Bethlehem Steel Corporation

Plain-English summary

Bethlehem employees welded steel plates coated with an 80 percent zinc preservative inside tanker cargo spaces without air-line respirators or removal of the coating near the welds. The Commission held that the rule was a work-practice standard applying whenever welding was performed on a toxic preservative coating, regardless of whether measured zinc-oxide exposure exceeded the permissible eight-hour limit. It found the coating toxic based on its composition, safety data, measured zinc-oxide fumes, and the ship-repair regulations. The Commission did not find the violation serious because the evidence did not show that metal fume fever was likely to cause prolonged or serious harm in this operation. It affirmed the violation as nonserious and assessed a $300 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.33(c)(1).
• Outcome: Toxic-preservative welding violation affirmed as nonserious with a $300 penalty.
• Key point: A work-practice standard that requires stripping a toxic coating or using air-line respirators applies before welding begins and does not depend on proof that an exposure limit was exceeded.

Full text (OSHRC public release)

Docket No. 78-3512

SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

INDUSTRIAL UNION OF MARINE AND

SHIPBUILDING WORKERS OF AMERICA,

LOCAL 24,

Authorized Employee

Representative.

OSHRC Docket No. 78-3512

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge William E. Brennan is before the
Commission pursuant to section 12(j), 29 U.S.C. � 661(i), of the Occupational Safety and
Health Act of 1970, 29 U.S.C �� 651-678 ("the Act").  Judge Brennan
vacated that part of a citation issued by the Secretary of Labor ("the
Secretary") to Respondent, Bethlehem Steel Corporation ("Bethlehem"),
alleging a violation of the Act For failure to comply with the standard at 29 C.F.R. �
1915.33(c)(1).[[1]]  The Secretary had proposed a $640 penalty for this alleged
violation and had characterized it as serious.[[2]] Commissioner Cottine granted in part
the Secretary's petition for discretionary review, directing review on the following
limited issue:

Whether the Administrative Law Judge erred in not considering evidence of
employee reactions symptomatic of exposure to the byproducts of welding, cutting, or
heating surfaces coated with a toxic preservative as a basis for a violation of 29 C.F.R.
� 1915.33(c)(1)?

Commissioner Cleary also directed review on the following issues:

Whether the Administrative Law Judge erred in vacating the alleged serious
violation of 29 C.F.R. � 1915.33(c)(1) on the ground that the Secretary introduced
uncorroborated hearsay evidence insufficient to establish a violation of the cited
standard?

and

Whether in alleging the serious violation of 29 C.F.R. � 1915.33(c)(1) the Secretary must
prove that concentrations of zinc oxide fumes exceeding 5 mg/M3 are present in the
enclosed work space?

For the reasons set forth below, we conclude that the Secretary sustained his
burden of proving Bethlehem's noncompliance with section 1915.33(c)(1), but that he failed
to prove that this violation of the Act was serious.

I

The relevant facts may be summarized as follows. A number of Bethlehem's employees engaged
in welding operations while replacing steel plates in various cargo tanks aboard a crude
oil tanker that was berthed for repairs at Bethlehem's shipyard in Baltimore,
Maryland.  The new steel plates were coated with an anti-corrosive, inorganic coating
called Rust-Ban 191.  A document titled "Material Safety Data Sheet"
obtained by the Secretary from Bethlehem and admitted in evidence indicates that Rust-Ban
191 is 80% zinc.  During the course of the month-long repair activities, welding was
performed upon steel surfaces coated with Rust-Ban 191. This welding produced zinc oxide
fumes which were detected in measurable concentrations in the cargo tanks as a result of
air sampling by a Bethlehem environmental health technician.[[3]]  The inhalation of
zinc oxide fumes can cause a condition known as metal fume fever.  The "Material
Safety Data Sheet" recommends that respiratory protection be provided. 
Bethlehem's employees were not provided with air line respirators, although some
fume-filter cartridge respirators were available during part of this period and mechanical
exhaust fans were located on deck to help circulate air down in the bottom of the tanks.

