American Smelting & Refining Co. v. Occupational Safety and Health Review Com'n, No. 73-1721

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before VOGEL, Senior Circuit Judge, and GIBSON, and WEBSTER; GIBSON
• Citation: 501 F.2d 504
• Parties: 2 O.S.H. Cas.(BNA) 1041 AMERICAN SMELTING AND REFINING COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents.
• Docket Number: No. 73-1721
• Decision Date: 15 July 1974

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501 F.2d 504 2 O.S.H. Cas.(BNA) 1041 AMERICAN SMELTING AND REFINING COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents. No. 73-1721. United States Court of Appeals, Eighth Circuit. Submitted May 13, 1974.
Decided July 15, 1974.

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Daniel M. Gribbon, Washington, D.C., for petitioner.

Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., and A. E. Lawson, Pittsburgh, Pa., for respondents.

Before VOGEL, Senior Circuit Judge, and GIBSON, and WEBSTER, Circuit judges.

GIBSON, Circuit Judge.

Petitioner, American Smelting and Refining Company, upon complaint of the United Steelworkers of America (Union), was charged with a violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereafter the Act or OSHA), in allowing the existence of a health hazard at its Omaha, Nebraska plant. Specifically, Petitioner was charged with exposing its employees to hazardous airborne concentrations of lead. The Act's general purpose and its 'general duty' clause ¹ evidence a clear Congressional purpose to provide employees a safe and nonhazardous environment in which business, including commercial and industrial, operations, is to be conducted. ²

The complaint of the Union about unsafe working conditions triggered an investigation of plant conditions and monitoring of the working environment present in the Petitioner's plant by personnel of the Secretary of Labor's office. The airborne lead concentrations within the plant varied depending on the type of industrial operation being performed in certain work areas, but the results obtained were adequate to indicate that long-range preventative engineering

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practices should be instituted within a six-month period, preceded by immediate administrative controls of approved respirators, rotation of employees, and any other appropriate measures.

The complaint and investigation, with its monitoring tests, resulted in a citation being issued pursuant to 658(a). The citation was contested by Petitioner, causing the matter to be forwarded to the Commission for processing, which includes an opportunity for hearing. After a hearing, the Administrative Law Judge on March 1, 1972, found that airborne concentrations of inorganic lead at American Smelting and Refining Company's Omaha plant presented 'a recognized hazard that (was) likely to cause, if continued unabated, death or serious physical harm to employees, and as such, constituted a violation of Section 5(a)(1) (the general duty provision) of the Act.' ³ The Occupational Safety and Health Review Commission (the Commission) directed review and on August 17, 1973, upheld the Administrative Law Judge's finding of a violation. ⁴ Chairman Moran vigorously dissented. The Petitioner filed this appeal for review of the Commission's order. ⁵ Respondents are the Commission; Peter J. Brennan, Secretary of Labor; the United Steelworkers of America; and Local 461 of the Union. We sustain the Commission and deny relief to the Petitioner.

The Petitioner, a New Jersey corporation, operates a lead refining plant in Omaha Nebraska, and employs 390 to 400 workers there. Receiving lead bullion in solid blocks, the plant produces commercial grades of refined lead and lead alloys by separating impurities from the lead. Recovery of the impurities is also accomplished where possible. The Omaha plant, one of the Petitioner's lead refineries, was purchased before 1910 and has since produced refined lead and lead alloys.

Three representatives of the Secretary visited Petitioner's Omaha plant on June 30, 1971, to evaluate the presence of harmful concentrations of airborne lead. ⁶ The plant's personnel director and plant manager fully cooperated and conducted a tour of the plant. Of the 390 to 400 workers, approximately 95 work in areas that may be affected periodically by high levels of airborne concentrations of lead. Of these 95, 60 work in the lead smelting area, 15 in the retort area (a furnace operation), 10 in the cupel area (another furnace operation), and 10 to 12 in the crane operating area. These are the areas of higher concentrations of airborne lead.

