1 ELR 20263 | Environmental Law Reporter | copyright © 1971 | All rights reserved


Allyn v. United States

No. 98-66 (Ct. Cl. April 29, 1971)

Plaintiffs, 99 Quarantine Inspectors stationed at various points of entry into the United States (including automobile border crossing inspection stations), are not entitled to recover either on their claim for overtime pay or on their hazardous duty pay claim. Plaintiffs alleged that they were entitled to hazardous duty pay under 5 U.S.C. § 5545(d), because the high concentrations of carbon monoxide to which they are exposed in the course of their employment are likely to cause serious disease or fatality. Tests were performed which established that the carbon monoxide content of the ambient air and of the blood of the inspectors (differentiated for smokers and non-smokers) was higher than normal under border inspection station conditions; however, medical experts both for plaintiff and defendant agreed that it could not be "positively" stated that carbon monoxide had a harmful effect on the inspectors. Plaintiffs' expert emphasized the "possibility" that toxic effects occurred.

Counsel for Plaintiffs:
Jeffrey M. Glosser
1341 G Street, N.W., Suite 921
Washington, D.C. 20005

Counsel for Defendant:
L. Patrick Gray III Asst. Attorney General
Edward M. Jerum Attorney
Civil Division
Department of Justice
Washington, D.C. 20530
(202) 737-8200

[1 ELR 20263]

OPINION*

WHITE, Commissioner: The plaintiffs are 99 Quarantine Inspectors employed by the Foreign Quarantine Division of the United States Public Health Service, Department of Health, Education, and Welfare, and stationed at various places where persons arrive in the United States from foreign countries.

In the original petition, each of the 99 plaintiffs asserted a claim for "overtime" compensation by virtue of having been required by the defendant to work sometimes "at night and on Sundays and holidays" during the 6-year period immediately preceding the filing of the petition on March 22, 1966. Subsequently, four of the plaintiffs who are assigned to the San Diego-San Ysidro Quarantine Station in California filed a supplemental petition asserting claims for "hazardous duty" pay for the period subsequent to January 29, 1967.

The attorneys for the parties agreed, with the approval of the commissioner, that the initial trial would relate only to the claims of the plaintiff Harold C. Hurt (48), one of the four San Diego-San Ysidro plaintiffs mentioned in the last sentence of the preceding paragraph. Mr. Hurt's claim for overtime compensation was regarded as representative of the overtime claims of the other 98 plaintiffs, and his claim for hazardous duty pay was regarded as representative of the hazardous duty claims of the other three San Diego-San Ysidro plaintiffs. It was further agreed that the trial would be limited to the issues of fact and law pertaining to the plaintiff Hurt's right to recover, reserving the determination of the amount of the recovery (if any) for further proceedings under Rule 131(c).

[Plaintiffs' overtime claim does not directly raise environmental issues. However, the following is excerpted from the Commissioner's ruling on the overtime claim on order to depict the physical surroundings in which Plaintiff Hurt works. — Ed.]

The land border part is located approximately 18 miles south of downtown San Diego, at the San Ysidro Border Inspection Station on the Mexican border. This station includes the inspectional facilities of the Foreign Quarantine Division, Public Health Service, of the Bureau of Customs, Department of the Treasury, of the Immigration and Naturalization Service, Department of Justice, and of the Plant Quarantine Division, Department of Agriculture. The facilities at the station are commonly referred to as "vehicular primary," "vehicular secondary," the "main office," and "pedestrian primary."

The vehicular primary inspection area is wher automobiles crossing the border from Mexico into the United States are first inspected. The automobiles pass under a canopy that is approximately 25 feet wide. Since 1963, inspections have been performed at a maximum of 14 or 15 of the 19 lanes in vehicular primary. When an automobile and its contents have been subjected to a primary screening at vehicular primary and it appears on the basis of such screening that no further inspection is necessary — i.e., that the automobile and its contents are clearly entitled to enter the United States — the automobile is allowed to proceed into the United States.

