Document kDXqvezLvBq2BNDgwe5x0dgdE

FROM THCMAS B. BQMNEY PITTSBURGH OFFICE May 2, 1972 RE; SECRETARY OF LABOR VS. ASARCO Airborne concentrations of lead in the working area were known to be at tines above the TLV. Because of /this the hearing examiner rejected the employer** contention that the exposures did not constitute a serious hazard because of the existance of a preventive program con sisting of periodic surveys, ventilation measurements, physical exami nations (including blood and urine sampling), re-assignment of employee when biological levels were excessive, supervision of employees work habits and the use of respirators in high concentration areas* The examiner contended that under the Act, employer* are not permitted to provide unsafe, unhealthful or hazardous working conditions for their employees even though the adverse effects of the working conditions are attempted to be minimized* In this case, the presence of unsafe concentrations of lead should have been determined by air sampling and comparing the values with the TLV rather than by biological testing* Although the use of biologic testing is encouraged, it must not be used as a control of lead hazards, but rather as a diagnostic tool to determine if employees have absorbed excessive quantities of lead* The examiner concurred that the use of respirators is Justifiable but only as a temporary measure* Their use on a continuous basis, as was the case In this instance, transferred the responsibility of compliance with the Act from the employer to the employees* This consequence is clearly contrary to the congressional intent underlying the Act* The examiner contended that the only proof necessary to show that Section 5(a)(1), the "General Duty Clause", was violated was to show that a hazard is likely to cause serious physical harm or death. It doesn*t depend on proof that a hazard has produced injury* It is sufficient to show that harmful concentrations of lead (l*e*, in excess of the TLV) existed, which was the case in this instance* The finding that the employer was in violation of the general duty clause of the Act was upheld and the employer was required.to pay a $500 fine and to install engineering controls within six months* T. B, Bonney TBBjmh t0 ALCOA 411582 0155 ("IV !>> L cc H 4 - 3h>h \ Employment Safety and Health Guide Within this group, & standard covering the guarding of floor and wall open ings and holes was violated 22 times, and a standard setting forth general requirements was violated 19 times. Standards covering ladders ana stairs were violated 19 times, while only one violation of scaffolding safety requirements was appealed. Other groups of OSHA standards in which a relatively high rate of violation occurred included general environmental con trols, fire protection, personal protective equipment, means of egress, and materials handling and storage. .. Violations of safety and health standards for construction, shipbuilding, ship repairing, and longshoring occurred in categories similar to those in which violations occurred under OSHA's standards. The majority of these standards was violated only once, although a construction standard covering scaffolding was violated ten times, and another construction standard cov ering guardrails, handrails, and covers was violated six times. A breakdown of tne standards violated and the number of times each violation was cited appear at 8354. Refusal to Process Job Safety Grievance Is Unlawful, NLRB Says An employer unlawfully refused to process a union grievance concerning plant safety. According to the complaint, both employees and management carried exposed knives in the plant The employer's defense was that the matter had been settled when it posted a notice warning employees to refrain from walking around the plant with unsheathed knives. However, an NLRB panel noted, the new grievance contained serious charges that the safety measures embodied in the notice were being ignored. Therefore, it was concluded that the employer violated its bargaining duty by refusing to proc ess the grievance. This case, American Beef Packers, Inc., appears in CCH Labok Law Reports at 1972 CCH NLRB If 23,620. Exposure to Excessive Lead Violates General Duty Clause It was not enough that an employer monitored employees' exposure to airborne lead and reassigned them to other work if blood and urine samples showed excessive concentrations of lead. Once employees were exposed to levels of airborne lead in excess of that generally considered to be safe, and where continued exposure could cause serious physical harm, the company violated the general duty clause of the Occupational Safety and Health Act. American Smelting and Refining Company was found to have permitted employees to be exposed to airborne concentrations of lead in excess of the 2 mg/M* level generally accepted as the maximum safe limit In the first place, according to Hearing Examiner William E. Brennan, the company is not even following its own safety program with any degree of consistency. In the second place, it is not enough to operate a program which takes effect after the damage is done. The company has a duty to provide a safe work place--not simply to minimize the effects of an existing hazard. The Hearing Examiner's Report appears at 8353. EMPLOYMENT SAFETY AND HEALTH GUIDE, published weekly by Commerce Clsartnc House, lne., 4005 W. Peterson Ave., Chicago. Illinois 0064b. Subscription rate $185 per year. Application to mall at seoond-daas postage rates Is pending at Chicago, Illinois. Issue No. 42. March 22. 