Union Oil Company of California
Union Oil Company of California (FMSHRC WEST 86-1-M): Vanadium exposure violation affirmed without S&S finding
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Plain-English summary
Union Oil Company of California operated the Parachute Creek underground oil shale mine. MSHA found that a welder's vanadium fume exposure exceeded the applicable limit during welding. The Commission agreed that the operator violated 30 C.F.R. §§ 57.5001 and 57.5005, but upheld the judge's decision that the violation was not significant and substantial because the record did not establish a reasonably serious illness from the measured exposure. The $75 civil penalty remained in place.
Decision snapshot
- Governing provisions: 30 C.F.R. §§ 57.5001 and 57.5005; 30 U.S.C. § 814(d)(1)
- Outcome: The violation and $75 penalty were upheld, while the significant-and-substantial finding was rejected.
- Key point: Proof of an overexposure does not by itself establish that the violation was significant and substantial; the seriousness of the likely illness must also be shown.
Full text (FMSHRC public release)
CCASE:
MSHA V. UNION OIL (CALIFORNIA)
DDATE:
19890331
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
March 31, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v. Docket No. WEST 86-1-M
UNION OIL COMPANY OF
CALIFORNIA
BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
DECISION
BEFORE: Chairman; Backley, Doyle and Nelson, Commissioners:
In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et. seq. (1982)
("Mine Act" or "Act"), we are asked to decide whether a violation of
30 C.F.R. $$ 57.5001/.5005 involving overexposure to vanadium fume
was of such nature as could significantly and substantially contribute
to the cause and effect of a mine health hazard. 1/ A hearing on the
merits was held
1/ 30 C.F.R. $ 57.5001 states in part:
Exposure limits for airborne contaminants.
Except as permitted by $ 57.5005 --
(a) Except as provided in paragraph (b),
the exposure to airborne contaminants shall
not exceed, on the basis of a time weighted
average, the threshold limit values adopted
Page 2
by the American Conference of Governmental
Industrial Hygienists, as set forth and
explained in the 1973 edition of the Conference's
publication, entitled "TLV's Threshold Limit Values
for Chemical Substances in Workroom Air Adopted by
ACGIH for 1973," pages 1 through 54, which are hereby
incorporated by reference and made
Page 3
~290
before Commission Administrative Law Judge John A. Carlson.
Following Judge Carlson's death, the case was reassigned for
decision to Commission Administrative Law Judge Michael A. Lasher,
Jr., who, without objection from the parties, decided the case on
the record developed before Judge Carlson. Judge Lasher determined
that Union Oil Company of California ("Unocal") violated sections
57.5001/.5005 but that the violation was not of a significant and
substantial nature. He assessed a civil penalty of $75.00 for the
violation. 9 FMSHRC 282 (February 1987)(ALJ). We granted the
Secretary's petition for discretionary review challenging the
judge's finding that the violation was not significant and
substantial, and we heard oral argument. For the
a part hereof. This publication may be
obtained from the American Conference of
Governmental Industrial Hygienists by writing to
the Secretary-Treasurer, P.0. Box 1937, Cincinnati,
Ohio 45201, or may be examined in any Metal and
Nonmetal Mine Safety and Health District or Subdistrict
Office of the Mine Safety and Health Administration.
Excursions above the listed thresholds shall not be of
a greater magnitude than is characterized as permissible
by the Conference.
* * *
(c) Employees shall be withdrawn from areas
where there is present an airborne contaminant
given a "C" designation by the Conference and the
concentration exceeds the threshold limit value
listed for that contaminant.
30 C.F.R. $ 57.5005 states in part:
Control of exposure to airborne contaminants.
Control of employee exposure to
harmful airborne contaminants shall be,
insofar as feasible, by prevention of
contamination, removal by exhaust ventilation,
or by dilution with uncontaminated air.
However, where accepted engineering control
measures have not been developed or when
necessary by the nature of work involved (for
example, while establishing controls or occasional
entry into hazardous atmospheres to perform
Page 4
maintenance or investigation), employees
may work for reasonable periods of time in
concentrations of airborne contaminants exceeding
permissible levels if they are protected by
appropriate respiratory protective equipment. ...
The airborne contaminant at issue in this case is vanadium fume.
Definitions of vanadium and vanadium pentoxide, a toxic form of
vanadium, are provided below; the Threshold Limit Value for vanadium
is also discussed below.
Page 5
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reasons that follow, we affirm.
I.
Unocal operates the Parachute Creek Mine, an underground oil
shale mine, located near Parachute, Colorado. On May 14, 1985,
during an inspection of the mine, Inspector Michael T. Dennehy of
the Department of Labor's Mine Safety and Health Administration
("MSHA") learned that hard surface arc welding was being performed at
the mine's secondary crusher and that the welders were using welding
rods containing vanadium. 2/ The inspector decided to sample the
welders for exposure to vanadium fume. Vanadium in the form of either
dust or fume is one of the airborne contaminants subject to sections
57.5001/.5005. The Threshold Limit Value ("TLV") for vanadium fume,
as set forth in a 1973 publication of the American Conference of
Governmental Industrial Hygienists' incorporated by reference in
section 57-5001, is .05 milligrams of vanadium per cubic meter of
air (mg/m ). 3/
2/ Vanadium, a metallic element, is described as follows:
A gray or white, malleable, ductible, polyvalent
metallic element in group V of the periodic system.
