967)

2 hours

B-22

Appendix B

Occupational Safety and Health Admin., Labor § 1910.1000

TABLE Z-3

Substance Mppcf * Mg/M?

Silica:

Crystalline:

SI IID S a i sccnuseuns naxade 250£| 10mg/M?™

%SiO2+5 %SiO2+2

Sy ME ocak cnsces be cc us cnck eben teban cans 30mg/M?

%S202+2

Cnistobalite: Use 2 the value calculated from

the count or mass formulae for quartz .....

Tridymite: Use 42 the value calculated from |

the formulae for quartz ................. |

Amorphous, including naturai diatomaceous

a Ss ear eng pee en toe ee | 20 | _ 80mg/M?

| %SiO2

Silicates (less than 1% crystalline silica): | |

Ro eG ia whee vee kere se ehc es 20 |

Se re aut ocucg cet at ake x: 20 |

Talc (non-asbestos-form) ................. 20° |

Talc (fibrous). Use asbestos limit........... |

Tremolite (see talc, fibrous) .......... | |

ER aes Soe Pee eee 50 |

SCE 9 awn cucceelesaeene cncaaw 15 |

Coal dust (respirable fraction less than | |

PS de rai ean aces sw bwas's ee oe a oe | 2.4mg/M?

et EE PON de cs eo ada an cea svaens pier | 1Omg/M?

| | %SiO2+2

Inert or Nuisance Dust:

ieee eee a. resus ce, | 15 | Smg/M

MS Hele 2 ON oy nak bg apo Rest o | SO; = 15mg/M?

Note: Conversion factors—mppcf X 35.3 = million particles per cubic

meter = particles per c.c

* Millions of particles per cubic foot of air, based on impinger samples

counted by light-field technics.

B-23

Appendix B

§ 1910.1000 29 CFR Ch. XVII (7-1-86 Edition)

TABLE Z-3 — Continued

‘The percentage of crystalline silica in the formula is the amount deter-

mined from air-borne samples, except in those instances in which other methods

have been shown to be applicable.

™ Both concentration and percent quartz for the application of this limit are

to be determined from the fraction passing a size-selector with the following

characteristics:

» Containing <1!% quartz; if 1% quartz, use quartz limit.

Aerodynamic dismeter (unit

density sphere) Percent passing selector

2 | 90

y Be 75

EF 50

5.0 25

10 0

The measurements under this note refer to the use of an AEC instrument

The respirable fraction of coal dust is determined with a MRE; the figure

corresponding to that of 2.4 Mg/M3 in the table for coal dust is 4.5 Mg/M°.

[39 FR 23502, June 27, 1974. Redesignated and amended at 40

FR 23072, 23073, May 28, 1975; 42 FR 22525, May 3, 1977; 43

FR 2600, Jan. 17, 1978; 43 FR 5963, Feb. 10, 1978; 43 FR 13563,

Mar. 31, 1978; 43 FR 19624, May 5, 1978; 43 FR 27394, June 23,

1978; 43 FR 45809, Oct. 3, 1978; 43 FR 53007, Nov. 14, 1978; 43

FR 57602, Dec. 8, 1978; 46 FR 32022, June 19, 1981; 49 FR

25796, June 22, 1984; 50 FR 51173, Dec. 13 1985]

APPENDIX C

C-]

Appendix C

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION

1365 PEACHTREE STREET, N.E., SUITE 240

ATLANTA, GEORGIA 30309

(404) 881-4197

FTS: 257-4197

SECRETARY OF LABOR,

Complainant,

V. OSHRC Docket No. 83-1293

GENERAL DYNAMICS LAND SYSTEMS

Division, INC..

Respondent,

and

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, and its LOCAL

UNION No. 1200,

Authorized Employee

Representative

APPEARANCES:

Richard J. Fiore, Esquire, and Mark A. Holbert, Esquire,

Office of the Solicitor, U. S. Department of Labor, Chicago,

Illinois, on behalf of complainant.

John P. Hancock, Esquire, and Lisabeth Coakley, Esquire,

Butzel, Long, Gust, Klein and Van Zile, Detroit, Michigan,

on behalf of respondent.

C-2

Appendix C

Beverly Tucker, Esquire, and Diane Thomas, Law Clerk,

United Automobile, Aerospace and Agricultural Implement

Workers of America, International Union, Detroit, Michi-

gan, on behalf of the authorized employee representative.

Charles Farrugia, Health and Safety Representative, United

Automobile, Aerospace and Agricultural Implement Work-

ers of America, Local Union No. 1200, on behalf of the

authorized employee representative.

C-3

Appendix C

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to

section 10 of the Occupational Safety and Health Act of 1970

(“Act”) to contest a citation alleging two willful violations of the

Act, and a proposed penalty in the amount of $18,000. General

Dynamics Land Systems Division, Inc., (“General Dynamics’’),

is charged with violating the general duty requirements of section

5(a)(1) of the Act and specific standards under section 5(a) (2)

at 29 C.F.R. § 1910.1000(a) and (e). The violations are alleged

to have occurred while respondent was engaged in the production

of M1 Abrams Main Battle Tanks at the Detroit Arsenal Tank

Plant (DATP) which it had taken over from the Chrysler

Corporation in March 1982.

The violations are described in the citation in pertinent part

as follows:

5(a) (1)

..employees working in the Heavy Repair, Test and Adjust,

Marriage and M1 Hull Line were required to spray or pour

varying quantities of 1,1,2 trichloro !,2,2 trifluoroethane into

the turret and driver's compartments of M1 tanks and

immediately enter these compartments to perform clean-up

and other routine tasks thereby exposing themselves to the

hazard of asphyxiation and/or chemical poisoning. A con-

fined space entry procedure, specific for these operations, had

not been impiemented when toxic compounds were intro-

duced into the vehicle.

29 C.F.R. 1910.1000(a) (2) -

..employees were exposed to i,1,2 trichloro § 1,2,2

trifluoroethane in excess of 1,000 ppm for an 8-hour TWA in

that an employee was found unconscious in M1 Tank, Hull

Number 163 located at Bay L-23.... Calculated range of

exposure was approximately 1,200 to 5,000 ppm TWA.

C-4

Appendix C

29 C.F.R. 1910.1000(e) -

...and feasible administrative and/or engineering controls had

not been implemented.