1972. Printed In U. S. A. All tights reserved. 2 411582 0156 Ntw Devatopnuts 6621 8353 GENERAL DUTY CLAUSE VIOLATED BY EXCESSIVE LEAD EXPOSURE Secretary of Labor American likely to cause death or serious physical Smelting and Refining Company. harm to employees? Hearing Examiner's Report OSHA 3. What engineering controls are feasible Docket Ho. 10. March J,1972. ^ and reasonable, and what period of time should be allowed to install them? Ganaral Duty Clausa 'Vtolofton Da+armlnotiOn .^Alfbotna lead Concentration Where evidence established that (1) the generally accepted level of air borne concentrations of lead considered The hearing was held on October 27 and 28, 1971. Findings of Fact Responding to a complaint from the union that hazardous concentrations of lead existed in the plant's atmosphere, the em to be safe is 2 rngfUL*, (2) continued exposure to concentrations' greater than that level are likely to cause serious physical <hmrm to employees, and (3) the employer permitted em ployeeato be. eroded, to concentra tions greater than the safe limit, a citation based on the employer's fail ure to conform to the general duty clause of the Act, f 6110, was proper. ployer's establishment was inspected on June 30, 1971, and a determination to that effect was made after air samples taken from seven employees showed five were exposed to concentrations significantly In excess of 2 mg/M'. Testimony and evidence was introduced to the effect that the Threshold Limit Value for airborne lead concentrations is 2 mg/M*. In Finding Number 18, the Hearing Ex aminer found that "PcpTMtiit therefor* Back references:f 2021; 6110. knew or xhnuld have known. of this generally recognized safe level of airborne concentra tions of lead." '7 Wiluak E. BtcXKAJr, Hearing Examiner : The employer war issued a citation on July 7, 1971, alleging a violation of Section 5 (a)(1) of the Act, f 6110, by permitting employees to be exposed to airborne con centrations of lead in excess of generally accepted safe levels. The citation permitted 48 hours for the itnjptememtadon'of appro priate administrative fcontroLj (respirators, rotations, etc.) and 60 days for the installa tion of feasible engineering' controls (such as ventilators). A penalty of 8000 was proposed. .A pro-hearing conference' was held at which the parties (employer, employee rep resentative and Secretary) agreed that the matter was properly before the Hearing Examiner, that the proposed penalty would be proper if any penalty was in order, that the administrative controls had been properly implemented, and that the 60-day period allowed for installing proper engi neering controls was too short a period of time. Issues presented to the Hearing Examiner for determination were: 1. What was the generally accepted level of airborne concentration of lead considered to be safe? 2. Did the concentrations at the plant constitute a recognized hazard causing or *rh- w"Tirtr ^"miner rejected the em ployer's contention that the exposures in question did not constitute s serious hazard because of its preventive program, consist ing of periodic hygiene surveys and inspec tions, ventilation measures, physical exam inations (including blood and urine sampling), reassignment of employees when the physi cal examinations showed excessive lead con centrations, supervision of employees' work habits, and the use of approved respirators in high concentration areas. The following material is from the Hear ing Examiner's Report: This position presents the following dif ficulties: 1. It misconstrues the responsibilities placed upon employers by Congress, ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to pre serve our human resources ....'' (Sec tion 2(b) [f6103] of the Act). In short, the Act places the responsibility upon em ployers to provide safe and healthful work ing conditions for [their] employees, as far as possible. [t allrw ,mplnwr tr. provide unsafe, unhealthful nr hazardous working conditions tor |th*ir|*mplnyi-f ,vm though the adverse effects of snrh wort-inf, conditions are attempted to he minimized. Respondent's position puts the cart before Employment Safety and Health Guide 1 8353 6622 Nsw Dvvsiopmsnts KtarMI the borse.