It is resistant to air, sea water, alkalies, and
reducing acids except hydroflouric acid. lt occurs
widely but mainly in small quantities in combination
in minerals (such as vanadinite, patronite, carnotite,
and roscoelite), in the ashes of many plants, in coals,
in petroleums, and in asphalts. Usually obtained in the
form of ferrovanadium or other alloys, or in almost pure
metallic form containing small amounts of oxygen, carbon,
or nitrogen by the reduction of ores, slags, or vanadium
pentoxide (V205). Used chiefly in vanadium steel.
Bureau of Mines, U.S. Department of the Interior, Dictionary of
Mining, Mineral, and Related Terms 1195 (1968) ("DMMRT").
3/ The publication incorporated in section 57.5001, Threshold Limit
Values for Chemical Substances in Workroom Air Adopted by the American
Conference of Governmental Industrial Hygienists (ACGIH)) for 1973
("ACGIH TLVs"), provides the following TLVs for vanadium:
Substance ppm a) mg/M3 b)
Vanadium (V205, as V --- 0.5
Page 6
Dust
C Fume --- 0.05
a) Parts of vapor or gas per million parts of contaminated
air by volume at 25oC and 760 mm. Hg.
Page 7
~292
On May 15, 1985, having obtained proper sampling equipment,
Dennehy went to the crusher area, where four welders were working,
and equipped each welder with a sampling cassette and pump. At
issue in this proceeding is sample number MD-1 (Exh. P-2). This
sample was from one of the employees engaged in welding, and was
obtained on the basis of the employee's having worn the pump and
filter during the entire shift from 7:24 a.m. to 2:45 p.m. (with
one 30-minute interruption while the inspector took a short-term
sample). Tr. 24, 67. During the first part of the sampling period,
the exhaust fan at the crusher system was turned off. The fan was
restarted during the afternoon of the sampling day, and the judge
found that, had it been operating, the welder would not have been
overexposed to vanadium fume. 9 FMSHRC at 285. During the testing
period the employee was not wearing personal protective equipment
to protect him from exposure to welding fumes.
After collecting the sampling equipment at the end of the
day shift, the inspector took the samples to an MSHA field office
and they were then sent to the MSHA Technological Center in Denver,
Colorado, for
pressure.
b) Approximate milligrams of substance per cubic meter
of air.
ACGIH TLVs at 31.
"V205" in this TLV refers to vanadium pentoxide (hereafter
referred to as "V205"), a toxic oxidized compound of vanadium. V205
is described as follows:
Yellow to red; orthorhombic; ... toxic; melting
point, 690oC; decomposes at 1,750oC before reaching
a boiling point; slightly soluble in water; soluble
in acids and alkalies; and insoluble in absolute alcohol.
Used in ceramics and as a catalyst. ... Also used as a
glass colorant....
DMMRT 1196. Although the specific toxic substance with which the
vanadium TLV is concerned is V205, the TLV is expressed in terms of
vanadium either as a dust or fume. 9 FMSHRC at 285; Tr. 100-02,
140-41, 168, 208-10. See also Secretary's Brief on Review at 2-3 &
n.2. When MSHA samples for exposure to vanadium under this TLV, the
sample result is described in terms of a concentration of vanadium.
Page 8
Id.
The "C" designation for vanadium fume in the ACGIH TLVs refers
to a "Ceiling limit," which is a level of exposure that is not to be
exceeded. A C limit is different from a "Time-Weighted Average" limit
("TWA"), which contemplates the possibility of temporary incursions
beyond the limit. See section 57.5001(c)(n.1 supra); see also ACGIH
TLV 3-4.
With respect to the arc welding procedure involved in this
case, heat applied to a metal welding rod containing vanadium
vaporizes the vanadium and produces vanadium fume. Vanadium fume
contains vanadium and V205. 9 FMSHRC 287-89; Tr. 99-100. See also
DMMRT 698 (definition of "metallurgical fume").
Page 9
~293
analysis. The subsequent report of results indicated that the
sample in question contained 47.4 microns of vanadium. From this
number, the inspector calculated that the concentration of vanadium
fume to which the welder had been exposed was .0678 mg/m3.
Based on these test results, the inspector determined that
the exposure of the sampled welder was above the allowable TLV for
vanadium fume, and he issued to Unocal a citation, pursuant to
section 104(a) of the Mine Act, 30 U.S.C. $ 814(a), alleging a
violation of sections 57.5001/.5005. The citation states in
relevant part:
The welder was exposed to .0678 mg/m3 of
Vanadium fume whereas Vanadium fume has a ceiling
limit of .05 mg/m3 and should not be exceeded.
Personal respiratory protection was not being worn
by the employee while he was welding....
Subsequently, the inspector modified the citation by designating the
violation as involving a significant and substantial contribution to
a mine health hazard. 4/ Unocal contested both the citation alleging
a violation of section 57.5001/57.5005 and the associated significant
and substantial finding. In particular, Unocal argued that MSHA's
vanadium fume sampling and analysis procedures were defective and
that, there- fore, the Secretary had not proven the violation.
In his decision, Judge Lasher concluded that the operator had
violated sections 57.5001/.5005 by exceeding the TLV for vanadium
fume during the cited welding operation. 9 FMSHRC at 285-94.
Preliminarily, the judge noted that the form of vanadium at which
section 57.5001 is directed under the incorporated ACGIH TLVs is V205
although the TLV is expressed, and sampled for, in terms of vanadium.
9 FMSHRC at 285-86. The judge further noted that the "violation
created" by section 57.5001 in this respect is "for exceeding the TLVs
for Vanadium fume or Vanadium dust." Id. The judge found that the
application of heat to the vanadium welding rods during welding
vaporizes the vanadium and that, if the vaporous vanadium is mixed
with air, V205 results. 9 FMSHRC at 287.
