Petition for Writ of Certiorari — G·UB·MK Constructors v. Reich

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Supreme Court, Us.

(\ "TILED

| 96 551 0CT 319%

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

GeUBeMK CONSTRUCTORS,

Petitioner,

ROBERT REICH, THE UNITED STATES

SECRETARY OF LABOR,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

WituraM P. SNYDER

KRAMER, RaysOn, LEAKE, RODGERS,

& MorGan

2500 First Tennessee Plaza

P.O. Box 629

Knoxville, Tennessee 37901-0629

(423) 525-5134

Counsel for Petitioner

GeUBeMK Constructors

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Secretary of Labor, having rule-making

authority but no adjudicatory authority under the Occu-

pational Health and Safety Act, may engage in retroactive

rule-making; specifically, through the issuance of cita-

tions in the enforcement process.

LIST OF INTERESTED PARTIES

1. GeUBeMK Constructors, an unincorporated joint

venture: Petitioner.

2. Gilbert/Commonwealth, Inc.: Party to Petitioner

GeUBeMK Constructors, an unincorporated joint venture.

3. Gilbert Associates, Inc.: Parent company of Gil-

bert/Commonwealth, Inc.

4. Morrison-Knudsen Corporation: Party to Peti-

tioner GeUBeMK Constructors, an unincorporated joint

venture.

5. Union Boiler Company: Party to Petitioner

GeUBeMK Constructors, an unincorporated joint venture.

6. Robert Reich, United States Secretary of Labor:

Respondent.

Ae SrtA CEEOL rca)

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TABLE OF CONTENTS

Page

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LIST OF INTERESTED PARTIES ..........cccceness ii

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ORDERS AND OPINIONS BELOW ................ 1

STATEMENT OF JURISDICTION.................5. 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

RISER ER PEO SEM VOGT IED 00s ccs cen encanneseses 2

Es 6 seks a (a chee bSUEEbEES vip lier ediaceess 2

REASONS FOR GRANTING THE PETITION....... 7

EE fis u'Wal CPHL URGE C548 Sud da biK ee cueee cs 15

APPENDICES

A. March 6, 1996 Decision of the United States

Court of Appeals for the Eleventh Circuit affirm-

ing in part and reversing in part the order of the

Occupational Safety and Health Review Com-

NEE GE RA USWA AV EWES 60s cena cet descasosocces la

B. May 3, 1994 Notice of Final Order of the Occupa-

tional Safety and Health Review Commission,

stating that the Decision and Order of the

Administrative Law Judge has become a final

GOT OF TE COURTINGION 2. ww. cence sccccenes 2a

TABLE OF CONTENTS -— Continued

Page

C. Decision and Order of Administrative Law Judge

Belovien Go. SORGGG.. oss cic ccdcupe dese iivensvedvin 5a

July 5, 1996 Order of United States Court of

Appeals for the Eleventh Circuit denying

GeUBeMK Constructors’ Petition for Rehearing... 40a

Constitutional Provisions, Statutes, and Regula-

tions Involved

E.1:

E.2:

E.3:

E.4:

E.5:

E.6:

E.7:

E.8:

E.9:

Constitution of the United States, Amend-

NEF adn nwo pse nk ices kek chad cunaniece 4la

Paras FE Oe wcteccnccevciesecuches eaee 42a

Bit [eee Pere rrrriyrer rrr. 44a

SP UKs. BES vc cverere fivive een dcewenss 46a

yy Bk Cee FO Pee cree ree 56a

ett ee | Pere ee ee Pere Te PLT ee 60a

yr Rk eee BO PP err ererre reer er rT ee 65a

SP QB BH RPI aes « occ koe eeevaisecxesa 69a

Excerpts, 43 Fed.Reg. pp. 19584-19585 (May

DAP sks diei a pddkenessetadens vopneds 115a

Ry ae oe ee

TABLE OF AUTHORITIES

Page

Cases

Bell Lines, Inc. v. United States, 263 F.Supp. 40 (S.D.

WEE ROUGE be ccine vane ccadeneve dl cua peek tiae bine 11

Bowen v. Georgetown University Hospital, 488 U.S.

204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)...... 10, 13

Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645

elle ROR i554 ha 4S bab wks ps Oh Oke baa bab baka 12

Georgia Pacific Corp. v. OSHRC, 25 F.3d 999 (11th

is Re. | TEP RP REY Peer es Veer eT eee rhe o> om

Martin v. Occupational Safety and Health Review

Commission, 499 U.S. 144, 111 S.Ct. 1171, 113

iM BAT MERWE Ra ts 60:5 00 bed bavetie countess il, ta. 15

Motor Vehicle Manufacturers Association of United

States, Inc. v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77

Laden GED CIO. i. ib ivi an cces atin Sree cha 12, 13

Secretary of Labor v. Mutual Mining, Inc., 80 F.3d

ERO Cl Ge BOI ik ce tes 0i40 5 win rdanaies sieeae 9

Thomas Jefferson University v. Shalala, 512 U.S. ___

114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) ......... $2, 35

Torrington Co. v. United States, 82 F.3d 1039 (Fed.

CUP. AOEE Sov ca PhS O RS ever ees UNGAR URTV ESE E Reka 9

STATUTES

te ae Ss er re reer ay rr rere ry yr rer 3, 10, 11

et AT ae Me Aree ne ene eee rH

Bik koe GE Seed wens eo Py ee ere eye oy 2

Be Cie BE AMO 6 ocak kbnsisces beeheeskin cheb icceeeen 2

TABLE OF AUTHORITIES - Continued

Page

29 U.S.C. & GBL. ce ccevececesvesesscsccctssenes yee Mie 3

29 UG.C. © GBB occ ccccvcncccccccceccecennsesasasqte te 2

29 UGC. © GB. acccecccnccesncnsccvenesseasnoaseses 2

29 US.C. § G56... cccccsvvvessetesenevccsensvcsessese 3

29 U.S.C. © GBD... cc ccccccnccesieevsnsccccvesvseness 3

29 U.S.C. © 660... cccnccnercenencssnscnnsccvenns

29 U.S.C. © G61. acne cevccccccnescccccncesetconssuass 2

29 U.S.C. § 665... ccc ccecc eres eenrsenenccecncnns 10, 11

29 US.C. 6 GGG 0 oc cecdece cde dedecesecscssevensusons 2

REGULATIONS

29 C.F.R. § 1910.1018 ......... cece rece neces 2, 3, 9

29 C.RR. § 1910.1027 ...... cece cece cece eee eeeeeeeene 14

OTHER AUTHORITIES

43 Fed. Reg. 19584-19631 (May 5, 1978) ........++.--. 3, 4

48 Fed. Reg. 1864-1903. ........ 0. 0c ceee eee eee eee ees 4

ORDERS AND OPINIONS BELOW

This petition involves the Eleventh Circuit Court of

Appeals’ affirmance, in part, of a final order of the Occu-

pational Safety and Health Review Commission. The

Order of the Eleventh Circuit Court of Appeals appears

as Appendix A hereto and is not officially reported. The

Order was filed with the clerk of the United States Court

of Appeals for the Eleventh Circuit on March 6, 1996 in

the appeal styled GeUBeMK Constructors v. Secretary of

Labor; United States Court of Appeals for the Eleventh

Circuit; No. 94-6528. The Notice of Final Order of the

Occupational Safety and Health Review Commission

appears as Appendix B hereto and is not officially

reported. The Notice was filed with the clerk of the

Occupational Safety and Health Review Commission on

May \3, 1994 in the matter styled Secretary of Labor v.

GeUBeMK Constructors, Docket No. 92-3040. The Decision

and Order of Administrative Law Judge Edwin G. Salyers

appears. as Appendix C hereto and is not officially

reported. The Decision and Order was filed with the clerk

of the Occupational Safety and Health Review Commis-

sion on March 4, 1994 in the matter styled Secretary of

Labor v. GeUBeMK Constructors; OSHRC Docket No.

92-3040.

STATEMENT OF JURISDICTION

The Order of the Eleventh Circuit C »urt of Appeals

was entered on March 6, 1996. The Eleventh Circuit Court

of Appeals entered its order denying the petition for

rehearing on July 5, 1996. (Appendix D). This Court's

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

This petition involves the due process guarantee of

the Fifth Amendment to the Constitution of the United

States. The statutes involved in this petition are provi-

sions of the Administrative Procedure Act, specifically 5

U.S.C. §§ 553 and 706, and provisions of the Occupational

Safety and Health Act, 29 U.S.C. §§ 655, 660, 661, and 666.

The regulation involved in this petition is the Occupa-

tional Safety and Health Administration’s inorganic arse-

nic standard, 29 C.F.R. § 1910.1018. The Constitutional

provision, the statutes and the regulation involved are set

forth verbatim in Appendix E.

STATEMENT

1. In 1970, Congress enacted the Occupational

Safety and Health Act (OSH Act), 29 U.S.C. § 651 et seq.

The OSH Act provided the Secretary regulatory and

enforcement responsibilities, including the authority to

promulgate, modify or revoke any occupational safety or

health standard (29 U.S.C. § 655(b)), to conduct work site

investigations to assure compliance with health and

safety requirements (29 U.S.C. § 657), and to issue cita-

tions whenever the Secretary believes an employer has

violated the OSH Act or any standard, rule, or regulation

promulgated by the Secretary. (29 U.S.C. § 658).

In the OSH Act, Congress created the Occupational

Safety and Health Review Commission (the “Commis-

sion”) for carrying out adjudicatory functions. 29 U.S.C.

§ 651(b)(3). When a citation issued by the Secretary is

contested by the employer, the Commission must afford

an opportunity for a hearing and thereafter issue an

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

vacating the Secretary’s citation. 29 U.S.C. § 659(e). The

Secretary or an aggrieved party may seek judicial review

of adverse Commission decisions. 29 U.S.C. § 660(b).

The Administrative Procedure Act (APA), 5 U.S.C.

§ 551 et seq., authorizes agencies having rule-making

authority to issue only rules having future effect. 5 U.S.C.

§ 551(4).

2. In 1978, the Secretary promulgated a fina! stan-

dard governing occupational exposure to inorganic arse-

nic. 43 Fed. Reg. 19584-19631 (May 5, 1978). The Secretary

set a permissible exposure limit (PEL) at 10 g/m? aver-

aged over 8 hours (App. 71a), the lowest level at which

compliance was believed to be economically and techni-

cally feasible.

The standard on inorganic arsenic appears at 29

C.F.R. § 1910.1018. In the Federal Register notice of the

promulgation of the standard, the preamble reveals that

the primary focus of the regulation was to address the

dangers of respiratory cancer resulting from exposure to

inorganic arsenic among copper and zinc smelter

workers, workers subjected to constant exposure over a

long period of time. The epidemiological studies relied on

by the Secretary in setting the standards used as subjects

workers in copper and zinc smelters. (Appendix E.9)

In 1983, the Secretary re-examined the standard for

inorganic arsenic and asked for public comments. In the

only comment of record at any time addressing the issue

of less than constant, long-term exposure, the Edison

Electric Institute made a brief appearance and argued

that no significant risk had been demonstrated to power

plant workers exposed to inorganic arsenic while clean-

ing boilers, without explaining the cleaning process or

presenting evidence of the level of the employee expo-

sures. The Secretary concluded that a significant risk

existed for power plant workers and that there was no

basis for excluding them from the standard. The Secre-

tary’s reasoning was that if the power plant workers were

exposed to 100 »g/m° arsenic for eight hours every two

weeks, (i.e., twenty-five weeks per year), that would be

the equivalent of being exposed to the PEL of 10 g/m?

every working day. 48 Fed. Reg. at 1895. The Secretary's

entire supplementary statement of reasons supporting the

inorganic arsenic standard appears at 48 Fed. Reg.

1864-1903.

3. Prior to the issuance of citations to GeUBeMK,

there is no known instance of the application of the

inorganic arsenic standard to workers in coal-fired elec-

tric power plants being examined, explained or amplified

through any means, including the process of issuing cita-

tions enforcing the standard.

4. GeUBeMK is a contractor to the Tennessee Valley

Authority (“TVA”). Among other things, GeUBeMK pro-

vides maintenance, alteration and repair services to

dc Re ote te Le nc eR

TVA’s coal-fired power plants, on an as-needed basis.

Other than a relatively small staff of engineers and

administrators, GeUBeMK does not maintain a full-time

work force. Craftsmen are hired by GeUBeMK through

union halls only for the duration of jobs assigned by TVA

to GeUBeMK.

Early in 1992, TVA informed GeUBeMK that mainte-

nance and modification of a boiler in TVA’s Colbert plant

in Alabama would need to be performed in the spring of

1992. The boiler, known as Unit 5, was taken out of

service on April 11, 1993 and the work performed on it by

GeUBeMK started that day and concluded on June 6,

1992. Hundreds of workers were utilized around the

clock performing numerous tasks on all parts of Unit 5.

Samples taken indicated the possibility that at two loca-

tions within Unit 5, some forty workers could have been

exposed for ten days to levels of inorganic arsenic

between 2.10 g/m to 59.4 pg/m3. By June 6, 1992, all

the craftsmen hired by GeUBeMK to perform the work on

Unit 5 had been laid off.

On May 27 and 29, 1992, an OSHA representative

conducted an inspection of the GeUBeMK work on Unit

5. On September 4, 1992, OSHA issued nine citations to

GeUBeMK for violations of various standards.! Two were

vacated by the Administrative Law Judge. Two more

were withdrawn by the Secretary while the case was on

appeal to the Eleventh Circuit. Of the seven remaining,

five involve citations entirely or partially for violations of

' The citations are stated in their entirety in the ALJ's

Decision and Order (Appendix C).

the inorganic arsenic standards. It is only those citations

for violating the inorganic arsenic standards that are the

subject of this petition.

5. GeUBeMK contested all citations. On November

9, 1992, the Secretary filed a complaint against GEUBeMK

seeking to enforce citations and monetary penalties

assessed with the citations. The action was tried in Flo-

rence, Alabama on April 27, 28 and 29, 1993 before an

Administrative Law Judge (ALJ), Edwin G. Salyers. On

March 4, 1994, Judge Salyers issued a Decision and Order

vacating two citations, affirming seven citations, and

imposing penalties upon GeUBeMK. (Appendix C).

On March 30, 1994 GeUBeMK filed a petition for

discretionary review by the Occupational Safety and

Review Commission (the “Commission”). On May 3,

1994, the Commission issued a notice of final order, deny-

ing the petition for discretionary review and ordering

that the Administrative Law Judge’s decision became a

final order of the Commission on May 2, 1994. (Appendix

B).

On June 13, 1994, GeUBeMK filed its petition for

review of the order from the Commission with the United

States Court of Appeals for the Eleventh Circuit. The

Eleventh Circuit Court of Appeals denied GeUBeMK’s

request for oral argument and issued its order affirming,

in part, the order of the Commission.2 (Appendix A). On

? At the request of the Secretary of Labor, the Eleventh

Circuit Court of Appeals vacated two of the citations affirmed

by the Commission. The Eleventh Circuit affirmed the five

remaining citations and the penalties imposed upon GeUBeMK.

ieteceaieeacteaaiiiiiiiaiii iii)

April 22, 1996, GeUBeMK filed its petition for rehearing.

On July 5, 1996, the Eleventh Circuit Court of Appeals

issued its order denying the petition for rehearing.

(Appendix D).

GeUBeMK Constructors now petitions this Court for

a writ of certiorari to the United States Court of Appeals

for the Eleventh Circuit.

REASONS FOR GRANTING THE PETITION

The Court should review the Court of Appeals’ deci-

sion affirming without elaboration the ALJ's decision

which had the effect of ruling, for what is believed to be

the first time in the history of the OSH Act or the APA,

that the Secretary can engage in retroactive rule-making

and enforce such rules, something which is prohibited by

law and which have never been ruled on directly by this

Court.

1. The decision that the Secretary’s inorganic arse-

nic standard applied to the work performed by

GeUBeMK was incorrect.

The standard to be applied is one of consistency and

reasonableness. The determination must be whether the

Secretary's interpretation and application of a regulation

is consistent with the regulatory language and reasonable

given the intent of the regulation. Georgia Pacific Corp. v.

OSHRC, 25 F.3d 994, 1004 (11th Cir. 1994).

The Secretary’s application of the inorganic arsenic

standards to the work being done by GeUBeMK was

neither consistent with the regulatory language nor rea-

sonable given the intent of the regulation.

The inorganic arsenic standards, by design and by

the Secretary’s announced purpose, are intended to apply

to workers who are constantly exposed to inorganic arse-

nic over long periods of time. The standards focus pri-

marily on conditions at copper and zinc smelters. Even in

the one instance considered in rule-making by the Secre-

tary involving workers at coal-fired power plants, the

Secretary considered the effect of the exposure of workers

permanently employed by the power companies, and the

Secretary assumed their exposure every two weeks over,

presumably, their working careers, to be a level of expo-

sure high enough to be the equivalent of their exposure to

the PEL of 10 pg/m° every working day.

