BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

HEAT AND CONTROL, INC.

21121 Cabot Boulevard

Hayward, CA 94545

                              Employer

 

 

Docket No.

99-R1D4-2902

 

DECISION AFTER

RECONSIDERATION


The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by the Division of Occupational Safety and Health (the Division) makes the following decision after reconsideration.

JURISDICTION

On October 25, 1999, the Division, through compliance officer Garrett Brown, conducted a follow-up inspection at a place of employment maintained by Employer at 21121 Cabot Boulevard, Hayward, California (the site).

On October 27, 1999, the Division issued to Employer a citation alleging a general violation of section 4853(d) [respiratory protection during inert-gas metal-arc welding] of the occupational safety and health standards and orders found in Title 8, California Code of regulations.1 The Division proposed a $365 civil penalty for the alleged violation.

Employer filed a timely appeal contesting the existence of the alleged violation.

A hearing was held before Dennis M. Sullivan, an Administrative Law Judge of the Board [ALJ] on May 4, 2000. Employer was represented by Robert Shwarts, attorney, and the Division was represented by Nicholas Champlin, attorney. On May 19, 2000, the ALJ issued a decision granting Employer’s appeal.

The Division filed a timely petition for reconsideration on June 23, 2000. Employer filed its answer on July 28th, and the Board granted reconsideration by Order dated August 2, 2000.

EVIDENCE

Employer was cited for violating section 4853(d) which requires that employees engaged in “Inert-Gas Metal-Arc Welding” on stainless steel be protected from hazardous fumes either by a local exhaust ventilation system or by wearing supplied air respirators.

The ALJ granted Employer’s appeal, finding that the stainless steel welding method utilized by its employees-known as Gas Tungsten-Arc Welding (GTAW) or TIG (Tungsten Inert Gas) welding-does not constitute Inert-Gas Metal-Arc Welding. In doing so, he credited the testimony of Employer’s expert witness that, at least since 1969, the welding industry has generally accepted the term “Inert-Gas Metal-Arc Welding” as applying to a different and distinct stainless steel welding process, known as MIG (Metal Inert Gas) welding.

In MIG welding, a wire of stainless steel filler metal is continuously fed from a large reel through a hole in the center of an insulated, energized hand-held gun or holder. As the wire passes through the hole, it is energized and becomes an electrode. As its conductive tip nears the stainless steel being welded, the current arcs to the stainless steel, generating heat that melts both the tip of the wire and the stainless steel. Because the wire functions as an electrode and is consumed in the process, it is referred to as a “consumable” electrode. TIG welding, on the other hand, is performed with a pistol-like, hand-held device that utilizes an energized Tungsten electrode. The welder points the device at the stainless steel surfaces to be joined and activates the electrode. Simultaneously, he may also feed a consumable stainless steel rod (filler metal) into the arc between the electrode and the surfaces. The arc liquefies the welding surfaces and any filler metal so they can coalesce and bond. Because the electrode itself does not liquefy but remains a permanent component of the welding device, it is referred to as a “nonconsumable” electrode. During both processes inert gas [argon] is sprayed over the welds to shield the welds from oxygen contamination.

Four factors determine the extent and concentration of hazardous fumes (airborne particles of carcinogenic chromium and nickel) created during the two processes: 1) the feed rate of the filler wire, 2) the amount of filler added to a weld, 3) the amount of inert gas used, and 4) the amperage needed to generate the requisite heat. Because MIG welding is a faster, more automated process, the feed rate is very rapid. Consequently, the amount of filler consumed is much larger. Three times as much gas is needed to shield the welds from contamination, and twice as much amperage is required to generate the necessary heat. As a result, the extent and concentration of hazardous fumes is far greater in MIG welding than in TIG welding.