The vehicular secondary inspection area is where automobiles are referred (by inspectors at vehicular primary) for a more detailed inspection of entitlement to entry into the United States seems questionable on the basis of the primary screening at vehicular primary. Vehicular secondary is located approximately 100 yards from vehicular primary. All four inspectional agencies (Foreign Quarantine, Customs, Immigration, and Plant Quarantine) have office space in a building at vehicular secondary. There is parking space at vehicular secondary for 32 automobiles. If an automobile is referred to vehicular secondary, a final determination is made there as to whether are automobile and its contents are entitled to enter the United States.

The main office is a building which provides office space for all four of the inspectional agencies previously mentioned.

The pedestrian primary inspection area is located at the eastern end of vehicular primary. The main office of the Foreign Quarantine Division serves as pedestrian secondary for Public Health Service matters.

Prior to November of 1962, the Quarantine Inspectors of the Public Health Service at San Ysidro performed inspectional services only for their own agency, and the inspectors of the other agencies operating at San Ysidro did not perform any inspectional services for the Public Health Service. During such period, the Quarantine Inspectors were able to inspect only about 30 percent of the people crossing the border from Mexico into the United States at San Ysidro.

In order to obtain 100 percent coverage for all four inspectional agencies at San Ysidro, as well as to simplify the border inspectional procedure and more effectively utilize available manpower, the four agencies inaugurated a "multiple screening" program at San Ysidro in November 1962. The term "multiple screening" refers to "a procedure whereby a single inspector from any of the four inspectional agencies performs primary screening functions for all four agencies — admitting those persons, vehicles * * *, or things found to be eligible and referring those requiring more detailed inspection to the appropriate agency for secondary inspection." Thus, each inspector from each inspectional agency has been required since November 1962 to have a working knowledge of the basic inspectional requirements set by all four of the agencies.

In connection with the multiple screening program, the plaintiff Hurt was given an additional designation as an Immigrant [1 ELR 20264] Inspector, without additional compensation, by the Immigration and Naturalization Service effective December 5, 1962; he was given an additional designation as a Customs Inspector, without additional compensation, by the Bureau of Customs effective December 31, 1962; and he was given an additional designation as a Plant Quarantine Inspector, without additional compensation, by the Plant Quarantine Division effective November 10, 1964. It was indicated that the additional durties for the several inspectional agencies were to be performed in conjunction with his regular duties for the Public Health Service.

Since the inaurguration of the multiple screening program, the plaintiff Hurt has been performing primary screening operations for all four inspectional agencies when assigned to work in the vehicular primary inspection area at San Ysidro. However, his tours of duty at vehicular primary (and elsewhere) are determined by his Foreign Quarantine Division supervisor, and not by any representative of the Customs Bureau or of the Immigration and Naturalization Service.

When working on the 8 a.m. to 4 p.m. shift, the plaintiff Hurt moves every 30 minutes from vehicular primary to vehicular secondary to the main Foreign Quarantine office, and he repeats the cycle every 90 minutes. When working on the 4 p.m. to midnight shift, the plaintiff Hurt moves on a rotating basis between the Foreign Quarantine office and vehicular secondary, serving 1 hour at each place. He does not serve at vehicular primary on the 4 p.m. to midnight shift. When working on the midnight to 8 a.m. shift, the plaintiff Hurt serves at vehicular primary for three different periods totalling 3 hours or 3 hours and 20 minutes. Between the periods of duty at vehicular primary, he rotates every 20 minutes from vehicular secondary to pedestrian primary to the main Foreign Quarantine office.

