Belden Brick Co.

Plain-English summary

OSHA sampled six employees at Belden Brick's Ohio manufacturing facility and found exposure to respirable dust containing crystalline silica above the permissible limits. Belden argued that each calculated silica limit should be compared only with the pure silica portion of the dust sample, rather than the total respirable dust containing silica. The Commission rejected that approach because the Table Z-3 formula already accounts for the percentage of silica in the dust, and dividing by that proportion again would distort the calculation. It also held that Belden had fair notice because the standard's meaning was plain and OSHA had applied it consistently. The Commission affirmed the respiratory-program, overexposure, and engineering-control items and assessed $4,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.134(a)(2); 29 C.F.R. § 1910.1000(c); 29 C.F.R. § 1910.1000(e).
• Outcome: Three serious silica-related items affirmed with a total penalty of $4,500.
• Key point: Under Table Z-3, the silica PEL is compared with total respirable dust containing silica because the formula itself already adjusts for silica percentage.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 97-2102
BELDEN BRICK CO. ,
Respondent.

                                     DECISION

Before: ROGERS, Chairman, VISSCHER, Commissioner.
BY THE COMMISSION:
Belden Brick Co. (Belden Brick) manufactures bricks at its facility in Sugarcreek,
Ohio. OSHA Compliance Officer (CO) Scott Feil inspected Belden Brick’s facility from
September 17 through October 17, 1997 and, on November 18, 1997, the Secretary cited
Belden Brick for alleged serious violations of the air contaminants standards under the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act). Belden
Brick contested Citation 3, Items 1(a), (b), and (c).1 The dispute regarding these items
pertains solely to the method of calculating overexposure to respirable crystalline quartz
silica (silica), for which the parties submitted cross motions for summary judgment on a
stipulated record. Administrative Law Judge Nancy J. Spies granted the Secretary’s motion,

   1
       Citation 3, Item 1(a) alleges a violation of 29 C.F.R. § 1910.134(a)(2) for Belden

Brick’s failure to establish a respiratory protection program; Item 1(b) alleges a violation of
29 C.F.R. § 1910.1000(c) for employee overexposure to respirable silica; and Item 1(c)
alleges a violation of 29 C.F.R. § 1910.1000(e) for Belden Brick’s failure to implement
administrative or engineering controls to comply with the respirable silica PEL.

                                                                    1999 OSHRC No. 24

2

thereby affirming the violations and assessing the proposed penalty of $4,500. We affirm
the judge’s decision.
BACKGROUND
Workplace exposure to silica is regulated by 29 C.F.R. §1910.1000(c), which
provides as follows:
An employee’s exposure to any substance listed in Table Z-3, in any 8-hour
work shift of a 40-hour work week, shall not exceed the 8-hour time weighted
average limit given for that substance in the table.

Table Z-3, entitled “Mineral Dusts,” contains the mathematical formula for calculating the
permissible exposure limit (PEL) to various “substances,” including “Silica: Crystalline
Quartz (Respirable).” The PEL formula for respirable silica is: 10mg/m³
% SiO2 +2
During the OSHA inspection, CO Feil sampled the respirable dust containing silica
to which six Belden Brick employees were exposed. Belden Brick knew, prior to the
inspection, that its employees were exposed to silica. The parties calculated the silica PELs
by dividing 10mg/m³ by the sum of two plus the percent of respirable crystalline quartz silica
contained in the dust samples (expressed as a whole number2). The data resulted in the
following calculations:3 SAMPLE NUMBER

                                        1        2        3       4        5       6

PEL (mg/m³) 0.714 0.858 1.17 0.926 1.09 0.81
8-hour TWA exposure to respirable 3.76 5.97 1.39 2.03 4.63 0.95
dust containing silica (mg/m³)
8-hour TWA exposure to pure 0.45 0.58 0.09 0.18 0.33 0.10
respirable silica (mg/m³)

   2
       See Bunge Corp., 12 BNA OSHC 1785, 1792 n.20, 1986-87 CCH OSHD ¶27,565,

p. 35,807, n.20 (No. 77-1622, 1986) (consolidated).
3
Exposures are calculated based on an 8-hour time weighted average (TWA). We
also note that there were small variations between the parties’ calculations, which would
have no effect on assessing overexposure.
 3