The Secretary considered nothing like the circum-

stances faced by GeUBeMK at the Colbert plant. Crafts-

men were employed out of union halls to work a few

weeks. Some forty workers may have been exposed for

no more than 10 days to levels slightly above the PEL. All

were laid off at the conclusion of the job to work for some

other employer at some other unknown place under

unknown conditions, with no certainty that they would

ever be exposed to inorganic arsenic in the work place

again.

At most, the GeUBeMK experience presents a case of

brief intermittent exposure of transitory workers to low

levels of inorganic arsenic. Very likely, it presents a case

of one-time, brief exposure of transitory workers to low

levels of inorganic arsenic.

Both the Commission and the Court of Appeals have

the adjudicative responsibility to determine whether the

Secretary’s interpretations are reasonable and consistent

with promulgated standards, or whether they are erro-

neous or inconsistent with the promulgated standards.

Sec. of Labor v. Mutual Min., Inc., 80 F.3d 110, 115 (4th Cir.

1996) (considering an analogous adjudicatory body). See

also, Torrington Co. v. U.S., 82 F.3d 1039, 1050 (Fed. Cir.

1996).

The Secretary’s interpretation, through the citation

process, that the inorganic standards apply to brief, inter-

mittent exposures at low levels to transitory workers is

both erroneous and inconsistent with the promulgated

standards.

The standards impose among other things, a medical

surveillance program consisting of an initial examination

followed by annual examinations (29 C.F.R.

§ 1910.1018(n)) (App. 89a-92a), obviously intended for

long term employment with constant or frequent expo-

sure to inorganic arsenic. Monitoring for inorganic arse-

nic must be repeated at least quarterly if initial

monitoring reveals employee exposure above the PEL,

and every six months if below the PEL (29 C.FR.

§ 1910.1018(e)(3)) (App. 72a-73a), again assuming long-

term employment and constant or frequent exposure. The

regulations require the employer to provide change

rooms, showers and controlled-air lunchrooms (29 C.F.R.

§ 1910.1018(m)) (App. 87a-88a), requirements clearly

directed at long-term employment and exposure situa-

tions. Such requirements would be onerous, to say noth-

ing of unnecessary, in very short-term, limited exposure

situations. Even if those conditions had been assumed

during rule-making the issue of economic feasibility

versus expected benefits would have had to have been

addressed in detail. It was not.

The Secretary’s standards did not and do not apply

to brief, intermittent or one-time exposure of transitory

workers to low levels of inorganic arsenic, the exposure

which was the subject of the citations issued against

GeUBeMK.

2. Having no standards which apply to brief, inter-

mittent exposure of transitory workers to inorganic arse-

nic, issuance by the Secretary of citations for such

exposure amounts to retroactive rule-making, in violation

of the APA and the OSH Act.

The Secretary establishes the standards through the

exercise of rule-making authority. 29 U.S.C. § 665. The

rule-making process is controlled by the APA, 5 U.S.C.

§ 551 et seq. The APA prohibits the retroactive effect of

rule-making. 5 U.S.C. § 551(4). In a 1988 concurring opin-

ion, Justice Scalia noted the apparent inviolability of that

prohibition.

Although the APA was enacted over 40 years

ago, this Court has never directly confronted

whether the statute authorizes retroactive rules.

This in itself casts doubt on the Secretary’s posi-

tion. If so obviously useful an instrument was

available to the agencies, one would expect that

we would previously have had occasion to

review its exercise.

Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 222-23,

102 L.Ed.2d 492, 508, 109 S.Ct. 468, ___ (1988) (concurring

opinion).

The APA aside, without doubt the Secretary cannot

engage in retroactive rule-making under the OSH Act.

The OSH Act assigns distinct regulatory tasks to two

different administrative authorities. The Secretary of

Labor (Secretary) is charged with setting and enforcing

work place standards. 29 U.S.C. §§ 651(b)(3), 661. The

Occupational Safety and Health Review Commission

(Commission) is assigned the responsibility of carrying

out “adjudicatory functions” under the OSH Act. 29

U.S.C. § 651(b)(3).

The Secretary establishes the standards through the

exercise of rule-making power. 29 U.S.C. § 665. The rule-

making process is controlled by the Administrative Pro-

cedure Act (APA), 5 U.S.C. § 551 et seq. The rule-making

process expressly requires public notice of the proposed

rule and an opportunity for comment from those individ-

uals, entities, or groups affected by the proposed rule. 5

U.S.C. § 553. The recognized purpose of such notice is to

comply with Constitutional due process requirements. See

Bell Lines, Inc. v. United States, 263 F.Supp. 40 (Dist. W.Va.

1967).

The Secretary has no adjudicatory authority with

respect to citations issued. Adjudicatory authority rests

exclusively with the Commission. The Commission has

no rule-making authority. That power rests exclusively

with the Secretary. Martin v. Occupational Safety and Health

Review Commission, 499 U.S. 144, 113 L.Ed.2d 117, 111

S.Ct. 1171 (1991).

The Secretary can use the enforcement process to

expand the interpretation and meaning of standards

promulgated under the APA, so long as that meaning is a

reasonable extension of the standard issued, and one that

employers could reasonably have expected. Martin v.

Occupational Safety and Health Review Commission, 499 U.S.

144, 152-153, 113 L.Ed.2d 117, 129, 111 S.Ct. 1171 (1991).

Taken as a whole, the Secretary’s rules, including

interpretations appearing in the form of citations, must

be clear and definite so the affected employer will have

adequate notice of the Secretary’s understanding and

intended application of the law. Thomas Jefferson Univ. v.

Shalala, 512 U.S. __, 129 L.Ed.2d 405, 423, 114 S.Ct. ___

(1994); Georgia Pacific Corp. v. OSHRC, 25 F.3d 999, 1004

(11th Cir. 1994); Diamond Roofing Co. v. OSHRC, 528 F.2d

645, 649 (Sth Cir. 1976). As this Court recognized in

Martin v. Occupational Safety and Health Review Commis-

sion, 499 U.S. 144, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991):

But as the Secretary’s counsel conceded in oral

argument, Tr of Oral Arg 18-19, 20-21, the deci-

sion to use a citation as the initial means for

announcing a particular interpretation may bear

on the adequacy of notice to regulated parties,

see Bell Aerospace, 416 US, at 295, 40 L Ed 2d

134, 94 S.Ct. 1757; Bowen v Georgetown Univ.

Hospital, 488 US, at 220, 102 L Ed 2d 493, 109 S

Ct 468 (Scalia, J., concurring), on the quality of

the Secretary’s elaboration of pertinent policy

considerations, see Motor Vehicle Mfrs. Assn. of

United States, Inc. v State Farm Mut. Auto-

mobile Ins. Co. 463 US 29, 43, 77 L Ed 2d 443,

103 S Ct 2856 (1983), and on other factors rele-

vant to the reasonableness of the Secretary’s

exercise of delegated lawmaking powers.

Martin v. Occupational Safety and Health Review Commis-

sion, 499 U.S. at 158, 111 S.Ct. at __, 113 L.E.2d at 132.

Emphasizing the point made in Martin, it was noted

three years later in a dissenting opinion of this Court that

“judges are properly suspect of sharp departure from

past practice that are as unexplained as the Secretary’s in

this case.” Thomas Jefferson Univ. v. Shalala, 512 U.S. __,

129 L.Ed.2d 405, 422 (n.3), 114 S.Ct. ___ (1994) (dissenting

opinion); citing Motor Vehicle Mfrs. Assn. v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29, 41-42, 77 L.Ed.2d 443, 103,

S.Ct. 2856 (1983).

Waiting fourteen years from the time the inorganic

standards were promulgated to issue citations for brief,

intermittent exposure to transitory workers, for violating

standards the Secretary had announced as being designed

for constant, long-term exposure, would qualify as a

sharp departure from past practice especially since it was

unexplained.

A citation based upon a new interpretation

announced for the first time during the enforcement proc-

ess and which is beyond any reasonable extension of the

regulations sought to be enforced effectively is an

announcement of a new regulatory constraint applied

retroactively. No agency can act retroactively through

rule-making. An agency can act retroactively through

adjudication. That is because adjudication deals with

what the law was, while rule-making deals with what the

law will be. Bowen v. Georgetown Univ. Hospital, 488 U.S.

204, 221-225, 102 L.Ed.2d 492, 508-510, 109 S.Ct. 468

(1988) (concurring opinion). The Secretary however, has

no adjudicatory authority under the OSH Act and is

without the ability to issue or apply regulations in a way

that has retroactive effect.

3. The issue presented in this case is of considerable

importance.

The potential impact of the Secretary’s action just on

coal-fired power plants throughout the country is

obvious. but rather than measure the impact on one or

several industries, the uncertainty created generally by

the Secretary with respect to all existing standards is

enormous. That uncertainty is heightened by inconsisten-

cies in the Secretary’s rule-making practices in recent

years. In 1992, for instance, the Secretary issued stan-

dards controlling exposure to cadmium. 29 C.F.R.

§ 1910.1027. Those standards specifically exclude expo-

sures that are only intermittent or where exposure above

the PEL does not occur more than thirty (30) days during

the year. 29 C.F.R. § 1910.1027(f)(i)({iii). Such clear direc-

tion to employers, and recognition of the special circum-

stances raised by intermittent or short-term exposures, is

not necessary if, as in this case, the Secretary can without

fair notice issue enforcement citations extending coverage

of regulations for long-term exposure to intermittent or

short-term exposures.

In addition, as rapid technology changes occur and

render obsolete many assumptions made in OSHA stan-

dards issued twenty years ago, or more, the Secretary

cannot be allowed to use the convenient, tempting

enforcement process as the means of announcing new or

updated regulations. The Secretary must be directed to

the accepted rule-making process.

; CONCLUSION

The petition for a writ of certiorari should be

‘ granted.

Respectfully submitted,

WILuiAM P. SNYDER

: KRAMER, RAYSON, LEAKE, RODGERS,

4 & Morcan

' 2500 First Tennessee Plaza

P.O. Box 62S

Knoxville, Tennessee 37901-0629

(423) 525-5134

Attorney for Petitioner

phe SSA AMS feta isa Fa

Ws eR TOF.

APPENDIX

Page

A. March 6, 1996 Decision of the United States

Court of Appeals for the Eleventh Circuit

: affirming in part and reversing in part the

) order of the Occupational Safety and Health

ee Ca eis eedwkd us beuaca bene. la

B. May 3, 1994 Notice of Final Order of the

Occupational Safety and Health Review Com-

4 mission, stating that the Decision and Order

: of the Administrative Law Judge has become

i a final order of the Commission................ 2a

;

C. Decision and Order of Administrative Law

4 FURR TOTES. SONVOEG ova sie ic ences sveces 5a

D. July 5, 1996 Order of United States Court of

i Appeals for the Eleventh Circuit denying

4 GeUBeMK Constructor’s Petition for Rehear-

5 Mees Sea shel eRe kd seat sdVAseeonresceseenne 40a

E. Constitutional Provisions, Statutes, and Regu-

lations Involved

; E.1: Constitution of the United States, Amend-

4 ne a a 4la

: Wt REND OE ey usb a nb erhe scsseanevacers 42a

| EE aT nen ere ee SOE De 44a

;

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APPENDIX A

March 6, 1996 Decision of the United States Court of

Appeals for the Eleventh Circuit affirming in part and

reversing in part the order of the Occupational Safety

and Health Review Commission

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-6528

Non-Argument Calendar

OSHA #92-3040

G-UB-MK CONSTRUCTORS,

Petitioner,

versus

SECRETARY OF LABOR,

Respondent.

Petition for Review of an Order from the

Occupational Safety and Health Review Commission

(Filed March 6, 1996)

Before ANDERSON, COX, and BIRCH, Circuit Judges.

PER CURIAM:

Items 3 and 4 of Citation I, and the penalties associ-

ated with those items, are VACATED at the request of the

Secretary. In all other respects the order of the Commis-

sion is affirmed. See 11th Cir. R. 36-1.

APPENDIX B

May 3, 1994 Notice of Final Order of the Occupational

Safety and Health Review Commission, stating that the

Decision and Order of the Administrative Law Judge

has become a final order of the Commission

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

One Lafayette Centre

1120 20th Street, N.W. - 9th Floor

Washington, DC 20036-3419

[SEAL]

PHONE: FAX:

COM (202) 606-5100 COM (202) 606-5050

FTS (202) 606-5100 FTS (202) 606-5050

“*#eeeeeeveeeeeneevreeeeereeeeeeeeeeeeeee

SECRETARY OF LABOR,

Complainant, Docket No.

92-3040

G-UB-MK CONSTRUCTORS,

Respondent.

)

NOTICE OF FINAL ORDER

The petition for discretionary review filed by the Respon-

dent, in the above cited action, was received by the Com-

mission on March 30, 1994. The case was not directed for

review. Therefore, the decision of the Administrative Law

Judge became a final order of the Commission on May 2,

1994. Rule 90(d), 29 CFR § 2200.90(d); Section 12(j) of the

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

§ 661()).

ANY PERSON ADVERSELY AFFECTED OR

AGGRIEVED WHO WISHES TO OBTAIN REVIEW OF

THE DECISION OF THE ADMINISTRATIVE LAW

JUDGE MUST FILE A NOTICE OF APPEAL WITH THE

APPROPRIATE FEDERAL COURT OF APPEALS

WITHIN 60 DAYS OF THE DATE OF THE ABOVE FINAL

ORDER DATE. See Section 11 of the Occupational Safety

and Health Act of 1970, 29 U.S.C. § 660.

FOR THE COMMISSION

/s/ Ray H. Darling, Jr.

Ray H. Darling, Jr.

Executive Secretary

May 3, 1994

Date

Docket No. 92-3040

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation

Office of the Solicitor, U.S. DOL.

Room $4004

200 Constitution Ave., N.W.

Washington, D.C. 20210

Ralph D. York

Assoc. Regional Solicitor

Office of the Solicitor, U.S. Dol

Suite B-201

2002 Richard Jones Road

Nashville, TN 37215

William P. Snyder, Esq.

Kramer, Rayson, Leake, Rodgers &

Morgan

P.O. Box 629

Knoxville, TN 37901-0629

Edwin G. Salyers

Administrative Law Judge

Occupational Safety and Health

Review Commission

Room 240

1365 Peachtree Street, N.E.

Atlanta, GA 30309-3119

APPENDIX C

Decision and Order of Administrative Law Judge Edwin

G. Salyers

(LOGO) UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

1365 PEACHTREE STREET, N.E., SUITE 240

ATLANTA, GEORGIA 30309-3119

PHONE FAX

COM (404) 347-4197 COM (404) 347-0113

FTS (404) 347-4197 FTS (404) 347-0113

SECRETARY OF LABOR,

Complainant,

OSHRC Docket

is No. 92-3040

G-UB-MK CONSTRUCTORS,

Respondent.

Appearances:

Joseph B. Luckett, Esquire William P. Snyder, Esquire

Office of the Solicitor Kramer, Rayson, Leake,

U. S. Department of Labor Rodgers & Morgan

Nashville, Tennessee Knoxville, Tennessee

For Complainant For Respondent

Before: Administrative Law Judge Edwin G. Salyers

DECISION AND ORDER

This proceeding arises under the Occupational Safety

and Health Act of 1970 (29 U.S.C., § 651, et seq, hereafter

referred to as the Act).

Respondent, G-UB-MK Constructors (G-UB-MK), at

all times relevant to this action maintained a place of

business at the Tennessee Valley Authority’s (TVA’s) Col-

bert Fossil Plant in Tuscumbia, Alabama, where it was

engaged in modification and maintenance of steam gener-

ator units (boilers) (Tr. 541, 600). Respondent admits it is

an employer engaged in a business affecting commerce

and is subject to the requirements of the Act.

On May 27 and 28, 1992, following receipt of an

employee complaint, the Occupational Safety and Health

Administration (OSHA) conducted an inspection of

G-UB-MK’s Colbert worksite (Tr. 11, 14, 20). As a result of

the inspection, G-UB-MK was issued citations alleging a

number of violations of the Act, together with proposed

penalties. G-UB-MK filed a timely notice contesting the

alleged violations in their entirety, bringing this matter

before the Occupational Safety and Health Review Com-

mission (Commission).

On April 27 and 29, 1993, a hearing was held in

Florence, Alabama, on the contested issues. The parties

have submitted briefs, and this matter is ready for dispo-

sition.

Alleged Violations

Serious Citation No. 1 alleges:

29 CFR 1910.1018(e)(5)(i): Each employee was

not notified in writing within five (5) working

days after receipt of monitoring results, which

represented that employee’s exposure to inor-

ganic arsenic;

a) Boiler 5, results of exposure monitoring

were not provided to employees in writing

within 5 days of receipt.