There is no dispute that 1,1,2 tricholoro 1,2,2 trifluoroethane

(“freon” or “the solvent”) was used as a cleaning agent during

production and repair of the tanks. The solvent is a colorless

liquid described as having a “light ethereal” (sweet) odor. It has

a high vaporization rate and is of high density, being six and one-

half times heavier than air. While less toxic than most commer-

cial solvents, inhalation of high concentrations can cause depres-

sion of the central nervous system, cardiac arrythmia (irregular

heart beat), and even cardiac arrest.

The MI tank is produced in three assembly stages at the

DATP. The hull assembly, turret assembly, and when connected,

become fully assembled or the married vehicle. The hull enters

the assembly department as an open structure with various

electrical components, hydraulic lines, rolled wheels and tracks.

Assembly fitters install components to the vehicle including the

engine, and it becomes drivable. The hull and turret are con-

nected in the Marriage Department and any needed repairs are

performed. The vehicle is then inspected and tested in the Heavy

Repair or Test and Adjust Department. These production tasks

are performed by tank repairmen, assembly fitters, and inspectors,

all skilled tradesmen. The solvent is used during each stage of

assembly, usually in cleaning up hydraulic fluid or fue! which has

been spilled.

The M1 Abrams tank, unlike it predecessor the M60 tank,

has increased hydraulic systems which contributes to larger

amounts of oil spillage and leaks.

THE ALLEGED VIOLATION OF SECTION 5(a) (1)

The inspection which gave rise to issuance of the citation was

conducted by Mr. David Morgan, an Industrial Hygiene Supervi-

sor for the Occupational Safety and Health Administration

C-5

Appendix C

(OSHA). He commenced his investigation because an employee,

Charles Paling, was seriously injured from exposure to freon vapor

while working in the driver’s compartment of a fully assembled

tank.

Respondent is charged with failure to develop and imple-

ment a safe employee entry procedure into the tank compart-

ments when the atmosphere was known to have been altered and

contaminated by the solvent vapors. The willful charge is based

on allegations that respondent knew the configuration of the

compartments presented recognized hazards associated with con-

fined spaces yet required its employees to enter and work in the

spaces without providing the necessary precautions. It is also

alleged that respondent has a history of non-response to frequent

employee complaints and union requests that affected employees

be protected.

Mr. Charles Paling, a tank repairman, testified to the events

which led to his being overcome by the solvent on September 21,

1983. He stated that, as a repairman in the Test and Adjust

Department, he was assigned to correct deficiencies on Tank No.

163 (Tr. 800). One such deficiency was a leak in a one-inch

hydraulic line on the turret distribution manifold. In order to

make the repair, Mr. Paling gained access to the line by entering

the driver’s compartment head first and positioning himself facing

the rear of the vehicle. As a result of replacing the line, oil spilled

onto the turret distribution manifold and turret floor (Tr. 802-

804). At Paling’s request his co-worker, Steven Valentine,

brought him a pail containing three to four gallons of freon which

he poured on the manifold and turret platform to clean up the

spill (Tr. 808). At this point, the testimony differs as to what

actually occurred. According to Mr. Valentine, Paling immedi-

ately reentered the driver's compartment to check his repair.

Valentine then left the area as he was instructed to perform work

on another tank. When he returned approximately 20 minutes

later, he found Paling unconscious in the tank (Tr. 919-920).

Paling, however, testified that, after pouring the freon, he imme-

SL eT ee See ee EEE TT rena

C-6

Appendix C

diately got out of the vehicle, set up his air mover to “blow out the

fumes” and proceeded to work on the outside of the vehicle (Tr.

809). He indicated the tank was ventilated for about 45 minutes

to an hour with the three hatches and the drain open (Tr. 854,

868). Paling also related that when he re-entered the tank to

check the line, he noted another leak: and, while preparing to

break the line, he passed out (Tr. 812, 813). After six days of

hospitalization, he was discharged with the following diagnosis

(Ex. C-33(c), “Discharge Summary”):

Trichlorotrifluroethane Exposure, Industrial, Severe.

Atrial Fibrillation.

Atrial and Ventricular Extrasystoles.

In order to establish a violation of section 5{a)(1) of the

Act, the Act’s general duty clause, the Secretary must prove: (1)

that the employer failed to render its workplace free of a hazard

which was (2) “recognized,” and (3) causing or likely to cause

death or serious physical harm, and (4) that feasible means

existed to free the workplace of the hazard. Empire-Detroit Stee!

Division v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); National

Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C.

Cir. 1973).

The proof required to establish the first two elements of the

alleged violation provides the basis for this dispute. A considera-

ble amount of evidence was presented to establish that the

driver’s, crew and hull compartments of the tank constituted

“confined space,” necessitating safe employee entry procedures.

Generally, the characteristics of a “confined space” are that the

space is: (1) an enclosure, (2) having limited means of access or

egress, and (3) not subject to good natural ventilation (Ex.

C-35(a), (b), (c), (d)). In addition, the Secretary attempts to

show respondent had full knowledge of the hazards associated

with employees working in confined spaces because in August

1982 an employee was rendered unconscious from his exposure to

freon.

C-7

Appendix C

The record discloses that the employee representative's com-

plaint to OSHA on August 25, 1982, indicated that freon vapor

had accumulated in a pit under a conveyor line where the

employee was injured. This was followed by an investigation of

the incident by OSHA, and issuance of a citation for violation of

section 5(a) (1). Implementation of a confined space entry proce-

dure throughout the plant was recommended to abate the

hazards. The matter was subsequently resolved by a settlement

agreement in Secretary v. General Dynamics Land Systems, Inc.,

OSHRC Docket No. 82-1001 (Ex. C-7, C-8). The agreement, in

part, states as follows:

(a) Respondent represents that the violative conditions

alleged have been abated in accordance with the abatement

procedures set forth in the Citation by the implementation of

amended Confined Space and Lockout Procedures devel-

oped with the full input and cooperation of authorized

employee representatives.

(b) To the best of Respondent’s knowledge and belief,

Respondent is currently complying, and in the future will in

good faith continue to comply, with the provisions of the Act,

and applicable standards promulgated pursuant thereto.

The evidence shows that a confined space entry procedure

was implemented at the plant, which was acceptable to complain-

ant (Tr. 504).

Respondent now argues that the confined space entry proce-

dures developed at the plant were not intended to include the M1

tanks. Also, at no time was it advised or made aware that confined

space hazards were associated with its use of the solvent in the

tanks until issuance of the instant citation.

In support of this argument, respondent relied upon the

background testimony of its Safety and Health Director, Edmund

Matthews. Mr. Matthews was aware that freon had been used at

the plant even prior to 1974. It was preferred as a solvent because

of its relatively low toxicity, high rate of evaporation without

C-8

Appendix C

residue, and lack of combustibility. He had first investigated its

toxic effects in 1976 (Tr. 2299-2300).