* It* ffirst responsibility it, by ' analysis will demonstrate the hazard or all reasonable measures, to provide safe and healthful working conditions. This must be done by this Respondent' by reducing the levels of airborne concentrations of lead in the lack of it with considerable accuracy and will indicate clearly what is to be done and where to begin. (Ex. G-6, p. 963). ** ft* Omaha plant,'to the. generally recog nised safe level uf .2 mg (pb)/M\ or as "In a generally well-designed and well-managed plant, the problem ts straight close to that figure a* is possible. forward and comparatively simple. Me 2. Assuming arguendo that Respondent's position is pranittcd by tbe Act, for reasons which are not clear in the record, its pre ventive program simply has not worked. At wflTbe discussed infra. Exhibits G-15 chanical measures of control can be applied where and as they are needed, the results being checked by air-sampling and anal ysis until the desired conditions have been achieved. Under the unsatisfactory - conditions referred to above, however, and G-I5A {not reproduced] clearly estab and even under the best of conditions, lish that by its own criteria, Le, blood considerable time may be required to samples of its employees, certain employees obtain and install the necessary equip working at Its Omaha .plant where there existed concentrations of .airborne lead in excess of the safe Gait, bad absorbed lead to dangerous levels. * ment. It may be highly important there fore, to do all that can be done to reduce existing lead hazards, pending their elimi nation by more adequate or permanent means. In such instances_ fog respirators lq fully justified as a tem 20. The SwrrHatVs petition in this case is that the nreoer mean, fr misale levels of airborne concentre nf tf by the utilization nf sir arnnlinf and that the proper measure to be used to porary expedient for the control of othervfftse Unavoidable respiratory exposure to lead. * "It has been implied above that respi rators should be regarded as temporary determine if unsafe conditions exist, it the means for preventing the inhalation of TL.V figure ol Ji mg/si-. Ptinher. that lead compounds. This implication was when the work place has concentrations of airborne lead in excess of this figure, feasible engineering controls, Le, ventila tion systems must be installed to reduce these levels. He haa wo objection to the use of bioHrnl tr**-g STlrt f-rnn-nipr tT use bv employers. not as a control of lead hazard. but rather a diagnostic tool to intentional. Occasional situations arise that necessitate the use of respiratory equipment of some type, and certain in termittent operations of brief duration may best be dealt with in this manner: but in the main, exposure to lead should be prevented by other means, not only for the sake of the comfort and the efficiency of the workmen but also bn determine Whether employees have absorbed account of the continued care and super dangerous amounts of lead. The evidence of record clearly supports this position. Exhibit G-17'published by the Lead In dustries Association. has tac lohowme BUieilUlkl. vision that are required to see that this type of equipment is used properly and effectively. (Ex. G-6, pp. 963-964). ** "As has been indicated previously, the control of occupational exposure to lead . "The keynote of an effective industrial through the maintenance of a safe en hygiene program is prevention. Our vironment is essentially a mechanical point of view -is simply that excessive problem, which therefore lies within the lead absorption can be controlled, and province of the engineer." is best controlled, by engineering methods. Certain medical tests are mentioned in this booklet, but only as adjuncts or supplements to engineering control." (Ex. G-17, p. 2). Nothing in the evidence of this record rebuts these statements, which essentially voice the Secretary's position herein and rather accurately state the objectives of the In his chapter "Industrial Lead Poison Act relating to this case. ing," Dr. Kehoe states: 21. Respondent's position that its "pre "Adequate systematic sampling of the ventive program" has in effect cancelled air of workrooms while work is in prog out any hazard to its employees is not ress, and the use of accurate methods for supported by the evidence. the analysis of such samples, will serve to portray the general distribution and the order of severity of the lead hazard. In a plant in which the quality of sani tary facilities and of the general hygienic Dr. Kehoe in his writings set forth in Exhibit G-6 discussesiat considerable length the significance of various lead levels in human blood, and concluded that lead-- performance is good, the results of air "Values in excess of 0.08 mg. per 100 g. 18353 1972, Commerce Clearing House, Inc. y*t-n N*w Developments 6623 of whole Mood of themselves, however, denote the actual occurrence of dangerous absorption of lead." Exhibits G-15 and ISA (not reproduced] present the results of Respondent's biologi cal monitoring program over an approxi mate two-year period,. 1970-71. It sets forth the amounts of leari found upon anal ysis in the urine and blood of its employees identified therein. Of the 491 employees listed in Exhibit G-15, a total of 41, or over 8% had, at one time or another, levels of lead in their blood in excess of .08 mg. per 100 grams of whole blood. Several employees had lead levels of .101 mg. or higher. One employee, #77 listed on page 18 of Ex. G-15 had levels of .379 and .433 mg. pb, levels which Respondent's witness Dr. Kehoe testified (TR. 224) as indicative of a ". . . very severe, very dangerous exposure to lead." This exhibit demonstrates the weakness of Respondent's position here. Rather than doing more to reduce the levels of lead in its plant's atmosphere by further engineer ing controls, Le* ventilation systems, it waited until some .of its employees had absorbed excessive and dangerous amounts of lead to take corrective measures. _Such a program in effect usey the employees as a test device