The alleged violations below have been grouped

because they involve similar or related hazards

that may increase the potential for illness.

29 CFR 1910.1018(q)(3)(i): All records for inor-

ganic arsenic required to be maintained by para-

graph (q) of this section were not made

available upon request to the Assistant Secretary

and the Director for examination and copying:

a) Boiler 5, records of all exposure mon-

itoring were not made available for exam-

ination and copying.

29 CFR 1910.1018(q)(3){ii): Records requested,

which are required to be maintained by para-

graph (q) of this section, were not provided to

employees, designated representative and Assis-

tant Secretary:

a) Boiler 5, site labor representative did

not receive arsenic exposure monitoring

results after a written request was filed with

the site manager.

29 CFR 1926.58(n)(5)(ii): Upon request, the

employer did not make any exposure records

required by 29 CFR 1926.58(f) and (n) available

for examination and copying to affected

employees, former employees, designated repre-

sentatives, or the Assistant Secretary in accor-

dance with 29 CFR 1910.20(a)-(e) and (g)-(i):

a) Boiler 5, site labor representative did

not receive asbestos exposure monitoring

results after a written request was filed with

the site manager.

29 CFR 1926.59(e)(1): Employer had not devel-

oped or implemented a written hazard commu-

nication program which describes how the

criteria in 29 CFR 1926.59(f), (g), and (h) will be

met:

a) Boiler 5, a written hazard communica-

tion program had not been developed for

employees exposed to hazardous chemicals

such as asbestos, arsenic, welding fumes

and ceramic fiber.

29 CFR 1926.59(h): Employees were not pro-

vided information and training as specified in

29 CFR 1926.59(h)(1) and (2) on hazardous

chemicals in their work area at the time of their

initial assignment and whenever a new hazard

was introduced into their work area:

a) Boiler 5, information and training were

not provided for employees exposed to haz-

ardous chemicals such as asbestos, arsenic,

welding fumes and ceramic fiber.

“Other” than serious Citation No. 2 alleges:

29 CFR 1910.20(g)(1): The employer did not pro-

vide current employees upon their first entering

into employment and at least annually thereaf-

ter the information required in 29 CFR

~ 1910.20(g)(1)(i)-(iii):

a) Boiler 5, at the time of initial employ-

ment employees were not informed of the

existence, location, and availability of

records covered by 29 CFR 1910.20. They

were not informed of the person responsible

for maintaining and providing access to

records or of their rights of access to the

records.

29 CFR 1910.134(b)(1): Written standard operat-

ing procedures governing the selection and use

of respirators were not established:

a) Boiler 5, a written program was not

developed for respirators used to provide

protection against contaminants, such as

arsenic, welding fumes, and ceramic fibers.

29 CFR 1910.134(b)(3): The users of respirators

were not instructed and trained in the proper

use of respirators and their limitations:

a) Boiler 5, training was not provided to

employees wearing disposable respirators.

29 CFR 1926.59(g)(8): Employer did not main-

tain copies of the required material safety data

sheets for each hazardous chemical in the work-

place and ensure that they were readily access-

ible to the employees in their work area during

each work shift:

a) Boiler 5, material safety data sheets

were not available for welding rods which

contain hazardous chemicals.

10a

Alleged Violations of § 1910.1018

Fossil fuels, including coal, are commonly known to

contain arsenic; when coal is burned, arsenic becomes

concentrated in the cinders that result from combustion

(Tr. 344). In a boiler, freed arsenic lodges in the boiler’s

pipes and may also be found in the boiler’s particulate

byproduct, “flyash” (Tr. 24).

Employees cutting pipe in the Colbert No. 5 boiler’s

economizer and precipitator, a collection device on the

boiler’s smoke stack which filters the combustion gases

produced by the boiler, could be expected to release some

form of arsenic into the air (Tr. 27, 345-346). Rolf

Amundson, G-UB-MK’s site manager (Tr. 625), testified

that TVA arsenic sampling had been reviewed and that

G-UB-MK was aware there was a potential for arsenic

exposures in the area, although past samplings had been

well below PEL levels (Tr. 633). Northwest Envirocon, an

industrial hygiene and environmental consulting firm

retained by G-UB-MK, first conducted arsenic monitoring

in G-UB-MK’s work areas in the economizer and precipi-

tator on April 17, 1992 (Exh. C-4; Tr. 492-494, 502). The

results of the monitoring were sent to a lab for analysis

and the results made available by phone to Don Feezell,

G-UB-MK’s area safety engineer, on approximately April

21, 1992 (Tr. 496-498). Further monitoring was performed

on April 22, May 5 and May 20 (Tr. 24, 495). At Feezell’s

request, a complete package documenting the monitoring

results was not provided to Feezell until all the monitor-

ing was completed in mid-May (Tr. 499).

Eleven employees were monitored on April 17; ten

registered exposures over OSHA’s permissible exposure

lla

limit (PEL) of 10 micrograms per cubic meter averaged

over an eight-hour day (Tr. 42). The highest exposure,

149.15 micrograms per cubic meter, was believed to be a

false reading (Exh. C-4; Tr. 42, 507-509). Other readings

show overexposures from 22.3 to 59.4 micrograms per

cubic meter for the same day (Tr. 510-511). No overex-

posures were registered during later monitoring (Exhs.

C-5, C-6, C-7; Tr. 43-44).

Bobby Terrell, the boilermaker’s general foreman,

testified that Don Feezell told him verbally of the arsenic

results twelve to thirteen days after the initial arsenic

monitoring (Tr. 721-726). Terrell stated all workers

engaged at the economizer were orally notified of the

monitoring results at that time (Tr. 722-726). Terry White,

a boilermaker monitored for exposure to arsenic on April

17 (Tr. 274-276), testified, however, that he was unaware

that he had been exposed to arsenic until a safety meeting

on the subject of asbestos was held shortly before May 22

(Tr. 281-283).

Employees who had actually been monitored were

eventually notified in writing of the monitoring results in

letters drafted May 21, 1992 (Exh. R-22; Tr. 123, 641-42,

698). Compliance Officer Sharon Ratliff testified that on-

May 28 she was told by Amundson employees had not

yet been notified (Tr. 29, 802). Terry White testified he

received the monitoring results in a letter postmarked

May 27 or 28 (Tr. 278). Other employees working in the

area where monitoring was taking place were not notified

in writing of the results (Tr. 123-124; See also testimony of

Randy Pittman, Tr. 569-571). On May 28, Compliance

Officer Ratliff requested Amundson to provide her with

G-UB-MK’s records of arsenic exposure monitoring at

iach

12a

that time (Tr. 35, 770, 799-801). Amundson refused stating

that the data he had was not complete (Tr. 35-36, 769,

811).

David Faulkner, a site labor representative for Ten-

nessee Valley Trades and Labor Council, told Ratliff that

on approximately May 22, 1992, he had asked G-UB-MK

to provide him with arsenic monitoring results, had been

refused, and had not yet received any monitoring docu-

ments (Tr. 47; See also testimony of Faulkner, Tr. 219-220,

223). Faulkner further requested monitoring test results

in a letter to Amundson dated May 28, 1992 (Exh. C-9; Tr.

47-49). On August 31, 1992, Faulkner told Ratliff he had

not yet received a copy of the arsenic monitoring (Tr. 50).

Faulkner testified that he received the arsenic monitoring

on October 22, 1992 (Tr. 225).

Compliance Offier Ratliff testified that arsenic has

been recognized as a cause of lung and skin cancer, as

well as dermatitis and nasal perforations (Tr. 33). Dr. Carl

Schultz, a board-certified toxicologist called by the Secre-

tary (Tr. 312-342) agreed, testifying that inorganic arsenic

is a carcinogen known to cause respiratory problems and

lung and skin cancer in exposed populations (Tr. 343).

Higher exposures for longer periods are associated with

higher incidents of disease (Tr. 402). Schultz stated that

cancer in humans exposed to carcinogens is a progressive

disease. Specific symptoms may not appear until fifteen

to thirty years after the initial exposure (Tr. 349).

Respondent’s expert, Dr. Rupert Burtan, a board-

certified specialist in occupational and environmental

medicine (Tr. 371), took the view the arsenic exposures

suffered by G-UB-MK’s employees in the case at bar were

P — en

ttt lina,

13a

unlikely to lead to serious illness or death (Tr. 421-423).

However, Dr. Schultz opined, “with a reasonable degree

of scientific certainty,” that the exposure of G-UB-MK’s

employees to the levels of arsenic they encountered in

boiler No. 5 increased their risk of developing respiratory

cancer and dermatitis? (Tr. 348-349, 355). For reasons

which will be discussed below (see Classification Section,

pg: 8, infra), the court concludes it is unnecessary for the

Secretary to show an immediate exposure to serious

injury to meet the burden of proof under the cited stan-

dard.

As Ratliff confirmed in her testimony, unless mon-

itoring records are maintained and provided, employees

do not know whether to request protective equipment or

seek medical treatment (Tr. 54), nor can OSHA ascertain

an employer’s compliance with the arsenic standard or

ensure employees’ protection (Tr. 53).

Applicability

G-UB-MK argues that the inorganic arsenic regula-

tions were never intended to apply to the intermittent

* Dr. Burtan admitted, however, that his opinion (to the

effect that there is a threshold exposure to carcinogens below

which cancer is not a risk), is disputed in the scientific

community (Tr. 426-430).

Dr. Burtan admitted that the literature in the field points

to inorganic arsenic as a cause of lung cancer, although he stated

his own research failed to show such a correlation (Tr. 375). Skin

damage, however, was found in the study group Burtan

discussed (Tr. 386).

l4a

arsenic exposure encountered by workers at coal-fired

power plants. Section 1910.1018(a) unambiguously states:

This section applies to all occupational expo-

sures to inorganic arsenic except that this sec-

tion does not apply to employee exposures in

agriculture or resulting from pesticide applica-

tion, the treatment of wood with preservatives

or the utilization of arsenically preserved wood.

(Emphasis added)

Section § 1910.1018, et seq., is, on its face, applicable

to G-UB-MK’s operation. Because the scope of the regula-

tion is clear, it is neither necessary nor proper to look to

secondary sources to discover the drafter’s intent. Alaska

Trawl Fisheries, Inc. & Golden Age Fisheries, 15 BNA OSHC

1699, 1992 CCH OSHD J 29,758 (Nos. 89-1017 & 89-1192,

1992).

Serious Citation No. 1, Item 1

Section 1910.1018(e)(5)(i) provides that:

Within five (5) working days after the receipt of

monitoring results, the employer shall notify

each employee in writing of the results which

represent that employee’s exposures.

It is undisputed that each employee working in boiler

No. 5 was not notified in writing of monitoring results

which represented that employee’s exposure to inorganic

arsenic. Moreover, G-UB-MK admits that the notifications

that were sent out were not provided within five working

days after G-UB-MK’s receipt of the monitoring results

(Tr. 32). A violation of § 1910.1018(e)(5)(i) is, therefore,

established.

15a

Classification

G-UB-MK disputes the classification of the violation

as “serious,” arguing that employee overexposures were

insufficient and the delays in notification too brief to

actually result in serious bodily harm.

According to § 17(k) of the Act, a violation is consid-

ered serious if the violative condition or practice gives

rise to a “substantial probability” of death or serious

physical harm. The test for determining the serious

nature of violations of monitoring and reporting stan-

dards is not, therefore, whether actual overexposures to

toxic materials were proven by the Secretary. The sub-

stantial probability of death or serious physical harm

required by the Act refers not to any actual injury but to

the probability that the hazard sought to be prevented by

a given standard could result in death or serious physical

harm. Dec-Tam Corp., 15 BNA OSHC 2072, 1993 CCH

OSHD { 29,942 (No. 88-0523, 1993); Phelps Dodge v.

O.S.H.R.C., 725 F.2d 1237 (9th Cir. 1984).

The Secretary has sufficiently established that

employees unwittingly exposed to known carcinogens

over their working life are exposed to a serious risk of

harm. Exposures to carcinogens are admittedly cumula-

tive; timely written notification of exposures is, therefore,

required to allow exposed employees to track their

increased risk of developing cancer. Such information

3 As evidenced by the testimony of employee Terry White,

oral notification places an undue burden on the employee to

recall and record monitoring results and is inadequate to fulfill

the requirements and/or purpose of the standard.

l6a

allows the employees to determine for themselves the

need for medical surveillance or to refuse future work in

areas of potential exposure. This is especially important

where, as here, single job employers do not maintain

medical surveillance for itinerant laborers. Failure to pro-

vide the required notification within the time period

established by the standard could result in unacceptable

cumulative exposures for some workers.

Penalty

The Secretary has proposed a penalty of $2,250.

The gravity of the cited violation is moderate.

Approximately forty boilermakers worked in the econ-

omizer area for a three- to five-week period (Tr. 34,

56-57). Large overexposures were recorded in the earliest

monitoring, April 17. Although some workers were pro-

vided oral notification of the results, monitored

employees did not receive written notification of their

exposures until over a month later; exposed employees

not monitored received no written notification.

G-UB-MK is a large company (Tr. 97, 596-597) with

427 craftsmen on the Colbert worksite at one point (Tr.

628). It has no history of prior violations (Tr. 97). The

Secretary denied a good faith reduction based on G-UB-

MK’s failure to implement a safety and health program at

the Colbert site (Tr. 98).

Taking the relevant factors into consideration, the

undersigned finds that an additional 10 per cent reduc-

tion for good faith is warranted. Due to time constraints

(Tr. 604), G-UB-MK temporarily adopted TVA’s safety and

17a

health program rather than develop their own (Tr.

605-610). Although, as discussed below, that program

may not have been tailored to meet the specific require-

ments of G-UB-MK’s contract, this Judge cannot say the

deficiencies in the program are sufficiently flagrant to

demonstrate bad faith. In view of this circumstance, and

considering the gravity factor to be moderate, a penalty

of $1,500 will be assessed.

Serious Citation No. 1, Item 2a

Section 1910.1018(q)(3)(i) requires that:

The employer shall make available upon request

all records required to be maintained by para-

graph (q) of this section to the Assistant Secre-

tary and the Director for examination and

copying.

The regulation clearly states that records required

under the Act shall be provided to the Secretary upon

request. The immediate compliance requisite precludes

the fabrication or sanitization of required records.4 G-UB-

MK’s refusal to provide the requested records to Compli-

ance Officer Ratliff at the time of the inspection, there-

fore, constitutes a violation of the Act.

* There is no suggestion, and this Judge does not imply,

that G-UB-MK’s refusal to provide exposure records was so

motivated.

18a

Penalties

Items 2a and 2b involve similar hazards that may

increase the potential for harm. The proposed combined

penalty is discussed below.

Serious Citation No. 1, Item 2b

Section 1910.1018(q)(3)(ii) provides:

Records required by this paragraph shall be pro-

vided upon request to employees, designated

representatives, and the Assistant Secretary in

accordance with 29 CFR 1910.20(a) through (e)

and (g) through (i).

Site representative Faulkner’s undisputed testimony

establishes that site manager Amundson was aware that

Faulkner’s May 28, 1992, letter requesting “all test

results” referred, inter alia, to arsenic monitoring results,

which Faulkner had verbally requested from Amundson

a few days earlier. It is also undisputed that Faulkner did

not receive the requested monitoring until October 22,

1992. This circumstance establishes a violation of the

cited standard.

Classification

G-UB-MK argues that its failure to provide the

required records should be classified as de minimis. The

Commission, however, has held that access to medical

and exposure records can play a crucial role in protecting

employee health where employees are exposed to toxic

substances within the scope of their employment. General

Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064,

19a

1991 CCH OSHD 29,240 (Nos. 82-630, 84-731 & 84-816,

1991). G-UB-MK employees were overexposured to arse-

nic for an undetermined period. Failure to provide the

compliance officer and employee representative with

monitoring results delayed their ability to evaluate the

arsenic hazard and assess the need for engineering or

work practice controls. The violation here was properly

deemed serious.

Penalty

The Secretary proposes a combined penalty of $2,250.

The relevant factors have been set forth in the pen-

alty section for item 1. For the reasons discussed there,

the proposed penalty is deemed excessive. The court

considers the gravity factor to be moderate for items 2(a)

and (b), and a further reduction for good faith is allowed.

A total penalty of $1,500 is assessed.

Alleged Violations of § 1926.58

G-UB-MK had contracted with TVA to repair boiler

No. 5, replacing the superheat element and economizer

tube, and rehabilitating the chimney, precipitator and

turbo generator (Exh. C-8, C-8a; Tr. 71, 532). This was

undertaken in addition to “regular operations on end

work maintenance” (Tr. 532). On the date of the inspec-

tion, G-UB-MK employees were engaged in cutting and

welding pipe in the “penthouse” at the top of boiler No. 5

(Tr. 16-17).