Following the OSHA inspection in 1982, Matthews stated he

conducted a survey of the plant and compiled a list of confined

spaces within the meaning of the Michigan Occupational Safety

and Health Act (MIOSHA). He also developed safe entry

procedures for those spaces, took air samples, provided portable

ventilation systems, lifelines and safety harnesses. In addition,

confined space entry classes were conducted for employees having

occasion to work in the designated spaces (Tr. 2289-2295).

Respondent also argues that the Health and Safety Repre-

sentative for the employee’s union did not recognize the tank as

being a confined space. The list of confined spaces submitted by

the union in accordance with the settlement agreement did not

include the Mi tank in either its marned or unmarned configura-

tion (Tr. 1343, 1344).

Although the compliance officer who conducted the initial

inspection was not Called to testify in this proceeding, it can be

reasonably assumed he thoroughly investigated the use of freon at

the DATP, including its use in the M1 tanks. This becomes quite

evident since another complaint was filed with OSHA by the

union concerning use of the solvent in the tanks. The complaint

stated in part, that “employees made to wash out tanks with 14

gallons of freon” and “employees made to drive under the

influence of these gases” (Ex. C-9). This complaint was investi-

gated by the same compliance officer whose earlier inspection

resulted in the citation. Upon completion of this inspection,

neither he nor OSHA advised respondent the M1 tank was

considered a confined space, or that use of freon inside the tank

presented a potential hazard (Tr. 442, 446, 2298).

The inspecting officer was clearly aware of the solvent’s use

in the tanks as Mr. Charles Farrugia, the Health and Safety

Representative for the local union, testified that he personally

explained how it was being used by employees inside the tanks

C-9

Appendix C

(Tr. 1353). It is also obvious that the OSHA investigation

included an evaluation of the control measures implemented by

respondent (Tr. 436, 2315-2317).

Although the record indicates a number of employees have

complained of ill effects from working with the solvent, General

Dynamics presented evidence to show it had responded ade-

quately to the complaints and that it has maintained safe controls

and procedures. It is noted that a grievance filed by the union

through a formal labor-management procedure regarding use of

freon was withdrawn (Ex. C-2). Also, in August 1983, the

International Union’s Safety Representative conducted an inspec-

tion at DATP with Mr. Farrugia. The inspection was followed by

a meeting with company officials regarding health and safety

problems, but employee use of the solvent was not included in the

topics discussed (Tr. 1430-1431). Thus, it would appear respon-

dent employed acceptable work procedures.

The Secretary strongly contends that the respondent had

actual knowledge of the hazards associated with employee entry

into confined spaces and knowingly exposed its employees to such

hazards in the M1 tanks. The record indicates, however, that the

basic criteria for identifying a confined space requiring safe entry

procedures is the extent of enclosure and inadequacy of natural

ventilation to purge the atmosphere. In the instant case, Mr.

Paling testified the hatches and drains were open when he

ventilated the space for up to an hour as part of his normal

procedure. The conditions under which he worked suggest safe

operating procedures were being employed which included purg-

ing of the atmosphere by mechanical ventilation.

Generally, there appears some question regarding the suffi-

ciency of the evidence to establish the violation. However, a

ruling upon consideration of all the evidence will not be made as

the allegations of the violation are inappropriate and must be

vacated because the alleged hazard is addressed by a specific

standard.

C-10

Appendix C

The declared purpose of the Act is to assure so far as possible

every working man and woman in the Nation safe and healthful

working conditions and to preserve our human resources . . . 29

U.S.C. § 651(b). While the Act contemplates specific safety

standards, its purposes are also effectuated by the general duty

clause because it is obvious the Secretary can not promulgate

specific standards to protect employees from every conceivable

hazardous condition. The legislative history of the Act reflects

this view through the comments of the Senate Committee on

Labor and Public Welfare which in part state:

The general duty clause in this bill would not be a

general substitute for reliance on standards, but would simply

enable the Secretary to insure the protection of employees

who are working under special circumstances for which no

standard has yet been adopted. S. Rept. No. 91-1282, 91st

Cong., 2d Sess. (1970) at 9, 10.

The general rule of statutory construction requires that the

specific takes precedent over the general. See, e.g. Clifford F.

MacEvoy Co. v. United States, 322 U.S. 10, 107 (1941). This

principle is recognized by the Secretary in the regulation at 29

C.F.R. 1910.5(c)(1) which provides:

If a particular standard is specifically applicable to a

condition, practice, means, method, operation, or process, it

shall prevail over any different genera! standard which might

otherwise be applicable to the same condition, practice,

means. method, operation, or process... .

The Commission has also adopted this principle and estab-

lished it as precedent by stating:

It is the opinion of the Commission that a citation for a

violation of section ${a)(1) is invalid and will not lie, where

a duly promulgated occupational safety and health standard

is applicable to the condition or practice that is alleged to

constitute a violation of the Act. [Brisk Waterproofing Co.,

C-11 -

Appendix C

73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH

OSHD § 15,392 (No. 1046, 1973) ]

Thus, under the Act, a citation alleging violation of section

5(a) (1) is inappropriate if the hazard is addressed by a standard.

Daniel International, Inc., 82 OSAHRC 23/D3, 10 BNA OSHC

1556, 1982 CCH OSHD § 26,033 (No. 78-4279, 1982). How-

ever, when no specific standard entirely protects against the

hazard alleged, citation under 5(a)(1) is proper. Ted Wilkerson,

Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH

OSHD 25,551 (No. 13390, 1981); Peter Cooper Corp., 8}

OSAHRC 101/A2, 10 BNA OSHC 1203, 1211, 1981 CCH

OSHD § 25,795, p. 32,238 (No. 76-596, 1981).

In support of its position that 5(a)(1) is proper in this case,

complainant cites the Commission decision in ConAgra, Inc., 83

OSAHRC 5/C7, 11 BNA OSHC 1141, 1145, 1983-1984 CCH

OSHD § 26,764 (No. 79-1146, 1983), where it is stated:

The failure to test in a confined atmosphere before

possible exposure of employees to toxic substances is a

violation distinct from a continued exposure to known quan-

tities of substances listed in section !910.1000.

The foregoing exception is not applicable to the facts in this

case because of the procedure followed by Paling in ventilating

the atmosphere, and that the air contaminants standard deals

fully and completely with the hazard at issue, which is employee

use of trichloro trifluoroethane in production of the M1 tank.