to determine hazardous con ditions. sms is precisely what the Act is intended to prohibit. (Sections 2(b) If 6103] and 5(a)(1) [f 6110]). A farther problem presented by biological sampling is, of course, that it measures ab sorbed lead in humans from all sources and does not identify the specific source of ab sorbtioa. For this reason, the Secretary's position that biological testing cannot be used to establish lead hazards in a work place, nor can they properly be used as an enforcement tool, is accurate. Respondent's Director of Environmental Sciences testified that under Respondent's "preventive program," if a blood test showed a lead, level of .06 mg. be would suggest an other blood test be taken within 3 to 5 weeks. Exhibit G-15 [not reproduced] dearly show* that this generally was not done, the time periods between tests in employees with these lead levels running from two to nine months. Respondent's "preventive program" alleg edly called for the transfer of employees when biological sampling revealed high lead absorption. Although Exhibits G-15 and G-15A (not reproduced], it is true, do show that the lead levels of employees generally and ultimately showed reductions from lev Rmployment Safety and Health Guide els in excess of .08 mg. per 100 grams, to levels below this figure, it cannot be con cluded on the evidence of this record that these reductions were caused by transferring employees. The transferring of employees from jobto-iob can be considered only as a stSpgap measure at best. It does not constitute a removal of the hazard, rather the removal of an employee from the hazard. It is not within the contemplation of the Act, for such a measure does not protect the em ployee ". . . over the period of his entire working life." The Congressional intent of the Act as to this point is clearly set forth in the Report of the Senate Committee on Labor and Public Welfare on S. 2193 in the following words: "Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health or functional capacity, or diminished life ex pectancy, by reason of exposure to the haz ard involved, even though such exposure may be over the period of his entire working life." (Senate Report No. 91-128% 91st Congress, 2d Session p. 7). Furthermore, transferring employees pre sents significant problems not only to the employee but to employer* as well as was in effect admitted by the Respondeat. It means changing employees to other work tasks to which they) are not accustomed and in which they assumedly are less skilled, in which they may have less interest, for which they may be less qualified and which may pay less or provide less opportunity for future advancement. Such transfers may also add extra accident risk. The availability of approved respirators in work places having high concentrations of airborne lead, another aspect of Re spondent's "preventive program," without more, means nothing. To be effective, ob viously, the respirators must be worn at all times that employees are working in such areas. The uncontradicted evidence of this record shows that although approved respirator* were provided by Respondent to its"emplovrf^ h*ir were not worn bv these employees general practice. During the inspection of June 30, 1971, the Secre tary's representatives saw many employees with respirators hanging loosely around their necks, not in place or in use, except for one employee working inside of a kettle chipping out solidified lead. Some of Re spondent's employees put respirators in place when they were approached by the Secretary's representative during this in spection. 1 8353 6624 Mrw Duvqlopniants Number 42--14 S-22-7J The -evidence -of thi record establishes that the nae of respirators is". v . juatiiied aa a temporary expedient for the control of otherwise unavoidable exposure to lead. . . . "Their use on a permanent 8-hour-aday barn is neither desirablf -nor feasible. They are uncomfortable .to wear, especially where workroom temperature* are derated. Their .use o i permanent bads transfers rfis fM|yruiW*tyTflf xa wasi<jver 9> his emnlnveei. *.rtrary to the Con gressional . intent underlying the Act as stated.in the Senate Committee R^ort on the Act: . .. - The Committee does nat intend the tmployee-duty prodded in Section. 5<b) to diminish m any era/ the employer's compliance responsibilities or hit respon sibility to assart compliance by hit own employee^ Final responsibility for com pliance "with the requirements of this Act remains with the -employer." (S. Report No. 91-1282, 91st Cong. 2d Setokm, pp. 10-11). 