Employer’s Facility and Safety Manager Matthew Soderer testified that, except in confined spaces, which are covered by other regulations, natural ventilation would efficiently dissipate the smoke and fumes created during TIG welding, but acknowledged that he was not qualified to assess the health effects of inhaling those substances. The Division did not test to determine the airborne concentrations of hazardous substances during the process.2

For many years, the American Welding Society (AWS), the primary trade association in the industry, has published a dictionary of “Standard Welding Terms and Definitions.” The 1949 and 1961 editions define “Inert-Gas Metal-Arc Welding” broadly enough to include both TIG and MIG welding. (AWS A3.0-49 & A3.0-61.) However, in 1969 that definition was narrowed by directing the reader to the “preferred term ‘Gas Metal-Arc Welding (GMAW)’” which, in turn, was defined as arc welding between a continuous filler metal (consumable) electrode and the work-a defining characteristic of MIG welding. (See AWS A3.0-69.) In a separate entry, the 1969 edition distinguished GMAW from “Gas Tungsten-Arc Welding (GTAW)” by defining the latter as a process that produces metal melting heat “with an arc between a single tungsten (nonconsumable) electrode and the work”-a defining characteristic of TIG welding. A fair reading of the AWS A3.0-69 would therefore lead one to conclude that the term “Inert-Gas Metal-Arc Welding” covers MIG/GMAW welding but not TIG/GTAW welding.

The language of section 4853(d)-and, in particular, the use of the term “Inert-Gas Metal-Arc Welding”-can be traced back to the safety and health regulations for ship repairing, adopted by the Secretary of Labor in 1960 pursuant to the federal Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA).3 After passage of the federal Occupational Safety and Health Act of 1970, the Secretary imported those regulations into OSHA’s regulatory scheme.4 In 1981, they were reviewed, analyzed, revised, clarified and incorporated into 29 C.F.R. Part 1918.5 Finally, in 1983, they were moved to their present location in 29 C.F.R. Part 1917. Their scope was extended to cover the entire marine terminal industry.6 Regulations for the shipbuilding industry, where the term “Inert-Gas Metal-Arc Welding” also appears, underwent an analogous evolution and ultimately found their way into 29 C.F.R. Part 1915.7 The federal construction industry welding standards, which also use the term, likewise originated with the LHWCA regulations and eventually found their way into 29 C.F.R. Part 1926.8

It was not until 1984 that California specifically addressed the hazards of “Inert-Gas Metal-Arc Welding” by adopting section 4853. In doing so, the Standards Board’s Public Notice of Proposed Regulatory Action stated:

Existing safety orders do not address inert-gas metal-arc welding. It is proposed that the Federal regulations on this subject be adopted as this new section. (California Administrative Register 84, No. 5-Z-2/3/84, p. A-9.)

Section 4853, as adopted, was identical to section 1917.152(f)(4) of the federal Marine Terminal Safety Orders.9 And, like the latter, represents a more readable and concise version of the federal Shipbuilding and Construction Safety Orders. The original LHWCA regulation, while more verbose and explanatory than any of its progeny, contains substantially the same requirements.10

None of the regulations-old or new, federal or state-contains a formal definition of the term “Inert-Gas Metal-Arc Welding.”

ISSUE

Does the term “Inert-Gas Metal-Arc Welding” as it appears in section 4853(d) include “Tungsten Inert Gas Welding”?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERTION

In its petition for reconsideration, the Division does not attack the expert testimony offered by the Employer; nor does it deny that the definition of “Inert-Gas Metal-Arc Welding” has shifted over the years to exclude “Tungsten Inert Gas Welding.” Instead, it focuses on the inclusive definition of the term in 1960 when the Secretary of Labor issued the original regulations governing inert-gas metal-arc welding under the Longshoremen’s and Harbor Worker’s Compensation Act. Since that language has survived, without substantial change, in subsequent federal regulations and since it was approved and adopted by the Standards Board as section 4853 of the California safety standards, the Division contends that it has retained its original meaning and therefore includes TIG welding.

The Division’s argument concentrates entirely on the notion that administrative regulations, like statutes, are to be interpreted in the light of the intent of those who originally drafted and promulgated them. Once that intent is ascertained, the meaning of the regulation or statute is settled, once and for all.