Also, in ConAgra, supra, the Commission did not deviate from its

precedent by again stating:

We note that the purpose of the general duty clause is to

provide protection against recognized hazards where no duty

under a specific standard exists, and that specific, promui-

gated standards will preempt the general duty clause, but

only with respect to hazards, conditions or practices expressly

covered by the specific standards. .. .

C-12

Appendix C

Clearly, the circumstances of this case are governed solely by

the regulations at 29 C.F.R. § 1910.1000(a)—(d) which set forth

the limits of employee exposure to trichloro trifluoroethane.

Protection is provided against any potential hazards associated

with employee use of the solvent by specifically prescribed levels

within which the employees may safely work. In addition, the

employer is specifically notified of the manner in which abate-

ment is to be accomplished by 1910.1000(e) which requires the

following:

“[A]dministrative controls, engineering controls, personal

protective equipment or ‘any other protective measures’. . . .

The employer must use one or more of the specified mea-

sures to assure full protection for the employees, whatever

the circumstances or the nature of the employer’s opera-

tions.” Todd Shipyards Corp., 81 OSAHRC 69/A2, 9 BNA

OSHC 2031. 2034, 1981 CCH OSHD § 25,516 at p. 31,812

(No. 77-2545, 1981).

The decision in this case recognizes that specific standards

“are intended to be the primary method of achieving the policies

of the Act.” Brennan v. OSHRC and Underhill Construction

Corp., 513 F.2d 1032, 1038 (2d Cir. 1975). And further, “the

standards presumably give the employer superior notice of the

alleged violation and should be used instead of the general duty

clause whenever possible.” Usery v. Marquette Cement Manufac-

turing Co., 569 F.2d 902, 905 (2d Cir. 1975). Necessarily, the

employer has a legal obligation to comply with the safety reguia-

tions specifically promulgated to accomplish the stated purpose of

the Act.

That part of the citation alleging violation of section 5(a) (1)

is vacated.

C-13

Appendix C

THE ALLEGED VIOLATIONS OF THE SPECIFIC

STANDARDS

AT 29. C.F.R. § 1910.1000(a)(2) AND 29 C.F.R. §

1910.1000(e)

The standards under section 1910.1006 pertain to air con-

taminants and state in pertinent part as follows:

The

An employee’s exposure to any material listed in table

Z-1, Z-2, or Z-3 of this section shall be limited in accor-

dance with the requirements of the following paragraphs of

this section.

(a) Table Z-1:

** *

(2) An employee’s exposure to any material in table

Z-1, the name of which is not preceded by “C”’, in any 8-

hour work shift of a 40-hour work week, shall not exceed the

8-hour time weighted average given for that material in the

table.

** *

(e) To achieve compliance with paragraph (a) through

(d) of this section, administrative or engineering controls

must first be determined and implemented whenever feasi-

ble. When such controls are not feasible to achieve full

compliance, protective equipment or any other protective

measures shall be used to keep the exposure of employees

to air contaminants within the limits prescribed in this

section. .

alleged violations are described in the citation as follows:

29 CFR 1910.1000(a) (2)

Employees were exposed to 1,1,2 trichloro § 1,2,2

trifluoroethane in excess of 1,000 ppm for an 8-hour TWA in

that an employee was found unconscious in M-! Tank, Hull

Number 163 located at Bay L-23 on 9/21/83 at approxi-

C-14

Appendix C

mately 4:50 p.m. due to this exposure. Calculated range of

exposure was approximately 1,200 to 5,000 ppm TWA....

29 CFR 1910.1000(e)

In Bay L-23 an employee cleaning inside M-1 Tank #163

was overexposed to 1,1,2 trichloro 1,2,2 trifluoroethane and

feasible administrative and/or engineering controls had not

been implemented. .. .

The Commission has held that in order to establish a

violation under section 5(a)(2), it is necessary for the Secretary

to show by a preponderance of the evidence that (1) the cited

standard applies; (2) there was a failure to comply with the

standard; (3) employees had access to the violative condition: and

(4) the cited employer either knew or could have known of the

condition with the exercise of reasonable diligence. Astra Phar-

maceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC

2126, 1982 CCH OSHD § 26,251 (No. 78-6247, 1982); Danie!

International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027,

1977-78 CCH OSHD § 21,679 (No. 76-181, 1977).

The Secretary also contends that these violations occurred

when tank repairman Charles Paling was exposed to the solvent

on September 21, 1983. There is no question the cited standards

are applicable. The solvent used by Paling, 1,1,2 trichloro 1,2,2

trifluoroethane, is listed in Table Z-1 of 29 C.F.R. part 1910

which requires an eight-hour time weighted average exposure

limitation of 1,000 parts of vapor per million parts of air (PPM).

Subsection (e) sets forth the required controls to reduce exposure

to the materiai in order to achieve compliance with subsection

(a). The primary issue relates to the proof required to establish

the employer’s failure 1o comply with subsection (a).

The record reveals that under the circumstances, representa-

tives of OSHA were unable to take actual samples of the

atmosphere in which Mr. Paling was working at the time he

sustained his injury. Following an investigation of the facts and

circumstances, a technique known as “mathematical calculation”

C-15

Appendix C

was utilized to determine Paling’s range of exposure to the solvent

(Ex. C-14, p. 4; Tr. 106-108, 143, 144). The formula used to

determine the vapor concentration is as follows (TR. 150-151):

The concentration of the material’s vapor expressed in parts

per million (C) is equal to the volume of the material in the

liquid form expressed in milliliters (v), times the density of

the substance expressed in grams per milliliter (p), times the

volume that one mole of the material would occupy at

normal temperature and atmospheric pressure expressed in

liters (24.4), divided by the molecular weight of the material

expresseed in grams (MW), all divided by the atmospheric

volume of the space or enclosure expressed in liters (vt), all

multiplied by one million.

(or)

C(ppm) = v(m!)p(gm/ml) 24.4 (liters) MW(gm) X 106

Vt(liters)

After determining the vapor concentration, an eight-hour

time weighted average (TWA) exposure is found by inserting the

concentration into the formula set forth in the regulation. Thus,

the equivalent exposure for an eight-hour work shift expressed in

parts per million (E) is equal to the vapor concentration ex-

pressed in parts per million (C), times the duration of that

exposure expressed in hours or minutes (T), all divided by 8

hours or 480 minutes, (or)

E (ppm) = C(ppm) T (hours)

8 hours

Based upon the foregoing formula and the stipulated atmos-

pheric volume of a fully assembled M1 tank to be 268.5 cubic feet

(Ex. C-29), complainant determined an eight-hour TWA expo-

sure to one gallon of solvent for five minutes to be 1,048.6 PPM.