22. The second issue presented in this case, based upoo the eridenee of this record is answered as follows: The conditions which existed at Respond ent's Omaha plant on June 30,1971, as they related to airborne concentrations of lead, did constitute a recognized hazatd that was causing or-was likely to cause death'or seri ous physical harm to Respondent's em ployees. .The levels ofairbornt concentrations of lead found in the furnace, retort!cupel). Istence of such levels as were found, as set out in'Fading number Id aupra if allowed to coutiniM unabated, constitutes a recogtdied hazard 'within the meaning of Sec tion 5(a)(1) {TH0] of the Act , The testimony of Respondent's witnesses to the contraiy is not persuasive. . Respondent's witness Nelson testified sub stantially that no hazard existed because of Respondent's "preventive program." The evidence however establishes that tbit pro gram was not successful in its execution, for reasons aot made clear on this record. The opinion of Respondent's witnesses Dr. Kchoe, Cole, and Kaplan fo the effect that there was no recognized hazard pres ent in Respondent's plant were predicated upon Mr. Nelson's testimony aol the assump tion that Respondent's "preventive pro gram" was effective. As such, these opinions are not persuasive and do not effectively rebut the opinion of the Secretary's quali fied industrial safety witness and the docu mentary evidence heretofore identified. Respondent also argues that no hazard likely to cause death or serious physical harm to employees existed at its Omaha plant becasue no evidence was presented that any of its employees suffered from lead intoxication or had been in any way injured by the airborne concentrations of lead found to exist at its plant The quick answer to this argument is that proof of a violation of Section 5(a)(1) [f 6110] of the Act does hot depend upon proof that a hazard has produced injury. All that is required is a showing that the t~rarri i lilfflv to m> serious Physical harm or death. Section 5(a)(1) [l olloj of the Act is intended to prevent the existence of conditions which are likely, if uncorrected, to cause serious physical harm. Section 17(k) [f 6173] pro vides that, "... a serious violation shall be deemed to exist in a place of employ ment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . ." The evidence of this record establishes that if the' high levels of airborne concen trations of lead found in Respondent's plant are not reduced by feasible engineering con trols, serious physical harm in the form of varying degrees of lead intoxication are highly probable and likely because Respond ent's "preventive program" has not been effective in the past to prevent high lead absorption by its employees, and there is no assurance on this record that its good faith attempts in the future will be any more effective. Exhibit G-ll, "Handbook of InJutirial Toxicology", by E. R. Plunkett, M. D., lists the following signs and symptoms of lead intoxication: {deleted]. Under the conditions found to exist at Respondent's Omaha plant, there is a sub stantial probability that serious physical harm may result therefrom. These condi tions, if continued unabated, would result in Respondent's employees evidencing one or more of the signs and symptoms of lead intoxication listed above [deleted]. This prob ability ousts because of the levels of lead in the air of this plant significantly in excess of the TLV of 2. mg/M*, and because the preventive measures taken by Respondent are of a temporary nature and cannot reasonably be expected to protect its em ployees during their work lints at this work place. 18353 1972, Commerce Clearing House, Inc. 1-8-T* Hew Developments 6625 Thu*, the conditions found to exist at Respondent's Omaha plant on June 30,1971, considering all the circumstances as set forth in this record, constitute a serious violation within the meaning of Sections 5(a)(1) [16110] and 17(k) [16173] of the Act. 23. Having found a serious violation of the Act, the remaining factual question pre sented, concerns proper abatement. Under the citation as amended- the the position that feasible engineering con trols to reduce the eoncentwtli of the air, borne containment -(lead) mnt mented witnin o months from any final order herein, itie evidence of this record supports this position. The Respondent presented at this hear ing, plans for increased ventilation at its' Omaha plant, winch are intended to be recommended for implementation by the plant's manager. These plans represent another step in Respondent's ongoing pro gram of plant improvements, in which it has been engaged for the past decade. Respondent's plant manager, after con sultation with Respondent's engineering de partment and an Industrial Hygienist, stated their opinion that these plus, "... if implemented, would quite probably reduce the general ambient air in the areas in volved (retort and cupel departments to less than .2 of . . spending of lead levels now . . . milligTani(s) per cubic meter. And I agree they most probably would do that But there would remain some times, some places where at rimes the level may exceed "2. The general am bient air in these areas would quite prob ably be seduced under Z." The Secretary's independent consulting Industrial Hygienist Mr. Soule, aftter tour ing Respondent's Omaha plant on Septem ber 14, 1971, eoocluded that Respondent's plant could . be modified by engineering methods to insure that the TL.V for lead would not be exceeded. Respondent's witness Mr. Kaplan testi fied, "Now, by enough engineering work, one could get the airborne contamination below the Jt milligram for normal, ordinary, routine plant events [and] operations. It would be very difficult, perhaps even impossible, literally to prevent there being ever any excursion above that that was significant because of the problems with unplanned events." He gave two examples of such "unplanned events:'' a crack and leak occur ring in a lead pot and the occasional need for a worker to make an adjustment in a ventilating hood.