4/ The "significant and substantial" finding is drawn from section
104(d)(1) of the Mine Act, which provides in relevant part:
If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory health
Page 10
or safety standard, and if he also finds that, while
the conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard... he shall include such finding in any citation
given to the operator under this chapter....
30 U.S.C. $ 814(d(1).
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Based on the testimony of MSHA's witness Richard L. Duran, an
MSHA industrial hygienist, the judge found, inter alia. that the
presence of vanadium in vanadium fume necessarily implies the
presence of vanadium pentoxide in the fume; that the oxide is
heavier than the element; that the vanadium fume TLV of .05 mg/m3
is equivalent to a V205 reading of two and one-half times such level;
and that the sample value of .0678 mg/m3 in this case would indicate
an exposure to V205 at two and one- half times that amount. 9 FMSHRC
at 286-87; Tr. 102, 168. 5/
The judge related in detail how Inspector Dennehy had tested
for and obtained the vanadium fume sample. 9 FMSHRC at 286-87.
The judge accepted the inspector's calculation of a .0678 mg/m3
exposure value for vanadium fume, some 35 percent in excess of the
TLV ceiling level of .05 m8/m3 for the fume. 9 FMSHRC at 287-88.
The Judge found that the inspector had used the correct testing
equipment and procedures and rejected an extensive Unocal challenge
that the inspector's fume samples were contaminated with vanadium
dust. 9 FMSHRC at 287-94. Given these findings, the judge concluded
that an overexposure violation had been established. 9 FMSHRC at 294.
Having found a violation of sections 57.5001/.5005, the
judge addressed the issue of whether the violation was significant
and substantial. Citing the general Commission test for determining
a significant and substantial violation as set forth in Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981),
Mathies Coal Co., 6 FMSHRC 1 (1984), the judge found that the
violation of sections 57.5001/.5005 contributed to a "measure of
danger" to health. 9 FMSHRC at 295. The judge defined the crucial
issue as "whether the Secretary established that there existed a
reasonable likelihood that the hazard contributed to would result
in an injury (illness)." Id.
The judge then summarized Duran's testimony to the effect
that overexposure to vanadium "could" create serious health hazards;
that bronchial irritation, possible pneumonia or asthma could occur;
that an overexposed employee could become sensitized after repeated
doses; and that exposure to a level of .0678 mg/m3 could cause a
cough, sore throat, breathing difficulty and other flu-like symptoms.
9 FMSHRC at 296; Tr. 105-111. The judge described Duran's testimony
as to the likelihood of illness or injury as being of a "speculative
complexion." 9 FMSHRC at 296.
The contrary testimony of Unocal's expert witness, Paul
Ferguson, a Ph.D in toxicology, was summarized by the judge as
Page 12
concluding that "an .0678 exposure to vanadium fume would not
cause an injury resulting in
5/ At oral argument in this matter, counsel for the Secretary
stated that any constant correlation of two and one-half times for
the respective values of vanadium and V205 in vanadium fume could
not be made "on the basis of what we have in the record," and that
the "Secretary was willing to rest, in general, upon the factual
premise that the expression of the measurement of vanadium is going
to be less than the expression of the measurement as vanadium
pentoxide." Tr. Or. Arg. 5, 8-9.
Page 13
~295
lost work days; that there was not a reasonable likelihood that
such an exposure would result in an illness; and that there was
not a reasonable likelihood that any resulting illness would be
of a reasonably serious nature." 9 FMSHRC at 296; Tr. 215-17. The
judge accepted Ferguson's testimony that ".1 milligrams per cubic
meter is the lowest level" at which any symptoms such as coughing or
slight irritation appear, and the ".05 limit includes a safety factor
that to the best of our knowledge, would provide no symptoms." Id.
Crediting Ferguson's testimony, the judge stated:
Dr. Ferguson s opinion that there was not
a reasonable likelihood of an injury (illness)
occurring at the level of exposure detected by
Inspector Dennehy is, in view of its positive and
convincing tenor and supportive rationale, accepted.
9 FMSHRC at 297.
The judge also concluded that the presumption of a significant
and substantial health violation announced by the Commission with
respect to violations of the standard covering respirable dust in
coal mines in Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd,
824 F.2d 1071 (D.C. Cir. 1987) ("Consol" decision), did not apply to
the vanadium overexposure violation involved in this case. Id.
Accordingly, the judge determined that the violation was not of a
significant and substantial nature. Id.
Unocal did not seek review of the judge's determination that
a violation occurred, but the Secretary sought and was granted
review of the judge's significant and substantial findings. The
Secretary asserts before us that a violation of sections 57.5001/.5005
is presumptively significant and substantial and that the judge failed
to apply properly the Commission's decision in Consol, supra. Closely
related to this argument is the Secretary's contention that by placing
a C limit on the vanadium fume TLV, the Secretary has made a
regulatory determination that violative exposures above that limit
are, per se, of a significant and substantial nature. The Secretary
also argues that, in any event, the evidence of record does not
support the judge's finding that the violation was not of a
significant and substantial nature. We disagree.
II.
We first discuss the proper test for determining whether the
violation at issue was of a significant and substantial nature. In
Page 14
National Gypsum, supra, the Commission announced its general test
for determination of significant and substantial violations:
[A] violation is of such nature as could
significantly and substantially contribute
to the cause and effect of a mine safety or
health hazard if, based upon the particular
facts surrounding that violation, there
exists a reasonable likelihood that the hazard
contributed to will result in an injury or
illness of a reasonably serious nature.