G-UB-MK was aware that asbestos insulation had

originally been used in the No. 5 boiler, but believed that

20a

it had since been removed (Tr. 632-633, 753). Asbestos

monitoring was conducted in the penthouse on May 7,

1992, after an inspector discovered suspicious insulating

material in the penthouse (Tr. 546, 633-634), and from

May 19 through the date of the inspection (Tr. 59).

Asbestos results require no laboratory testing and are

available within thirty minutes of sampling (Tr. 503). The

results of this monitoring were provided to the boiler-

makers’ union job steward and posted at the boiler-

makers’ lunchroom and tool room (Tr. 459, 487, 639,

657-658, 717, 720-721). All results obtained in monitoring

were below the OSHA PEL of .2 fibers per cubic centime-

ter over an eight-hour day, and below the action level of

.1 fibers per cubic centimeter (Tr. 60).

David Faulkner testified that he requested asbestos

monitoring results from Feezell and Amundson on May

18 or 20, 1992, after learning that boilermakers had been

exposed to asbestos in the penthouse (Tr. 212-215,

242-244). Faulkner stated that he was advised all the data

was not yet in (Tr. 216). However, a May 20, 1992, letter

addressed to Faulkner containing asbestos sampling

results was given to Faulkner by another employee on or

about May 22, 1992 (Tr. 221). Faulkner admitted its con-

tents were readily available to employees on the site (Tr.

234). Faulkner received the results of monitoring con-

ducted after May 20 on October 22, 1992 (Tr. 236-237).

On May 28, 1992, Faulkner filed a grievance with

Amundson which requested that the asbestos results be

sent to the union halls of the trades represented on G-UB-

MK’s Colbert worksite and posted at the worksite itself

(Exh. C-9; Tr. 222-223, 253).

2la

Ratliff testified that asbestos is recognized as a cause

of lung cancer. Without access to monitoring records,

employees cannot know whether they are being ade-

quately protected from exposure to asbestos, or whether

to seek medical attention (Tr. 62). Approximately forty

employees were working in the penthouse area when

monitoring was conducted (Tr. 63).

Applicability of the Construction Standards

Part 1926 of the Act contains the safety and health

regulations for construction. Those regulations are appli-

cable to employers who are actually engaged in construc-

tion, alteration and/or repair of a building or structure,

or who are engaged in operations that are an integral and

necessary part of construction work. United Geophysical

Corp., 9 BNA OSHC 2117, 1981 CCH OSHD 25,579 (No.

78-6265, 1981), aff'd without published opinion, 683 F.2d 415

(Sth Cir. 1982).

The Secretary has established that G-UB-MK was

engaged in construction. G-UB-MK contracted solely for,

and was engaged solely in, the repair, alteration and

maintenance of TVA structures; specifically boiler unit

No. 5. G-UB-MK’s operations were separate from, and in

no way ancillary, to the actual operation of the boiler

unit. See Royal Logging Company, 7 BNA OSHC 1744, 1979

CCH OSHD 23,914 (No. 15169, 1979), aff'd, 645 F.2d 822

(9th Cir. 1981). The cited construction standards are

applicable.

22a

Serious Citation No. 1, Item 3

The citation states:

29 CFR 1926.58(n)(5)(ii): Upon request, the

employer did not make any exposure records

required by 29 CFR 1926.58(f) and (n) available

for examination and copying to affected

employees, former employees, designated repre-

sentatives, or the Assistant Secretary in accor-

dance with 29 CFR 1910.20(a)-(e) and (g)-(i):

a) Boiler 5, site labor representative did

not receive asbestos exposure monitoring

results after a written request was filed with

the site manager.

The record establishes that site representative Faulk-

ner requested, but was not provided asbestos exposure

monitoring results taken after May 20, 1992, until October

22, 1992. However, those results were posted on the site

and were readily available to employees as well as to

Faulkner, whose duties took him to the work areas for all

the crafts on the site. As a practical matter, the court

concludes respondent substantially complied with the

intent of the standard by posting the results at the work-

site. It did, however, seriously violate the standard’s

mandate to furnish the results to the employees desig-

nated representation upon request. The gravity factor is

considered low, and a penalty of $500 is deemed appro-

priate.

23a

Alleged Violations of § 1926.59

It is undisputed that G-UB-MK employees were

exposed to hazardous chemicals including asbestos, arse-

nic, welding fumes and ceramic fibers (Tr. 64, 70-71), and

that a written hazardous communication program was,

therefore, required at the site.

Because of time constraints, G-UB-MK had not devel-

oped their own program, but expressly adopted the TVA

program in its entirety (Exh. R-1; Tr. 65, 157, 603-604,

675-676). The TVA program, however, did not contain a

list of chemicals which G-UB-MK employees would be

using (Tr. 66, 146). In addition, the TVA program states

that TVA’s technical services would be responsible for

procuring all material safety data sheets (MSDSs), and for

providing hazard communication training.

Compliance Officer Ratliff testified that TVA was not,

in fact, responsible for procuring G-UB-MK’s MSDSs (Tr.

66, 145-146). While G-UB-MK relied on TVA to provides

its MSDSs, it did not actually arrange for the necessary

MSDSs to be maintained on the jobsite (TR. 686). Neither

was T'VA responsible for training G-UB-MK employees.

G-UB-MK conducted its own safety training which con-

sisted of a thirty-minute orientation (Tr. 77, 675). Compli-

ance Officer Ratliff testified that the employees she

interviewed during the inspection did not know the loca-

tion of MSDSs (Tr. 77; see also testimony of Randy Pitt-

man, Tr. 565). David Faulkner testified that upon his

hiring, he had received only five or ten minutes of orien-

tation from Mr. Amundson which did not include any

information regarding MSDSs (Tr. 210-211). Terry White

testified that he specifically asked where MSDSs were

24a

kept and was told by Don Feezell that there were none at

the time (Tr. 279-280).

Ratliff testified that G-UB-MK employees had not

received hazardous chemical training (Tr. 77). Faulkner

confirmed he did not receive any hazardous chemical

training until approximately a month after the OSHA

inspection (Tr. 211, 229, 239). Terry White verified he was

not provided with any health hazard information on arse-

nic or asbestos or any other hazardous chemical prior to

the OSHA inspection (Tr. 284). Sidney Dobbs, Jerry Greer

and Randy Pittman, boilermakers who worked both in

the penthouse and economizer (Tr. 449, 470-471, 542-543),

confirmed they had never received any training on the

health effects of either arsenic or asbestos (Tr. 448-449,

478, 565-567).

Serious Citation No. 1, Item 4

Section 1926.59(e)(1) requires that:

Employers shall develop, implement, and main-

tain at the workplace a written hazard commu-

nication program for their workplaces which as

[sic] least describes how the criteria specified in

paragraphs (f), (g), and (h) of this section for

labels and other forms of warning, material

safety data sheets, and training will be met, and

which also includes the following:

(i) A list of the hazardous chemicals

known to be present using an identity that

is referenced on the appropriate material

safety data sheet (the list may be compiled

for the workplace as a whole or for individ-

ual work areas)...

25a

Amendment

As a threshold matter, the undersigned finds that

G-UB-MK’s request to dismiss this item based on OSHA's

failure to provide adequate notice of the specific allega-

tions is without merit.

G-UB-MK argues that the citation charges it only

with failing to develop a hazard communication program.

At the hearing, however, the Secretary’s counsel stated

that item 4 was based not on the absence of a program,

but on inadequacies of the TVA program adopted by

G-UB-MK. Respondent maintains that it was deprived of

an opportunity to defend itself against those charges.

The citation states:

a) Boiler 5, a written hazard communication

program had not been developed for employees

exposed to hazardous chemicals such as

asbestos, arsenic, welding fumes and ceramic

fiber.

Although the citation does not list specific deficien-

cies in G-UB-MK’s program, OSHA’s compliance officer

enumerated those at the hearing, and G-UB-MK’s attor-

ney fully explored the matter on cross-examination (Tr.

144-168). The entire TVA program (Exh. R-18) was

entered into evidence at trial, and its contents examined.

This Judge cannot find that G-UB-MK is prejudiced by

amendment of the pleadings to allege deficiencies in

G-UB-MK’s adoption of the TVA hazard communication

program. The pleadings are, therefore, amended to con-

form to the evidence. Advance Bronze, Inc. v. Dole, 917 F.2d

26a

944, 955 (6th Cir. 1990); See also Bland Construction Com-

pany, 15 BNA OSHC 1031, 1991 CCH OSHD 29,325 (No.

87-992, 1991).

The Violation

The evidence establishes that G-UB-MK had not

developed or implemented its own written hazard com-

munication program describing how the criteria in 29

CFR 1926.59(f)(g), and (h) will be met.

Section 1926.59(e)(3) provides:

The employer may rely on an existing hazard

communication program to comply with these

requirements, provided that it meets the criteria

established in paragraph (e).

Any hazard communication program adopted must,

according to the standard, describe in writing how OSHA

requirements regarding MSDSs and training will be met.

It must also include a list of the hazardous chemicals

known to be present in the employer’s work areas.

G-UB-MK failed to tailor TVA’s program to reflect the

particular work conditions which would be encountered

by its employees as required by the standard. Nothing in

the written materials distinguishes between TVA’s and

G-UB-MK’s procedures for making MSDSs or hazardous

chemical training available to employees. Nor is any dis-

tinction made between the hazardous chemicals known to

be present in the TVA facility as a whole and those to

which G-UB-MK employees will be exposed.

27a

References in a written program stating that a third

party, TVA, was responsible for providing services actu-

ally provided by G-UB-MK are potentially misleading to

employees using the program, as is an overinclusive list

of hazardous chemicals. The undersigned finds that the

cited standard requires an employer who wishes to adopt

a hazardous chemical program developed by another

employer must tailor the adopted program to address the

concerns of its own employees. G-UB-MK was, therefore,

in violation of the § 1926.59(e).

Classification & Penalty

The record establishes that the cited violation was

serious in nature. The Secretary maintains that without a

written program, training in hazardous chemicals may

not be implemented, exposing employees to serious

harm. Employees who have not been trained in the haz-

ardous chemicals to which they are exposed in their

workplace may not recognize symptoms of exposure and

seek medical surveillance. They may not request protec-

tive control measures or personal protective equipment

and may not be aware of effective emergency control

measures.

In fact, as discussed below, under Citation No. 1,

item 5, G-UB-MK did not implement the hazardous chem-

ical training required under § 1926.59(h) for employees

actually exposed to chemical hazards. The violation is

serious.

The Secretary has proposed a penalty of $1,350. As

discussed above, an additional reduction for moderate

28a

gravity and good faith is warranted. A penalty of $1,000

is assessed.

Serious Citation No. 1, Item 5

Section 1926.59(h) provides:

Employee information and training. Employers

shall provide employees with information and

training on hazardous chemicals in their work

area at the time of their initial assignment, and

whenever a new hazard is introduced into their

work area.5

5 Section 1926.59(h) mandates that training include:

(1) Information. Employees shall be informed of:

(i) The requirements of this section;

(ii) Any operation in their work area where

hazardous chemicals are present; and,

(iii) The location and availability of the written

hazard communication program, including the

required list(s) of hazardous chemicals, and

material safety data sheets required by this

section.

(2) Training. Employee training shall include at

least;

(i) Methods and observations that may be used

to detect the presence or release of a hazardous

chemical in the work area (such as monitoring

devices, visual appearance or odor of hazardous

chemicals when being released, etc.);

(ii) The physical and health hazards of the

chemicals in the work area;

(iii) The measures employees can take to pro-

tect themselves from these hazards, includ-

ing specific procedures the employer has

29a

It is undisputed that training was not pro-

vided to employees exposed to hazardous chem-

icals such as asbestos, arsenic, welding fumes

and ceramic fiber.6 G-UB-MK relied instead on

training previously provided by other

employers, specifically TVA, for whom many of

the boilermakers had previously worked (Tr.

748-750). Though many of the boilermakers had

prior hazardous communication program train-

ing (Tr. 751), G-UB-MK also employed at least 56

newly hired apprentices and boilermakers who

had never worked for TVA before (Tr. 569,

788-789). The evidence does not reflect that

these employees or, for that matter, any of

G-UB-MK’s employees, received hazardous

communication training directly from G-UB-MK

prior to the Secretary’s inspection.

G-UB-MK violated the cited standard by its

failure to provide any of its employees with the

required training. Item 5 will be affirmed.

implemented to protect employees from

exposure to hazardous chemicals, such as

appropriate work practices, emergency

procedures, and personal protective equipment

to be used; and,

(iv) The details of the hazard communication

program developed by the employer, including

an explanation of the labeling system and the

material safety data sheet, and how employees

can obtain and use the appropriate hazard

information.

employees generally warn that there are hazards associated

with exposure to asbestos and advise the use of control

measures and personal protective equipment (Tr. 162-163). This

fact does not equate to training.

Classification & Penalty

For the reasons previously discussed, the

undersigned finds that item 5 is a serious viola-

tion with moderate gravity. A penalty of $1,500

is considered appropriate and will be assessed.

“Other” Than Serious Citation No. 2, Item 1

Section 1910.20(g)(1) requires:

Upon an employee’s first entering into employ-

ment, and at least annually thereafter, each

employer shall inform current employees cov-

ered by this section of the following:

(i) The existence, location, and availability

of any records covered by this section;

(ii) The person responsible for maintaining

and providing access to records; and

(iii) Each employee’s rights of access to

these records.

Compliance Officer Ratliff testified the employees

she interviewed during her inspection confirmed that,

upon hiring, they had not been told of the existence,

location and availability of employee exposure records

covered by § 1910.20. They were not informed of the

person responsible for maintaining and providing access

to records or of their rights of access to the records (Tr.

81). David Faulkner verified he was not informed of the

location or availability of monitoring records at the Col-

bert site (Tr. 230). White, Dobbs, Greer and Pittman testi-

fied they were never informed of their right to review the

results of G-UB-MK’s hazardous chemical monitoring or

clita a sat a "

Pes ee ee

3la

of the location of the results of such monitoring (Tr. 289,

452, 480, 572).

The Violation

G-UB-MK does not dispute the allegations set forth

by the Secretary but argues that the cited section is inap-

plicable because it had no exposure monitoring records at

the time of its employees’ initial employment. This argu-

ment is without merit. G-UB-MK’s interpretation of the

standard would allow employers creating records

required under § 1910.20 for the first time to withhold

this information from employees for up to a year - an

absurd result.

As discussed above, G-UB-MK was aware prior to

the start of the boiler rehabilitation that both arsenic and

asbestos were potentially present at the worksite, and

should have reasonably anticipated that monitoring and

the creation of exposure records might become necessary.

In any event, once actual monitoring commenced, it was

the employer’s duty to fulfill the requirements of the

standard.

Classification and Penalty

G-UB-MK argues that this violation should properly

be classified as de minimis. The undersigned does not

agree. As discussed under serious Citation No. 1, items 1

and 2 above, access to exposure records are necessary to

allow exposed employees to track their increased risk of

developing cancer, to determine the need for medical

surveillance, or to refuse future work in areas of potential

32a

exposure. Therefore, there is some relationship between

employee safety and health and an employer’s failure to

inform those employees of the availability of hazardous

chemical exposure records. This item will be affirmed as

“other” than serious with no penalty assessed as pro-

posed by the Secretary.

“Other” Than Serious Citation No. 2, Item 2

Section 1910.134(b)(1) provides:

Written standard operating procedures govern-

ing the selection and use of respirators shall be

established.

Compliance Officer Ratliff based this charge upon

her conclusion that G-UB-MK had not established a writ-

ten respirator program covering the procedures for selec-

tion and use of respirators which would provide

protection against contaminants, such as arsenic, welding

fumes and ceramic fibers (Tr. 84).

At the hearing of this case, G-UB-MK introduced a

copy of TVA’s respirator training manual, which was part

of the TVA safety program adopted by G-UB-MK (Tr.

187). Ratliff, after reviewing the manual, testified the TVA

procedures were adequate to meet the requirements of

the standard (Tr. 188). She further testified that neither

Feezell nor Amundson gave her the manual at the time of

her inspection or at a September 3, 1992, closing confer-

ence but had shown her only a TVA policy statement

concerning respirators and facial hair (Tr. 83-87).

Poa ee et

a ee ee ee OEE eS me See eee ens eee ae 3

fasLeer rs

33a

The Violation

The cited standard requires only that a respiratory

program be established. Under the facts of this case, the

Secretary has not shown by a preponderance of the evi-

dence that G-UB-MK violated the cited standard.

Item 2 of Citation No. 2 will be vacated.

“Other” Than Serious Citation No. 2, Item 3

Section 1910.134(b)(3) provides:

(b) Requirements for a minimal acceptable pro-

gram ... (3) The user shall be instructed and

trained in the proper use of respirators and their

limitations.