* He further stated; "So I would say the (that) adequate engineering would cover the normal routine plant events." Hie testimony of Respondent's witness to Mr. Godsey is highly conjectural and does not rebut the other evidence of this record that engineering controls are feas ible. His testimony as to the possible cost of plant modifications to institute engineer ing controls was admittedly an "educated guess", not supported by any written analy sis, and insufficient to support any findings concerning the cost of implementing feas ible engineering controls. Under the circumstances of this case, the best method for Respondent to furnish its employees "... a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm . . (Sec. 5(a)(1) [f 6110]) is by the implementation of feas ible engineering controls, to wit, adequate ventilation systems, even though such con trols may be costly. Such costs have become a necessary cost of doing business with the passage of the Act Senator Yarborough made the following observations on this question of costs: "This is legislation that has been needed in the country for many years. We have no national comprehensive occupational health and safety bill If a man in a manufacturing plant in ooe State were to put into effect safety measures to protect his workers and across the State line that practice was not followed, theoretically there would be a cheaper operational base. * * * We need a Federal statute, not to try to federalize things, but to equalize the cost in one industry vis-a-vis another. We know the costs would be put into consumer goods but that is the price we should pay for the 80 million workers in America." (Cong. Rec. (Senate) Nov. 16, 1970, p. S 18269). 24. Respondent employs from 290 to 300 employees at its' Omaha plant Of this number, approximately 60 work in the lead melting area, 15 in the retort area, 10 in the cupel area and from 10 to 12 in the crane operating area. Thus, at a minimum, not lets than 95 employees may be affected at one time or another by the high levels of airborne concentrations of lead found to exist at this plant 4 [Prior footnotes not reproduced--OCH ] Thcao excursions are examples of dicumstances in whkit the temporary ate of approved Employment Safety and Health Guide respirators are proper and agreed to be such by the Secretary. (See Secretary's brief p. 34). 1 8353 6626 Niw Devoiapmeot* Nua&bcr 4)--16 S-Z2-7Z Cwtflnii of Uw. 1. Jurisdiction -of this action U conferred upon the Commission by Section 10(c) (16141 ]of the Apt f `' 2.. jyt iff tunc* involved in this action. Respondent herein was iu> employer en gaged in a business affecting commerce within the meaning pf Section j(S) (f 6104] of the Act ' 3. Those individuals identified by name in Findings of Fact,number 16 Iddeted] were employees of Respondent on Jane 30, 1971. - 4. At all timer involved in this, action, the Respondent furnished employment to its employees at a .work place within the City of Omaha, Stata of Nebraska, and tba Act is applicable to such i employment within the meaning of Section 4(a) (16105] of the Act ' 5. On July 7, 1971, the Secretary, pur suant to. the provisions of Sections 9(a) (16136] and 10(a) (16139} f the Act, issued to this Respondeat a Citation for Serious Violation of Section 3(a)(1) (16110] of,-tbe Act and a Notification-of Proposed Penalty theseon in. the amount of 1600.00. On July 20^1971, -pursuant to the provi sions of Section-10(e) ` (16141J of the Act, this Respondent timely filed with the Sec retary' Its notification of intent to contest this Citation, the - period cstablUhed for abatement and the proposed.penalty. The Secretary thereupon transmitted *Mr case to the Comitijssiou' Wttich.'pursuant to the provisions of Section pel 'll 6141 ] of the (let, has jurisdiction of;t^e parties and of the.aubject matter Jiercjei ' fi ffhe United Steelworkers of America and Ua Local Chapter 461'of-'Omaha, Ne braska, through its cpunael filed H, .ap pearance -dated September. 9,. 1971, .' and participated in this case as the .authorised employee representative, . 7. Section ed) (1) (f 6H0] of the Act provides that: ' ,, . "Each employer .shall., furnish to -each of his employees employment and a place of employment which are free from recog nized hazards that are causing or ate likely to cause' death or serious physical harm to his employees. ' - Contrary to Respondent's 'argument- tins Section of the Act is suffidentiy definite and certain so as not to be.violative of the due process clause of the Constitution .be cause of vagueness. Congress made -findings in Section (2a) (16102] of the Act, as follow*: 18353 '"The Congress finds that personal in juries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, .wage loss, medical expenses, and disabil' hy compensation payments." The substantive provisions of ' the Act are dearly reasonably calculated to allevi ate these burdens on commerce. This Act is remedial legislation designed to correct conditions burdening commerce and aa such must "... be construed in the light of the mischief to be corrected and the end to be attained," and with "recognition of the aims which Congress sought to achieve." U. S. v. Silk, et al., 331 U. S. 704, 713 (1947). This Act must be construed in the tight of "the policy of the legislation as a whole." V, S. v. American Trucking AuaciaHon, 310 U. S. 534. 