While working at vehicular primary on the 8 a.m. to 4 p.m. shift, or on the midnight to 8 a.m. shift, the plaintiff Hurt performs primary inspectional duties not only for the Foreign Quarantine Division of the Public Health Service, but also for the Customs Bureau of the Treasury Department, for the Immigration and Naturalization Service of the Justice Department, and for the Plant Quarantine Division of the Agriculture Department. If it appears on the basis of his primary screening that an automobile and its contents are clearly entitled to enter the United States under the requirements of the four agencies, he has the authority to permit the automobile to proceed into the United States. On the other hand, if the concludes that entitlement to enter the United States is questionable by virtue of some requirement of one of the inspectional agencies, he refers the automobile to the particular agency at vehicular secondary which has jurisdiction over the questionable matter. The plaintiff Hurt performs only primary inspectional functions for the Customs Bureau, for the Immigration and Naturalization Service, and for the Plant Quarantine Division; and he performs such functions in connection with the performance of his regular duties for the Public Health Service.

B. The "Hazardous Duty" Claim

In the supplemental petition, the plaintiff Hurt and the other three San Diego-San Ysidro plaintiffs assert that from time to time, in connection with the inspection of automobiles at the San Ysidro Border inspection Station, each of them has been "exposed to dangerously high concentrations of carbon monoxide"; that such concentrations, "when introduced into a human body, are likely to cause serious disease or fatality"; and, therefore, that each of the four San Diego-San Ysidro plaintiffs is entitled to be paid the "hazard pay differential" provided for in 5 U.S.C. § 5545(d) (1964, Supp. V).

The statutory provision cited in the preceding paragraph authorizes the Civil Service Commission to "establish a schedule or schedules of pay differentials for irregular or intermittent duty involving unusual physical hardship or hazard."

As indicated in part A of this opinion, the plaintiff Hurt performs, on an intermittent but regularly scheduled basis, inspectional duties at vehicular primary in San Ysidro. This is the point where automobiles wishing to enter the United States from Mexico are initially inspected. The evidence in the record indicates that he and other inspectors, while working at vehicular primary, are exposed to environmental carbon monoxide contained in the exhaust fumes of automobiles. For example, the amount of environmental carbon monoxide at vehicular primary was continuously monitored on all shifts beginning with the 4 p.m. to midnight shift on October 3, 1969, and extending through the 4 p.m. to midnight shift on May 8, 1969; and the pertinent data from this study are set out in finding 33. In this connection, it should be noted that the time-weighted average of 50 parts of carbon monoxide per million is regarded as acceptable by the American Conference of Governmental Industrial Hygienists, and that this level was exceeded on three shifts, i.e., on the 4 p.m. to midnight shift on October 4, on the midnight to 8 a.m. shift on October 5, and on the midnight to 8 a.m. shift on October 6. With respect to these particular shifts, it should be mentioned that the plaintiff Hurt never works at vehicular primary on the 4 p.m. to midnight shift (so the October 4 data for that shift would not be applicable to him), and that October 5 and 6, 1969, were days of the so-called "Operation Intercept," when automobiles entering the United States from Mexico were detained at vehicular primary for unusually long periods of time while being inspected thoroughly for contraband drugs (so the data for those days would not be representative of conditions at vehicular primary in San Ysidro).

The record also contains the results of two test programs that were conducted for the purpose of determining the effect of exposure to environmental carbon monoxide on inspectors working at vehicular primary in San Ysidro. On Sunday and Monday, November 17 and 18, 1968, blood samples were taken by the Public Health Service from a total of 24 inspectors coming off duty at vehicular primary. The blood samples were analyzed to determine the actual carbon monoxide loadings in the blood, otherwise known as the carboxyhemoglobin percentage. The evidence shows that there was a mean carboxyhemoglobin percentage of 2.9 for non-smokers and of 6.5 for smokers. In connection with this test, there was no prohibition against the smokers following their normal smoking pattern.

The second test program was conducted with respect to inspectional personnel working in vehicular primary at San Ysidro on October 5 and 6, 1969 (when Operation Intercept was in progress), by a private organization at the request of the plaintiffs. Prior to this test, those inspectors who customarily smoked were directed not to smoke for 8 hours before going on duty or during duty. The data from this test program reflected a mean carboxyhemoglobin percentage of 3.6 for non-smokers and of 6.4 for smokers.

