Document 6w554qrV28M30M8qbo7Kb5BRg

PLAINTIFFS EXHIBIT B*PN COMPANY. U.S.A. OST Ztt'Zt SCI JL**' m .HCtBH iGl cue j 7is '! IND. HYGIENE JUL '6 ! m MED. DEPT. Jh **3 LV *<G :: Re- TSAL CHM | Taj )5 TO- HYGIENE o : *XO JUL 3 119/8 ;>*# I uv. MED. 0EPT. < os July 26, 1973 OSHA Asbestos Standard Medi a 1 Examination Policy Mr. Robert Diakun I apologize for not responding earlier, but as you know I have not had an opportunity to consider the question posed in your letter of June 26- Whether a medical examination policy issued by Exxon along the same lines as the OSHA policy expressed in former Assistant Secretary of Labor Morton Corn's letter of January 19, 1977 would be defensible. In his letter concerning OSHA's standard for asbestos, Morton Corn stated with respect to the medical examination provision of 29 CFR 1910.1001(j) that "it is current OSHA policy to require medical examination only when employee exposures exceed 0.1 fibers greater than 5 microns in length per cubic centimeter (f/cc greater than 5 microns) on an 8hour time weighted average (TVA) basis." Considering the holding in the case of GAF Corp. v. OSKRC and John T. Dunlop, Sect, of Labor, 561 F. 2d 9l3 (1977), it is my opinion that adoption of a comparable medical examina tion policy by Exxon would not be defensible. In the GAF Coro case the U. S, Court of Appeals for the "'strict of Columbia Circuit held that 29 CFR. L910.1001(j) required employers to provide medical examinations to all employees exposed to airborne asbestos in any measurable concentration. This means (as the Secretary'of Labor argued in the case) that the presence of any airborne asbestos at all in the workplace triggers the requirement for medical examinations. Directly on point, however, is the subsequent OSKRC Admini strative Law Judge's decision in the case of GAF Corp. Cl977-1973 OSHD 122,391). This decision resolves specifically the issue raised by Merton Corn's letter advising of OSHA's policy not to "cite asbestos violations unless exposure levels exceed 0.10 fibers per cubic centimeter". On the basis of the D. C. Circuit Court of Appeals case, the Admini strative Law Judge rejected the employer's argument that tr.e standard does not require examinations when exposure does not exceed permissible limits. And in response to the LLA 000558 Mr. Diakun 2 July 26, 1973 employer's contention that it was not in violation because Morton Corn's letter was written prior to receiving the citation for violating of 29 CFR 1910.1001 (j)., the Judge stated that "a standard may not be amended under the guise of interpretation and can be modified only by use of proce dures under 56(b) of the Act." Consequently, no iaanunity from violation of the standard is gained if an employer establishes a medical examination policy which comports with the OSHA policy contained in Morton Corn's letter. In the more recent case of Wagner Electric Sales Corp. (1973-1979 OSHD 122,502), another OSHKC Judge ruledthat the "standard makes no exceptions from the requirement for medical examinations if any asbestos is released in the workplace." It so happened in this case that two employees in a brake lining grinding shop were exposed to asbestos at levels on either 3ide of the exposure level set forth in Morton Corn's letter: one at 0.1 fiber per cubic centimeter, and the other at 0.2 fiber per cubic centimeter. I have attached copies of the foregoing cases in the event you wish to review the facts and discussions in greater detail. LWL;ris Attachments c: H. 3. Snyder, M.D. (w/attachments) LLA 000559 GAF CORP. . OCCUPATIONAL SAFETY k HEALTH RV. CUla u Ml fit til (IITT1 913 i.pp.emem 10 E?A J Jefense Mary of i.ieie aeciiOM. after il. turn on questions :f rery techn.cai detail nd data. u on the :uj of '.heir experience and exper'._s n metr relevant fields, appellants can reason10.y be expected to contribute to the .n'or--.ed resolutions of these questions when, mu they arse before the Distr.ct Gourt- of appellants, even ss to the existing indus try panes, ;ust:fy their admission under Rule 2***2). The order of the Distr.ct Cour- denying the motions for intervention, is reversed, and the case is remanded for the interven tion by appellants to be allowed. [5] Finally, the District Court concluded that the other industry parties, granted in tervention earlier.