One of the welders, Ochs, testified that, after he had noticed that several
other employees engaged in the welding operation were missing work due to illness, he
spoke with 29 co-workers who told him that they had experienced nausea, chills, headaches,
bronchial and chest cramps and pains, and sore throats while welding in the tanks.
 Ochs filed a complaint with the Occupational Safety and Health Administration
("OSHA") after a Baltimore physician, Dr. Keogh, had reviewed the medical
records of those affected and had concluded that a majority of those who became ill had a
syndrome compatible with metal fume fever.  By the time OSHA received the complaint,
however, the tanker had left the shipyard and, therefore, the OSHA compliance officer was
unable to inspect it.  Later, at the hearing before Judge Brennan, the compliance
officer testified that he had been told by three industrial hygienists at the OSHA office
that they considered Rust-Ban 191 to be a toxic preservative.  The compliance officer
-- who conceded that he had no background in medicine, toxicology, or pharmacology --
accepted the hygienists' assessment regarding the toxicity of the coating, as well as
their opinion that metal fume fever could cause serious physical harm.  He also
testified that he believed that metal fume fever lasts a day or two and that zinc remains
in the body about one day.

In his decision, Judge Brennan determined that Bethlehem had been properly
cited under section 1915.33(c)(1).  He then turned to the question of whether the
Secretary had established that Bethlehem's employees were exposed to "toxic"
concentrations of zinc oxide while working in the vessel's tanks, thereby implicitly
holding that the Secretary was required to make such a showing in order to establish
noncompliance with the cited standard.  The judge noted that, according to the
standard at 29 C.F.R. � 1910.1000(a)(2), Table Z-1, zinc oxide is a toxic substance in
concentrations exceeding an 8-hour time-weighted average of 5 mg/M3.[[4]]  The judge
found that no quantitative data had been introduced to establish that the threshold limit
value (TLV) for zinc oxide set forth in section 1910.1000 had been exceeded.  He
characterized the only evidence directly relevant to this issue, i.e., the testimony of
Bethlehem's environmental health technician concerning the samples he had taken, as
"not conclusive."  The judge noted that the Secretary had attempted to
bridge "a substantial evidentiary gap" by introducing the compliance officer's
testimony relating the opinion of the three OSHA industrial hygienists, Ochs' testimony
describing the symptoms reported to him by the 29 employees, and a letter by Dr. Keogh
stating his evaluation of the symptoms which the employees had related to him.  The
judge found that none of this hearsay evidence was corroborated at the hearing and he
indicated that such uncorroborated hearsay could not support a finding of noncompliance.
  Having concluded that the Secretary had failed to establish that the employees were
exposed to toxic concentrations of zinc oxide while welding, Judge Brennan vacated this
item of the citation.

II

Bethlehem endorses Judge Brennan's determination that, in order to establish the alleged
violation at issue, the Secretary had the burden of proving that the concentration of zinc
oxide fumes exceeded 5 mg/M3 in the enclosed spaces in which welding was performed. [[5]]
Bethlehem refers to the alternative tests set forth in 29 C.F.R. � 1910.141(a)(2)(viii),
which defines "toxic material" as "a material in concentration or amount
which exceeds the applicable limit established by a standard, such as �� 1910.1000 and
1910.1001 or, in the absence of an applicable standard, which is of such toxicity so as to
constitute a recognized hazard that is causing or is likely to cause death or serious
physical harm."  Bethlehem asserts that, once the + 25% sampling error factor is
applied to the results of the samples taken by its environmental health technician, there
is no record evidence to show that the 5 mg/M3 TLV was exceeded.  Moreover, it
continues, by failing to show exposure to zinc oxide fume in excess of 5 mg/M3, the
Secretary has also failed to establish that the employees were exposed to any hazard,
because, in Bethlehem's view, no adverse health effects could be expected as a result of
exposure to concentrations below 5 mg/M3.  Bethlehem argues that the concentrations
shown in this case cannot be said to cause death or serious physical injury because the
record establishes the relatively brief duration of metal fume fever.  Accordingly,
Bethlehem concludes, Rust-Ban 191 does not constitute a toxic material under either part
of the definition set forth in section 1910.141(a)(2)(viii).

III

The cited standard, a specification standard, requires that employees engaged in welding,
cutting or heating in enclosed spaces on surfaces covered with toxic preservatives must be
protected by air line respirators or that the toxic coating must be stripped at least four
inches from the area of heat application.  It is not seriously disputed -- and Judge
Brennan so found -- that air line respirators were not provided and that welding was
performed in enclosed spaces on surfaces which had not been stripped of coating.  
Thus, the matter fundamentally at issue before us is whether the unstripped coating on the
steel plates was a "toxic preservative coating" within the meaning of the cited
standard, note 1 supra.