Page 15
~296
3 FMSHRC at 825. Consonant with the Mine Act's significant and
substantial phraseology and the Act's overall enforcement scheme,
we also stated:
[A] violation "significantly and substantially"
contributes to the cause and effect of a hazard if
the violation could be a major cause of a danger to
safety or health. In other words, the contribution to
cause and effect must be significant and substantial.
3 FMSHRC at 827 (footnote omitted). See also U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984); Consolidation Coal Co., 6 FMSHRC
34, 37 (January 1984); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984). Thus, the violation must be a ma]or cause of a danger to
safety or health.
In Mathies Coal Co., supra, we further discussed the elements
that establish, under National Gypsum, whether a violation of a
mandatory safety standard is significant and substantial:
[T]he Secretary ... must prove: (1) the
underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
6 FMSHRC at 3-4 (footnote omitted). In Consol, supra, we applied the
Mathies framework to violations of mandatory health standards:
Adapting this test to a violation of a mandatory
health standard ... results in the following formulation
of the necessary elements to support a significant and
substantial finding: (1) the underlying violation of a
mandatory health standard; (2) a discrete health hazard--a
measure of danger to health--contributed to by the violation;
(3) a reasonable likelihood that the health hazard contributed
to will result in an illness; and (4) a reasonable likelihood
that the illness in question will be of a reasonably serious
nature.
8 FMSHRC at 897.
Page 16
In employing this test in Consol with respect to a violation
of section 70.100(a), the mandatory standard addressing respirable
dust in coal mines, we recognized that proof of the third element
-- a reasonable likelihood that the health hazard contributed to
will result in an illness -- would be somewhat elusive as to the
development of insidious, progressive lung disease as a consequence
of a single overexposure. 8 FMSHRC at 898-99. However, taking into
account the
Page 17
~297
Mine Act's "fundamental purpose" in preventing pneumoconiosis and
related lung diseases caused by overexposure to respirable dust in
coal mines, we held that in all cases where a violation of 30 C.F.R.
70.100(a) is proved, "a [rebuttable] presumption that the violation
is significant and substantial is appropriate." 8 FMSHRC at 899.
This holding was based upon the overwhelming evidence in the record
of the debilitating health hazard associated with overexposure to
respirable dust, upon extensive reference to the pertinent legislative
history, and upon Congress' stated goal in limiting miners' exposure
to respirable dust in coal mine atmospheres. 8 FMSHRC at 895-99.
The United States Court of Appeals for the District of Columbia
Circuit agreed that once "the Commission had determined on the basis
of medical evidence that any violation of the respirable dust
standard should be considered significant and substantial, it would
be meaningless to require that the same findings be made in each
individual case in which a violation occurs" and affirmed the
decision. 824 F.2d at 1084.
The Secretary argues that a Consol.type presumption is
appropriate here and that the C limit applicable to vanadium fume
requires the same legal result. This specific argument was not
made at the hearing level and, except for good cause shown, no
assignment of error by a party may rely upon any question of fact or
law upon which the judge has not been afforded an opportunity to pass.
30 U.S.C. $ 823(d)(2)(A) (iii). The Secretary has not shown any cause
why this argument was not made to the judge. Furthermore, our holding
in Consol was made in the specific context of respirable dust in coal
mines. As discussed in Consol (8 FMSHRC at 895-99), the presumption
that violations of the respirable dust standard are of a significant
and substantial nature was established based on the pertinent
legislative history and on the evidence adduced in that case.
In contrast, the legislative history is silent as to vanadium
fume. Nor is there evidence in the record of this case regarding
equivalent effects of overexposure to vanadium fume. MSHA's
industrial hygienist, Duran, stated that impairment from overexposure
to vanadium fume is transitory. Tr. 107. Ferguson's testimony that
there is no disease associated with overexposure to vanadium fume
(unlike overexposure to respirable dust in coal mines) was not
rebutted by the Secretary. Tr. 214. Further, it is undisputed that
the results of exposure are not cumulative, but are reversible upon
removal from exposure. (The parties stipulated that overexposure to
vanadium fume does not result in permanently disabling illness or
injury. Tr. 156.)
Page 18
In sum, we do not find a requisite basis in either the present
record or the legislative history to hold that when the Secretary
proves a violation of sections 57.5001/.5005 based upon overexposure
to vanadium fume, a presumption arises that the violation is of a
significant and substantial nature. 6/
6/ We emphasize that our conclusions with respect to a presumption
are based on the record developed in this case. We do not intimate
that the Secretary may not, in the future, be able to adduce proof
sufficient to establish a presumption that a violation with respect
to overexposure
Page 19
~298
The Secretary also argues that the assignment of the C limit
to vanadium fume constitutes a regulatory determination that any
exposure over the .05 mg/m3 limit creates a reasonable likelihood of
illness that is not subject to challenge. As with her argument with
respect to a presumption, this argument was not made at the hearing
level and the Secretary has shown no good cause why it was not made.
Therefore, as the judge concluded, the appropriate test in
this case for determining whether the violation is of a significant
and substantial nature is the analytical framework set out in
National Gypsum and Mathies, and subsequently extended to violations
of mandatory health standards under Consol.
III.
The primary question on review, accordingly, is whether the
judge correctly applied the Mathies/Consol elements of proof. There
is no dispute on review with the judge's finding that the violation
occurred (the first element) and that a measure of danger to health
was posed by the violation (the second element). The third element,
a reasonable likelihood that the health hazard contributed to will
result in an illness, was resolved by the judge adversely to the
Secretary. 9 FMSHRC at 296-97. We conclude that substantial evidence
supports that determination.