- would adequately rep resent tr.e point of view of appellants. Once again, the prooiem with this deposi tor s that while the overaii point of -view -:gr: oe snared, appellants' r.terest in the egj.ation of par.icu.ar 'hdustr.es may rot jt represented by existing parties. For -star.ee. none of the existing parties repre sents the interests of ruober manufactur ers. And the one chemical company that s currently a party, Amer.ean Cyanamid "o.. -nay not nave interests that bear upon a.! of t.re mdustrai categor.es of concern to '-'non Carbide.- The District Cour. made ro suc.n particularistic inquiry as to interest here tVe are thus not second-guessing a .segment of tr.e Distr.ct Court as to the exact range of .merest of the applicants ar.s parties before it. nor do we mean to im.it tr.e discretion of the District Court to tec.de when more representation would be redundant. But m exercising its discretion, 're Oisune: Cour. must make a `discrimina ting appraisal of the circumstances of the part.cuiar case" ** aa to whether interests vuff.ciently overlap before denying interlent.on In light of the "minimal burden'' -pon applicants to show that representation 'may be' inadequate. Trbovich. supra, we f.nq that the speaal and distinct interests o j ``1 iniinn'n) GA-F CORPORATION. Petitioner, r. OCCUPATIONAL SAFETY AM) HEALTH REVIEW COMMISSION and John T. Dunlop. Secretary of Labor. Re- apondenta. United Paperworkert Int'i Union. Local 91, Intervenor. No. :S-102S. United States Cour. of Appeals. District of Coiumoia Circuit. Argued Jan. 25. 19TT. Decided June 28. 19TT. As Amended July 13. 19T7. Rehearing Denied Sept- 22. \9TT Employer petitioned for review of an order of the Occupational Safety and Health. Review Commission finding it in violation of a regulation requiring empioy- <5 S n 24 supra *4. ire n 7 lupn 47 Cuit(ory numeer iucn J RuDOer ?r:nni(.' wn.n cignt luOdiejonei. 4S. ~>e catrfonn of interest to Union Caroide nvoi-t me manufacture of a oroad r*n|e of ere--icsis anO cnemical products. .ncluOinj or2nic and .norsjrue chemical*. piuucs. and svTv.neuc material*. American Cyanamid Co .1 I diversified manufacturm* company wits -ne--esea us many Aeids. inciudina me manufse cure of pharmaceuucaJj and cnemical*. Appel- mi rjt--m lania oontend -hat American Cyanamid may c.noose .a juard ta other interests more dillttn'.iy -nan .ia -.merest* m chemicai manufae:unn*. m us maaing n an inadequate representuve of appellants interest*- Moreover, appel ant contend mat the cncmicil operations o< Amertan Cyanamid are limited to certain product -in and do not reach ail the rhenurai nduatry tatttonei of concern id appetiaitu. <1. 'a w-in: fc MUier fedeni Pncoc* and .rv-oerdun. $ 1309 at SJ3. 914 Ml FEDERAL REPORTER. 2d SERIES era to provide medleal examinations to wornen exposed to airborne concentrations of asbestos. The Court of Appeals. Robb. Circuit Judge, held that. (1) the regulation required medical examinations for all thoee in occupations exposed to airborne asbestos in any measurable concentrations, and (2) the regulation was not .nvalid. Petition denied. MacKinnon. Circuit Judge, filed a spe cially concurring opinion. 6. Labor Relations ** Occupational Safety and Hea.th Act requirement that proposed role be sub mitted for comment does not automatically generate new opportunity for comment merely because rule promulgated by agency differed from rule as proposed, partly at least in response to submissions. Occupa tional Safety and Health Act of 1970, 5 Sib), 29 I'.S.CA. 655(b). 