Bethlehem contends that Judge Brennan properly held that the Secretary failed
to prove that Rust-Ban 191 is a toxic preservative coating.  We disagree.  The
Material Safety Data Sheet indicates that the preservative coating Rust-Ban 191 is 80%
zinc.  It also prescribes the use of respiratory protection and urges the use of
adequate ventilation while welding coated surfaces.  The record evidence,
particularly the four samples collected by Bethlehem's own environmental health
technician, establishes that welding upon steel surfaces coated with Rust-Ban 191 produces
measurable concentrations of zinc oxide fume.  Under the ship repairing standards
Bethlehem was expressly required to ascertain the threshold limit value for zinc oxide. 29
C.F.R. � 1915.57 provides in pertinent part:

� 1915.57 Health and sanitation.

(a) No chemical product, such as a...preservative; [and] no structural material, such
as... zinc coated steel ... which is a hazardous material within the meaning of �
1915.2(s), shall be used until the employer has ascertained the potential fire, toxic, or
reactivity hazards which are likely to be encountered in the handling, application, or
utilization of such a material.

(b) In order to ascertain the hazards, as required by paragraph (a) of this section, the
employer shall obtain the following items of information which are applicable to a
specific product or material to be used:

(7) Health hazard data, including threshold limit value, in appropriate
units, for a single hazardous chemical or for the individual hazardous ingredients of a
mixture, as appropriate; ....

Section 1915.2(s), cited in section 1915.57(a), defines "hazardous
material" as having any of seven characteristics, including "...a threshold
limit value... below 500 mg/M3 for fumes .... " The threshold limit value for zinc
oxide fumes is set forth in Table Z-1 of section 1910.1000, the roster of toxic and
hazardous substances.  Table Z-1 applies in this case because there is no specific
reference in or to section 1915.57(a) regarding any other source for threshold limit
values.  The low TLV for zinc oxide fume found in Table Z-1, 5 mg/M3, establishes the
characterization of these fumes as "hazardous." [[6]]  We also note that
metals coated, as here, with zinc-bearing materials are deemed to be "of toxic
significance" pursuant to section 1915.31(c)(1), a companion standard to section
1915.33(c)(1) in Subpart D--Welding, Cutting and Heating, of the Safety and Health
Regulations for Ship Repairing under Part 1915.  Based on the foregoing evidence as
well as the Secretary's regulations, we conclude that Rust-Ban 191 is a "toxic
preservative coating" within the meaning of the cited standard.

We reject Bethlehem's argument that, in order to establish a violation of
section 1915.33(c)(1), the Secretary had the burden of proving the presence of zinc oxide
fume in excess of the levels set forth in Table Z-1.[[7]]  The plain meaning of the
cited standard is that employees must be protected by air line respirators unless
"all toxic coatings" have been stripped for a distance of at least 4 inches from
the area of heat application.  The standard applies to all surfaces covered by a
toxic coating.  Its application is not determined by the level of air contaminants
produced by welding, cutting or heating these surfaces.[[8]]

Bethlehem's interpretation also is contrary to the standard's preventative
intent.  The standard requires either the stripping of coating away from the area of
heat application, which would prevent the creation of any toxic air contaminants, or the
use of air line respirators, which would assure protection from any toxic air contaminants
that were created.  The interpretation advocated by Bethlehem would permit employees
to be exposed to toxic air contaminants caused by welding upon surfaces coated with a
toxic preservative for as long a period as is necessary to extrapolate an 8-hour
time-weighted average.  Indeed, such exposure could continue until the ever-changing
concentration of zinc oxide fume created by the process of welding in an enclosed space
reached the point where the TLV was exceeded.  In our view, Bethlehem's
interpretation contravenes the clear intent of the standard, which is to protect employees
from any exposure to the air contaminants created by welding on a toxic preservative
coating by taking precautions before welding ever begins.

In Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1480, 1981 CCH
OSHD � 25,300, p. 31,352 (No. 13102, 1981), the Commission held that 29 C.F.R. �
1910.1001(c)(2)(iii) is not limited in its application to those situations in which the
permissible exposure limit for asbestos is exceeded.  In essence, the Commission
concluded that the standard cited in that case was a work practices standard that required
employees to use supplied-air respirators and special clothing whenever they engaged in
the specified activities of spraying, demolition, or removal of asbestos.  We
conclude that the standard at issue in this case is similar to the standard at issue in
Anaconda, i.e., both standards require specified precautions to be taken whenever
employees are engaged in specified activities.  Therefore, the cited standard like
the standard at issue in Anaconda is not limited in its application to situations where a
showing is made that permissible exposure limits have been exceeded.  Inasmuch as
Bethlehem failed to provide air line respirators when its employees welded upon surfaces
which had not been stripped of a toxic preservative coating, we further conclude that
Bethlehem failed to comply with 29 C.F.R. � 1915.33(c)(1).[[9]]

The citation alleged that the violation was serious in nature.  Viewing
the evidence in the light most favorable to the Secretary, it could be concluded that some
of the affected employees contracted metal fume fever as the result of exposure to zinc
oxide fumes in the cargo tanks.  Also, the compliance officer reported the hearsay
opinion of three OSHA industrial hygienists that metal fume fever could cause serious
physical harm and Dr. Keogh's report indicated that some of the workers exposed had
persistent symptoms.  Nevertheless, Dr. Keogh noted that these persistent symptoms
are "clearly not typical of the course reported in the literature for metal fume
fever."  Moreover, the ACGIH documentation regarding zinc oxide fume states that
"[m]ost authorities agree that metal fume fever itself is a relatively innocuous
condition.  It has been described as temporary and never serious, of brief duration
and without aftereffects, never fatal . . . . "[[10]]  There is no argument or
evidence that employees were exposed to the hazard of contracting metal fume fever other
than during this one welding operation or that the metal fumes were contaminated with any
other substance that could aggravate the resulting symptoms.  Thus, the Secretary's
case rests on the effects of metal fumes during the limited period of welding involved in
this case.

We conclude that the Secretary's evidence does not establish a probability that metal fume
fever could result in prolonged or serious physical harm in light of the references by Dr.
Keogh and ACGIH to the widely-held scientific opinion to the contrary.

As to the appropriate penalty, the gravity of the violation was substantial
because a great number of employees were exposed to the zinc oxide fumes.  Bethlehem
is a large company with many prior violations.  Though Bethlehem showed a degree of
good faith by monitoring some employees' exposure levels, it took no action after those
readings revealed exposure to measurable concentrations of zinc oxide fume.  In
addition, the inadequate metal fume filter respirators were not always provided.  In
consideration of these factors we assess a $300 penalty.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  FEB 28 1983

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FOOTNOTES:

[[1]] The standard provided as follows:

� 1915.33 Welding, cutting and heating in way of preservative coatings. (c)
Protection against toxic preservative coatings. (1) In enclosed spaces all surfaces
covered with toxic preservatives shall be stripped of all toxic coatings for a distance of
at least 4 inches from the area of heat application or the employees shall be protected by
air line respirators meeting the requirements of � 1915.82(a).

The Secretary recently has consolidated and revised the standards that
previously were published at 29 C.F.R. Parts 1915, 1916 and 1917.  These revised
standards have been promulgated as a new 29 C.F.R. Part 1915--Occupational Safety and
Health Standards for Shipyard Employment. 47 Fed. Reg. 16984-17013 (April 20, 1982). The
standard cited in this case and set forth above is now found at 29 C.F.R. �
1915.53(d)(1). 47 Fed. Reg. 16995. In this decision, we will use the old designation for
the cited standard, as well as for the other standards and regulations that formerly were
published in Part 1915--Safety and Health Regulations for Ship Repairing.

[[2]] Section 17(k), 29 U.S.C. � 666(j), of the Act provides:

[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...
unless the employer did not, and could not with the exercise of reasonable diligence, know
of the presence of the violation.

[[3]] The Bethlehem environmental health technician testified that he took
samples in the tanker but did not use any breathing zone monitoring devices because none
of the employees he approached were willing to wear them.  Therefore, instead of
attaching sampling devices to individual employees, he took sampling pumps and placed them
in pairs in different areas where employees were working.  He collected four samples
which yielded zinc oxide in the following concentrations:

Sample#

Sample Duration
              Zinc-Oxide
Concentration

1

36 minutes

.74 mg/M3

3

15 minutes

5.67 mg/M3

5

10 minutes

1.14 mg/M3

6

30 minutes

3.66 mg/M3

test, so he was unable to state at what level inside the tanker the samples had been
taken.