It bears re-emphasis that the Secretary has the burden of
proof as to the significant and substantial nature of the violation
in issue. The Secretary's case at hearing rested upon the testimony
of Duran. Unocal relied upon the testimony of Ferguson. Judge Lasher
did not have the opportunity to observe personally the demeanor of
these witnesses, but his decision summarizes and evaluates their
testimony. As the judge noted, Duran, when testifying regarding
possible illness caused by an exposure to vanadium fume of .0678
mg/m3, consistently referred to symptoms of illness that "could" or
"might" occur. 9 FMSHRC at 296; Tr. 102-11. Thus, Duran testified
that bronchial irritation, as well as possibly pneumonia or asthma,
"could" occur as a result of overexposure to vanadium. Tr. 106.
Another "possible" effect of vanadium over-exposure, depending on
the individual, could be "sensitization" -- meaning that after being
exposed on one occasion, an individual might experience more severe
symptoms with the next exposure at the same or even lower
concentration. Tr. 106-11. Duran indicated that the sampled
incursion of 35 percent over the TLV would be an exposure of a
"moderate" level. Tr. 106-10. Duran further indicated that, while
symptoms would vary from person to person, an employee exposed to
Page 20
vanadium at a certain level "might" develop symptoms. Tr. 110. He
testified that an employee exposed to .0678 milligrams per cubic meter
of vanadium "could" develop a cough, sore throat and have trouble
breathing and could also develop symptoms similar to those encountered
with the flu. Tr. 110-11.
to vanadium fume or to any other particular airborne contaminant with
a C limit is significant and substantial. Our point is that no such
basis for a presumption has been demonstrated in this case.
Page 21
~299
We agree with the judge (9 FMSHRC at 296) that Duran did not
consistently testify that any of the symptoms to which he referred
were reasonably likely to occur at the sampled overexposure level
of .0678 mg/m . Like the judge, we find that Duran's testimony is
"speculative" and that it does not ineluctably lead to an inference
that a reasonable likelihood of illness would be associated with the
overexposure at issue.
The Secretary would have us reverse the judge's factual findings
largely on the basis that neither Unocal's expert, Ferguson, nor the
judge himself, comprehended the distinction between vanadium and V205
and the consideration that any concentration of vanadium in vanadium
fume necessarily implies an even greater concentration of V205 in the
fume. The Secretary vigorously asserts on review that the .0678 mg/m3
sample of vanadium at issue implied a concentration of V205 above
those levels of V205 noted in scientific and medical literature as
likely to produce symptoms of illness.
However, both the witness, Ferguson, and the judge understood
the distinction between vanadium and V205 and the general quantitative
correlation between the element and its oxide. See 9 FMSHRC at
285-86; Tr. 206-17, 223-27. While it is true that Ferguson did not
explain fully the specific level of exposure to V205 implied by the
.0678 mg/m3 sample of vanadium obtained in this case (see, e.g.,
Tr. 223-27), nevertheless, he clearly stated his opinion that this
particular sample level of vanadium did not reflect a level of
exposure reasonably likely to result in an illness. Tr. 215-16.
Further, as the Secretary's counsel's statements at oral argument
before us indicated (see n.5 supra), the precise correlation between
vanadium and V205 in vanadium fume is simply not clear on the existing
trial record -- either from the exhibits accepted into evidence at the
hearing or from the testimony of any of the witnesses. Despite a
measure of uncertainty associated with this consideration, it was the
Secretary, not Unocal, who bore the burden of establishing through
probative evidence the significant and substantial nature of the
violation. Based on our review of the evidence properly before us, we
are satisfied that neither Duran's largely speculative testimony alone
nor his testimony considered together with what may be regarded as any
ambiguity or incompleteness in Ferguson's testimony amounts to the
level of proof necessary to make out the Secretary's case in this
respect.
On review, the Secretary also argues that a 1967 study conducted
by Zenz and Berg, a brief, excerpted summary of which was received
into evidence as Exhibit R.3, demonstrates that the exposure to
Page 22
vanadium fume encountered in this case was reasonably likely to result
in an illness. 7/ Essentially, that summary of the Zenz-Berg study
indicates
7/ Exhibit R-3 states in relevant part:
Zenz and Berg, in studying the effects of
exposure to respirable V205 dust in five human
volunteers, found severe upper respiratory tract
irritation in the form of persistent productive
cough at an
Page 23
~300
that two subjects in a controlled experiment, following an
eight-hour exposure to vanadium dust at a level of 0.1 mg/m3,
developed delayed cough and increased mucus. Left unestablished
by this excerpt of a summary of the study or any other evidence
of record is a showing of the asserted relationship between that
scientific experiment involving, in relevant part, two subjects,
and the violation at issue -- which involved exposure to vanadium
fume, not dust, for an unspecified amount of time during the
sampling period. We also note that Inspector Dennehy, who conducted
the vanadium exposure testing, testified that no symptoms of illness
were observed or complained of on the day of the overexposure (Tr. 71,
73-74), nor did the Secretary, at hearing, allege that any symptoms of
illness subsequently developed. It was incumbent upon the Secretary
to explain and establish any asserted relationship between the Zenz
Berg results and the violation in question through expert testimony
or other corroborating evidence, and this, we conclude, the Secretary
failed to do. Accordingly, we are unable to find that the information
contained in Exhibit R-3 is sufficient to establish the third element
of proof of a significant and substantial violation.