1. Labor Relations Occupational safety ar.d neaith regula tion requiring employers to prcv.de medical examinations to workers exposed to air borne concentrations of asbestos was appli cable to employees exposed to airborne as bestos m any measuraole concentration. 2. Labor Relations ^7 Occupational safety and health regula tion! must be construed to protect employ ees. Petition far Review of an Order of the Occupational Safety and Healm Review Commiseion. Ira J. Smntherman. Jr.. Atlanta. Ca.. with whom McNeill Stokes. Atlanta. Ga. was on the brief, for petitioner. Nancy L Southard. Atty., U. 5. Dept of Labor. Washington. D. C_ with whom Mi chael H. Levin, Counsel for Appellate Liti gation. and Allen H. Feldman. Asst. Coun sel for Appellate Litigation. U. S. Dept, of Labor.. Washington. D. C, were on tne brief, for respondents. J. Labor Relations ^9 Occupational safety and health regula tion requiring employers to provide medical examinations to workers exposed to air borne concentrations of asbestos was not invalid. 4. Labor Relations *27 Occupational Safety and Health Act vesta SoereUry of Health, Education and Welfare with discretion to determine whether medical examinations of employees are in nature of medical research and. Y so. whether to pay for them; and ms discretion in this regard may be reversed oniy for abusa of discretion. Occupational Safety and Health Act of 1970. SibO, 29 U.5. C.A. J 555<bX7). Miriam L Gafni. Philadelphia. Pa. witn whom Richard H. Markowna. Philadelphia. Pv. and George M. Cohen. New York City, were on the brief, for intervenor. Before TOM CLARK.* Retired Associate Justice of the Supreme Court of the United States, and MaeKINNON and ROBB, Cir cuit Judges. Opinion far the Court filed by ROBB. Circuit Judge. Special concurring opinion filed by MacKINNON. Circuit Judge. Mr. Justice CLARK concurred .n tne opinion of the Court but died before .t was entered. 5. Labor Relatione ^27 Objection not considered by Occupa tional Safety and Health Review Gommianon could not be considered or. petit.on for review. Occupational Safety and Health Act of 1970. Ufa). 29 U.S.C-A. 660(a). ROBB. Circuit Judge: GAF Corporation (GAF) petitions for re view of an order of the Occupational Safety and Health Review Comrtusaion <.the Com mission). The challenged order found GAr in violation of a regulation requiring era- Sitting Sy aesiiniuon pursuant to 2i U-S-C. I 294(i). 000561 GaF COR? r. OCCUPATIONAL SAFETY HEALTH rev. cm u mi rue m urn 915 pio.en to prov it mec.ca. exam.'.rat.ars 10 warxers exocsed to a.rocrre concentrations of UM!-! GAr employees are exposed to asoestos bust dunn.g tr.e manufacture of floor coverr.gs ar.d f.oer ouiiding products. GAF contends t.ra: the Commission misin terpreted tr.e -egu.atior. and '..hat :n any e>ent t.re regu.ation j .o.d. We conclude ir,a*, reitr.er :f these content.ons j correct and accord mg'.; we adfirm then petitioned this court seex.ng revrew of the Commission s order is provided oy the Act. See 29 U3C. 660 ',1910). GAr contends that the Commiaaion erred in interpreting the regulation to require medical examinations for employees ex posed to the relatively 'ow concentrations of airoorre asoestos found n GAF's plants. GAr also contends that the regulation is void because .1 was ,mproperty promulgat : background This cjou'.e oega.r r 1313 when '.re Sec retary of Gaoor t.re Secretary 1 ssued ciua..cr.s cna.-g-g GAF with '.oiat.ona of 33 ed, s r.cor.sistem wtr. t.re Act, and 4 arbi trary. .1--u.or.a;. and unsupported by me evidence. We mail consider eacr. of these center, t.onj n turn C F 3. j 1310 93aiji suosequentiy renum- oered to 9 1310 10011 The cited regula A. Iniersmition of lie Regulation tion -equ.rea employers to provide certain pre-emsiov-rent, annual, and separation medicai examinations to ail corners 'm an xcupat.on exposed to airoorme concentra tions of aaoestoa Goers GAr coes rot prov ce the specified exam-at.ors. cut argues that the regulation does rot require tnem. given t.re ow even of a.roor-e as&estos at CAr's ?:ar,ts. At t.re '..me :f t.re citation, wmcn .r.voived two of GAF'j 0 ar.ta. tr.e evei at Poth plants was oeiow tr.e maximum permisaioie '.evel. The nax.m-.m permnsipie level at that t.me *13 5 fibers. cf more than 5 microme ters n e-gc.r, per cusic centimeter of air. See 39 C F R I9l0.93a<b).) GAF eonceres that tr.e reguiationa require medical (1. 