The exposure to two gallons for ten minutes amounts to 4,194.3

PPM (Tr. 157).

C-16

Appendix C

The record shows that the vapor concentrations calculated

from the formula are baseed on certain factual assumptions.

These assumptions, respondent maintains, are so inaccurate and

unreliable that they fail to provide a basis to prove overexposure.

Complainant asserts, however, that the assumptions either had no

significant effect on the ultimate exposure determination or actu-

ally resulted in a lower exposure determination. The questionable

assumptions are: (1) that Paling introduced one to two gallons of

solvent into the M1 tank (Tr. 117); (2) that none of the solvent

introduced had drained out of the tank (Tr. 393); (3) that the

M1 tank was a closed space with no opening when the solvent was

introduced (Tr. 151-152); (4) that there was no ventilation in the

compartments of the tank where Paling was working (Tr. 152);

(5) that there was total evaporation of the solvent introduced (Tr.

152); (6) that the duration of Paling’s exposure was five minutes

(ir. 235g}.

The evidence does show that the assumptions are in error.

Mr. Paling estimated that he used between three and four gallons

of the solvent prior to his injury (Tr. 808). This amount is

consistent with the testimony of Steven Valentine, his co-worker

who brought the solvent to Paling in a five-gallon bucket, which

Valentine stated was one-half to three-quarters full (Tr. 918).

While the amount of solvent assumed to have been used is in

error, it is less than the amount actually used, and therefore the

error is favorable to respondent’s position.

Mr. Paling also testified that the solvent was poured near the

drain which was open and some of the liquid solvent necessarily

drained out of the tank. This of course means that not all of the

solvent evaporated. In addition, Paling’s testimony revealed that

the three hatches on the tank were open (Tr. 862-868).

The period of Paling’s exposure varied from his account of §

to 10 minutes, to Valentine’s account of about 20 minutes (Tr.

133, 920). But regardless of the foregoing, the period of exposure

used in the formula assumes the period commenced a few

minutes after Paling introduced the solvent (Tr. 401). This

C-17

Appendix C

assumption is erroneous because Paling actually introduced the

solvent then ventilated the compartment for 45 minutes to an

hour before he re-entered it (Tr. 867).

The question of ventilation as it relates to exposure is a

highly significant factor in this case. While the Secretary con-

cedes a ventilating device (air mover)* was employed by Paling

during the assumed period of exposure, it is asserted the location

rendered it essentially ineffective. This apparently is based on

Paling’s testimony that he thought the device was entirely inside

the tank and located on the turret seal pump above his right

shoulder (Tr. 810). This testimony is consistent with that of

Mark Burns, a process inspector at the facility, who testified to

the position of the turret seal pump in relation to the hatch (Ex.

C-36(a)(b); Tr. 1126-1133).

The location of the air mover takes on added meaning in

light of the testimony of the Secretary’s expert witness, Dr.

Sheldon Rabinowitz. Dr. Rabinowitz, who had conducted labora-

tory experiments to simulate conditions at the time of Paling’s

injury, found that the only uncontaminated air being introduced

came through the compressed air line which operates the device.

Therefore, all other air drawn through and blown out of the air

mover was recirculated contaminated air from within the vehicle

and the vapor concentration of the solvent increased with the high

rate of evaporation (Tr. 1623, 1627-1628, 1739). He found that

1.6 gallons of the solvent would have evaporated within 25

minutes (Tr. 1638-39). The precise location of the air mover can

not be clearly determined from the record. On cross-examination,

Mr. Paling stated that he believed the device was outside the tank

or close to being inside or outside (Tr. 870, 871). It is clear,

*An “air mover” is a ventilation device which is essentially shaped like a

tube, approximately 5% inches long and 3% inches in diameter and operates by

connecting it to a compressed air hose (Tr. 1131, 1617-1618, 1622). The

principle behind this device’s operation is that compressed air moved along

circular channels within the device, creates a vacuum where outside air will be

sucked through and out of the device at an increased velocity (Tr. 1617-1618).

C-18

Appendix C

however, that he waited 45 to 60 minutes to ventilate the tank

before re-entering it (Tr. 401, 402). Also, during this period, the

drain and hatches were open, factors not part of the calculations

by the Secretary or the experiment of Dr. Rabinowitz.

Respondent points out that both Mr. Morgan and Dr. Rabin-

Owitz agreed if the actual facts had been used in the calculations

rather than the facts assumed by complainant, the exposure level

would have been significantly reduced (Tr. 391-406). Mr. Mor-

gan agreed that the critical factors associated with use of the

formula “are what you put into the equation” (Tr. 428). Dr.

Rabinowitz also agreed that, if the tank was ventilated for 45

minutes even with the air mover inside, the 1.6 gallons of solvent

would result in less that one thousand parts per million (Tr. 1672-

1673). He indicated that the air flow rate through the device

would be between 500 and 1,000 cubic feet per minute (Tr.

1622).

Respondent also presented the finding of its expert, Dr.

Richard Carchman, who calculated the actual facts into the same

formula used by complainant. That at the time of the Paling

incident, all the hatches of the tank were open, the drains were

open, an air blower was used and Paling ventilated the tank for 45

to 60 minutes before entering. He concluded that Paling’s expo-

sure was far below the time weighted average alleged (Tr. 320-

322).

Dr. Carchman had also testified that he had prepared a

document on the health effects of trochloro trifluoroethane for the

Environmental Protection Agency entitled, Health Assessment

Document for 1,1,2 trichloro 1,2,2 trifluroethane (Ex. R-10; Tr.

3194, 3195). His research indicated that the interaction between

the solvent and a stimulant such as epinephrine or adrenaline

caused a sensitization to lower concentrations of the solvent

which could effect the heart (Tr. 3203, 3204). Although no

attempt will be made to determine if Paling had developed a

sensitivity to freon, the record discloses such a possibility existed.

The evidence shows he had been taking prescription diet pills

C-19

Appendix C

which could have contained the stimulant which in turn could

cause heart toxicity (Ex. C-33; Tr. 3207, 3208).