Moldex 2200 dust masks were in use at the Colbert

site (Tr. 84). Compliance Officer Ratliff testified, without

contradiction, that the Moldex 2200 dust and mist respi-

rator, which purifies the air being breathed, is a NIOSH-

certified respirator (Tr. 191). Ratliff concluded that

employees using the respirators were not instructed and

trained in their proper use and limitations (Tr. 88-89), and

that employees were using the dust masks to reduce their

exposure to “flu gas,” or sulfur dioxide, against which

the Moldex 2200 provides no protection (Tr. 89-90). Rat-

liff’s main concern was that the Moldex 2200 is not

approved for use in atmospheres containing asbestos,

arsenic, welding fumes or hazardous air contaminants to

which G-UB-MK employees were potent-ally exposed (Tr.

80, 92).

Terry White confirmed he had received no training or

information on respirator use at the Colbert site (Tr. 285).

34a

Faulkner testified he was unaware of any respirator pro-

gram, and had not received any instruction on the limita-

tions of the dust mask in use at the jobsite (Tr. 226-227).

Sidney Dobbs testified he never received any training in

the use or limitations of respirators, including the dust

mask he wore when working around dust in the pent-

house (Tr. 446-447). Jerry Greer stated he did not receive

respirator training. Without management approval, Greer

used a twin canister respirator he found in a tool box on

the site until the filters became too clogged for further

use (Tr. 474-476).

Amundson testified he instructed new employees to

wear disposable paper respirators according to “instruc-

tions on the box” when he conducted their orientation.

He also informed them they should be clean shaven when

using the masks and that the masks were ineffective for

fumes and hazardous vapors (Tr. 681-682). Amundson

admitted that he did not conduct the orientation for later

hires but delegated that duty to his staff (Tr. 675-677).

The Violation

The testimony of G-UB-MK employees establishes

that training was not provided to all employees wearing

disposable respirators. Amundson had no direct knowl-

edge of the contents of the employee orientations which,

if conducted at all, were conducted by others; his testi-

mony is, therefore, insufficient to rebut the Secretary's

evidence.

Nor is there any merit to G-UB-MK’s argument that

some employees had prior respirator training (Respon-

dent’s Brief, pg. 82). There is no evidence that G-UB-MK

35a

made an effort to ascertain the prior training level of each

employee. Moreover, not all the employees testifying, e.g.,

Dobbs and Greer, had received any prior training in the

use of respirators by G-UB-MK or any of their previous

employers.

In support of its argument that this item should be

vacated, G-UB-MK cites Kenco Casing & Pulling, Inc., 11

BNA OSHC 1911, 1983 CCH OSHD J 26,839 (No. 82-210,

1984); Blocksom & Co., 11 BNA OSHC 1255, 1983 CCH

OSHD { 26,452 (No. 76-1897, 1983); and Gulf Oil Corp., 11

BNA OSHC 1477, 1983 CCH OSHD 26,529 (No. 76-5014,

1983). In Kenco, an unreviewed administrative law judge

decision which has no precedential value, the AL] found

the involved employees had actually received the neces-

Sary training from a previous employer and held

§ 1910.134(b)(3) “does not require that the employees’

specific employer must have given him the training.” Id.

at 1912. The facts in Kenco are, therefore, distinguishable

from the facts at bar. Blocksom is also inapposite on both

the facts and the law. In that case, the employer initially

had respirators on the worksite for use by its employees

in the event of fire. At the time of the Secretary’s inspec-

tion, however, the employer had changed its policy from

one in which the employees would actually engage in

fire-fighting operations and require the respirators to one

where the fire would be fought by nearby fire depart-

ments and employees would immediately vacate the

premises. In view of this circumstance, the Commission

vacated the citation holding:

The cited standard requires that the user of a

respirator be properly trained in its use and

limitations. The mere presence of respirators on

ee eT ee

36a

a jobsite does not trigger the training require-

ment. In this case, it appears that Blocksom at

one time did intend that the respirators would

be used by employees in fighting fires. How-

ever, at the time of the alleged violation, Block-

som no longer intended that the respirators be

used but had a policy to evacuate the plant in

the event of any fire beyond immediate control

and to rely on its automatic sprinkler system

and the nearby fire departments to control all

other fires. Thus, under the circumstances of

this case, training in the respirators was not

required. Id. at 33,595-596.

Gulf Oil is also distinguishable upon the facts. In

Gulf, the Commission overturned a violation of

§ 1910.134(b)(3) upon its conclusion that the Secretary's

evidence failed to show “exposure to hazardous air con-

taminants.” It, therefore, held “a hazard requiring the use

of respirators must be shown before an employer is obli-

gated to provide respirator training.”” Id. at 33,819. Since

7 In his dissenting opinion in Gulf, Commissioner Cleary

takes issue with his colleagues’ insistence that the Secretary

must establish actual or potential employee exposure to

dangerous levels of toxic substances before the cited standard is

triggered. In his view, it is unnecessary to show exposure in

excess of the PEL (permissible exposure limits) established in

§ 1910.1000 before § 1910.134 can be applied. Id. at 33,820-821. In

the opinion of the undersigned, Commissioner Cleary’s views

expressed in his dissent more accurately interpret the intent and

purpose of the respirator standard. Recent Commission

decisions reflect a trend more in line with Cleary’s dissent and

in favor of a liberal construction of the respirator standard to

protect employees actually and/or potentially exposed to air

contaminants from the health consequences of such exposures.

See Power Fuels, Inc., 1991 CCH OSHD { 29,304 (No. 85-166,

37a

the evidence in the case at bar reflects actual or potential

exposure of employees to toxic chemicals, these

employees should have been provided with appropriate

respirators and should have been trained in their use and

limitations.

Exposures to toxic chemicals is established by the

record. Up to 125 boilermakers were potentially exposed

to toxic substances for approximately two months (Tr. 80)

without the benefit of proper training.

For the reasons previously discussed, an additional

reduction in the Secretary’s proposed penalty of $900 is

appropriate. A penalty of $500 will be assessed.

“Other” Than Serious Citation No. 2, Item 4

Section 1926.59(g)(8) requires:

The employer shall maintain copies of the

required material safety data sheets for each

hazardous chemical in the workplace, and shall

ensure that they are readily accessible during

each work shift to employees when they are in

their work area(s).

Compliance Officer Ratliff testified that during her

inspection, TVA safety personnel could not locate an

MSDS for welding rods which contain hazardous chemi-

cals (Tr. 92-94, 199). Joseph Thomas, a TVA maintenance

superintendent, testified that the compliance officer was

able to locate all the MSDSs she was looking for except

the welding rod sheet (Tr. 742). Later that day or the next,

1991); Pride Oil Well Services, 1992 CCH OSHD { 29,807 (No.

87-692, 1992).

38a

Thomas was able to locate the missing MSDSs which had

been misfiled (Exh. R-4; Tr. 746-747). While this circum-

stance may constitute a technical violation of the stan-

dard, the evidence is insufficient to show G-UB-MK had

knowledge of the cited condition. The court views this

occurrence as a “clerical error” which was corrected upon

discovery.

The Violation

In order to prove a violation of section 5(a)(2) of the

Act, the Secretary must show, inter alia, that the cited

employer either knew or could have known of the condi-

tion with the exercise of reasonable diligence. See, e.g.,

Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH

OSHD { 29,239, p. 39,157 (No. 87-1359, 1991). The Secre-

tary failed to prove that G-UB-MK knew or should have

known the missing MSDS had been misfiled.

Item 4. of Citation No. 2 will be vacated.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant

and necessary to a determination of the contested issues

have been found specially and appear in the decision

above in accordance with Rule 52(a) of the Federal Rules

of Civil Procedure.

ORDER

1. Serious Citation No. 1, item 1, alleging a violation

CO a Da es CORRS ol eS a ee

SEALER sce ek Ra aco ge De ate oD, IT TI een ol

ae el ah

39a

of § 1910.1018(e)(5)(i), is affirmed and a penalty of $1,500

is assessed.

2. Serious Citation No. 1, items 2a and 2b, alleging

violations of § 1910.1018(q)(3)(i) and (ii), are affirmed and

a penalty of $1,500 is assessed.

3. Serious Citation No. 1, item 3, alleging a violation

of § 1926.58(n)(5)(ii), is affirmed and a penalty of $500 is

assessed.

4. Serious Citation No. 1, item 4, alleging a violation

of § 1926.59(e)(1), is affirmed and a penalty of $1,000 is

assessed.

5. Serious Citation No. 1, item 5, alleging a violation

of § 1926.59(h), is affirmed and a penalty of $1,500 is

assessed.

6. “Other” than serious Citation No. 2, item 1, alleg-

ing a violation of § 1910.20(g)(1), is affirmed without

penalty.

7. “Other” than serious Citation No. 2, item 2, alleg-

ing a violation of § 1910.134(b)(1), is vacated.

8. “Other” than serious citation No. 2, item 3, alleg-

ing a violation of § 1910.134(b)(3), is affirmed and a

penalty of $500 is assessed.

9. “Other” than serious Citation No. 2, item 4, alleg-

ing a violation of § 1910.59(g)(8), is vacated.

/s/ Edwin G. Salyers

EDWIN G. SALYERS

Judge

tc pct py data

Deel Mes SE ol ital ah OR, ig tae oly

APPENDIX D

July 5, 1996 Order of United States Court of Appeals for

the Eleventh Circuit denying GeUBeMK Constructors’

Petition for Rehearing

2 RAE EMME LS SOR A ENN PET ee haa MP elgg OR 0 OSE. ca AA hea Natale te Who = x ay ead a Ni a Satna GT gla 5, lalla Nae On eee

40a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-6528

G-UB-MK CONSTRUCTORS,

Petitioner,

versus

SECRETARY OF LABOR,

Respondent.

On Appeal from the United States District Court for the

Northern District of Alabama

(Filed Jul. 5, 1996)

BEFORE: ANDERSON, COX and BIRCH Circuit Judges.

PER CURIAM:

The petition(s) for rehearing filed by the Petitioner,

G-UB-MK Constructors is denied.

ENTERED FOR THE COURT:

/s/ Emmett R. Cox

UNITED STATES CIRCUIT JUDGE

Bites

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Pipe ney aca

eae ep

erie « ¢

APPENDIX E

Constitutional Provisions, Statutes,

Involved

and Regulations

APPENDIX E.1

Constitution of the United States, Amendment V

4la

ARTICLE [V]

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Ws) Mae

a> Moe ake ares

et ae

ae NTE eae

a, ky ae if

APPENDIX E.2

5 U.S.C. § 553

§ 553. Rule making

(a) This section applies, according to the provisions

| thereof, except to the extent that there is involved —

(1) a military or foreign affairs function of

the United States; or

(2) a matter relating to agency manage-

ment or personnel or to public property, loans,

grants, benefits, or contracts.

(b} General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have actual notice thereof in accordance with law.

The notice shall include -

(1) a statement of the time, place, and

nature of public rule making proceedings;

(2) reference to the legal authority under

which the rule is proposed; and

(3) either the terms or substance of the

Proposed rule or a description of the subjects

and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply -

(A) to interpretative rules, general state-

ments of policy, or rules of agency organization,

procedure, or practice; or

(B) when the agency for good cause finds

(and incorporates the finding and a brief state-

ment of reasons therefor in the rules issued) that

notice and public procedure thereon are imprac-

ticable, unnecessary, or contrary to the public

interest.

43a

shall give interested persons an opportunity to partici-

pate in the rule making through submission of written

data, views, or arguments with or without opportunity

for oral presentation. After consideration of the relevant

matter presented, the agency shall incorporate in the

rules adopted a concise general statement of their basis

and purpose. When rules are required by statute to be

made on the record after opportunity for an agency hear-

ing, sections 556 and 557 of this title apply instead of this

subsection.

(d) The required publication or service of a substan-

tive rule shall be made not less than 30 days before its

effective date, except —

(1) a substantive rule which grants or rec-

ognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of

policy; or

(3) as otherwise provided by the agency

for good cause found and published with the

rule.

(e) Each agency shall give an interested person the

right to petition for the issuance, amendment, or repeal of

a rule.

APPENDIX E.3

5 U.S.C. § 706

whe

era hae

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aig eee:

r. ;

§ 706. Scope of review

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant ques-

tions of law, interpret constitutional and statutory

' provisions, and determine the meaning or applicability of

the terms of an agency action. The reviewing court shall -

(1) compel agency action unlawfully with-

held or unreasonably delayed; and

(2) hold unlawful and set aside agency

action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

authority, or limitations, or short of statu-

tory right;

(D) without observance of procedure

required by law;

(E) unsupported by substantial evi-

dence in a case subject to sections 556 and

557 of this title or otherwise reviewed on

the record of an agency hearing provided by

statute; or

(F) unwarranted by the facts to the

extent that the facts are subject to trial de

novo by the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of

prejudicial error.

(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

APPENDIX E.4

29 U.S.C. § 655

—_*|

§ 655. Standards

(a) Promulgation by Secretary of national consensus

standards and established Federal standards; time

for promulgation; conflicting standards

Without regard to chapter 5 of Title 5 or to the other

subsections of this section, the Secretary shall, as soon as

practicable during the period beginning with the effective

date of this chapter and ending two years after such date,

by rule promulgate as an occupational safety or health

standard any national consensus standard, and any estab-

lished Federal standard, unless he determines that the

promulgation of such a standard would not result in

improved safety or health for specifically designated

employees. In the event of conflict among any such stan-

dards, the Secretary shall promulgate the standard which

assures the greatest protection of the safety or health of

the affected employees.

(b) Procedure for promulgation, modification, or

revocation of standards

The Secretary may by rule promulgate, modify, or

revoke any occupational safety or health standard in the

following manner:

(1) Whenever the Secretary, upon the basis

of information submitted to him in writing by

an interested person, a representative of any

organization of employers or employees, a

nationally recognized standards-producing

organization, the Secretary of Health and

Human Services, the National Institute for

Occupational Safety and Health, or a State or

47a

political subdivision, or on the basis of informa-

tion developed by the Secretary or otherwise

available to him, determines that a rule should

be promulgated in order to serve the objectives

of this chapter, the Secretary may request the

recommendations of an advisory committee

appointed under section 656 of this title. The

Secretary shall provide such an advisory com-

mittee with any proposals of his own or of the

Secretary of Health and Human Services,

together with all pertinent factual information

developed by the Secretary or the Secretary of

Health and Human Services, or otherwise avail-

able, including the results of research, demon-

strations, and experiments. An advisory

committee shall submit to the Secretary its rec-

ommendations regarding the rule to be promul-

gated within ninety days from the date of its

appointment or within such longer or shorter

period as may be prescribed by the Secretary,

but in no event for a period which is longer than

two hundred and seventy days.

(2) The Secretary shall publish a proposed

rule promulgating, modifying, or revoking an

occupational safety or health standard in the

Federal Register and shall afford interested per-

sons a period of thirty days after publication to

submit written data or comments. Where an

advisory committee is appointed and the Secre-

tary determines that a rule should be issued, he

shall publish the proposed rule within sixty

days after the submission of the advisory com-

mittee’s recommendations or the expiration of

the period prescribed by the Secretary for such

submission.

48a

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

provided for the submission of written data or

comments under paragraph (2), any interested

person may file with the Secretary written objec-

tions to the proposed rule, stating the grounds

therefor and requesting a public hearing on such

objections. Within thirty days after the last day

for filing such objections, the Secretary shall

publish in the Federal Register a notice specify-

ing the occupational safety or health standard to

which objections have been filed and a hearing

requested, and specifying a time and place for

such hearing.

(4) Within sixty days after the expiration

of the period provided for the submission of

written data or comments under paragraph (2),

or within sixty days after the completion of any

hearing held under paragraph (3), the Secretary

shall issue a rule promulgating, modifying, or

revoking an occupational safety or health stan-

dard or make a determination that a rule should

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

sion delaying its effective date for such period

(not in excess of ninety days) as the Secretary

determines may be necessary to insure that

affected employers and employees will be

informed of the existence of the standard and of

its terms and that employers affected are given

an opportunity to familiarize themselves and

their employees with the existence of the

requirements of the standard.

(5) The Secretary, in promulgating stan-

dards dealing with toxic materials or harmful

physical agents under this subsection, shall set

the standard which most adequately assures, to

49a

the extent feasible, on the basis of the best avail-

able evidence, that no employee will suffer

material impairment of health or functional

capacity even if such employee has regular

exposure to the hazard dealt with by such stan-

dard for the period of his working life. Develop-

ment of standards under this subsection shall be

based upon research, demonstrations, experi-

ments, and such other information as may be

appropriate. In addition to the attainment of the

highest degree of health and safety protection

for the employee, other considerations shall be

the latest available scientific data in the field,

the feasibility of the standards, and experience

gained under this and other health and safety

laws. Whenever practicable, the standard pro-

mulgated shall be expressed in terms of objec-

tive criteria and of the performance desired.