3! We turn first to GAF's contention that t.re Commission erred in upholding the Secretary's interpretation of the disputed regulation. GAF ,s supported by neither '.he language r.or tr.e history of the regula tion. We rote at the outset that the Secretary s charged by aw witn administering the Act and t.re regulators supporting it. 2S U 5.C. 65o ec seq 119101 Hence, his interpretation of the regulation 'becomes of controlling weight unless it a plainly erroneous or inconsistent with the regula tion.' i'iiil v Tan'man. 380 U 5. 1, 16-11. 85 S.Ct. 192. 301. 13 L.Ed.2d 616 (1965). The Secretary's interpretation remains con exam.-at ors omy if the concentration of trolling 'even tr.ougn tr.e cnoscn exegesis airocme isoestos exceeds this maximum may ret appear suite as reasonable as some evei or some omer .evei higher than that other eorstruct.on ' 'citat.on omitted] fo.no r GaF's pants. The Secreury ar Sudd Co Ocrupjt.ora, Safety and Health gues mat tr.e presence of any airoorne as- Rev.ew Comm.is.c- 513 F 3d 301. 305 t3rd Pestos at a.i triggers tr.e 'equ.remer.t for Cir 19151. aocord. Cla.-xson Const`.n Co v ned.ca. exam.rat.or.s. Occ.oat.orai Safe:;.' and Heait.i Revrew GAF cra.ier.ged t.re r.tal.or.s tr.roughout t.re even of administrative review provided i) tr.e Occuuattorai Safety and Health Act of '.3'3 ..-.e Act). 39 U S C 659 1 1910) I.i i.t course t.re Tsmmission ^pne!d tr.e ciut-sr.s Sec.-i'jjy 0! Guoor v GAF Coro.. 15 GSaHRG ?-ep. L'.ii microf.cnei. GA? Commission. S31 F 2d toi. 451 ilOm Cir. 1915). Furthermore, the surdards must oe cerstrued. as they were construed by the Secretary, to protect the employees. See 3ren-s.i ' Occ'udat.ona: Safety and Hent/i .Review uommjs.d.n. a31 FGd 1340. 1344 2d I. IS C.M 4 1910 31a waa recodified u 29 C F A 4 .910 1001 on May 28. 19mj +0 Fed 0r\ -20*2 il9CJV The reauiauoft uru1 & cixed mrouirout mu oomion ti 4 1910 91a. 10 refleet m* todiflcsiicn .n rffect st tne um of me iil<Sfd v-ioucioru 916 Ml FEDERAL REPORTER. 2d SERIES The Secretary's interpretation of the reg cal examinations sre now required for "ev ulations not omy satisfies the standards dis ery employee exposed 10 airPoime xncen- cussed shove. :t is far more reasonable trations of asbestos." [empnasis mppiied] than the interpretation urged by GAF. 37 Fed.Reg. U319 (1972). The preamole GAF bases its argument upon the lan guage of the regulation, which requires medical examinations for those "in an occu pation exposed to airborne concentrations of asoestos fibers . 29 C.F R. 1910 93a(jf. The Secretary interprets this language as requiring examinations for those in occupations exposed to any 'evel of asoestos. GAF. m contrast, argues that the word "concentration" impnes a quantitative amount. Recause the disputed section does not specify any quantity of asoestos, GAF reasons that the section shouid be read to include the 5-fiber limit of 29 C.F R. '.910 93a*b), or at least some other quanti tative limit greater than the level found in GAF's plants. GAF's argument flies in the face of the language of the regulation. It would be a unique regulation indeed wmeh managed to impose a quantitative limitation by not mentioning any quantity at all. Further makes no mention of any specific quantity of asbestos. Nor does the final regulation itssif. Instead, the final regulation re quires examinations for those "in occupa tions exposed to airborne concentrations of asbestos fibers The regulation states this requirement not onee, but three times, in almost dentical language: once each ,n the paragraph requiring prepiace- ment. annual, and termination examina tions. See 29 C F R. 55 1910.93i(jh2)-<4). la contrast. 