With respect to the differential in the carboxyhemoglobin percentages for smokers and non-smokers, the evidence in the record shows that the smoke stream from a cigarette contains carbon monoxide to the extent of from 400 et 450 parts per million; that a heavy smoker customarily develops a substantial percentage of carboxyhemoglobin (7 percent or higher) as a consequence of smoking and without any other exposure to environmental carbon monoxide; and that it takes more than 8 hours of non-smoking for a heavy cigarette smoker to "unload" the carboxyhemoglobin from his blood. The plaintiff Hurt is a heavy cigarette smoker.

The medical experts who testified for the plaintiffs and for the defendant (see findings 36 and 37) were in agreement that, in the light of the present state of medical knowledge, it cannot be stated positively that carboxyhemoglobin percentages within the range of those reflected by the present record will have a harmful effect on the persons involved, irrespective of whether such persons are non-smokers [1 ELR 20265] or smokers. The plaintiffs' expert would merely say that, as to non-smokers, there is a Possibility that toxic effects occurred from the levels of carboxyhemoglobin that were reached in the non-smokers from their exposure to environmental carbon monoxide at vehicular primary in San Ysidro. He was not prepared to go even this far with respect to the possibility of harmful effects on the smokers. As previously stated, the plaintiff Hurt is a heavy cigarette smoker.

It necessarily follows that the plaintiff Hurt has failed to prove that his duties at vehicular primary in San Ysidro have caused him to be "exposed to dangerous high concentrations of carbon monoxide," which "are likely to cause serious disease or fatality," as alleged in the petition.

FINDINGS OF FACT

[Excerpted — Ed.]

I. Introduction

3. (a) The plaintiff Hurt (48) was employed by the Foreign Quarantine Division effective November 9, 1959, with the position title of QBI BMS 4514 IA (Identical Additional), GS — 7, at a salary of $4,980 per annum, with initial duty station at El Paso, Texas. Following training at the U.S. Quarantine Station, El Paso, Texas, from November 9 to December 4, 1959, he was transferred, effective December 6, 1959, to duty at San Ysidro, California, with the position title of QBI BMS 4534-2, GS-7, at the same per annum salary. He has thereafter been stationed at San Ysidro, California, continually to the present time. He has held the position of QI EP-58 IA, GS-9, since February 2, 1965.

IV. The "Hazardous Duty" Claim

27. Petinent statutory provisions relating to hazardous duty pay are contained in 5 U.S.C. § 5545(d) (1964, Supp. V), and state as follows:

(d) The [Civil Service] Commission shall establish a schedule or schedules of pay differentials for irregular or intermittent duty involving unusual physical hardship or hazard. Under such regulations as the Commission may prescribe, and for such minimum periods as it determines appropriate, an employee to whom chapter 51 and subchapter III of chapter 53 of this title applies is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. However, the pay differential —

(1) does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof; and

(2) may not exceed an amount equal to 25 percent of the rate of basic pay applicable to the employee.

28. Regulations in implementation of 5 U.S.C. § 5545(d) were issued by the Civil Service Commission on December 30, 1966. They provide in part as follows:

SEC. 550.902 Definition. In this subpart:

* * *

(b) Duty involving physical hardship means a duty which may not in itself be hazardous but which causes extreme physical discomfort or distress and which is not adequately alleviated by protective or mechanical devices, such as * * * a duty involving exposure to fumes, dust, or noise which causes nausea, skin, eye, ear, or nose irritation.

* * *

(d) Hazardous duty means a duty performed under circumstances in which an accident could result in serious injury or death * * *

(e) Hazard pay differential means additional pay for the performance of irregular or intermittent hazardous duty or duty involving physical hardship.

SEC. 550.903 Establishment of hazard pay differentials.

(a) A schedule of hazard pay differentials, the hazardous duties or duties involving physical hardship for which they are payable, and the period during which they are payable is set out as Appendix A to this Subpart and incorporated in and made a part of this section.