543 (1940), drawing "substance from the policy and purposes of the Act, the circumstances and background of par ticular employment relationships, and all of the hard facts of industrial life." NLRB v. AikmtCa., 331 U. S. 398, 403 (1947). The "general duty" provisions of Section 5(a)(1) (16110] of the Aot are explained in .Senate Report 91-1282 (hereinafter S. Rep.) to accompany S. 2193 as follows: GCNEXAL DOTY "The committee recognizes that preiise standards to cover every conceivable situation will not always exist This leg islation would be seriously deficient if any employee were killed or seriously .injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune. Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and : places of employment which are free from recognized hazards to the health and safety of their employees. "The committee has concluded that such a provision is based on sound and reasonable policy. Under principles of common law, individuals are obliged to .. refrain from actions which cause harm ' to others. Courts often refer to this as a general duty to others. -Statutes usu ally increase out sometimes modify this duty. The committee believes that em ployers are equally bound by this gen. era! and. common duty to bring no .adverse affects to the life and health of their employees throughout the course of their employment. Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a) (16110], in pro- St 1972. Commerce Clearing House, Inc. tat* -** MMI Naw Development* 6627 Tiding that employers most furnish em ployment 'which is free from, recognized hazards so as to provide safe and health ful working conditions,' merely restates that each employer shall furnish this de gree of tare.* (S. Kept p, 9). . The meaning of `"recognized hazard," words Added to S. 2193 on motion of Sen ator Javits, was explained by the Senator as follows;. . "S." Modification of General Duty.--As the result of this amendment the general duty of employers was clarified to require maintenance of a-workplace free from *recogmzed` hazards. `Hits is a significant improvement over the Administration bill (S.4404 a rival bill), which requires em ployers to maintain the workplace free from .`readily apparent' .hazards. That approach would not cover non-obvious hazards discovered in the course of in spection." (S. Rept 91-1282, p. 58, paren thetical material supplied).' Congressman Daniels In agreeing to modify his bill (H. R. 16785) so as to limit the general duty requirement to "recog nized hazards," as the Senate had already done with S.2193, explained the difference between "recognized hazards" and "readily apparent hazards" as follows: "A recognized Hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer..put b known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard b ``recognize^' is a matter for objective determination; it does not depend oo whether the particu lar'employer b. aware of it. A danger, in-other words, -may be recog nized as such in the industry, but may not be apparent to aa employer who is ill-informed and does not choose to in vestigate the danger of the situation." (Cong. Rcc. Not. 23, 1970). In short, "recognized hazards" b an objective test It b a hazard that is of common knowledge or general recognition in the particular industry in which it oc curs, detectable by the senses or b of such wide, general recognition as a hazard in the industry that there are generally known and accepted tests for Its detection. (U. S. Code Cong, and Admin. News. 1970, Vol. 3, pp. 5222, 5223). Section 5(a)(1) [f 6110] of the Act, in many respects b a statement of the common law duty of employers that they must take care to avoid harming their employees, and in so doing they are charged with the knowledge and must exercise the care, of a reasonably prudent' man. Employment Safety and Health Guide The possibility that there may be a factual question inherent in interpreting a duty imposed by a statute does not mean the statute b unconstitutionally vague. The statutory language must be viewed in the light of the facts of the case, for `That which b reasonably well understood by those to whom its terms are addressed sets an adequate standard of definiteness." U. S. v. Eastern Air Lines, Inc., 192 F. Supp. 187, 193-194 (S. D-, Fla, 1961). - As the Supreme Court has stated; . . But few words possess the pre cision of mathematical symbols, most statutes deal with untold and unforeseen variations in factual situations,-' and the Etactical necessities of dUcharging the usiness of government inevitably limit the specificity with winch legislators can spell out prohibitions. Consequently, not more than a reasonable degree of -certainty can be demanded." Boyce Motor Lines, Inc. v. U. S., 342 U. S. 337, 340 (1952). Section 5(a)(1) (16110] of the Act establishes objective requirements to which employers must adhere with a reasonable degree of certainty. When this Section is read in conjunction with the description of the violation as set forth in the Citation, aa further particularized by the Secretary's response to Respondent's motion for more definite statement, the violation was ade quately described to sufficiently inform the Respondent of the nature of the violation to allow it to prepare its case. . 