29 C.F R. L910.93aighlki) requires posting of caution signs * where airborne concentrations of asbestos fibers may be in excess of the exposure limits prescrbed in paragraph (b) of this section." [empnasis added] We think these considerations leave room for only one conclusion: the disputed regu lations require medical examinations for ail those in occupations exposed to airborne asoestos in any measurable concentration.1 more. a detailed examination of the regula tion reveals that the omission of the quanti tative limit was deliberate. As originally proposed, the requirement 3. Validity of the Regulation [3] GAF contends that, even if the Sec retary correctly interpreted the regulation, it s void on a numoer of grounds. We find of examinations waj triggered by the pres this contention to be without merit. ence of t specific quantity of aabestoa: Medical Examinations. The employer shall provide, or make available at his cost, appropriate medical examinations on a periodic basis to any employee who is exposed to asbestos dust in excess of the limits specified in paragraph (a) of this section (5 fibers per cubic centimeter]. Althougn we have carefully considered ail GAF's arguments concerning the validi ty of the regu.ation, only four merit discus sion here. These are GAF's contentions that the regu.ation is arbitrary and unsupported by evdenee. that the regulation is inconsistent wr.n the Act; that the Secre tary s interpretation is inconsistent with his 37 Fed.Reg 468 (1972). The final standard, however, deletes the reference to s specific concentration. The preamble to the final standard notes that several changes have been made to the pro approval of a Cai.forma occupational safety pian; and that me federai regulation was .mproperfy oromu.gated. GAr argues fint that the regulation s arbitrary and unsupported by evidence. posed regulation, and then states that medi- GAF oases t.ms argument partly upon the 1. We are aware irut the Occupational Safety and Heaitn Review Canun is non of me state of Connecticut reached a contrary conclusion m flierpretini a itata regulation virtually identi cal to tne federal regulation before tftia rourtCoauniaaiener of Labor r Tuttle A Sajlty Dim- oon it au.'.ed Thermal Core. Oocltet No 7#3;J Oecem&er 1 '.V'S Nevertheless wt feel mat me deference sue me Secretary i interpre tation not*.a wtm me plain lan(u>|e ind luatory of mt federal regulation. compel the condunon we resell nrre. rtco.rrre*:. for Ccc-: . n;csk Ter t*e u'r.v ju" to '.*e S'; C S H --' r.ec'.u. *' i,r3or-e f.sr z*r zr :2m .Aj 1 `SICS!-! : i*y ta?:?- <Z\: n>e<r 0> t e * 0r -e-sec - i) * e 4 ury j -:t \ *s ,"T 00 - k t-e Sec.^- r * -r.ee >< tXT : to tl.M s.:5H - --- ^ s ' ' :- eti*" * 1. 1 *i *U LLA 000563 -ed for "ev. "it concenj supplied] e preamoie 7c quantity regulation uiation re"in oceupai'.rations of regulation u but. three uage: one* g prepiacei examina3aijx2)-t4). 33*2* Nw jn* "waere atae fiben sure limits us section." leave room juted regj-ions for ail o uroorme oenu-ation.1 if '.he Secregulation, s. We find em. considered : the viiditnt discuslontentions and jr.sup- juiii.cn is '-ho Store 'll with 31S nti safety mon was filiation j evidence, upon the <n no 'Sm w / t imer^rte fusio* Lbc coneiu* > * v. OCCUPATIONAL SAFETY * HEALTH REV. au umi rue sis nsrn National institute useful knowledge will probably be gamed Health (NIOSH). NIOSH was created by the Ac*, for the purpose of developing neaith and from them. Under the Act, GAF cont.nuea. the Secretary of Heaith. Education, and Weifart (HEW) must pay for medical ex safety sundards and recommending them aminations used aj research. Hence the to the Secretary. 