Our decision affirming the judge's conclusion that the cited
violation is not a significant and substantial contribution to a mine
health hazard rests, as it must, upon the record developed in this
case at trial. Having failed at the hearing to prove the significant
and substantial nature of the violation, the Secretary, in her brief
on review, presents detailed arguments and conclusions based upon
scientific publications and studies, the contents of which were not
admitted into evidence or otherwise incorporated into the record by
the judge. 8/
At the hearing, the trial judge took official notice only of
pages 1-54 of the 1973 ACGIH TLVs. Tr. 7. The only study reference
received into evidence by the judge was the three-paragraph summary
of the Zenz-
average concentration of 0.2 mg/m3 during a single
eight-hour exposure. No systematic complaints were
evident. Exposure of two previously unexposed
volunteers at a level of 0.1 mg/m3 was still productive
of a delayed cough and increased mucus.
8/ At the hearing, counsel for Unocal asked the judge to take
official notice of the contents of the NIOSH criteria and nine other
publications. Tr. 217. The judge properly refused, admitting the
list only to show the publications that Ferguson had read. Tr. 217,
Page 24
Exh. R-5. Official notice can be taken of the existence or truth of
a fact or other extra.record information that is not the subject of
testimony but is commonly known, or can safely be assumed, to be
true. However, such notice cannot extend to the acceptance as fact
of scientific publications and studies, the truth of whose contents
is the subject of reasonable dispute by the opposing parties. See
McCormick on Evidence, 3rd Ed. $$ 329, 330 (pp. 923-927, 1028-1032);
Fed. R. Evid. 201. We note that the Secretary made no effort to have
the studies themselves admitted into evidence, nor did she raise any
issue in her petition for review with respect to the judge's refusal
to take official notice of the contents of the studies.
Page 25
~301
Berg experiments discussed above. During his testimony, Duran cited
"a Patty set of books on industrial health including toxicology"
(Tr. 127), the ACGIH TLVs, 1980 TLV publications, and "a study by
Zenz and Berg, I believe, in 1967" as material that he had "reviewed
and read." (Tr. 151.) Duran did not discuss or evaluate the relevant
substantive contents of these various materials. Based solely on
these limited references to what Duran had read, the Secretary on
review has premised much of her argument upon her counsel's
interpretation of material found throughout the NIOSH Criteria for
A Recommended Standard ... Occupational Exposure to Vanadium (1977)
and the other sources mentioned in passing by Duran. See, e.g.,
S. Br. at 3, 4, 9, 16, 17; and S. Reply Br. 5-7, 9-13, 15-16.
At oral argument, counsel for Unocal has argued that the
Commission should not base its decision upon materials whose
content was not included in the record or accept opposing counsel's
interpretations and evaluations of scientific information and
toxicological studies that were not presented to the judge through
expert witnesses subject to cross-examination. Unocal asserts that
such materials are outside the expertise of either counsel or the
Commission to evaluate adequately and independently without the
assistance of such trial testimony. Tr. Oral Arg. 23.29. We concur.
As we have noted with respect to the Secretary's presumption
and C limit arguments, the Mine Act expressly provides that
"[e]xcept for good cause shown, no assignment of error by any party
shall rely on a question of fact or law upon which the administrative
law judge had not been afforded an opportunity to pass." 30 U.S.C.
$ 823(d)(2)(A)(iii). Similarly, section 113(d)(2)(C) of the Mine Act,
30 U.S.C. $ 826(d)(2)(C), states in relevant part that the record on
review of a judge's decision consists of "the record upon which the
decision of the judge was based...." The Commission has made clear
that these provisions "evince Congress' view that the adjudication
process is best served if the administrative law judge is first given
the opportunity to admit and examine all the evidence before making
his decision." Climax Molybdenum Co., 1 FMSHRC 1499, 1500, (October
1979). In short, it is the obligation of parties to prove their case
before the judge, not on review by reference to detailed material
not presented to the judge and not subject to the rigors of
cross-examination. This rule of procedure under the Mine Act accords
with settled principles of administrative and general law limiting the
record on review to the record developed before the trier of fact.
See, e.g., Melong v. Micronesian Claims Comm'n, 643 F.2d 10, 12 n.5
(D.C. Cir. 1980).
Page 26
Accordingly, we decline to consider the copious scientific
literature presented by the Secretary for the first time in this case
on
Page 27
~302
review. As we have emphasized, our conclusion is based solely
on the record developed before the judge. In light of our
determination that substantial evidence supports the judge's
finding that the Secretary failed to establish the third
Mathies/Consol criterion, we conclude that the judge properly
determined that the violation was not of a significant and
substantial nature. We do not reach the fourth criterion as to
whether an illness would have been of a reasonably serious nature.
IV.
For the foregoing reasons, the decision of the Administrative
Law Judge is affirmed.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
L. Clair Nelson, Commissioner
Page 28
~303
Commissioner Lastowka, concurring:
l agree with the majority's ultimate conclusion that
substantial evidence supports the administrative law judge's finding
that the violation at issue was not of a significant and substantial
nature. I disagree, however, with their affirmation of the judge's
finding that the Secretary failed to establish the third element of
the test for significant and substantial health violations as set
forth in Consolidation Coal Co., 8 FMSHRC 89O (June 1986), aff'd,
Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C. Cir. 1987),
i.e.. that "there was not a reasonable likelihood of an injury
(illness) occurring at the level of exposure detected." 9 FMSHRC
at 297 (ALJ). I believe that the record establishes that the pivotal
evidence relied on by the judge and the majority in support of their
finding is flawed and that a proper reading of the record establishes
that the overexposure to vanadium pentoxide at issue was reasonably
likely to result in an illness.
Nevertheless, l concur in the conclusion that the violation
was not significant and substantial on the separate ground that the
Secretary failed to establish t.he fourth element of the Consolidation
Coal Co. test, i.e., the Secretary failed to prove that any illness
caused or contributed to by the overexposure to vanadium pentoxide in
the present case would be of a reasonably serious nature.