At the hearing the technician initially testified that he had computed the exposure level
in terms of a time-weighted average by adding the concentration level figures determined
by the samples taken and then dividing that total by the number of samples. However, he
later admitted that the figure he had computed could not be equated with an 8-hour
time-weighted average.

[[4]] The standard at 29 C.F.R. � 1910.1000(a)(2) requires employee exposure
to specified air contaminants to be limited to the applicable 8-hour time-weighted average
as listed in Table Z-1.

[[5]] Both Bethlehem and the Secretary frame their arguments in terms of
whether the samples taken by the environmental health technician indicated a concentration
of zinc oxide fume in excess of 5 mg/M3 for the brief period of time sampled.  They
overlook the fact that this TLV for zinc oxide fume is an 8-hour timeweighted average.

[[6]] Commissioner Cleary does not rely on the listing of zinc oxide fumes in
Table Z-1 of � 1910.1000 as a basis for concluding that Rust-Ban 191 is a toxic
preservative coating.  Instead, he notes that the American Conference of Government
Industrial Hygienists, in its publication, Threshold Limit Values, has set a TLV for zinc
oxide fumes of 5 mg/M3, and that � 1915.5 specifically incorporates this publication into
�� 1915.11(a)(3) and (b)(3) and 1915.21(b).  Accordingly, Commissioner Cleary
concludes that the references to threshold limit values in �� 1915.2(s) and 1915.57
refer to the TLVs as established and published by the ACGIH.

[[7]] The definition of "toxic material" at 29 C.F.R. �
1910.141(a)(2)(viii) cited by Bethlehem is by its terms applicable only to 29 C.F.R. Part
1910, Subpart J, and does not control the meaning of "toxic coating" under the
cited standard.

[[8]] Commissioner Cottine notes that the dissent at n.15, infra, overlooks
the elementary distinction between a permissible exposure level and a work practice. See
29 C.F.R. � 1910.1001(b)(1), (c)(2)-(iii) (asbestos standard: separate requirements for
permissible exposure level and work practices), � 1910.1029(c), (f)(3) (coke oven
emissions standard: same), � 1910.1043(c), (g) (cotton dust standard: same).  In
Bethlehem Steel Corp., 82 OSAHRC 31/A2, 10 BNA OSHC 1673, 1982 CCH OSHD � 26,083 (No.
77-1807, 1982), the standard specifically required a mechanical ventilation system
adequate to maintain welding fumes and smoke "within safe limits" unless
alternative protection was provided. 29 C.F.R. � 1916.31(a), (b).  However, the
citation in this case involves the work practices provision of � 1915.33(c)(1).  
This provision specifically mandates protection unless all toxic coatings are removed from
the area of heat application.  Therefore, this provision requires specific work
practices regardless of air contaminant levels when welding is to be done on surfaces
covered with toxic preservative coatings.  These work practices are supplemented by
the requirement of adequate ventilation or alternative protection when welding smoke and
fumes exceed "safe levels." Work practices are dependent on a qualitative
criterion--"metals of toxic significance" on the surface of the material to be
welded--and by a quantitative criterion--the "safe limits" established by the
permissible exposure levels for toxic air contaminants. Accordingly, Commissioner Cottine
adheres to his fully consistent view that the threshold limit values of Table Z-1 of �
1910.1000 are an appropriate quantitative reference for a standard requiring the
measurement of air contaminants, Bethlehem Steel Corp., 10 BNA OSHC, at 1677 n.9, 1982 CCH
OSHD at p. 32,832 n.9, but that this quantitative reference is irrelevant to a standard
that requires a specific work practice regardless of the air contaminant levels.

[[9]] Our finding that the coating before us is a "toxic preservative
coating" within the meaning of the cited standard is not based upon any of the
evidence which the judge characterized as "uncorroborated hearsay." Therefore,
we need not reach the evidentiary issues directed for review in order to dispose of this
case. It is, of course, well-settled that hearsay evidence is admissible in Review
Commission proceedings and that hearsay evidence may be probative. E.g. Ultimate
Distribution Systems, Inc., 82 OSAHRC 22/B12, 10 BNA OSHC 1568, 1982 CCH OSHD � 26,011
(No. 79-1269, 1982).

[[10]] ACGIH, Documentation of the Threshold Limit Values 284 (3d ed.
1971)(citations omitted); see also Id. 446 (4th ed. 1980).