(6)(A) Any employer may apply to the

Secretary for a temporary order granting a vari-

ance from a standard or any provision thereof

promulgated under this section. Such temporary

order shall be granted only if the employer files

an application which meets the requirements of

clause (B) and establishes that (i) he is unable to

comply with a standard by its effective date

because of unavailability of professional or tech-

nical personnel or of materials and equipment

needed to come into compliance with the stan-

dard or because necessary construction or alter-

ation of facilities cannot be completed by the

effective date, (ii) he is taking all available steps

to safeguard his employees against the hazards

covered by the standard, and (iii) he has an

effective program for coming into compliance

with the standard as quickly as practicable. Any

temporary order issued under this paragraph

50a

shall prescribe the practices, means, methods,

operations, and processes which the employer

must adopt and use while the order is in effect

and state in detail his program for coming into

compliance with the standard. Such a temporary

order may be granted only after notice to

employees and an opportunity for a hearing:

Provided, That the Secretary may issue one

interim order to be effective until a decision is

made on the basis of the hearing. No temporary

order may be in effect for longer than the period

needed by the employer to achieve compliance

with the standard or one year, whichever is

shorter, except that such an order may be

renewed not more than twice (I) so long as the

requirements of this paragraph are met and (II)

if an application for renewal is filed at least 90

days prior to the expiration date of the order.

No interim renewal of an order may remain in

effect for longer than 180 days.

(B) An application for a temporary order

under this paragraph (6) shall contain:

(i) a specification of the standard or

portion thereof from which the employer

seeks a variance,

(ii) a representation by the employer,

supported by representations from qualified

persons having firsthand knowledge of the

facts represented, that he is unable to com-

ply with the standard or portion thereof and

a detailed statement of the reasons therefor,

(iii) a statement of the steps he has

taken and will take (with specific dates) to

protect employees against the hazard cov-

ered by the standard,

5la

(iv) a statement of when he expects to

be able to comply with the standard and

what steps he has taken and what steps he

will take (with dates specified) to come into

compliance with the standard, and

(v) a certification that he has informed

his employees of the application by giving a

copy thereof to their authorized representa-

tive, posting a statement giving a summary

of the application and specifying where a

copy may be examined at the place or

places where notices to employees are nor-

mally posted, and by other appropriate

means.

A description of how employees have been

informed shall be contained in the certification.

The information to employees shall also inform

them of their right to petition the Secretary for a

hearing.

variance from any standard or portion thereof

whenever he determines, or the Secretary of

Health and Human Services certifies, that such

variance is necessary to permit an employer to

participate in an experiment approved by him

or the Secretary of Health and Human Services

designed to demonstrate or validate new and

improved techniques to safeguard the health or

safety of workers.

(7) Any standard promulgated under this

subsection shall prescribe the use of labels or

other appropriate forms of warning as are nec-

essary to insure that employees are apprised of

all hazards to which they are exposed, relevant

symptoms and appropriate emergency treat-

ment, and proper conditions and precautions of

52a

safe use or exposure. Where appropriate, such

standard shall also prescribe suitable protective

equipment and control or technological pro-

cedures to be used in connection with such haz-

ards and shall provide for monitoring or

measuring employee exposure at such locations

and intervals, and in such manner as may be

necessary for the protection of employees. In

addition, where appropriate, any such standard

shall prescribe the type and frequency of medi-

cal examinations or other tests which shall be

made available, by the employer or at his cost,

to employees exposed to such hazards in order

to most effectively determine whether the health

of such employees is adversely affected by such

exposure. In the event such medical examina-

tions are in the nature of research, as deter-

mined by the Secretary of Health and Human

Services, such examinations may be furnished at

the expense of the Secretary of Health and

Human Services. The results of such examina-

tions or tests shall be furnished only to the

Secretary or the Secretary of Health and Human

Services, and, at the request of the employee, to

his physician. The Secretary, in consultation

with the Secretary of Health and Human Ser-

vices, may by rule promulgated pursuant to sec-

tion 553 of Title 5, make appropriate

modifications in the foregoing requirements

relating to the use of labels or other forms of

warning, monitoring or measuring, and medical

examinations, as may be warranted by experi-

ence, information, or medical or technological

developments acquired subsequent to the pro-

mulgation of the relevant standard.

(8) Whenever a rule promulgated by the

Secretary differs substantially from an existing

a lle

53a

national consensus standard, the Secretary shall,

at the same time, publish in the Federal Register

a statement of the reasons why the rule as

adopted will better effectuate the purposes of

this chapter than the national consensus stan-

dard.

(1) The Secretary shall provide, without regard to

the requirements of chapter 5 of Title 5, for an emergency

temporary standard to take immediate effect upon pub-

lication in the Federal Register if he determines (A) that

employees are exposed to grave danger from exposure to

\ substances or agents determined to be toxic or physically

harmful or from new hazards, and (B) that such emer-

gency standard is necessary to protect employees from

such danger.

(2) Such standard shail be effective until super-

seded by a standard promulgated in accordance with the

procedures prescribed in paragraph (3) of this subsection.

(3) Upon publication of such standard in the Fed-

eral Register the Secretary shall commence a proceeding

in accordance with subsection (b) of this section, and the

standard as published shall also serve as a proposed rule

for the proceeding. The Secretary shall promulgate a stan-

dard under this paragraph no later than six months after

publication of the emergency standard as provided in

paragraph (2) of this subsection.

54a

(d) Variances from standards; procedure

Any affected employer may apply to the Secretary for

a rule or order for a variance from a standard promul-

gated under this section. Affected employees shall be

given notice of each such application and an opportunity

to participate in a hearing. The Secretary shall issue such

rule or order if he determines on the record, after oppor-

tunity for an inspection where appropriate and a hearing,

that the proponent of the variance has demonstrated by a

preponderance of the evidence that the conditions, prac-

tices, means, methods, operations, or processes used or

proposed to be used by an employer will provide

employment and places of employment to his employees

which are as safe and healthful as those which would

prevail if he complied with the standard. The rule or

order so issued shall prescribe the conditions the

employer must maintain, and the practices, means,

methods, operations, and processes which he must adopt

and utilize to the extent they differ from the standard in

question. Such a rule or order may be modified or

revoked upon application by an employer, employees, or

by the Secretary on his own motion, in the manner pre-

scribed for its issuance under this subsection at any time

after six months from its issuance.

(e) Statement of reasons for Secretary’s determina-

tions; publication in Federal Register

Whenever the Secretary promulgates any standard,

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

or extension of time, or compromises, mitigates, or settles

any penalty assessed under this chapter, he shall include

55a

a statement of the reasons for such action, which shall be

published in the Federal Register.

(f) Judicial review

Any person who may be adversely affected by a

standard issued under this section may at any time prior

to the sixtieth day after such standard is promulgated file

a petition challenging the validity of such standard with

the United States court of appeals for the circuit wherein

such person resides or has his principal place of business,

for a judicial review of such standard. A copy of the

petition shall be forthwith transmitted by the clerk of the

court to the Secretary. The filing of such petition shall not,

unless otherwise ordered by the court, operate as a stay

of the standard. The determinations of the Secretary shall

be conclusive if supported by substantial evidence in the

record considered as a whole.

(g) Priority for establishment of standards

In determining the priority for establishing standards

under this section, the Secretary shall give due regard to

the urgency of the need for mandatory safety and health

standards for particular industries, trades, crafts, occupa-

tions, businesses, workplaces or work environments. The

Secretary shall also give due regard to the recommenda-

tions of the Secretary of Health and Human Services

regarding the need for mandatory standards in determin-

ing the priority for establishing such standards.

(Pub.L. 91-596, § 6, Dec. 29, 1970, 84 Stat. 1593; Pub.L.

96-88, Title V, § 509(b), Oct. 17, 1979, 93 Stat. 695.)

APPENDIX E.5

29 U.S.C. § 660

56a

§ 660. Judicial review

(a) Filing of petition by persons adversely affected or

aggrieved; orders subject to review; jurisdiction;

venue; procedure; conclusiveness of record and

findings of Commission; appropriate relief; final-

ity of judgment

Any person adversely affected or aggrieved by an

order of the Commission issued under subsection (c) of

section 659 of this title may obtain a review of such order

in any United States court of appeals for the circuit in

which the violation is alleged to have occurred or where

the employer has its principal office, or in the Court of

Appeals for the District of Columbia Circuit, by filing in

such court within sixty days following the issuance of

such order a written petition praying that the order be

modified or set aside. A copy of such petition shall be

forthwith transmitted by the clerk of the court to the

Commission and to the other parties, and thereupon the

Commission shall file in the court the record in the pro-

ceeding as provided in section 2112 of Title 28. Upon such

filing, the court shall have jurisdiction of the proceeding

and of the question determined therein, and shall have

power to grant such temporary relief or restraining order

as it deems just and proper, and to make and enter upon

the pleadings, testimony, and proceedings set forth in

such record a decree affirming, modifying, or setting

aside in whole or in part, the order of the Commission

and enforcing the same to the extent that such or ler is

affirmed or modified. The commencement of proceedings

under this subsection shall not, unless ordered by the

court, operate as a stay of the order of the Commission.

Mae Del dee

See ee | OPS eee

57a

No objection that has not been urged before the Commis-

sion shall be considered by the court, unless the failure or

neglect to urge such objection shall be excused because of

extraordinary circumstances. The findings of the Com-

mission with respect to questions of fact, if supported by

substantial evidence on the record considered as a whole,

shall be conclusive. If any party shall apply to the court

for leave to adduce additional evidence and shall show to

the satisfaction of the court that such additional evidence

is material and that there were reasonable grounds for the

failure to adduce such evidence in the hearing before the

Commission, the court may order such additional evi-

dence to be taken before the Commission and to be made

a part of the record. The Commission may modify its

findings as to the facts, or make new findings, by reason

of additional evidence so taken and filed, and it shall file

such modified or new findings, which findings with

respect to questions of fact, if supported by substantial

evidence on the record considered as a whole, shall be

conclusive, and its recommendations, if any, for the mod-

ification or setting aside of its original order. Upon the

filing of the record with it, the jurisdiction of the court

shall be exclusive and its judgment and decree shall be

final, except that the same shall be subject to review by

the Supreme Court of the United States, as provided in

section 1254 of Title 28.

(b) Filing of petition by Secretary; orders subject to

review; jurisdiction; venue; procedure; conclusive-

ness of record and findings of Commission;

enforcement of orders; contempt proceedings

The Secretary may also obtain review or enforcement

of any final order of the Commission by filing a petition

58a

for such relief in the United States court of appeals for the

circuit in which the alleged vioiation occurred or in

which the employer has its principal office, and the pro-

visions of subsection (a) of this section shall govern such

proceedings to the extent applicable. If no petition for

review, as provided in subsection (a) of this section, is

filed within sixty days after service of the Commission’s

order, the Commission’s findings of fact and order shall

be conclusive in connection with any petition for enforce-

ment which is filed by the Secretary after the expiration

of such sixty-day period. In any such case, as well as in

the case of a noncontested citation or notification by the

Secretary which has become a final order of the Commis-

sion under subsection (a) or (b) of section 659 of this title,

the clerk of the court, unless otherwise ordered by the

court, shall forthwith enter a decree enforcing the ordci

and shall transmit a copy of such decree to the Secretary

and the employer named in the petition. In any contempt

proceeding brought to enforce a decree of a court of

appeals entered pursuant to this subsection or subsection

(a) of this section, the court of appeals may assess the

penalties provided in section 666 of this title, in addition

to invoking any other available remedies.

exercise of rights under this chapter; prohibition;

procedure for relief

(1) No person shal! discharge or in any manner

discriminate against any employee because such

employee has filed any complaint or instituted or caused

to be instituted any proceeding under or related to this

chapter or has testified or is about to testify in any such

59a

proceeding or because of the exercise by such employee

on behalf of himself or others of any right afforded by

this chapter.

(2) Any employee who believes that he has been

discharged or otherwise discriminated against by any

person in violation of this subsection may, within thirty

days after such violation occurs, file a complaint with the

Secretary alleging such discrimination. Upon receipt of

such complaint, the Secretary shall cause such investiga-

tion to be made as he deems appropriate. If upon such

investigation, the Secretary determines that the provi-

sions of this subsection have been violated, he shall bring

an action in any appropriate United States district court

against such person. In any such action the United States

district courts shall have jurisdiction, for cause shown to

restrain violations of paragraph (1) of this subsection and

order all appropriate relief including rehiring or rein-

statement of the employee to his former position with

back pay.

(3) Within 90 days of the receipt of a complaint filed

under this subsection the Secretary shall notify the com-

plainant of his determination under paragraph (2) of this

subsection.

(Pub.L. 91-596, § 11, Dec. 29, 1970, 84 Stat. 1602: Pub.L.

98-620, Title IV, § 402(32), Nov. 8, 1984, 98 Stat. 3360.)

APPENDIX E.6 |

29 U.S.C. § 661 :

a i" S © =

60a

§ 661. Occupational Safety and Health Review Com-

mission

(a) Establishment; membership; appointment; Chair-

man

The Occupational Safety and Heaith Review Com-

mission is hereby established. The Commission shall be

composed of three members who shall be appointed by

the President, by and with the advice and consent of the

Senate, from among persons who by reason of training,

education, or experience are qualified to carry out the

functions of the Commission under this chapter. The

President shall designate one of the members of the Com-

mission to serve as Chairman.

(b) Terms of office; removal by President

The terms of members of the Commission shall be six

years except that (1) the members of the Commission first

taking office shall serve, as designated by the President at

the time of appointment, one for a term of two years, one

for a term of four years, and one for a term of six years,

and (2) a vacancy caused by the death, resignation, or

removal of a member prior to the expiration of the term

for which he was appointed shall be filled only for the

remainder of such unexpired term. A member of the

Commission may be removed by the President for ineffi-

ciency, neglect of duty, or malfeasance in office.

6la

(d) Principal office; hearings or other proceedings at

other places

The principal office of the Commission shall be in the

District of Columbia. Whenever the Commission deems

that the convenience of the public or of the parties may

be promoted, or delay or expense may be minimized, it

may hold hearings or conduct other proceedings at any

other place.

(e) Functions and duties of Chairman; appointment

and compensation of administrative law judges

and other employees

The Chairman shall be responsible on behalf of the

Commission for the administrative operations of the

Commission and shall appoint such administrative law

judges and other employees as he deems necessary to

assist in the performance of the Commission's functions

and to fix their compensation in accordance with the

provisions of chapter 51 and subchapter III of chapter 53

of Title 5 relating to classification and General Schedule

pay rates: Provided, That assignment, removal and com-

pensation of administrative law judges shall be in accor-

dance with sections 3105, 3344, 5372, and 7521 of Title 5.

62a

(f) Quorum; official action

For the purpose of carrying out its functions under

this chapter, two members of the Commission shall con-

stitute a quorum and official action can be taken only on

the affirmative vote of at least two members.

(g) Hearings and records open to public; promulgation

of rules; applicability of Federal Rules of Civil

Procedure

Every official act of the Commission shall be entered

of record, and its hearings and records shall be open to

the public. The Commission is authorized to make such

rules as are necessary for the orderly transaction of its

proceedings. Unless the Commission has adopted a dif-

ferent rule, its proceedings shall be in accordance with

the Federal Rules of Civil Procedure.

(h) Depositions and production of documentary evi-

dence; fees

The Commission may order testimony to be taken by

deposition in any proceeding pending before it at any

state of such proceeding. Any person may be compelled

to appear and depose, and to produce books, papers, or

documents, in the same manner as witnesses may be

compelled to appear and testify and produce like docu-

mentary evidence before the Commission. Witnesses

whose depositions are taken under this subsection, and

the persons taking such depositions, shall be entitled to

the same fees as are paid for like services in the courts of

the United States.

63a

(i) Investigatory powers

For the purpose of any proceeding before the Com-

mission, the provisions of section 161 of this title are

hereby made applicable to the jurisdiction and powers of

the Commission.

(j) Administrative law judges; determinations; report

as final order of Commission

Al administrative law judge appointed by the Com-

mission shall hear, and make a determination upon, any

proceeding instituted before the Commission and any

motion in connection therewith, assigned to such admin-

istrative law judge by the Chairman of the Commission,

and shall make a report of any such determination which

constitutes his final disposition of the proceedings. The

report of the administrative law judge shall become the

final order of the Commission within thirty days after

such report by the administrative law judge, unless

within such period any Commission member has directed

that such report shall be reviewed by the Commission.

(k) Appointment and compensation of administrative

law judges

Except as otherwise provided in this chapter, the

administrative law judges shall be subject to the laws

governing employees in the classified civil service, except

that appointments shall be made without regard to sec-

tion 5108 of Title 5. Each administrative law judge shall

1 So in original. Probably should be “An”

64a

receive compensation at a rate not less than that pre-

scribed for GS-16 under section 5332 of Title 5.