It is not disputed that a miner was exposed to a level of
vanadium pentoxide in excess of the limit set in the applicable
mandatory standard. To establish that this violation was of a
significant and substantial nature, however, three additional
elements must be proved: a discrete health hazard contributed to
by the violation; a reasonable likelihood that the health hazard
contributed to will result in an illness; and a reasonable likelihood
that the illness in question will be of a reasonably serious nature.
Consolidation Coal Co:, supra. As the majority notes, the judge found
and it is not disputed on review, that: the Secretary proved that the
violation posed a discrete danger to health. Majority opinion at 10.
Thus, the next inquiry is whether a reasonable likelihood that the
hazard contributed to would result in an illness was established.
The judge found that a reasonable likelihood of resulting
illness was not established and the majority agrees. The basis
for their conclusion is that the testimony of the Secretary's
chief witness, Duran, is "speculative" (9 FMSHRC at 296; Majority
op. at 11) and "does not ineluctably lead to an inference that a
reasonable likelihood of illness would be associated with the
exposure at issue." Majority op. at 11. In contrast, they accept
Page 29
the testimony of Unocal's chief witness Ferguson, credited by the
judge, as supportive of the finding of no reasonable likelihood.
9 FMSHRC at 297; Majority op. at 7, 10.
My colleagues reject the Secretary's arguments on review that a
fundamental premise of Ferguson's testimony concerning the exposure
level at issue and the likely consequences thereof was plainly flawed
by a failure to consistently distinguish between vanadium ("V") and
vanadium pentoxide ("V2O5"). Despite their characterization of
Ferguson's testimony as "ambigu[ous]" and "incomplete[]" (Majority op.
at 11), they nevertheless conclude that both Ferguson and the judge
"understood" the distinction between vanadium and vanadium
Page 30
~304
pentoxide and their "general quantitative correlation". Majority op.
at 11. They further decline the Secretary's invitation to consider
various scientific studies and reports referenced by the Secretary in
support of her position, but not entered into the record below. They
state:
[I]t is the obligation of parties to prove their
case before the Judge, not on review by reference
to detailed material not presented to the judge and
not subject to the rigors of cross-examination....
Accordingly, we decline to consider the copious
scientific literature presented by the Secretary for
the first time in this case on review. As we have
emphasized our conclusion is based solely on the
record developed before the judge.
Majority op. at 13 (emphasis in original).
I must respectfully disagree with my colleagues' rationale for
upholding the administrative law judge's finding of no reasonable
likelihood of an illness. First, I believe that it is apparent on
the face of the record' as the Secretary asserts, that Ferguson made
a fundamental misstatement in contradiction of other parts of his own
testimony, and that this mistaken testimony forms the basis for the
finding challenged by the Secretary. Second, despite the majority's
protest, review of copious scientific literature outside the record
is not necessary in order to determine that a reasonable likelihood of
an illness was established by the Secretary. Quite to the contrary
that there is a reasonable likelihood of an illness resulting from
the exposure level at issue is supported by the evidence of record,
particularly Ferguson's own testimony.
I agree with the majority that the judge properly found
"that the form of vanadium at which section 57-5001 is directed..is
V2O5 [vanadium pentoxide] although the TLV [threshold limit value]
is expressed, and sampled for in terms of vanadium [V]. 9 FMSHRC
at 285-86." Majority op. at 5-6. As the majority further notes, the
judge found based on the record that for the sample at issue there
would have been two and one-half times as much vanadium pentoxide as
vanadium. 9 FMSHRC at 287; Majority op. at 6; Tr. at 102. It is this
relationship between vanadium and vanadium pentoxide that Ferguson
apparently did not account for in the crucial part of his testimony
relied on by the judge and excused by the majority.
In light of the 2.5 to 1 relationship testified to by
Duran and found as a fact by the judge, the air sample at issue
Page 31
indicating an exposure level of 0.0678 mg vanadium (V)/ms indicates
a corresponding level of 0.1695 mg vanadium pentoxide (V2O5)/m3.
(The parties apparently have rounded this 0.1695 figure down to
0.1 mg (Sec. Br. at 17; Unocal Br. at 1) and I will hereafter do
the same. In this regard, I note that Unocal attached to its brief
on review portions of the NIOSH Criteria For A Recommended
Standard...Occupational Exposure To Vanadium (1977). Unocal states
that this document "is clearly the type of scientific document of
which the Commission may take official notice." Unocal Br. at 4 n.3.
Accordingly, I note that this document indicates that an exposure
level of .06 mg vanadium/ms equals an exposure of 0.1 mg vanadium
pentoxide/m3. See NIOSH Criteria Document at 73, Attachment 3 to
Unocal's brief).
Page 32
~305
Both Duran and Ferguson testified at the hearing as to
the landmark study by Zenz and Berg entitled "Human Responses
to Controlled Vanadium Pentoxide Exposure", 14 Arch Environ Health 709
(1967). ln fact, not only did Ferguson expressly list this study as
one of the references supporting his testimony (Exh. R-5), but Unocal
introduced into evidence at the hearing a summary of the study.
Exh. R-3. This summary of the Zenz-Berg study states:
Zenz and Berg, in studying the effects of exposure
to respirable V2O5 dust in live human volunteers,
found severe upper respiratory tract irritation in
the form of persistent cough at an average concentration
of 0.2 mg/m3 during a single eight-hour exposure. No
systemic complaints were evident. Exposure of two previously
unexposed volunteers at a level of O.l mg/m3 was still
productive of a delayed cough and increased mucus. The
authors concluded that the recommended TLV of 0.5 mg/3 should
be revised.....In light of the above reports, especially the
findings of Zenz and Berg, a TLV of 0.05 mg/ms for respirable
V2O5 is recommended.