(b) Amendments to Appendix A may be made by the Commission on its own motion or at the request of an agency. An agency shall submit with its request for an amendment of the Appendix information about the hazardous duty or duty involving physical hardship showing (1) the nature of the duty, (2) the degree to which the employee is exposed to hazard or physical hardship, (3) the length of time during which the duty will continue to exist and (4) the degree to which control may be exercised over the physical hardship or hazard, and may recommend the rate of hazard pay differential to be established.

* * *

SEC. 550.905 Payment of hazard pay differential.

(a) When an employee performs duty for which hazard pay differential is authorized under this subpart during any portion of his regularly scheduled daily tour of duty (including regularly scheduled overtime), the agency shall pay him the hazard pay differential for the entire tour of duty (including overtime hours).

29. (a) Carroll Pernell, Assistant Chief, Air Pollution Control Service, County of San Diego Air Pollution Control District, is an industrial hygienist specializing in air pollution control. In 1967, Mr. Pernell prepared a "Report of Occupational Carbon Monoxide Exposures at U.S. Border Inspection Station, San Ysidro, California." The report, which covered the period July 21, 1967, through September 6, 1967, was prepared at the request of R.L. Paige, Chief Mechanical Engineer, General Services Administration.

(b) The following excerpts from the "Report of Occupational Carbon Monoxide Exposures at U.S. Border Inspection Station, San Ysidro, California" constitute a summary of its contents:

* * * The levels of carbon monoxide were found to be above the Threshold Limit Values (T.L.V.) of 50 parts per million (ppm) as established by the American Conference of Governmental Industrial Hygienists for extended periods of time every day of the study. * * *

No mechanical ventilation or other methods of abatement are employed at the station for the control of motor vehicle exhaust gasee. * * *

* * *

* * * The maximum concentration that employees are exposed to is actually higher than those recorded as it was impossible to monitor the inspectors while in the act of inspecting car trunks. The concentrations of carbon monoxide in the breathing atomsphere in this operation increases due to the proximity of the trunk to the exhaust tail-pipe outlet. * * *

* * *

CONCLUSION

The inspectors of motor vehicles at the San Ysidro Border Inspection Station are exposed to carbon monoxide gas that exceeds the acceptable limit for 38% of the day, with hourly averages as high as 190 ppm, and peak levels above 500 ppm for short periods of time.

RECOMMENDATIONS

It is recommended that control methods be incorporated into the existing or future facilities that will effectively limit concentration of all potentially harmful gases, such as carbon monoxide.

The most efficient and practical method for the removal of motor vehicle exhaust gases is by downdraft mechanical exhaust ventilation. Grilles are located in the pavement, directly below the tail-pipe outlet of the automobile being inspected. The exhaust gases are sucked into the grille openings, transported through ducts, and released into the atmosphere at such an elevation that the contaminant will not be recirculated into the Station.

[1 ELR 20266]

30. (a) In order to reduce the concentrations of carbon monoxide at the San Ysidro vehicular primary station, a prototype overhead ventilation system was installed in 1968 at three of the inspection points. Each of these three points was served by a different kind of ventilation outlet, in order to determine which type of outlet was most effective. Subsequently, at the request of the Commissioner of the Public Buildings Service, General Services Administration, the National Center for Air Pollution Control in September 1968 evaluated the effectiveness of the overhead ventilation system.

(b) The evaluation report prepared by the National Center for Air Pollution Control stated in part as follows:

* * * [C]oncentrations in excess of 50 ppm were frequently exceeded. When all data are considered, a concentration of 50 ppm was exceeded about 50% of the time. This value may be compared with the 38% obtained by San Diego County in their 1967 study. A peak hourly average of 200 ppm was measured and short term peaks (Less than 1 minute) of 500 ppm (full scale) were frequently measured. Again this compares with the 1967 San Diego Study in which a peak hourly average of 190 ppm of CO was obtained.

* * *

The operation of the ventilation system did * * * reduce the hourly average concentrations by about 30% during the critical periods of low wind speed. In addition, * * * peak CO concentrations were in general lower with the ventilation system in operation.