The proof of the violation under the standard rests essentially

on the employee’s exposure to the intensity of the trichloro

trifluoroethane vapor for a prescribed period of time. In this case,

there was no direct proof of the actual concentrations of freon —

such as air sampling of the atmosphere at the time of employee

Paling’s exposure. Thus, the Secretary’s proof is based on “math-

ematical calculation,” and the medical findings following Paling’s

accident. The calculation utilizes a basic gas law formula to

determine the concentration of a material in the atmosphere of a

known volume. Regardless of the method of proof, however, the

Secretary must establish by a preponderance of the evidence, a

failure to comply with the standard. Olin Construction v. OSHRC,

525 F.2d 464 (2d Cir. 1975). Preponderance of evidence has been

defined as “that quantum of evidence which is sufficient to

convince the trier of fact that the facts asserted by the proponent

are more probably true than false.” Ultimate Distribution Sys-

tems, Inc., 82 OSAHRC 22/B12, 11 BNA OSHC 1568, 1570

1982 CCH OSHD 26,011 (No. 79-1269, 1982).

Upon full consideration of the evidence in the record, it is

held that the Secretary failed to meet his burden in proving the

violation. The mathematical calculation method through employ-

ment of the formula, necessarily involves use of certain assump-

tions which directly effect the exposure determination. Accurate

levels of exposure can, therefore, only be determined with the use

of assumed facts which accurately reflect the conditions which

prevailed at the time of Paling’s injury. It is thus concluded that

the erroneous assumptions used in the formula resulted in unrelia-

ble and inaccurate levels of exposure, which is deemed highly

speculative.

The period and manner in which the tank was ventilated are

crucial factors in determining exposure utilizing the formula in

mathematical calculation. Both of complainant’s expert witnesses,

who testified regarding the calculations, admitted that, if the

C-20

Appendix C

actual facts had been used in the calculations, the exposure levels

would have been significantly reduced. Respondent’s expert wit-

ness, whose calculations under the same formula included the

actual facts, concluded exposure far below the level alleged.

Although the evidence indicates Paling suffered from expo-

sure to trichloro trifluoroethane, such evidence is not convincing

that his exposure was in excess of the permissible level according

to the standard.

The citation is, therefore, vacated.

FINDINGS OF FACT

1. General Dynamics, at all times hereinafter mentioned,

maintained a place of business at 28251 Van Dyke Road, Warren,

Michigan. It had been engaged in the business of manufacturing

M1 Abrams battle tanks since March 1982 when it took over the

operation of the facility from the Chrysler Corporation.

2. Commencing September 29, 1983, authorized representa-

tives of the Secretary conducted an inspection of the aforesaid

work site. As a result, respondent was issued the citation alleging

willful violations of the Act with notice of proposed penalties for

its use of trichloro trifluoroethane at the workplace.

3. Trichloro trifluoroethane was used by employees in vary-

ing amounts as a cleaning solvent inside the compartments of

both the fully assembled and partially assembled tanks.

4. The solvent has a high evaporation rate and a vapor

density six and a half times heavier than air. Although less toxic

than most commercial soivents, inhalation of high concentrations

is dangerous and can prove fatal.

5. On September 10, 1982, respondent was issued a citation

for violation of section 5(a)(1) of the Act. The citation, which

was affirmed, alleged that employees were exposed to the hazard

of asphyxiation when they entered pits where vapors and gases

C-21

Appendix C

had accumulated. The violation was abated in accordance with a

settlement agreement which provided for implementation of a

confined space entry procedure throughout the plant.

6. The designated spaces at the plant which were approved

by the parties for safe confined entry procedures did not include

the M1 tanks.

7. The compliance officer, who had conducted three inspec-

tions of the workplace prior to issuance of the instant citation, was

aware of how employees used the solvent and the procedures

respondent had developed for its use in the tanks. He, at no time,

advised respondent that employee use ef the solvent in the tanks

presented a potential hazard.

8. A formal grievance filed with the employer by the author-

ized employee representative regarding use of the solvent by

employees was withdrawn on August 16, 1983. Also, in August

1983, safety representatives of the international and local unions

conducted a walkaround inspection at DATP. At a meeting with

company Officials following the inspection, employee use of the

solvent was not a matter raised for discussion.

9. The specific air contaminants standard at 29 C.F.R.

§ 1910.1000 governs employee use of trichloro trifluoroethane at

the workplace and any potential hazards associated with use

thereof in the M1 tanks.

10. Neither OSHA nor the authorized employee representa-

tive conducted atmospheric testing such as the taking of air

samples in the tanks. This included the date of September 21,

1983, when tank repairman Charles Paling was injured.

11. OSHA determined the range of Paling’s exposure to the

solvent on September 21, 1983, by mathematical calculation

using a vapor concentration formula.

12. The assumptions made by the Secretary regarding criti-

ca! factors in utilizing the formula were erroneous. This resulted

C-22

Appendix C

in a_ significantly inaccurate and unreliable exposure

determination.

13. After Paling poured the solvent into the tank, it was

ventilated for 45 minutes to an hour with the three compartment

hatches and the drain system open before he re-entered it.

14. The ventilating procedures employed by Paling are in

accordance with the hazard abatement procedures outlined in the

citation issued September 10, 1982.

15. The atmospheric volume of a fully assembled M1 tank is

268.5 cubic feet and the ventilating device use by Paling moved

between 500 and 1,000 cubic feet of air per minute.

CONCLUSIONS OF LAW

1. General Dynamics, at all times pertinent hereto, was an

employer engaged in a business affecting commerce within the

meaning of section 3(5) of the Act, and the Commission has

jurisdiction of the parties and subject matter herein pursuant to

section 10(c) thereof.

2. Respondent is, and at all times pertinent hereto, required

to comply with the Act and the safety and health regulations

promulgated thereunder.

3. Respondent was not in violation of section 5(a)(1) or the

standards at 29 C.F.R. §1910.1000(a) and 29 C.F.R.

§ 1910.i1000(e) as alleged in the citation.

ORDER

On the basis of the foregoing findings of fact, conclusions of

law and the entire record, it is hereby ORDERED:

The citation is hereby VACATED.

/s/ Paul L. Brady

Judge

APPENDIX D

Appendix D

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION

1825 K STREET, NW

WASHINGTON, D C 20006

September 24, 1985

IN REFERENCE TO SECRETARY OF LABOR V.

General Dynamics Land Sytems Div., Inc.

OSHRC

DOCKET No. 83-1293

NOTICE OF FINAL ORDER

The petition for discretionary review filed by Union and

Secretary was received by the Commission on September 19 & 20,

1985.

The decision of the Administrative Law Judge became a

final order of the Commission on 9/23/85.