   Based on this data, the Secretary concluded that each of the tested employees was

overexposed to silica by comparing the calculated PELs to the 8-hour TWA exposures to
respirable dust containing silica. Belden Brick contests the citation based on its contention
that the PELs should have been compared to the 8-hour TWA exposures to only that portion
of the respirable dust that is pure respirable silica, and that doing so resulted in no
overexposures.
DISCUSSION
In Ohio Cast Products, Inc., OSHRC Docket No. 96-0774, which we also issue on
this date, we considered the identical issue presented here concerning the determination of
silica overexposure pursuant to the Table Z-3 formula. In Ohio Cast, for the reasons there
articulated, we upheld the Secretary’s application of the formula, concluding that “the
standard is not ambiguous” and “the Secretary has consistently enforced it in keeping with
its plain meaning.” Slip op. at 6-7. Here, it is undisputed that the six Belden Brick
employees were exposed to an 8-hour TWA of silica-containing respirable dust exceeding
the calculated PELs. Accordingly, applying the standard as upheld in Ohio Cast, we
conclude that the six employees were overexposed to silica.
We also found in Ohio Cast that enforcement of the standard against the cited
employer, who stipulated to knowledge that its operations utilized sand containing silica, did
not offend due process. Acknowledging the “ample unrebutted evidence” of twenty-eight
years of consistent application, we concluded that the standard’s “plain meaning would be
‘ascertainably certain’ to an employer who is aware that its operations generate silica dust
exposure.” Id at 7. Belden Brick also stipulated that it knew prior to the OSHA inspection
that its employees were exposed to silica dust. Consequently, we conclude that Belden
Brick had fair notice of the “means by which the cited standard provides for determining
silica overexposure.” Id.
Judge Spies assessed the proposed penalty of $4,500 for these violations. We note
that neither party has addressed the appropriateness of the penalty, and that the parties have
 4

consistently characterized review before the Commission as presenting only the substantive
issue of the method of calculating overexposure to silica. In these circumstances, we see no
reason to disturb the judge’s assessment. Accordingly, we affirm a serious violation for
Citation 3, Items 1(a), (b) and (c), and assess a total penalty of $4,500.

                                                      /s/
                                                      Thomasina V. Rogers
                                                      Chairman



                                                      /s/
                                                      Gary L. Visscher

Dated: September 22, 1999 Commissioner
 
Secretary of Labor,
Complainant,

             v.                                    OSHRC Docket No. 97-2102

Belden Brick Co.,
Respondent.


Appearances:

      Mary Anne Garvey, Esquire                    James P. Friedt, Esquire
             Office of the Solicitor                       Vorys, Sater, Seymour and Pease, LLP
             U. S. Department of Labor                     Columbus, Ohio
             Cleveland, Ohio                                         For Respondent
                      For Complainant

Before: Administrative Law Judge Nancy J. Spies

                     DECISION AND ORDER GRANTING THE
                SECRETARY’S MOTION FOR SUMMARY JUDGMENT
      Occupational Safety and Health Administration (OSHA) compliance officer Scott Feil