8. The maximum amount of airborne concentrations of inorganic lead generally recognized and accepted as safe by quali fied and experienced Industrial Hygienists b 2 milligrams per cubic meter of air, ex pressed as the Threshold Limit Value of 2 mg/M*. 9. Levels of airborne concentrations of inorganic lead, significantly in excess of the Threshold Limit Value of 2 mg/M*, were found to exist in the breathing zones of several of Respondent's employees on June 30, 1971, as detailed in Finding of Fact number 16 [deleted]. These con ditions, which represented the normal working conditions for the areas identified, constituted a recognized hazard that (was] likely to cause, if continued unbated, death or serious physical harm to Respondent's employees, and as such, constituted a vio lation of Section 5(a)(1) [16110] of the Act 10. The temporary abatement called for in the Citation, L e, the "administrative 1 8353 411582 0163 6628 Now Development* NwobtrO--IS J-ZI-JJ control*" of Respondent providing approved respirators, *he rotation of employees, and any other appropriate measures, provided Respondent implements these measures consistently until permanent abatement con trols can be implemented, is reasonable under the circumstances of this esse. 11. The time period of <10 days allowed in the original Citation for permanent abatement by the implementation of feasible engineering controls 'was hot reasonable. Under the circumstances 8f this case it is reasonable to require the Respondent to implement feasible engineering controls to reduce the levels of airborne' concentra tions of lead in the furnace, retort, cupel and crane operating arena of its plant to that level generally recognized as safe ,2mg/M*, or as dose to that level as is possible. A period of 6 months from any final order herein to accomplish this per manent abatement is reasonable. 12. Due consideration having been given to the provision* of Section 17(j) If 6172] of tiie Act, h is determined'that the penalty proposed by the Secretary, under the cir cumstances, is not inappropriate. Further, Respondent's position that the civil penalties proposed by the Secretary and assessed by the Commission are unconstitntionzl because although denominated as "civil penalties" they are in fact a "crim inal penalty" which may he imposed, "if at alT only by a federal qpuit, not an ad ministrative tribunal, is not supported in the law. The assessment of monetary'eWfl penalties through administrative proceedings has long been held not to abridge the due process clause of the Constitution. Hebering v. UiUkell, 303 U. S. 301 (1938). Congress clearly in Section 17 of the Act differentiated between, "civil penalties" as civil sanctions, and "criminal sanctions" and "fines." Compare Section 17(a), (b), (c), (d), (j), (f 6163-6166, 6172) and (1) to 17(e), (f) and (g) [f 6167-6169], As the Ninth Circuit has clearly stated: "... it has long been settled that Con gress may provide civil proceedings for the collection of penalties which are civil or remedial sanctions rather than punitive, and provide that the determination of the facts upon which the liability for such a penalty is based may be by executive officers or administrative agencies." OUhawm v. Commissioner of Internal Rev enue, 273 F. 2d. 23, 27 (CA 9, 1959). See also: Sfeien v. Bowles, 146 F. 2d. 602 (CA 8, 1945). 13. The Citation and Notice of Proposed Penalty issued herein were properly served upon tiiis Respondent and the Citation was posted by this Respondent and notice of hearing was served upon the authorized employee representative consistent with the provisions of Section 9(b) [ff 6137] of the Act and the regulations promulgated there under. Based upon the foregoing findings, con clusions and determinations, and pursuant to the provisions of Section 10(c) (f 6141] of the Act, it is hereby, ORDERED: 1. That the Citation for Serious Violation dated July 7, 1971, is amended by striking the words "60 days" therein and substitut ing the words "6 months from the entry of a final Order herein." 2. That the Citation for Serious Violation dated July 7, 1971, as amended, and the Proposed Penalty of even date, addressed to tills Respondent as issued by the Secre tary, are hereby affirmed. Dated: March 1, 1972 Rockville, Maryland WILLIAM E. BRENNAN Presiding Examiner 8354 EMPLOYERS CONTEST 259 VIOLATIONS IN FIFTY CASES REVIEWED Back reference: f 202L A review of fifty cases recently ruled on by the Occupational Safety and Health Review Commission shows that employers contested 2S9 viola* tions of safety and health standards. The employers appealed 223 viola tions of 40 Occupational Safety and Health standards; 29 violations of 14 standards promulgated under the Contract Work Hours and Safety Standards Act; and seven violations of an identical number of standards promulgated under the Longshore men's and Harbor Workers' Compen sation Act A chart of the standards violated and the number of times each was cited in the fifty cases follows. Viola tions of standards promulgated under the Longshoremen's and Harbor Workers' Compensation Act and the 18354 1972, Commerce Clearing House, Inc.