29 U.S.C. f 571 (1970). challenged regulation, by requiring GAF to NIOSH recommended to the Secretary that supply medical examinations at its own ex medical examinations be required wnere pense, contravenes the statute. airborne asbestos concentrations exceed 1 fiber per cubic centimeter of air. Nation*/ Ir.stitnu for Occupstiontl Sefety and Health, enter* for a recommenced stan dard Octupet.onsi Exposure to Asbestos at 1-3 -'.9*2' [cited hereafter as "NIOSH enter*". The Secretary rejected this recommendation and .r.stead required medial examinations for those exposed a any concentration of airoome asbestos. GAF contends that this rejection by the Secretary was aroitrary and unsupported by the evidence, and especially arbitrary because NIOSH suted that ;ts recom mended sundard included a 'Safety fac tor" NIOSH enter* at II-1 [4] GAF miaconstruea the Act and effect upon the challenged regulation. Act does not require the Secretary of HEW to pay for mtdicaJ examinations used u research; it merely permits him to do so The Act provide*: In the event such medical examinations are in the nature of research, as deter mined by the Secretary of Health. Educa tion. and Welfare, such examinations may be furnished at the expense of the Secretary of Health. Education, and Wel fare. [emphasis supplied] 29 U.S.C. i 655(6X7) (1970). Thus, the Act dearly vest* the Secretary ( HEW ita discretion to detarmiae whether the exami We have previously neid that the Secre nations are in the nature of medical re tary is not bound by NIOSH recommenda search and tf so. whether to pay for them tions. Industnn union Depart,merr c v His determination in this regard may pe Hodgson. 162 0 5-App.D C. 331. 340--tl. 499 reversed only for an abuse of discretion F-2d 467, 476-77 (1974). And in this ease the Secretary's departure from the NIOSH recommendation is reasor.aole. NIOSH noted that concentrations as low u \2 fi bers per cubic centimeter have been known to cause serious diseases. Furthermore, NIOSH noted, the state of knowledge con We note initially that no decision of the Secretary of HEW in this matter is oefore the oourt. In any event, a review of the challenged regulation convinces us that the examinations in issue are not "in the nature of medical research" and are thus proper y chargeable to GAF. GAF cannot senousiy cerning aibestoe-reiated diseases a such contend that the examinations are pr.mar- that no exposure standard other than cero ly designed to further medical research would assure freedom from such diseases. rather than to protect employees exposed NIOSH criteria at 111-23. III-3. Hence the asbestos dust As we have noted above. Secretary acted reasonaoiy and on suastan- NIOSH found that non-tero exposure imi-j tial evidence in requiring medical examina alone could not guarantee the prevention of tions for those exposed to a.ny concentration asbestos-induced disease. NIOSH criera of airborne asbestos rather than .limiting at III-9. Consequently, NIOSH recom examinations to those exposed to more than mended periodic medical examinations for 1 fiber per cuoie centimeter. the protection of the workers, noting- GAF argues next that even ,f the chal lenged regulation j supported pv evder.ee, the regulation is .nvn.d oecause t a incon sistent with the Ac'_ GaF contends that the examinations are in effect being used as a form of medical research, oecause some The major objective of such surveillance will be to ensure proper medical manage ment of individuals who snow evidence of reaction to past dust exposures, eitis* due to excessive exposures or unusua susceptibility. Medical management may LLA 000564 11 91S Ml FEDERAL REPORTER. 