While inspecting the plant, the Secretary's representatives-- Charles Adkins, an OSHA Regional Hygienist from Kansas City; Gail Adams, an OSHA Compliance Officer from Omaha; and Howard Ludwig, a United States Public Health Sanitary Engineer from Salt lake city-- observed that all but one of the employees had their company-supplied respirators hanging around their necks, rather than properly wearing them over their noses and mouths. After the tour of the plant, the representatives

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decided to take air samples of the melting, cupel, retort, and crane areas. Respondent chose seven employees and placed an air sampling pump on each employee. An air sampling pump is a device employed by industrial hygientists to collect contaminants in the air that an individual would normally breathe. Each air sampling pump consisted of a small pump powered by a battery, a rotometer to calibrate the air flow rate through the apparatus, a flow stabilizer device, a transport tube, and a membrane filter or monitor sender from which the sample of air contaminants is taken. The pump and battery were attached to a belt around the worker's waist, the flow stabilizer device was connected to the pump, the tube was connected to the pump, and at the end of the transport tube was connected the membrane filter, which was clipped to the worker's lapel as near the breathing zone of the nose and mouth as possible. The representatives activated the pumps on each of the seven workers, and the pumps were in place for approximately two hours and fifty-seven minutes. This period of time was sufficient to allow each worker to complete at least one complete cycle of his normal work throughout the plant. While the pumps were in place, none of the seven tested employees was wearing his respirator. A pump was not attached to the one worker who was wearing his respirator and working in a large kettle that melts lead. This worker had been chipping solid lead from a dry kettle with an air hammer, and since this job exposes workers to a very high level of lead contaminants, the worker wisely was wearing his respirator. The Secretary's representatives fairly did not sample the air in this work area.

The pumps were carefully calibrated for air flow at the Public Health Service Laboratory in Salt Lake City and at the plant, and each membrane filter was inserted in the apparatus at the plant. The filters were removed and sent to Salt Lake City to analyze them for the lead contaminant. The following results were obtained:

-------------------------------------------
                Employee's His Working Concentration
                Name Area of Lead 7
                -------------------------------------------
                Minard Furnace 0.16 mg/M 3
                Minkinovie Furnace 0.22 mg/M 3
                Marion Floor 0.10 mg/M 3
                Alley Crane 0.25 mg/M 3
                Zandijas Retort 2.70 mg/M 3
                Gulizia Retort (cupel) 0.75 mg/M 3
                Rojas Retort (cupel) 2.85 mg/M 3
                

The Respondents throughout these proceedings have maintained that the industry recognizes that any lead concentration above .2 mg/M(3) constitutes a hazardous condition. ⁸ The Petitioner counters by claiming generally that air sampling is inferior to periodic biological testing of each employee's blood and urine and acting upon those results with medical care and transfers to work areas of lesser lead concentrations. Mainly because of its biological monitoring of each employee, the Petitioner argues that there was not a recognized hazard

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in the plant causing or likely to cause death or serious physical harm to the employees.

On July 7, 1971, the Kansas City Missouri, Regional Administrator cited the Petitioner for a serious violation of 5(a)(1) of the Act. 29 U.S.C. 654(a) (1). The citation contained the following description of the alleged violation:

Airborne concentrations of lead significantly exceeding levels generally accepted to be safe working levels, have been allowed to exist in the breathing zones of employees working in the lead melting area, the retort area, and other working places. Employees have been, and are being exposed to such concentrations. This condition constitutes a recognized hazard that is causing or likely to cause death or serious physical harm to employees.

The citation allowed Petitioner 60 days to complete 'the implementation of feasible engineering controls to reduce the concentration of the airborne contaminants' and proposed a civil penalty of $600.

On March 1, 1972, Administrative Law Judge Brennan filed an extensive report of 47 pages. He found that .2 mg/M(3) of airborne lead concentration is generally recognized by the industry as the safe level, that a 'recognized hazard' existed in violation of the general duty clause due to concentrations of airborne lead greater than .2 mg/M(3), and that the Petitioner's 'preventive program' including biological monitoring, the required use of respirators, and transfers of employees with high levels of lead concentration in blood and urine samples did not negate a finding of a recognized hazard. Having found a violation of the general duty clause, the Administrative Law Judge required the Petitioner to complete feasible engineering controls to reduce the concentration of airborne lead contaminants to .2 mg/M(3), or below within six months from the entry of a final order. He also approved the Secretary's assessment of a $600 fine, specifically finding it was a civil penalty and constitutional.

On August 17, 1973, Commissioner Van Namee, joined by Commissioner Cleary for the majority, upheld the Administrative Law Judge's factual findings and interpretation of the law with one exception. The Commission held that neither it nor the administrative law judges have the authority to rule on the constitutionality of provisions of the Act.

The Petitioner first argues that the work conditions...