NOTICE IS GIVEN TO THOSE LISTED BELOW:

FOR THE SECRETARY OF LABOR

Daniel J. Mick, Esq.

Counsel for Regional

Trial Litigation

Office of the Solicitor, USDOL

200 Constitution Ave., NW..,

Room $4004

Washington, D.C. 20210

John H. Secaras, Regional Solicitor

USDOL

230 South Dearborn St.,

8th Floor

Chicago, IL 60604

John P. Hancock, Jr., Esq.

Lisabeth H. Coakley, Esq.

Butzel, Long, Gust, Klein

& Van Zile

1881 First National Bldg.

Detroit, Michigan 48226

2 ##

Beverly Tucker, Esq.

Assistant General Counsel]

United Automobile Workers

Solidarity House

8000 East Jefferson Avenue

Detroit, Michigan 48214

Mr. Charles Farruia

Hith & Sfty Repres

United Auto Workers, Local 1200

P.O. Box 30! 1

Centerline, Michigan 48015

FOR THE COMMISSION

Ray H. Darling, Jr.

EXECUTIVE SECRETARY

APPENDIX E

E-]

Appendix E

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-1760

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

and AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

et al., PETITIONERS

Vv.

GENERAL DYNAMICS LAND SYSTEMS DIVISION,

RESPONDENT

No. 85-1826

WILLIAM E. Brock, SECRETARY OF LABOR, PETITIONER

Vv.

GENERAL DYNAMICS LAND SYSTEMS DIVISION, et al.,

RESPONDENTS

Petitions for Review of an Order of the

Occupational Safety and Health Review Commission

Argued November 17, 1986

Decided April 14, 1987

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

E-2

Appendix E

Andrea C. Casson, Assistant Counsel, Department of

Labor, with whom Joseph M. Woodward, Counsel, De-

partment of Labor, was on the brief, for petitioner Brock

in No. 85-1826.

Jordan Rossen, Ralph O. Jones, and Beverly Tucker

were on the brief for petitioners International Union,

et al., in No. 85-1760.

John P. Hancock, Jr., for respondents General Dy-

namics Land Systems Division, Inc., et al.

Before STARR and BUCKLEY, Circuit Judges, and

AUBREY E. ROBINSON, JR.,* Chief Judge, United States

District Court for the District of Columbia.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge: The Occupational Safety and

Health Administration (“OSHA”) cited General Dy-

namics Land Systems Division (“General Dynamics” or

the “Company’”’) for workplace violations of a statute and

of administrative safety standards. An administrative

law judge (“ALJ”) found that as General Dynamics

conformed with the safety standards, it could not be

found to have violated the statutory requirement. The

Occupational Safety and Health Review Commission (the

“Commission”) adopted the ALJ’s decision as its own.

Petitioners urge us to vacate the order insofar as it holds

that a specific OSHA safety standard preempts enforce-

ment of a general statutory duty to assure workplace

safety. We vacate the challenged portion of the order

and hold that, in the circumstances of this case, an em-

ployer’s compliance with OSHA’s standards will not dis-

charge his statutory obligation to provide employees with

safeguards against recognized hazards.

* Sitting by designation pursuant to 28 U.S.C. § 292(a)

(1982).

heceeeinieneiiiiiaiatieeiemmeaniniaiiiaia

E-3

Appendix E

I. BACKGROUND

General Dynamics manufactures M-1 Abrams tanks in

a Department of Defense facility called the Detroit Ar-

senal Tank Plant (“Plant”). Abrams tanks have internal

hydraulic systems that sometimes leak during assembly.

For several months prior to November 1983, General

Dynamics employees had used a solvent called 1,1,2 tri-

chloro 1,2,2 trifluoroethane (“solvent” or “freon”) to

clean up resulting oil spills. The solvent evaporates

quickly. While it is less toxic than other commercial sol-

vents, in its gaseous state it is heavier than air and may

cause serious illness or death. It tends to accumulate in

assembly-line pits and tank hulls, displacing oxygen and

creating a risk of asphyxiation. In high concentrations it

may also cause cardiac arrythmia and eventual arrest.

See Brief for Petitioners International Union, United

Automobile, Aerospace and Agricultural Implement

Workers of America, UAW and its Local 1200 (“UAW”)

at 4; Brief for Petitioner Secretary of Labor (“Secre-

tary”) at 10-11.

According to the UAW, General Dynamics stored the

solvent at the Plant in fifty-five-gallon drums “with no

limit on the amount that could be obtained until November

15, 1983 when its use was discontinued throughout the

plant.” Brief for UAW at 4. During the period it was

in use, the solvent was available in several areas of the

Plant. Jd. Employees in the Tank-Hull Assembly Depart-

ment, for example, used the solvent in cup-sized quan-

tities to clean spills of up to half a pint of oil. Jd. at 5.

To clean larger spills of up to ten or fifteen gallons of

hydraulic fluid, however, “employees would use [gallon-

sized] buckets or 2!4 gallon spray containers to apply

solvent to the affected area.” Jd. This procedure would

consist of “dumping gallons of the solvent into the hull

where it would evaporate or exit through a drain on the

floor.” Jd. Sometimes employees would enter a hull still

containing liquid solvent and oil to vacuum them out.

E-4

Appendix E

Employees would also use the solvent in large quantities

in the Plant’s Heavy Repair Department. Id. at 9.

General Dynamics does not reject petitioners’ descrip-

tion of cleaning procedures at the Plant. See Brief for

General Dynamics at 2-29 (statement of facts). Rather,

it explains that “[t]he manner in which ‘tank repair-

men’. . . performed the various repairs was essentially

a matter of the team’s discretion because all tank repair-

men were highly skilled ....” Jd. at 17. Such discretion

was subject, however, to the requirement that tank hulls

be ventilated when employees used solvent in quantities

larger than one pint. Jd. Its safety officers conducted

training sessions with emplovees to “describe[] the po-

_ tential hazards associated with use of the solvent, and

stated that employees should try to restrict the quantities

used and also use ventilation whenever more than 1 pint

was used inside a fully assembled tank.” Jd. at 12.

The incidents leading to this litigation began shortly

after the Company commenced production of the M-1

tank in March 1982. Brief for Secretary at 7. A Plant

employee was overcome by fumes in August 1982 after

entering an assembly-line pit containing freon vapors.

Id. at 11. After an inspection, OSHA issued a citation

authorized -by section 9 of the Occupational Safety and

Health Act of 1970 (the “Act”), 29 U.S.C. § 658 (1982).