Exh. R-3 at 426 (emphasis added). Thus, Unocal's Exh. R-3 indicates
that the single exposure to vanadium pentoxide at issue would cause a
delayed cough and mucus production.
The next question that arises is whether such a human response
to exposure to vanadium pentoxide constitutes an "illness". On this
specific question, the evidence in this record is in the affirmative.
Dr. Ferguson himself testified as follows:
Based on the scientific literature, .1 milligrams
per cubic meter is the lowest level where we see
symptoms. They're not debilitating symptoms, but an
individual will have a slight irritation and have some
coughing. That can be defined as an illness. We don't
want to al]ow our workers to be exposed to levels -- how
minor do cause symptoms. There are no specific scientific
literature that tested men and women at .05. That lowest
level is really a .l in a controlled experimental condition
by Zenz and Berg is what the TLV is based on and they have
that as a safety factor.
Tr. 237-38; see also Tr. 110-11, 209-13. Here it is important to
stress that the 0.1 exposure level in the Zenz-Berg study referenced
by Ferguson Involves vanadium pentoxide exposure. As discussed
Page 33
previously, the 0.0678 vanadium exposure level in this case, when
expressed in terms of vanadium pentoxide, exceeds the 0.1 level
identified in Zenz-Berg as producing adverse health effects. Thus,
although Ferguson later testified that no illness would result
from the 0.0678 vanadium exposure in this case (Tr. 216), it is
apparent that Ferguson mistakenly believed that this exposure level
was less than the 0.1 vanadium pentoxide exposure level documented in
Zenz-Berg when, in fact, it exceeded the Zenz-Berg level
Given Ferguson's testimony that the human response to vanadium
pentoxide exposure at a 0.1 level "can be defined as an illness".
(Tr. 237), and Duran's testimony that at this level illness was likely
to be the result (Tr. 111, 160),
Page 34
~306
the judge's finding of no reasonable likelihood of illness,
resting as it does on Ferguson's flawed testimony, is without
adequate foundation as is the majority's affirmance of this finding.
Nevertheless, it is important for me to stress the limits of
my own conclusion in this case. The question of what constitutes
an "illness" may seem relatively straightforward, but it is not.
The Secretary's mine safety standards define an "occupational
illness" as "an illness or disease ... which may have resulted
from work at a mine or for which an award of compensation is made"
(30 C.F.R. 50.2(f)), but the standards contain no special
definition of "illness". But see 30 C.F.R. 50.20-6(b)(7)(i-vii)
(listing some examples of occupational illnesses). Further, there
often is dispute even within the medical profession as to whether a
particular condition or human response is merely a symptom of a
possible illness or an illness itself.
Apart from the direct impact on the affected individual,
whether a condition is an "illness" has important ramifications
under the Mine Act particularly concerning compliance with the
reporting requirements imposed by the Secretary in 30 C.F.R. Part 50,
"Notification, Investigation, Reports and Records of Accidents,
Injuries, Illnesses, Employment, and Coal Production in Mines".
In this regard, l note the Secretary's ongoing inquiry into the need
for improving illness, injury and accident reporting under both the
Mine Safety Act and the Occupational Safety and Health Act of 1970, 29
U.S.C. 651 et seq. See, e.g., 10 BNA Mine Safety and Health Reporter
at 97, 244-45 (July 22 and September 16, 1988). Among the concerns of
this effort is the need for clarifying precisely what constitutes an
"occupational illness". See "The Keystone National Policy Dialogue
On Work-Related Illness and Injury Recordkeeping", January 31, 1989,
The Keystone Center, Keystone, Colorado, at 67-71.
This ongoing effort to improve the reporting of illnesses and
injuries is indicative of the complexity of the challenge of properly
categorizing and reporting illnesses and cautions against making
broadly applicable conclusions on the basis of a record as limited as
the one before us in the present case. Nevertheless, because the
expert testimony in this case characterized the human response to the
overexposure to vanadium pentoxide at issue as an "illness", I have no
basis for drawing any other conclusion. For the above reasons, l must
disagree with the majority's affirmance of the judge's finding that
the third element of the test for significant and substantial
violations was not established.
Page 35
Proceeding to the fourth and final element of the test,
i.e., whether the illness caused or contributed to by the violation
was of a reasonably serious nature, I find insufficient evidence
addressing whether the coughing and mucus formation caused by the
level of overexposure in this case indicates an illness of a
reasonably serious nature. Most of the Secretary's evidence was
focused on demonstrating the potential serious consequences of
either long-term exposure or brief exposures to very high
concentrations of vanadium or vanadium pentoxide. Little effort
was directed at establishing whether the coughing and mucus formation
likely to result from a single overexposure to a level of 0.0678 mg
vanadium/m3 are considered indicative of an illness of a reasonably
serious nature. See Tr. 111. Nor was there any evidence that the
involved miner had
Page 36
~307
suffered or was likely to suffer continued overexposure to
vanadium or vanadium pentoxide. Thus, I find an insufficient basis
in this record for concluding that the Secretary established the
final element of a significant and substantial violation.
Accordingly, l concur in the majority's affirmance of the
judge's vacation of the significant and substantial finding.
James A. Lastowka, Commissioner
Page 37
~308
Distribution
Thomas C. Means, Esq.
R. Timothy McCrum, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Linda Leasure, Esq.
Dennis Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Charles 0. Strathman, Esq.
Unocal Corporation
1201 West 5th Street
P.0. Box 7600
Los Angeles, California 90051
Administrative Law Judge Michael Lasher
Federal Mine Safety and Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204
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