inspected a brick manufacturing facility owned and operated by Belden Brick Company (Belden)
on September 17, 1997. As a result of his inspection, the Secretary issued several citations to Belden
on November 18, 1997. Belden contested Citation No. 3, which contains three subitems. Item 1a
alleges a serious violation of § 1910.134(a)(2) for failure to develop a respiratory program containing
the required elements. Item 1b alleges a serious violation of § 1910.1000(c) and cites six instances
where employees were allegedly exposed to respirable crystalline quartz silica in excess of the
calculated permissible exposure limit (PEL). Item 3c alleges a serious violation of § 1910.1000(c)
for failure to implement administrative and/or engineering controls to comply with the PEL of
respirable crystalline quartz crystal.
 The parties agreed that the case could be resolved without a hearing. They filed stipulated
facts and cross-motions for summary judgment, and replies to the motions for summary judgment.
The dispositive issue is whether employee exposure to silica is determined by: (1) dividing
the total weight in micrograms of the entire respirable dust sample by the number of cubic meters
of air which flowed across the sampling device during the sampling period (which the Secretary
advocates); or (2) dividing the weight in micrograms of the silica dust, which constitutes only a part
of the entire dust sample, by the number of cubic meters of air which flowed across the sampling
device (as Belden contends).
For the reasons stated below, the Secretary’s position prevails.
Background
On August 12, 1998, the parties filed stipulated facts. The facts, which are pertinent to the
time in question, are as follows:
1. Belden owned and operated a workplace at State Route 39, Sugarcreek, Ohio, where
it was engaged in manufacturing bricks.
2. Belden was an employer engaged in a business affecting commerce within the
meaning of § 3(5) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651-
678 (1970).
3. Belden was subject to the requirements of the Act and the standards thereunder.
4. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.
5. Between September 17, 1997, and October 17, 1997, OSHA compliance officer Scott
Feil conducted an inspection of Belden’s Sugarcreek, Ohio, facility.
6. The following individuals were employed by Belden at the time of Feil’s inspection:
Wilson May, Tom Taylor, Chuck Barger, Terry Burkhart, Memo Miller, and Aden Troyer.
7. Chuck Barger, Meno Miller, Aden Troyer, Terry Burkhart, Wilson May, and Tom
Taylor are the employees described in items 1(b)(a), (b)(b), (b)(c), (b)(d), (b)(e), and (b)(f)
respectively.
8. On or about October 7, 1998, Messrs. Barger, Miller, Troyer, and May wore
respirators from which the lower straps had been removed.
 9. Prior to September 17, 1997, Belden did not establish and maintain a respiratory
protection program, which included all elements for the proper use of respirators as outlined in
29 C.F.R. § 1910.134(b), for the employees previously identified in Paragraph 8.
10. Prior to September 17, 1997, Belden knew that employees at its Sugarcreek, Ohio,
facility were exposed to silica.
11. The OSHA PEL for respirable silica is calculated pursuant to 29 C.F.R. § 1910.1000
by employing the following formula:
10 mg/m³
%SiO +2
²
12. The sole issue in this proceeding is whether overexposure to respirable silica is
determined by comparing the OSHA PEL for respirable silica to the amount of silica in the sample
as opposed to the total amount of dust containing silica in the sample.
13. OSHA used the following method to determine employee exposure to silica: the total
weight in micrograms of the entire amount of respirable dust in the sample, divided by the number
of cubic meters of air which flowed across the sampling device.
14. Belden used the weight of respirable silica to determine employee exposure rather
than the weight of the (total) respirable dust containing silica. By dividing the weight of respirable
silica by the cubic meters of air, the actual exposure for each of the six employees identified in
Paragraph 6 was determined to be significantly below the OSHA PEL for respirable silica exposure.
Application of Belden’s method of calculation to OSHA’s actual sampling results shows no over-
exposure to respirable silica.
15. Application of OSHA’s method of calculation to the samples of Belden’s employees
identified in Paragraph 6 yields an exposure level for each employee which is in excess of the OSHA
PEL.
16. Overexposure to silica can cause silicosis resulting in permanent lung damage and
disability.
17. Feasible administrative and engineering controls could have been implemented at
Belden’s facility to reduce employee exposure to silica.
 18. Because Belden did not find that its employees were overexposed to silica, it did not
determine and implement feasible administrative or engineering controls to reduce the silica
exposure of the employees identified in Paragraph 6.
Section 1910.1000(c)
Respirable silica is a "substance" listed in Table Z-3. The standard governing the allowable
level of respirable silica dust in the workplace is § 1910.1000(c), which provides:
An employee’s exposure to any substance listed in Table Z-3, in any
8-hour work shift of a 40-hour work week, shall not exceed the
8-hour time weighted average limit given for that substance in the
table.

   Table Z-3, entitled "Mineral Dusts," sets forth the mathematical formula for calculating the

PEL for "Silica: Crystalline Quartz (Respirable)" as follows:
10 mg/m³ 4
%SiO +2
²
The source standard of § 1910.1000, including Table Z-3, was 41 C.F.R. § 50-204.50. This
standard was originally issued under the Walsh-Healy Act and later adopted as an established federal
standard under § 6(a) of the Act. The Walsh-Healy standard was principally based on a non-
governmental consensus standard developed by the American Conference of Governmental
Industrial Hygienists (ACGIH). The mineral dust PELs established under 41 C.F.R. § 50-204.50
and later established in Table Z-3 of § 1910.1000 were derived from the ACGIH’s Threshold Limit
Values (TLV). When the Secretary incorporated the ACGIH TLVs into occupational health
standards, the TLVs were transformed into legally enforceable PELs.
Section 50-204.276 of the Walsh-Healy standards set forth limits for exposure to mineral
dusts that contained various amounts of silica. In 1971, the ACGIH published its "Documentation
of the Threshold Limit Values for Substances in Workroom Air" (ACGIH, 3rd Ed., 1971), in which
it stated that the TLV for silica quartz is to be measured relative to exposure of respirable dust
containing quartz.

