# Petition for Writ of Certiorari — General Dynamics Land Systems, Inc. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0771%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 976 ## 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, V. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA AND ITS LOCAL 1200 Respondents. GENERAL DYNAMICS LAND SYSTEMS, INC. Petitioner, wa 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 I. 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? il 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 iV 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 l 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; 2 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. 3 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 4 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 6 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) I 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. 8 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, 9 101 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 ) 10 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. 1] I. 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). 12 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. 13 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., i4 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, 15 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. 16 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 17 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 : 18 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 19 [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 a > 3 20 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”’). 21 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. 22 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 23 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 24 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 25 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 -) 3 z 26 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. 27 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, 28 254-55) (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. | 29 (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). 30 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 la 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. 2a 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; (c) Selection of optimum control 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 (c) Table Z-3: An employee’s exposure to any material 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......... a 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 Re 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) ............. $00 | 2.000 Hexachloroethane—Skin .......... 1 | 10 Hexachloronaphthalene—Skin ......|................ | 0.2 Hexane (n-hexane)............... 500 1,800 I SG esd yon acc cesses 100 410 Hexone (Methy! isobutyl ketone) ... 100 410 sec-Flenyl scetate................. 50 300 Hydrazine—Skin ................. l 1.3 Hydrogen bromide.............. 3 10 C Hydrogen chloride.............. 5 | 7 Hydrogen cyanide—Skin ....... a 10| 1] Hydrogen peroxide (90%) ......... ] 1.4 Hydrogen selenide ........... .... 0.05 | 0.2 nae Wy kG oasbbe.cials nee keane s¥uvicbiic | 2 8 YE OS Ee erren ren 0.1 | ee. a nas ace acelin » wah Mblciainlamieion | 10 ds sea ace eenecsss 100 525 EE 100 | 260 SE fans oss kod eeede ee 150 700 ae 100 300 ee 25 140 isopropyl acetate ................. 250 950 SUD ooo oo cc nccnccces 400 980 Se has cat cls caw bn 5 12 POE sc iW ena ws ccccceccscs 500 2,100 Isopropyl glycidyl ether (IGE) ..... 50 240 B -13 Appendix B § 1910.1000 29 CFR Ch. XVII (7-1-86 Edition) TABLE Z-] — Continued Substance p/m* | mg./M*> ees es Cs yd ia 0.5 | 0.9 SE sok is ast cad éeatssheseksteeseaeesea 0.5 SD CNGRRS RO Feerre errr | 0.025 L.P.G. (liquified petroleum gas) .... 1,000 | 1,800 Magnesium oxide fume ........ 66.) eee eee eens | 1$ 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? or 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. oA o 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 appli [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0771%3A1. Public record. Not legal advice.