The citation charged General Dynamics with violations

of section 5(a) of the Act, 29 U.S.C. § 654(a) (1982),

which provides:

Each employer—

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

ment and a place of employment which are free from

recognized hazards that are causing or are likely to

cause death or serious physical harm to his em-

ployees;

(2) shall comply with occupational safety and

health standards promulgated under this chapter.

E-5

Appendix E

Specifically, General Dynamics was charged with a vio-

lation of its statutory duty to provide safe working con-

ditions under subsection 5(a) (1) (“general duty clause’)

and to observe safety standards issued pursuant to sub-

section 5(a)(2) (“safety standards” or “specific stand-

ards”). General Dynamics reached a settlement with

OSHA in June 1983 in which the Company affirmed that

it had implemented amended confined-space procedures

and agreed that “in the future [it] will in good faith

continue to comply[{] with the provisions of the Act, and

applicable standards promulgated pursuant thereto.”

Joint Appendix (“J.A.”) at 964 (emphasis added).

In March 1983, another Plant employee became dizzy

and weak after driving a fully assembled tank. Brief

for Secretary at 12. As a result of this incident, General

Dynamics posted a safety bulletin at the Plant that read

in part:

[Trichloro trifluoroethane] vapors being 61 times

heavier than air will readily displace oxygen in pits

and enclosed spaces such as the inside of tracked

vehicles. Ventilation must be utilized when this sol-

vent is used in enclosed spaces, otherwise its use must

be limited to one pint quantities.

General Dynamics Land Systems Division Safety Bul-

letin 7 4 (April 1983) ; J.A. at 1006.

Again on July 9, 1983, a General Dynamics employee

from another plant, Frederick Spearing, became seriously

ill at the Plant’s test track while sitting inside the driv-

er’s compartment of a tank. He remained in that position

while two employees poured several gallons of solvent

onto the floor of the tank. Moreover, to clear an opening

for the solvent to enter, employees rotated the tank’s

turret in such a manner that it blocked the only exit

from the compartment where Mr. Spearing was sitting.

He lost consciousness in the présence of a supervisor.

J.A. at 367-70: Brief for Secretary at 14-15. The rele-

vant General Dynamics injury report ascribed the injury

E-6

Appendix E

“to inhalation of fumes from Genesolv D (trichloro-tri-

fluoroethane).” Supervisors Report of Accident (July 11,

1983); J.A. at 971.

In yet a third incident on September 21, 1983, Plant

employee Charles Paling also suffered from exposure to

solvent fumes. After entering a tank and pouring ap-

proximately two gallons of solvent to clean a hydraulic

leak, Paling exited and used a portable device to ventilate

the tank. This was in apparent compliance with the ven-

tilation requirement in the safety bulletin that was issued

following the incident of March 1983. Paling then re-

entered the tank. Another employee later discovered him

inside the driver’s compartment shaking and foaming

from the mouth. Brief for UAW at 10-11; Brief for

Secretary at 16; see J.A. at 299-314, 343-48.

As it had done before, the UAW complained to OSHA

about the Paling incident. While OSHA conducted an

investigation, a General Dynamics employee at a different

plant died from exposure to solvent fumes. Brief for

Secretary at 12 n.8; J.A. at 719. Shortly thereafter, on

November 29, 1983, OSHA cited General Dynamics for

violations of section 5(a)(1) of the Act (“statutory

charge”), and of OSHA’s specific standard for governing

an employee’s exposure to the solvent, 29 C.F.R. § 1910.

1000(a) (2) & (e). OSHA sought penalties totalling

$18,000.

The statutory charge stated that General Dynamics had

violated section 5(a) (1) because it “did not furnish em-

ployment and a place of employment which were free

from recognized hazards” associated with exposure to

solvent vapors in confined spaces requiring special entry

procedures. Citation at 1; J.A. at 7. General Dynamics

contested this citation, and the matter was referred to

the ALJ. After hearing evidence for eighteen days, he

determined, as a matter of law, that “the circumstances

of this case are governed solely by the regulations at 29

C.F.R. § 1910.1000(a)-(d) which set forth the limits of

E-7

Appendix E

employee exposure to trichloro trifluoroethane.” ALJ de-

cision at 12; J.A. at 119. Subsection (a) provides that

employers must not expose employees to a time-weighted

average of more than 1,000 parts per million of trichloro

trifluoroethane vapors during any eight-hour work shift

of a forty-hour work week. 29 C.F.R. § 1910.1000(a)

(the “freon standard”). The freon standard calculates

the concentration of solvent vapors by volume at a given

temperature and pressure.

The ALJ reasoned that “a ruling upon consideration

of all the evidence will not be made as the allegations of

the [section 5(a)(1)] violation are inappropriate and

must be vacated because the alleged hazard is addressed

by a specific standard.” Order at 9-10; J.A. at 116-17

(emphasis added). In support of this conclusion he cited

(1) the legislative history of the Act and its general

policy aims, (2) a rule of statutory construction that the

“snecific takes precedence over the general,” and (3)

OSHA’s preemption regulation in 29 C.F.R. § 1910.5(c)

(1) as interpreted by the Commission. The ALJ also held

that “the Secretary failed to meet his burden in proving

the violation” of the freon standard, and that the evi-

dence offered “is not convincing that [the employee’s]

exposure was in excess of the permissible level according

to the standard.” ALJ decision at 20-21; J.A. at 127-28.

The ALJ’s decision and order became a final order ‘of

the Commission by virtue of the failure of any commis-

sioner to direct internal review within thirty days. Sec

29 U.S.C. § 661(j) (1982). The UAW filed a petition

for review in this court. The Secretary first proceeded

in the United States Court of Appeals for the Eighth

Circuit, but his petition was transferred to this court

and consolidated with that of the UAW. General Dy-

namics responds to both petitions, and the Commission

responds only to the Secretary’s petition.

Petitioners do not challenge the ALJ’s conclusion that

General Dynamics did not violate the freon standard.

E-8

Appendix E

They both argue, however, that the ALJ erred in vacat-

ing that part of the citation charging a violation of the

general duty clause. They contend that OSHA’s standard

for trichloro trifluoroethane defines a narrow set, and the

general duty clause a larger set, of unsafe workplace con-

ditions. The relationship between these sets is the crux

of the dispute. Petitioners argue that the hazards cited

at the Plant extend beyond those addressed by the freon

standard, and that an employer’s compliance with that

standard is not a substitute for compliance with the gen-

eral duty imposed by section 5(a)(1). They also main-

tain that the court should defer to the Secretary’s con-

struction of OSHA reg

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.