But “original intent” is not the be all and end all of statutory construction. As Justice Holmes succinctly remarked, “we do not inquire what the legislature meant; we ask only what the statute means.”11 His reference to the “meaning of the statute” as juxtaposed with and hence distinct from “intention of the legislature” expressed his concern that proper interpretation requires that effect be given to the way in which a statute is understood by the members of the public to whom it is addressed. And that concern has echoed in our courts through the years.12 A leading commentator on statutory construction describes the situation as follows:

Generally when legislative intent is employed as the criterion for interpretation, the primary emphasis is on what the statute meant to members of the legislature which enacted it. On the other hand, inquiry into the ‘meaning of the statute’ generally manifests greater concern for what members of the public to whom it is addressed, understand.” 2A Singer, Statutes and Statutory Construction (6th Ed., 2000) section 45.08, p. 40.

Concern over meaning is especially pronounced where technical language is involved. “Technical words are interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense.” (Kiessig v. County of San Diego (1942) 51 Cal.App.2d 47, 49; and see 2A Singer, supra, section 47.29, pp. 358-361.)

Normally, there is little or no tension between what the legislature intends and what the public reasonably understands, but cases do arise-and this is certainly one-where there is a distinct difference between the two. In 1984 when public notice of the proposed adoption of section 4853 was given and in 1999 when Employer was cited, there was no way, short of researching the labyrinthine history of the inert-gas metal-arc welding regulations13 and consulting obsolete publications of the American Welding Society, for a member of the affected public to know that the definition of inert-gas metal-arc welding was different in 1960 when the Secretary of Labor issued the original LHWCA welding regulations than in 1969 when the American Welding Society redefined the term.

A diligent employer who, in 1999, wanted to know whether employees engaged in TIG welding were covered by section 4853(d) would be logically and inevitably drawn to the American Welding Society’s then current dictionary of Standard Welding Terms and Definitions. And, in so doing, would reasonably conclude that the regulation was inapplicable. As the Employer points out, “The Division has not provided an explanation as to how or why anyone [short of a legal scholar] would have reason to refer to the 1949 edition of the AWS manual.” (Ans. to petition for reconsideration, p. 4.)

If health and safety standards are to work in a fair and even-handed manner, as required by fundamental due process, they must be comprehensible to the employers who are charged with the duty of observing and enforcing them. (See Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763.) An interpretation that depends on an obscure and obsolete definition violates that principle.

The Division’s “original intent” approach is therefore rejected.

Furthermore, it is a well established rule of interpretation that when a statute is re-enacted, the legislature is presumed to be familiar with contemporaneous interpretation of its language, especially when made by an administrative body or executive officers charged with the duty of administering or enforcing that statute; upon re-enactment, it therefore impliedly adopts that interpretation. (Property Research Financial Corp. v. Superior Court (1972) 23 Cal.App.3d 413, 421; Pitts v. Perluss (1962) 58 Cal.2d 824, 837; Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420, 431-32; 2A Singer, supra, at section 49.09, p. 108.)

In the context of occupational safety and health, that principle can be reinstated as follows: When the Standards Board-or, for that matter, the Secretary of Labor-enacts or re-enacts a regulation using a technical term, it is presumed to be familiar with the contemporaneous interpretation of that term in the industry or industries affected by the regulation. Absent clear evidence to the contrary, it therefore impliedly adopts the contemporaneous industry definition.

Here, the regulations in question, after first being adopted in 1960, went through numerous re-enactments and re-locations, including a full review, analysis, revision and clarification by the Secretary in 1981,14 and formal adoption by the Standards Board in 1984,15 all of which occurred long after the industry ceased to consider the TIG process to be a form of inert-gas metal-arc welding.

Under the doctrine of re-enactment after contemporaneous interpretation, TIG welding is therefore properly excluded from the coverage of section 4853(d).

Finally, the ALJ noted that section 1910.251, which is found in Subpart Q of the federal General Industry Standards, explicitly refers to the updated version of the American Welding Society’s “Standard Welding Terms and Definitions.” The Division argues, however, that section 1910.251 speaks only of terms appearing “in this Subpart.” Since the term “inert-gas metal-arc welding” is found elsewhere in the federal regulations and appears nowhere in Subpart Q, the Division contends that the reference to AWS A3.0-69 is of no importance.