(Pub.L. 91-596, § 12, Dec. 29, 1970, 84 Stat. 1603; Pub.L.

95-251, § 2(a)(7), Mar. 27, 1978, 92 Stat. 183.)

—

29 U.S.C. § 666

65a

§ 666. Civil and criminal penalties

(a) Willful or repeated violation

Any employer who willfully or repeatedly violates

the requirements of section 654 of this title, any standard,

rule, or order promulgated pursuant to section 655 of this

title, or regulations prescribed pursuant to this chapter,

may be assessed a civil penalty of not more than $70,000

for each violation, but not less than $5,000 for each willful

violation.

(b) Citation for serious violation

Any employer who has received a citation for a

serious violation of the requirements of section 654 of this

title, of any standard, rule, or order promulgated pur-

suant to section 655 of this title, or of any regulations

prescribed pursuant to this chapter, shall be assessed a

civil penalty of up to $7,000 for each such violation.

Any employer who has received a citation for a viola-

tion of the requirements of section 654 of this title, of any

standard, rule, or order promulgated pursuant to section

655 of this title, or of regulations prescribed pursuant to

this chapter, and such violation is specifically determined

not to be of a serious nature, may be assessed a civil

penalty of up to $7,000 for each such violation.

66a

(d) Failure to correct violation

Any employer who fails to correct a violation for

which a citation has been issued under section 658(a) of

this title within the period permitted for its correction

(which period shall not begin to run until the date of the

final order of the Commission in the case of any review

proceeding under section 659 of this title initiated by the

employer in good faith and not solely for delay or avoid-

ance of penalties), may be assessed a civil penalty of not

more than $7,000 for each day during which such failure

or violation continues.

(e) Willful violation causing death to employee

Any employer who willfully violates any standard,

rule, or order promulgated pursuant to section 655 of this

title, or of any regulations prescribed pursuant to this

chapter, and that violation caused death to any employee,

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

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

months, or by both; except that if the conviction is for a

violation committed after a first conviction of such per-

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

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

or by both.

(f) Giving advance notice of inspection

Any person who gives advance notice of any inspec-

tion to be conducted under this chapter, without author-

ity from the Secretary or his designees, shall, upon

conviction, be punished by a fine of not more than $1,000

67a

or by imprisonment for not more than six months, or by

both.

(g) False statements, representations or certification

Whoever knowingly makes any false statement, rep-

resentation, or certification in any application, record,

report, plan, or other document filed or required to be

maintained pursuant to this chapter shall, upon convic-

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

by imprisonment for not more than six months, or by

both.

(h) Omitted

(i) Violation of posting requirements

Any employer who violates any of the posting

requirements, as prescribed under the provisions of this

chapter, shall be assessed a civil penalty of up to $7,000

for each violation.

(j) Authority of Commission to assess civil penalties

The Commission shall have authority to assess all

civil penalties provided in this section, giving due consid-

eration to the appropriateness of the penalty with respect

to the size of the business of the employer being charged,

the gravity of the violation, the good faith of the

employer, and the history of previous violations.

68a

(k) Determination of serious violation

For purposes of this section, a serious violation shall

be deemed to exist in a place of employment if there is a

substantial probability that death or serious physical

harm could result from a condition which exists, or from

one or more practices, means, methods, operations, or

processes which have been adopted or are in use, in such

place of employment unless the employer did not, and

could not with the exercise of reasonable diligence, know

of the presence of the violation.

(I) Procedure for payment of civil penalties

Civil penalties owed under this chapter shall be paid

to the Secretary for deposit into the Treasury of the

United States and shall accrue to the United States and

may be recovered in a civil action in the name of the

United States brought in the United States district court

for the district where the violation is alleged to have

occurred or where the employer has its principal office.

(Pub.L. 91-596, § 17, Dec. 29, 1970, 84 Stat. 1606; Pub.L.

101-508, Title III, § 3101, Nov. 5, 1990, 104 Stat. 1388-29.)

APPENDIX E.8

29 C.ER. § 1910.1018

69a

OCCUPATIONAL SAFETY AND

HEALTH STANDARDS

SUBPART Z - TOXIC AND

HAZARDOUS SUBSTANCES

(29 CFR 1910 - Subpart Z; 39 FR 23502, June 27,

1974; Amended as shown in Code of Federal Regula-

tions, Revised as of July 1, 1990; 55 FR 32616, Aug. 10,

1990; 55 FR 46950, Nov. 8, 1990; 55 FR 50686, Dec. 10,

1990; 55 FR 51699, Dec. 17, 1990; 56 FR 10378, March 12,

1991; Corrected by 56 FR 24686, May 31, 1991; Amended

by 56 FR 26909, June 12, 1991; 56 FR 37651, Aug. 8, 1991;

56 FR 43700, Sept. 4, 1991; 56 FR 57593, Nov. 13, 1991; 56

FR 64175, Dec. 6, 1991, Effective March 6, 1992; 57 FR

2682, Jan. 23, 1992; 57 FR 7878, March 5, 1992; 57 FR

12717, April 13, 1992; 57 FR 19262, May 5, 1992; 57 FR

22307, May 27, 1992; 57 FR 24330, June 8, 1992; Corrected

by 57 FR 24701, June 10, 1992; 57 FR 27161, June 18, 1992;

57 FR 29204-29206, July 1, 1992; 57 FR 35666, Aug. 10,

1992; 57 FR 42388, Sept. 14, 1992; 57 FR 49272, Oct. 30,

1992; 57 FR 49649, Nov. 3, 1992; Corrected by 58 FR

21780, April 23, 1993; Amended by 58 FR 35308, 58 FR

35340, June 30, 1993; Corrected by 58 FR 40191, July 27,

1993; Amended by 59 FR 6169, Feb. 9, 1994; 59 FR 35308,

April 13, 1994; 59 FR 36699, July 19, 1994; 59 FR 41057,

Aug. 10, 1994; 61 FR 5508, Feb. 13, 1996; 61 FR 9245,

March 7, 1996)

Title 29 - LABOR

Subtitle B - Regulations Relating to Labor

Chapter XVII - Occupational Safety and

Health Administration, Department of Labor

Part 1910 —- Occupational Safety and Health

Subpart Z - Toxic and Hazardous Substances

Authority: Secs. 6, 8, Occupational Safety and

Health Act, 29 U.S.C. 655, 657; Secretary of Labor’s Order

No. 12-71 (36 FR 8754), 9-76 (41 FR 25059), 9-83 (48 FR

70a

35736), or 1-90 (55 FR 9033), as applicable; and 29 CFR

Part 1911.

All of Subpart Z, issued under section 6(b) of the

Occupational Safety and Health Act, except those sub-

stances which have exposure limits listed in Tables Z-1,

7-2 and Z-3 of 29 CFR 1910.1000. The latter were issued

under Section 6(a) (29 U.S.C. 655(a)).

Section 1910.1003 through 1910.1018 also issued

under 29 U.S.C. 653.

[Authority citation amended by 57 FR 29204, 29205, July

1, 1992; 57 FR 35666, August 10, 1992; 57 FR 42388,

September 14, 1992; corrected by 58 FR 21780, April 23,

1993; amended by 58 FR 35308, 35340, June 30, 1993;

revised by 59 FR 36699, July 19, 1994; 59 FR 41057, August

10, 1994]

§1910.1018 Inorganic arsenic.

[1910.1018 amended by 58 FR 35308, June 30, 1993]

(a) Scope and application. This section applies to all

occupational exposures to inorganic arsenic except that

this section does not apply to employee exposures in

agriculture or resulting from pesticide application, the

treatment of wood with preservatives or the utilization of

arsenically preserved wood.

(b) Definitions. Action level means a concentration of

inorganic arsenic of 5 micrograms per cubic meter of air

(5 pg/m%) averaged over any eight (8) hour period.

7la

Assistant Secretary means the Assistant Secretary of

Labor for Occupational Safety and Health, U.S. Depart-

ment of Labor, or designee.

Authorized person means any person specifically

authorized by the employer whose duties require the

person to enter a regulated area, or any person entering

such an area as a designated representative of employees

for the purpose of exercising the right to observe mon-

itoring and measuring procedures under paragraph (e) of

this section.

Director means the Director, National Institute for

Occupational Safety and Health, US. Department of

Health and Human Services, or designee.

[1910.1018(b) “Director” definition amended by 58 FR

35308, June 30, 1993]

Inorganic arsenic means copper aceto-arsenite and all

inorganic compounds containing arsenic except arsine,

measured as arsenic (As).

assure that no employee is exposed to inorganic arsenic

at concentrations greater than 10 micrograms per cubic

meter of air (10 g/m3), averaged over any 8-hour period.

(d) Notification of use.

(1) By October 1, 1978 or within 60 days after the

introduction of inorganic arsenic into the workplace,

every employer who is required to establish a regulated

area in his workplaces shall report in writing to the

OSHA area office for each such workplace:

(i) The address of each such workplace;

72a

(ii) The approximate number of employees who will

be working in regulated areas; and

(iii) A brief summary of the operations creating the

exposure and the actions which the employer intends to

take to reduce exposures.

(2) Whenever there has been a significant change in

the information required by paragraph (d)(1) of this sec-

tion the employer shall report the changes in writing

within 60 days to the OSHA area office.

(e) Exposure monitoring -

(1) General.

(i) Determinations of airborne exposure levels shall

be made from air samples that are representative of each

employee’s exposure to inorganic arsenic over an eight

(8) hour period.

(ii) For the purposes of this section, employee expo-

sure is that exposure which would occur if the employee

were not using a respirator.

(iii) The employer shall collect full shift (for at least

7 continuous hours) personal samples including at least

one sample for each shift for each job classification in

each work area.

(2) Initial monitoring. Each employer who has a

workplace or work operation covered by this standard

shall monitor each such workplace and work operation to

accurately determine the airborne concentration of inor-

ganic arsenic to which employees may be exposed.

73a

(3) Frequency.

(i) If the initial monitoring reveals employee expo-

sure to be below the action level the measurements need

not be repeated except as otherwise provided in para-

graph (e)(4) of this section.

(ii) If the initial monitoring, required by this sec-

tion, or subsequent monitoring reveals employee expo-

sure to be above the permissible exposure limit, the

employer shall repeat monitoring at least quarterly.

(iii) If the initial monitoring, required by this sec-

tion, or subsequent monitoring reveals employee expo-

sure to be above the action level and below the

permissible exposure limit the employee shall repeat

monitoring at least every six months.

(iv) The employer shall continue monitoring at the

required frequency until at least two consecutive mea-

surements, taken at least seven (7) days apart, are below

the action level at which time the employer may discon-

tinue monitoring for that employee until such time as any

of the events in paragraph (e)(4) of this section occur.

(4) Additional monitoring. Whenever there has been a

production, process, control or personal change which

may result in new or additional exposure to inorganic

arsenic, or whenever the employer has any other reason

to suspect a change which may result in new or addi-

tional exposures to inorganic arsenic, additional monitor-

ing which complies with paragraph (e) of this section

shall be conducted.

(5) Employee notification.

(i) Within five (5) working days after the receipt of

monitoring results, the employer shall notify each

74a

employee in writing of the results which represent that

employee’s exposures.

(ii) Whenever the results indicate that the represen-

tative employee exposure exceeds the permissible expo-

sure limit, the employer shall include in the written

notice a statement that the permissible exposure limit was

exceeded and a description of the corrective action taken

to reduce exposure to or below the permissible exposure

limit.

(6) Accuracy of measurement.

(i) The employer shall use a method of monitoring

and measurement which has an accuracy (with a confi-

dence level of 95 percent) of not less than plus or minus

25 percent for concentrations of inorganic arsenic greater

than or equal to 10 pg/m*.

(ii) The employer shall use a method of monitoring

and measurement which has an accuracy (with confi-

dence level of 95 percent) of not less than plus or minus

35 percent for concentrations of inorganic arsenic greater

than 5 pg/m3 but less than 10 pg/m‘%.

(f) Regulated area —

(1) Establishment. The employer shall establish regu-

lated areas where worker exposures to inorganic arsenic,

without regard to the use of respirators, are in excess of

the permissible limit.

(2) Demarcation. Regulated areas shall be demar-

cated and segregated from the rest of the workplace in

any manner that minimizes the number of persons who

will be exposed to inorganic arsenic.

75a

(3) Access. Access to regulated areas shall be limited

to authorized persons or to persons otherwise authorized

by the Act or regulations issued pursuant thereto to enter

such areas.

(4) Provision of respirators. All persons entering a

regulated area shall be supplied with a respirator,

selected in accordance with paragraph (h)(2) of this sec-

tion.

(S) Prohibited activities. The employer shall assure

that in regulated areas, food or beverages are not con-

sumed, smoking products, chewing tobacco and gum are

not used and cosmetics are not applied, except that these

activities may be conducted in the lunchrooms, change

rooms and showers required under paragraph (m) of this

section. Drinking water may be consumed in the regu-

lated area.

(g) Methods of compliance -

(1) Controls.

(i) The employer shall institute at the earliest Possi-

ble time but not later than December 31, 1979, engineer-

ing and work practice controls to reduce exposures to or

below the permissible exposure limit, except to the extent

that the employer can establish that such controls are not

feasible.

(ii) Where engineering and work practice controls

are not sufficient to reduce exposures to or below the

permissible exposure limit, they shall nonetheless be

used to reduce exposures to the lowest levels achievable

by these controls and shall be supplemented by the use of

76a

respirators in accordance with paragraph (h) of this sec-

tion and other necessary personal protective equipment.

Employee rotation is not required as a control strategy

before respiratory protection is instituted.

(2) Compliance Program.

(i) The employer shall establish and implement a

written program to reduce exposures to or below the

permissible exposure limit by means of engineering and

work practice controls.

(ii) Written plans for these compliance programs

shall include at least the following:

(A) A description of each operation in which inor-

ganic arsenic is emitted; e.g. machinery used, material

processed, controls in place, crew size, operating pro-

cedures and maintenance practices;

(B) Engineering plans and studies used to deter-

mine methods selected for controlling exposure to inor-

ganic arsenic;

ing the permissible exposure limit;

(D) Monitoring data;

(E) A detailed schedule for implementation of the

engineering controls and work practices that cannot be

implemented immediately and for the adaption and

implementation of any additional engineering and work

practices necessary to meet the permissible exposure

limit;

(F) Whenever the employer will not achieve the

permissible exposure limit with engineering controls and

77a

work practices by December 31, 1979, the employer shall

include in the compliance plan an analysis of the effec-

tiveness of the various controls, shall install engineering

controls and institute work practices on the quickest

schedule feasible, and shall include in the compliance

plan and implement a program to minimize the discom-

fort and maximize the effectiveness of respirator use; and

(G) Other relevant information.

(iii) Written plans for such a program shall be sub-

mitted upon request to the Assistant Secretary and the

Director, and shall be available at the worksite for exam-

ination and copying by the Assistant Secretary, Director,

any affected employee or authorized employee represen-

tatives.

(iv) The plans required by this paragraph shall be

revised and updated at least every 6 months to reflect the

current status of the program.

(h) Respiratory protection -

(1) General. The employer shall assure that respira-

tors are used where required under this section to reduce

employee exposures to below the permissible exposure

limit and in emergencies. Respirators shall be used in the

following circumstances:

(i) During the time period necessary to install or

implement feasible engineering or work practice controls;

(ii) In work operations such as maintenance and

repair activities in which the employer establishes that

engineering and work practice controls are not feasible;

78a

(iii) In work situations in which engineering con-

trols and supplemental work practice controls are not yet

sufficient to reduce exposures to or below the permissible

exposure limit; or

(iv) In emergencies.

(2) Respirator selection.

(i) Where respirators are required under this section

the employer shall select, provide at no cost to the

employee and assure the use of the appropriate respirator

or combination of respirators from Table I below for

inorganic arsenic compounds without significant vapor

pressure, or Table II below for inorganic arsenic com-

pounds which have significant vapor pressure.

(ii) Where employee exposures exceed the permis-

sible exposure limit for inorganic arsenic and also exceed

the relevant limit for particular gasses such as sulfur

dioxide, any air purifying respirator supplied to the

employee as permitted by this standard must have a

combination high efficiency filter with an appropriate gas

sorbent. (See footnote in Table 1)

79a

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82a

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83a

(iii) The employer shall select respirators from

among those approved for protection against dust, fume,

and mist by the National Institute for Occupational Safety

and Health (NIOSH) under the provisions of 30 CFR Part

11.

(3) Respirator usage.

(i) The employer shall assure that the respirator

issued to the employee exhibits minimum facepiece leak-

age and that the respirator is fitted properly.

(ii) The employer shall perform qualitative fit tests

at the time of initial fitting and at least semi-annually

thereafter for each employee wearing respirators, where

quantitative fit tests are not required.