2d SERIES range from recommendations u to ;ob dards) will be at /east as effec placement, improved worn practices, ces tive in providing safe snd healthful employ sation of smoiting, to specific therapy for ment as the jttndaras promul asbestos-related disease or its complica gated under section 55i of this title tions. [emphasis supplied] 29 I'.S.C. S 667(e) .VIOSH criteria at 1-3. And in promulgat (1970). ing the final regulation, the Secretary of Labor noted the hazards connected with long-term exposure to asbestos dust and The Secretary has approved the Califor nia plan. 38 Fed.Reg. 10717-20 (1973); 41 Fed.Reg. 1904-06 (1976). This approval, concluded, "the conflict in the medical evi dence is resoived in favor of the health of employees" 37 Fed Reg. 11313 11912) Fi nally. the Secretary specified .n the regula tion that records of the medical examina tions m d'-iestion would be kept hy tne employer, whereas the Act requires that records of examinations used u meoical GAF argues, indicates that the California plan is "at least as effective" as the federal scheme. Consequently. GAF contends, the Secretary's approval of the California plan is a tacit admission that the federal regula tion does not require medical examinations when asoestos concentrations are less than 1 fiber per cubic oenumeter. research be forwarded to the Secretary of HEW 29 C.F R. $ 1910.93*oX). 29 U.3.C. aMibXT) (1970). These factors considered together ciearty indicate that the examinations at issue are to be provided primarily for the protection of GAF's employees rather than for the purposes of medical research. Consequent ly. the challenged regulation does not con travene the section of the Act permitting the Secretary of HEW to pay for medieal examinations conducted u medical re search. We cannot agree with GAF's reasoning. In approving the California plan, tht Secre tary dearly evaluated the plan as a whoie. discussing not only limits for various toxins, but enforcement, notice, record-keeping, and sanction requirements as well. 38 Fed. Reg. 10717-20 (1973): 41 Fed.Reg. 1904-06 (1976). The Secretary noted that California would provide more enforcement personnel than the federal program. 38 Fed.Reg. 10718 (1973). Hence, it was reasonable for tht Secretary to conclude that the Califor nia standards as enforced would be "at least GAF argues that even if the challenged as effective'* aa the federal standards de regulation is supported by evidence and spite differences in the triggering concen consistent with the Act, the Secretary of trations of asbestos. Labor s interpretation of the regulation is inconsistent with his approval of a Califor nia occupational health and safety plan. GAF argues finally that, even if the Sec retary correctly interpreted the federal reg ulation. and even if the regulation is con The alleged inconsistency arises because sistent with tht Act. supported by the evi the California plan, like the NIOSH recom dence snd consistent with the California mendation for a federal standard, requires plan, the federal regulation is void because medical examinations only if the employees it was improperly promulgated. GAF's ar may be exposed to concentrations of uoev gument is a* follows: tht Act requires that to* greater than l fiber per cubic centime each proposed regulation be published m ter. General Industry Safety Orders 3 Cai. the Federal Register to permit public com Admin. Code Ch. 4. Subeh. 7 52D8fj). The ment. 3 U.S.C. i 6S54b> (1970). la this Secretary may approve of a state pian and case the Secretary published a proposed permit the state to take over some enforce regulation but then made changes In it b^ ment functions of the federal government, fore publishing it m final form. GAF ar but only if the state plan "provides for the gues that the amended rule should first development and enforcement of safety and have been published u a new proposed rule, health standards whicn stan with opportunity for pubiie comment before dards (and the enforcement of which stan being promulgated at a final regulation. pioy) (T7 y i *(c) jfor. 41 *ovtj, vnia itrxt he pan rui*-onj *Jun ung. *cre10a, tins, 3iny, "ed. 4-06 mu nnei sn for forexit de*n* jS? *-n ' % vr *5* - ts S * $ -* * ) C i \ \ i nsn- .nil ted > xr m Je, jrt on. x 5 ?. GAF CORP. . OCCUPATIONAL SAFETY k HEALTH REY. CtauMI 7.24 111 UITTl 919 [5. 