31. (a) At the trial, two test reports were considered by both sides to be relevant to the question of whether a hazard exists at the San Ysidro Border Inspection Station.

(b) The first test performed was one involving the taking of blood samples by the Public Health Service from inspectional personnel coming off duty from the vehicular traffic lanes at the San Ysidro Station. This method measured the actual carbon monoxide loadings in the blood, otherwise known as the carboxyhemoglobin percentage. The blood samples were taken on Sunday, November 17, 1968, and on Monday, November 18, 1968, from a total of 24 inspectors. The results of the tests were a finding of a mean carboxyhemoglobin percentage of 2.9 for non-smokers and 6.5 for smokers. There were no prohibitions in this test against the smokers following their normal smoking pattern.

(c) The second test was also a test designed to measure the carboxyhemoglobin content of the blood. It was performed on Sunday, October 5, 1969, and on Monday, October 6, 1969, by a private organization at the request of the plaintiffs, and involved inspectional personnel working at vehicular primary in San Ysidro. The mean carboxyhemoglobin percentage for non-smokers was 3.6 and it was 6.4 for smokers. Prior to this test, smokers were directed not to smoke for 8 hours before duty or during duty.

32. (a) The plaintiff Hurt was on duty on Monday, November 18, 1968, on the 8 a.m. to 4 p.m. shift. His "Exposure Time [at vehicular primary) Prior to Sample" was "8:00-8:30." The plaintiff Hurt's blood sample reflected a carboxyhemoglobin percentage of 9.

(b) The plaintiff Hurt worked on the 8 a.m. to 4 p.m. shift on October 5, 1969. Before going on duty, after 8 hours of non-smoking, his blood sample reflected a carboxyhemoglobin percentage of 4.58. After competing duty, his blood sample reflected a corboxyhemoglobin percentage of 3.29.

(c) The plaintiff Hurt worked on the midnight to 8:00 a.m. shift on October 6, 1969. Before going on duty, after 8 hours of non-smoking, his blood test reflected a carboxyhemoglobin percentage of 2.70. After completing duty, his blood sample reflected a carboxyhemoglobin percentage of 9.27.

33. (a) The amount of environmental carbon monoxide in vehicular primary at San Ysidro was continuously monitored by Carroll Pernell, Assistant Chief, Air Pollution Control Service, San Diego Air Pollution Control District, on all shifts during the period beginning at 4 p.m. on October 3, 1969, and extending to midnight on May 8, 1969. The average hourly levels of carbon monoxide (expressed as parts per million) for the various shifts are indicated in the following table:

DateMidnight to8 a.m. to4 p.m. to
8 a.m. shift4 p.m. shiftmidnight shift
10/342.5
10/437.5 34.3885
10/5116.2528.1350
10/6109.3828.7523.75
10/76.8820.6320.63
10/820.6320.63 8.75
(b) October 5 and 6, 1969, were days of the so-called "Operation Intercept," when automobiles entering the United States from Mexico were detained at vehicular primary for unusually long periods of time while being inspected thoroughly for contraband drugs.

34. The Quarantine Inspectors, including the plaintiff Hurt, are not assigned at any time to the vehicular primary at San Ysidro during the 4 p.m. to midnight shift.

35. The plaintiff Hurt testified that while on duty at vehicular primary in the San Ysidro station, or after having left vehicular primary, he sometimes experienced weakness, or fatigue, or inability to concentrate, or headache, or eye or nose irritation, that he occasionally experienced shortness of breath or dizziness, and that he vomited on one occasion. He further testified that he did not experience such reactions prior to his assignment to vehicular primary in accordance with the multiple screening program.4

36. (a) The plaintiffs' principal expert witness was Dr. Solbert Permutt. He is the holder of an M.D. degree from the University of Southern California and is a physiologist by profession. He is Professor of Environmental Medicine at the Johns Hopkins University. His major specialization is in the fields of respiratory physiology and cardiovascular physiology, with greater emphasis on the former.