In 1972, the construction, ship repair and shipbuilding regulations which do use the term were incorporated into Subpart B of the federal General Industry Standards.16 And they are still referred to in that Subpart.17 That being so, we cannot understand why a diligent employer, finding no definition of inert-gas metal-arc welding in the shipbuilding, ship repair or construction regulations, should not be entitled to rely on the only definition alluded to anywhere in the federal Occupational Safety and Health Standards.18

We therefore conclude that section 4853(d) embodies the definition of the term “inert-gas metal-arc welding” in use at the time of its adoption by the Standards Board in 1984. Since that definition excludes TIG welding, the section does not apply to the conduct here at issue.19

DECISION AFTER RECONSIDERATION

The decision of the ALJ, dated May 19, 2000, granting Employer’s appeal is affirmed.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 18, 2001

1 Unless otherwise specified all section references are to Title 8, California Coder of Regulations.
2 There had been a previous inspection at the site concerning employee exposure to TIG welding fumes. Although testing may have been performed at that time, no test results were offered into evidence at the hearing.
3 29 C.F.R. Part 8, section 8.31(d); See 25 Fed.Reg. 1543 (Feb. 20, 1960).
4 36 Fed.Reg. 10466 (May 29, 1971); see 29 C.F.R. section 1910.13 (1972)
5 See 46 Fed.Reg. 4182, 4250 (Jan. 16, 1981).
6 At section 1917.152(f)(4); see 48 Fed.Reg. 30886 (July 5, 1983).
7 At section 1917.51(e).
8 At section 1926.353(d); see 36 Fed.Reg. 1802, 1808-9 (§1518.30) (Feb. 2, 1971) and 36 Fed.Reg. 10466 (May 29, 1971).
9 See 29 C.F.R. Part 1917 (1984).
10 Section 4853(d) of the California regulations reads: “Inert-gas metal-arc welding on stainless steel shall not be performed unless exposed employees are protected by either local exhaust ventilation or by wearing supplied air respirators;” whereas, section 8.31(d)(iv) of the original LHWCA regulation reads: “When inert-gas metal-arc welding is being performed on stainless steel, the requirements of paragraph (c)(2) of this section shall be met to protect against dangerous concentrations of nitrogen dioxide.” Paragraph (c)(2) speaks at some length of “local exhaust ventilation” and refers the reader to yet another subsection; it also talks of a “filter type respirator” and refers the reader to a safety order found elsewhere in the regulations.
11 Holmes, Collected Legal Papers, p. 207 (New York 1920), as quoted at 2A Singer, Statutes and Statutory Construction (6th Ed., 2000) section 45.07, pp. 38-39.
12 County of Contra Costa v. East Bay Municipal. Utility Dist. (1964) 229 Cal.App.2d 556, 564 (Words in a statute are to be given a sensible construction in accordance with their commonly understood meaning, unless otherwise clearly intended or indicated); Goodhew v. Industrial Accident Commission (1958) 157 Cal.App.2d 252, 256; Waco/Arise Scaffolding & Equipment, Cal/OSHA App. 91-010 Decision After Reconsideration (Dec. 30, 1992); and see cases from other jurisdictions collected at 2A Singer, supra, section 45.07, fn. 4 and section 45.08, fn. 8.
13 Just how labyrinthine is evident from the excellent historical diagram provided by the Division in Attachment “B” to its Petition for Reconsideration.
14 See 46 Fed.Reg. 4182, 4250 (Jan. 16, 1981).
15 California Administrative Register 84, No. 5-Z--2/3/84, p. A-9.
16 At 29 C.F.R. sections 1910.12, 1910.13 and 1910.14 (1972).
17 At 29 C.F.R. sections 1910.12, 1910.15 and 1910.16.
18 This is especially so in view of section 1910.5(c)(2) which provides: “Any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for that industry…to the extent that none of such standards apply.” Cf. Plant Operations, Inc., Cal/OSHA App. 84-159, Decision After Reconsideration (Dec. 2, 1987).
19 The ALJ was correct in finding that the issue of whether TIG welding was covered by section 4853(d) was neither raised nor decided in our decision in Broadway Sheet Metal, Cal/OSHA App. 90-1355, Decision After Reconsideration (Nov. 23, 1992).