(iii) Employers with more than 20 employees wear-

ing respirators shall perform a quantitative face fit test at

the time of initial fitting and [at] least semi-annually

thereafter for each employee wearing negative pressure

respirators. The test shall be used to select facepieces that

provide the required protection as prescribed in Table I or

Il.

(iv) If an employee has demonstrated difficulty in

breathing during the fitting test or during use, he or she

shall be examined by a physician trained in pulmonary

medicine to determine whether the employee can wear a

respirator while performing the required duty.

(4) Respirator program.

(i) The employer shall institute a respiratory protec-

tion program in accordance with 29 CFR 1910.134(b), (d),

(e) and (f).

84a

(ii) The employer shall permit each employee who

uses a filter respirator to change the filter elements when-

ever an increase in breathing resistance is detected and

shall maintain an adequate supply of filter elements for

this purpose.

(iii) Employees who wear respirators shall be per-

mitted to leave work areas to wash their face and respira-

tor facepiece to prevent skin irritation associated with

respirator use.

(5) Commencement of respirator use.

(i) The employer’s obligation to provide respirators

commences on August 1, 1978 for employees exposed [to]

over 500 g/m: of inorganic arsenic, as soon as possible

but not later than October 1, 1978 for employees exposed

to over 50 pg/m% of inorganic arsenic, and as soon as

possible but not later than December 1, 1978 for

employees exposed between 10 and 50 pg/m° of inor-

ganic arsenic.

(ii) Employees with exposures below 50 g/m? of

inorganic arsenic may choose not to wear respirators

until December 31, 1979.

(iii) After December 1, 1978 any employee required

to wear air-purifying respirators may choose, and if so

chosen the employer must provide, if it will give proper

protection, a powered air purifying respirator and in

addition if necessary a combination dust and acid gas

respirator for times where exposures to gases are over the

relevant exposure limits.

(i) [Reserved]

(j) Protective work clothing and equipment -—

85a

(1) Provision and use. Where the possibility of skin or

eye irritation from inorganic arsenic exists, and for all

workers working in regulated areas, the employer shall

provide at no cost to the employee and assure that

employees use appropriate and clean protective work

clothing and equipment such as, but not limited to:

(i) Coveralls or similar full body work clothing;

(ii) Gloves, and shoes or coverlets;

(iii) Face shields or vented goggles when necessary

to prevent eye irritation, which comply with the require-

ments of §1910.133(a)(2)-(a)(6); and

(iv) Impervious clothing for employees subject to

exposure to arsenic trichloride.

(2) Cleaning and replacement.

(i) The employer shall provide the protective

clothing required in paragraph (j)(1) of this section in a

freshly laundered and dry condition at least weekly, and

daily if the employee works in areas where exposures are

over 100 ug/m5 of inorganic arsenic or in areas where

more frequent washing is needed to prevent skin irrita-

tion.

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

protective clothing required by paragraph (j)(1) of this

section.

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

tive clothing and equipment as needed to maintain their

effectiveness.

(iv) The employer shall assure that all protective

clothing is removed at the completion of a work shift

86a

only in change rooms prescribed in paragraph (m)(1) of

this section.

(v) The employer shall assure that contaminated

protective clothing which is to be cleaned, laundered, or

disposed of, is placed in a closed container in the change-

room which prevents dispersion of inorganic arsenic out-

side the container.

(vi) The employer shall inform in writing any per-

son who cleans or launders clothing required by this

section, of the potentially harmful effects including the

carcinogenic effects of exposure to inorganic arsenic.

(vii) The employer shall assure that the containers

of contaminated protective clothing and equipment in the

workplace or which are to be removed from the work-

place are labelled as follows:

CautionClothing contaminated with inorganic arse-

nic; do not remove dust by blowing or shaking. Dispose

of inorganic arsenic contaminated wash water in accor-

dance with applicable local, State or Federal regulations.

(viii) The employer shall prohibit the removal of

inorganic arsenic from protective clothing or equipment

by blowing or shaking.

(k) Housekeeping -

(1) Surfaces. All surfaces shall be maintained as free

as practicable of accumulations of inorganic arsenic.

(2) Cleaning floors. Floors and other accessible sur-

faces contaminated with inorganic arsenic may not be

cleaned by the use of compressed air, and shoveling and

brushing may be used only where vacuuming or other

87a

relevant methods have been tried and found not to be

effective.

(3) Vacuuming. Where vacuuming methods are

selected, the vacuums shall be used and emptied in a

manner to minimize the reentry of inorganic arsenic into

the workplace.

(4) Housekeeping plan. A written housekeeping and

maintenance plan shall be kept which shall list appropri-

ate frequencies for carrying out housekeeping operations,

and for cleaning and maintaining dust collection equip-

ment. The plan shall be available for inspection by the

Assistant Secretary.

(5S) Maintenance of equipment. Periodic cleaning of

dust collection and ventilation equipment and checks of

their effectiveness shall be carried out to maintain the

effectiveness of the system and a notation kept of the last

check of effective and cleaning or maintenance.

(1) [Reserved]

(m) Hygiene facilities and practices -

(1) Change rooms. The employer shall provide for

employees working in regulated areas or subject to the

possibility of skin or eye irritation from inorganic arsenic,

clean change rooms equipped with storage facilities for

street clothes and separate storage facilities for protective

clothing and equipment in accordance with 29 CFR

1910.141(e).

(2) Showers.

(i) The employer shall assure that employees work-

ing in regulated areas or subject to the possibility of skin

88a

or eye irritation from inorganic arsenic shower at the end

of the work shift.

(ii) The employer shall provide shower facilities in

accordance with §1910.141(d)(3).

(3) Lunchrooms.

(i) The employer shall provide for employees work-

ing in regulated areas, lunchroom facilities which have a

temperature controlled, positive pressure, filtered air

supply, and which are readily accessible to employees

working in regulated areas.

(ii) The employer shall assure that employees work-

ing in the regulated area or subject to the possibility of

skin or eye irritation from exposure to inorganic arsenic

wash their hands and face prior to eating.

(4) Lavatories. The employer shall provide lavatory

facilities which comply with §1910.141(d)(1) and (2).

(5) Vacuuming clothes. The employer shall provide

facilities for employees working in areas where exposure,

without regard to the use of respirators, exceeds 100

ug/m3 to vacuum their protective clothing and clean or

change shoes worn in such areas before entering change

rooms, lunchrooms or shower rooms required by para-

graph (j) of this section and shall assure that such

employees use such facilities.

(6) Avoidance of skin irritation. The employer shall

assure that no employee is exposed to skin or eye contact

with arsenic trichloride, or to skin or eye contact with

liquid or particulate inorganic arsenic which is likely to

cause skin or eye irritation.

89a

(n) Medical surveillance -

(1) General -

(i) Employees covered. The employer shall institute a

medical surveillance program for the following

employees:

(A) All employees who are or will be exposed above

the action level, without regard to the use of respirators,

at least 30 days per year; and

(B) All employees who have been exposed above

the action level, without regard to respirator use, for 30

days or more per year for a total of 10 years or more of

combined employment with the employer or predecessor

employers prior to or after the effective date of this

standard. The determination of exposures prior to the

effective date of this standard shall be based upon prior

exposure records, comparison with the first measure-

ments taken after the effective date of this standard, or

comparison with records of exposures in areas with simi-

lar processes, extent of engineering controls utilized and

materials used by that employer.

(ii) Examination by physician. The employer shall

assure that all medical examinations and procedures are

performed by or under the supervision of a licensed

physician, and shall be provided without cost to the

employee, without loss of pay and at a reasonable time

and place.

(2) Initial examinations. By December 1, 1978, for

employees initially covered by the medical provisions of

this section, or thereafter at the time of initial assignment

to an area where the employee is likely to be exposed

90a

over the action level at least 30 days per year, the

employer shall provide each affected employee an oppor-

tunity for a medical examination, including at least the

following elements:

(i) A work history and a medical history which

shall include a smoking history and the presence and

degree of respiratory symptoms such as breathlessness,

cough, sputum production and wheezing.

(ii) A medical examination which shall include at

least the following:

(A) A 14" by 17" posterior-anterior chest X-ray and

International Labor Office UICC/Cincinnati (ILO U/C)

rating;

(B) A nasal and skin examination;

(D) Other examinations which the physician

believes appropriate because of the employees exposure

to inorganic arsenic or because of required respirator use.

(3) Periodic examinations.

(i) The employer shall provide the examinations

specified in paragraphs (n)(2)(i) and (n)(2)(ii)(A), (B), and

(D) at least annually for covered employees who are

under 45 years of age with fewer than 10 years of expo-

sure over the action level without regard to respirator

use.

(ii) The employer shall provide the examinations

specified in paragraphs (n)(2)(i) and (n)(2)(ii) of this sec-

tion at least semi-annually for other covered employees.

9la

(iii) Whenever a covered employee has not taken

the examinations specified in Paragraphs (n)(2)(i) and

(n)(2)(ii) of this section within six (6) months preceding

the termination of employment, the employer shall pro-

vide such examinations to the employee upon termina-

tion of employment.

(4) Additional examinations. If the employee for any

reason develops signs or symptoms commonly associated

with exposure to inorganic arsenic the employer shall

provide an appropriate examination a

nd emergency med-

ical treatment.

(S) Information provided to the physician. The

employer shall provide the following information to the

examining physician:

(i) A copy of this standard and its appendices;

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

as they relate to the employee’s exposure;

(iii) The employee’s representative exposure level

or anticipated exposure level;

(iv) A description of any

personal protective equip-

ment used or to be used; and

(v) Information from previous medical examina-

tions of the affected employee which is not readily avail-

able to the examining physician.

(6) Physician’s written opinion.

(i) The employer shall obtain a written opinion

from the examining physician which shal] include:

92a

(A) The results of the medical examination and tests

performed;

(B) The physician’s opinion as to whether the

employee has any detected medical conditions which

would place the employee at increased risk of material

impairment of the employee's health from exposure to

inorganic arsenic;

employee’s exposure to inorganic arsenic or upon the use

of protective clothing or equipment such as respirators;

and

(D) A statement that the employee has been

informed by the physician of the results of the medical

examination and any medical conditions which require

further explanation or treatment.

(ii) The employer shall instruct the physician not to

reveal in the written opinion specific findings or diag-

noses unrelated to occupational exposure.

(iii) The employer shall provide a copy of the writ-

ten opinion to the affected employee.

(o) Employee information and training -

(1) Training program.

(i) The employer shall institute a training program

for all employees who are subject to exposure to inor-

ganic arsenic above the action level without regard to

respirator use, or for whom there is the possibility of skin

or eye irritation from inorganic arsenic. The employer

shall assure that those employees participate in the train-

ing program.

93a

(ii) The training program shall be provided by

October 1, 1978, for employees covered by this provision,

at the time of initial assignment for those subsequently

covered by this provision, and at least annually for other

covered employees thereafter; and the employer shall

assure that each employee is informed of the following:

[1910.1018(0)(1)(ii) amended by 61 FR 9245, March 7,

1996]

(A) The information contained in Appendix A;

(B) The quantity, location, manner of use, storage,

sources of exposure, and the specific nature of operations

which could result in exposure to inorganic arsenic as

well as any necessary protective steps;

pirators;

(D) The purpose and a description of the medical

surveillance program as required by peragraph (n) of this

section;

(E) The engineering controls and work practices

associated with the employee’s job assignment; and

(F) A review of this standard.

(2) Access to training materials.

(i) The employer shall make readily available to all

affected employees a copy of this standard and its appen-

dices.

(ii) The employer shall provide; upon request, all

materials relating to the employee information and train-

ing program to the Assistant Secretary and the Director.

94a

(p) Signs and labels -

(1) General.

(i) The employer may use labels or signs required

by other statutes, regulations, or ordinances in addition

to, or in combination with, signs and labels required by

this paragraph.

(ii) The employer shall assure that no statement

appears on or near any sign or label required by this

paragraph which contradicts or detracts from the mean-

ing of the required sign or label.

(2) Signs.

(i) The employer shall post signs demarcating regu-

lated areas bearing the legend;

DANGER

INORGANIC ARSENIC

CANCER HAZARD

AUTHORIZED PERSONNEL ONLY

NO SMOKING OR EATING

RESPIRATOR REQUIRED

(ii) The employer shall assure that signs required by

this paragraph are illuminated and cleaned as necessary

so that the legend is readily visible.

(3) Labels. The employer shall apply precautionary

labels to all shipping and storage containers of inorganic

arsenic, and to all products containing inorganic arsenic

except when the inorganic arsenic in the product is

bound in such a manner so as to make unlikely the

possibility of airborne exposure to inorganic arsenic.

95a

(Possible examples of products not requiring labels are

semiconductors, light emitting diodes and glass). The

label shall bear the following legend:

DANGER

CONTAINS INORGANIC ARSENIC

CANCER HAZARD

HARMFUL IF INHALED OR SWALLOWED

USE ONLY WITH ADEQUATE VENTILATION

OR RESPIRATORY PROTECTION

(q) Recordkeeping -

(1) Exposure monitoring.

(i) The employer shall establish and maintain an

accurate record of all monitoring required by paragraph

(e) of this section.

(ii) This record shall include:

(A) The date(s), number, duration location, and

results of each of the samples taken, including a descrip-

tion of the sampling procedure used to determine repre-

sentative employee exposure where applicable;

(B) A description of the sampling and analytical

methods used and evidence of their accuracy;

if any;

(D) Name, social security number, and job classi-

fication of the employees monitored and of all other

employees whose exposure the measurement is intended

to represent; and

96a

(E) The environmental variables that could affect

the measurement of the employee’s exposure.

(ii) The employer shall maintain these monitoring

records for at least 40 years or for the duration of employ-

ment plus 20 years, whichever, is longer.

(2) Medical surveillance.

(i) The employer shall establish and maintain an

accurate record for each employee subject to medical

surveillance as required by paragraph (n) of this section.

(ii) This record shall include:

(A) The name, social security number, and descrip-

tion of duties of the employee;

(B) A copy of the physician’s written opinions;

that employee and the representative exposure levels

supplied to the physician; and

(D) Any employee medical complaints related to

exposure to inorganic arsenic.

(iii) The employer shall in addition keep, or assure

that the examining physician keeps, the following medi-

cal records:

(A) A copy of the medical examination results

including medical and work history required under para-

graph (n) of this section;

(B) A description of the laboratory procedures and

a copy of any standards or guidelines used to interpret

the test results or references to that information;

a eT

97a

(D) The X-rays for the most recent 5 years;

(E) Any X-rays with a demonstrated abnormality

and all subsequent X-rays;

(F) The initial cytologic examination slide and writ-

ten description;

(G) The cytologic examination slide and written

description for the most recent 5 years; and

(H) Any cytologic examination slides with demon-

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

subsequent slides and written descriptions.

(iv) The employer shall maintain or assure that the

physician maintains those medical records for at least 40

years, or for the duration of employment plus 20 years

whichever is longer.

(3) Availability.

(i) The employer shall make available upon request

all records required to be maintained by paragraph (q) of

this section to the Assistant Secretary and the Director for

examination and copying.

(ii) Records required by this paragraph shall be pro-

vided upon request to employees, designated representa-

tives, and the Assistant Secretary in accordance with 29

CFR 1910.20 (a) through (e) and (g) through (i).

(4) Transfer of records.

(i) Whenever the employer ceases to do business,

the successor employer shall receive and retain all

records required to be maintained by this section.

98a

(ii) Whenever the employer ceases to do business

and there is no successor employer to receive and retain

the records required to be maintained by this section for

the prescribed period, these records shall be transmitted

to the Director.

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

records required to be maintained by this section, the

employer shall notify the Director at least 3 months prior

to the disposal of such records and shall transmit those

records to the Director if he requests them within that

period.

(iv) The employer shall also comply with any addi-

tional requirements involving the transfer of records set

[forth] in 29 CFR 1910.20(h).

(r) Observation of monitoring -

(1) Employee observation. The employer shall provide

affected employees or their designated representatives an

opportunity to observe any monitoring of employee

exposure to inorganic arsenic conducted pursuant to

paragraph (e) of this section.

(2) Observation procedures.

(i) Whenever observation of the monitoring of

employee exposure to inorganic arsenic requires entry

into an area where the use of respirators, protective

clothing, or equipment is required, the employer shall

provide the observer with and assure the use of such

respirators, clothing, and such equipment, and shall

require the observer to comply with all other applicable

safety and health procedures.

99a

(ii) Without interfering with the monitoring,

observers shall be entitled to;

(A) Receive an explanation of the measurement pro-

cedures;

(B) Observe all steps related to the monitoring of

inorganic arsenic performed at the place of exposure; and

the results when returned by the laboratory.

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

tive August 1, 1978.

(t) Appendices. The information contained in the

appendices

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