(b) Dr. Permutt's principal conclusions are summarized as follows:

(1) Exposure to the environmental carbon monoxide at the vehicular primary in San Ysidro caused an increase of carboxyhemoglobin (which is a compound formed from hemoglobin on exposure to carbon monoxide) in the blood of the inspectors who were non-smokers.

(2) Exposure to the environmental carbon monoxide at the vehicular primary in San Ysidro during the 8 a.m. to 4 p.m. shift did not cause an increase of carboxyhemoglobin in the blood of the inspectors who were smokers.

(3) Exposure to the environmental carbon monoxide at the vehicular primary in San Ysidro during the 4 p.m. to midnight and the midnight to 8 a.m. shifts caused an increase of carboxyhemoglobin in the blood of the inspectors who were smokers.

(4) There is a possibility that toxic effects occurred from the levels of carboxhemoglobin that were reached in the non-smokers from their exposure to environmental carbon monoxide, as indicated in subparagraph (1) of this paragraph (b).

(5) There is a possibility that the levels of carboxyhemoglobin which were reached in the non-smokers, as indicated in subparagraph (1) of this paragraph (b), would have serious consequences if the exposure to environmental carbon monoxide were to be continued for a prolonged period of time, but there is no basis for saying that this is a certainty.

(6) A conclusion cannot be expressed on the question of whether the levels of carboxyhemoglobin in the smokers, as indicated in subparagraph (3) of this paragraph (b), might have serious consequences if the exposure to the environmental carbon monoxide were to be continued for a prolonged period of time.

[1 ELR 20267]

(7) A normal person, who is a non-smoker and is not exposed to environmental carbon monoxide, will produce anywhere from 0.5 percent up to 2 percent of carboxyhemoglobin through the ordinary body processes.

37. (a) Dr. Bertram David Dinman testified as an expert witness for the defendant. After obtaining an M.D. degree and serving an internship and a residency in internal medicine, he did graduate work for 3 years at the Kettering Institute, from which he received the degree of Doctor of Science.Dr. Dinman is certified by the American Board of Preventive Medicine and Occupational Medicine; he is Secretary of the American Academy of Occupational Medicine; he is a Fellow of the American College of Preventive Medicine; and he is a Fellow of the Industrial Medicine Association. Dr. Dinman is Professor of Industrial Health, and also an Associate Professor of Internal Medicine, at the University of Michigan.

(b) Dr. Dinman's principal conclusions are summarized as follows:

(1) In the case of a heavy cigarette smoker, the risk of excess mortality is from 15 to 18 times greater than the risk to which a non-smoker is subjected.

(2) Assuming no exposure of any sort to environmental carbon monoxide other than cigarette smoking, the average individual who is a heavy cigarette smoker will develop from 7 to 9 percent of carboxyhemoglobin in the blood as a conseqeunce of smoking.

(3) A person who smokes from 1 1/2 to 2 packs of cigarettes per day is to be regarded as a heavy smoker.

(4) In the smoke stream of a cigarette, the amount of carbon monoxide is represented by a figure of from 400 to 450 parts per million ("ppm").

(5) With respect to inspectors at San Ysidro who are smokers, their exposure to environmental carbon monoxide at the station has an effect on them. However, the available data are not sufficient to show that such effect is deleterious.

(6) With respect to the inspectors at San Ysidro who are non-smokers, the available data do not show that their levels of carboxyhemoglobin resulting from their exposure to environmental carbon monoxide at the station have a deleterious effect upon their health and welfare.

(7) The American Conference of Governmental Industrial Hygienists has taken the position that exposure to a time-weighted daily average of 50 ppm of potentially toxic agents in the environment for 8 hours a day, 5 days a week, and over a 40-year working period is acceptable. When an individual is exposed to a time-weighted daily average of 50 ppm of potentially toxic agents in the environment, this will result in a corboxyhemoglobin concentration of from 8 to 10 percent.