   4
       The formula provides:
   10 milligrams per cubic meter of air
   percentage silicon dioxide (here, respirable quartz silica) +2

Page Five
OSHA’s method of sampling for silica exposure is to measure the total amount of respirable
particulate on a sampling filter and use it to calculate the 8-hour TWA exposure to respirable dust.
OSHA also analyzes the sample to determine the amount of silica on the sampling filter. Using the
amount of silica as expressed in terms of the percent of silica in the entire sample, OSHA then
calculates the PEL according to the formula in Table Z-3. The calculated PEL is then compared to
the 8-hour TWA respirable dust exposure. Overexposure to respirable silica exists where the 8-hour
TWA respirable dust exposure exceeds the calculated PEL.
Belden contends that the 8-hour TWA exposure to airborne silica should be calculated by
measuring only the respirable silica on the sampling filter, not the total amount of respirable
particulate. Belden argues that OSHA’s method allows the inclusion of inert or nuisance dust in the
equation, which skews the actual TWA exposure to silica.
Discussion
Review Commission Judge Michael Schoenfeld decided this same issue in Ohio Cast
Products, 1997 WL 235630 (No. 96-774, 1997). While Judge Schoenfeld’s order has no
precedential value in this proceeding, his reasoning is persuasive. In his order, Judge Schoenfeld
granted the Secretary’s motion for summary judgment, holding that
the fact that respirable silica may constitute only a portion of the total
respirable dust is taken into account by the very formula required to
calculate the PEL. That is, the "SiO2" of the formula requires that the
proportion of silica in the total respirable dust be accounted for.
Thus, applying the formula correctly does not, as respondent claims,
consider all respirable dust to which the employee is exposed to
silica. Respondent’s position amounts to a request that the PEL be
calculated by twice dividing the amount of respirable dust by the
proportion of that dust which is silica.

Id. at p.2 of ALJ’s Decision. Judge Schoenfeld found the language of the standard unambiguous,
but concluded that even if it were not, the Secretary’s interpretation of the standard was reasonable
and entitled to deference. Martin v. OSHRC (C F & I Steel), 499 U.S. 144 (1991). The undersigned
agrees.
Belden argues that the Secretary’s interpretation of § 1910.1000(c) denies Belden its right
of due process to fair notice of the law, citing Bunge Corporation, 12 BNA OSHA 1785
(Nos. 77-1622, 78-838 & 78-2213, 1986). In that case, the Commission considered whether Table
Z-3 was applicable to grain dust. The Commission concluded that, since the table only makes
reference to mineral dusts, it did not regulate grain dust exposure. The Commission also rejected,
on fair notice grounds, the application of the PEL for silica to situations where the respirable dust
was composed of both organic and inorganic matter.
As Judge Schoenfeld noted in Ohio Cast Products, Bunge is inapplicable to the issue of how
exposure to respirable silica (a mineral dust) is to be calculated. The issue presented in Ohio Cast
Products and the instant case was not an issue in Bunge. Belden had fair notice of OSHA’s
requirements under § 1910.1000(c).
Having considered the parties’ arguments and the facts presented, the Secretary’s motion for
summary judgment is GRANTED, and Belden’s motion for summary judgment is DENIED. Items
1a (§ 1910.134(a)(2)), 1b (§ 1910.1000(c)), and 1c (§ 1910.1000(e)) of Citation No. 3 are affirmed.
As the parties stipulated, OSHA’s method of calculation yields an exposure level in excess
of the PEL for each of the six employees named in item 1b. Overexposure to silica can cause
silicosis resulting in permanent lung damage and disability. The violations are serious. Based upon
the gravity of the violations, including the number of employees exposed and the duration of the
exposure, a total penalty of $4,500.00 for items 1a, 1b, and 1c of Citation No. 3 is assessed.

                                                  NANCY J. SPIES
                                                  Judge

Date: November 16, 1998