(8) For a normal worker — and excluding persons with serious heart or lung diseases — the stresses posed by carboxyhemoglobin at the levels involved in this case cannot be said to be deleterious to the health and welfare of the individual.

38. At the time of the trial in this case, the plaintiff Hurt was 47 years old. He started smoking at the age of 24, and has been consuming cigarettes at the rate of 1 1/2 to 2 packs a day for the past 15 years.

39. (a) By means of a letter dated November 14, 1967, and addressed to his Supervisory Quarantine Inspector, the plaintiff Hurt requested that the San Diego Quarantine Station "initiate an application for hazardous duty pay for the Quarantine Inspectors at this station," and "that this hazardous duty pay be made retroactive to 1-15-67, the date on which the U.S. Civil Service Commission approved regulations enacted by Public Law 89-512 on 7-19-66."

(b) By a letter dated November 20, 1967, the Medical Officer in Charge, San Diego Quarantine Station, forwarded the plaintiff Hurt's claim for hazardous duty pay to the Chief, Foreign Quarantine Program (NCDC). The November 20, 1967, letter stated, inter alia, that the hazardous duty pay issue "has been raised by the inspectional staff of our Service locally; and they have suggested that this matter be referred to the United States Civil Service Commission for decision as to the applicability of the 25% hazardous duty pay bill recently passed by the Congress and signed into law by the President."

(c) In a letter dated April 27, 1968, the plaintiff Hurt requested that "inspectors who have been performing primary inspection in vehicular traffic at the Port of Entry, San Ysidro, California be paid hazardous pay differential in accordance with provisions of P.L. 89-512 retroactive to the first pay period beginning after January 15, 1967," because of "the extreme health hazard caused by exposure to dangerously high levels of carbon monoxide gas and other potentially toxic agents that are emitted from motor vehicles."

(d) On July 1, 1969, the National Communicable Disease Center, Department of Health, Education, and Welfare, denied the plaintiff Hurt's claims for hazardous duty pay of November 14, 1967, and April 27, 1968. This denial stated as follows:

This is in reference to your inquiry concerning pay for duty involving physical hardship or hazard.

Since your inquiries, studies have been conducted by the General Services Administration and National Center for Environmental Health to determine concertration of carbon monoxide in and around locations in which inspections were being perdormed [sic]. In addition, examinations were made of the blood of a sample of inspectors performing inspectional duties at the same locations. These studies do not indicate that a significant hazard occurs in the performance of these duties at San Ysidro.

Even if this hazard did exist, payment would be prohibited by FPM Letter 550-31 dated 6-20-69, which provides additional guidelines concerning duties for which a hazard pay differential is authorized. This issuance states in part "a differential pay may not be paid for a duty which is a regular or inherent part of the employee's position. If the duty appears in the employee's job description, it is considered a regular or inherent part of his position. However, duties may be regular or inherent parts of an employee's position without appearance in the job description. Thus, if the duty recurs on a reasonably anticipated basis and is considered part of the employee's duties by both the employee and his supervisor, it would be considered a regular part of his job although it does not appear in the job description."

The performance of primary inspections on the U.S. Mexican Border on the vehicular traffic lanes is a regular and inherent part of the employee's duties. Performance of the primary inspection does not meet the criteria under which hazardous duty differential pay may be authorized as defined by the U.S. Civil Service Commission.

In view of the above, hazardous duty pay differential may not be authorized to employees at the San Ysidro Quarantine Station.

(e) Accordingly, the plaintiff Hurt has not been paid hazardous duty pay by the defendant.

40. During the period that is involved in the present litigation, the plaintiff Hurt has not been assigned by the defendant to duty involving unusual physical hazard.

RECOMMENDED CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made part of the judgment herein, the court concludes as a matter of law that the plaintiff Harold C. Hurt (48) is not entitled to recover, and the petition is dismissed as to him.

* The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 134(h).

4. However, the case was not tried on the theory of unusual physical hardship.


1 ELR 20263 | Environmental Law Reporter | copyright © 1971 | All rights reserved