6] The short answer to '.his conten tion ,j that GAF never raised '.his objection before tne Commission and .3 therefore pre cluded from raising it here. The judicial review provision of the Act provide* that believe, however, tnat the Secretary of La bor shouid cianfy tne regulation governing medicai examinations so as to give other persons subject to the regulation reasonaole notice of some messursble quantity of air "no objection that has not been urged be fore the Commission shall be considered by the court 29 U.S.C. 660(a) (19701. Furthermore, as this court has pre borne ubesus the Commission intends to trigger the medical examination require ment. Merely to state that ail employers must provide medical examinations when viously noted. ever thetr employees are exposed to "con The requirement of submission of a pro centrations" of asbestos fibers does not pro posed ruie for comment does not auto matically generate a new opportunity for comment merely because the ruie promul gated by the agency differs from the ruie .t proposed, partly at least m response to suomissions.41 >i A contrary rule would '.tad io me iQsurdi- ty mat m rulemaluni under me a?a int >|ency can itiis from :h comments on ts jroposall only at tAe peril of surtini < new procedur al round of commentary (footnote n orpnall t vide an ascertainable standard for those woo w-isb to comply with the law. The regulation provides that employers must provide medicai examinations to each employee "m an occupation exposed to air borne concentrations of asbestoe fibers." 29 C.F R. $ 1910.10010X21 and (3) (19761 (em phasis added). No person can discern from this language what degree of "eoncentntion(}" must exist before medicai examina tions are required. Other ubesus expo /.nternacionai Harvester Co v Ruexei'shaus, sure regulations which do set ascertainable 155 US.App.DC. 411. 428. 473 ?2d 515. exposure limits provide: 532, n. 51 and accompanying text 11373); sccord. South Terminsl Corp. v p A.. 504 F 2d 546. 559 11st Clr. 1974) We think the same principle governs GAF's contention in this case, and accordingly we -eject GAF's argument. (b> Permissible exposure to tirborne conoentrstjon* of ubesus fibers. (1) Stan dard effective July 7. 19TZ The S-hour time-weighted average airborne concen trations of ubesus fibers u which any employee may be exposed shall not ex In conclusion, we hold that the Secre tary's interpretation of the disputed regula tion is reasonable, and that the regulation is supported by the evidence, consistent with ceed five fibers, longer than 5 microme ters, per eu - -dimeter of air. u deter mined by the method prescribed in para graph (e> of this section. the California plan, and was properly pro mulgated. GAF's petition to review and (2) Standard effective July l. 2975. The S-hour time-weighted average air reverae the decision of the Occupational borne concentrations of ubesus fibers to Safety and Health Review Commission ,s wnich any employee may be exposed shall denied. So Ordered. not exceed two fibers, longer than 5 mi crometers. per cubic centimeter of air. as determined by the method presented m MaeKINNON, Circuit fudge, eoncurr.-.g paragraph (el of this section.. specially 29 C.F.R. 19l0.1001(bXl> and (2) '1975) Because the "concentrations" of asbestos fibers found m the GAF plants n this case were not insignificant, and because the rec ord shows that petitioner had adequate no tice that the Commission wou.d construe ts regulation to require pnysicsi examinations at these "concentrations." I reiuetantiy con cur in the result reiened by the panei I The prescribed standards in these regula tions were: "fve fbers. longer than 5 mi crometers. per cubic oenumeier of air.' and after July 7. 1975, "two fibers." These standards inform the nation's employers precisely what degree of exposure is per mitted and what exposure is excessive, but the regulation requiring medicai eximma- f i lI i :i I t -i 11 * ti9nviHin<r uiiaviXtfWMRnCXTSSrVQ .a m JTi* rTTf.Vj LLA 000566 920 tionj .j almost sompltiy deficient ,n this respect. Whit number pf fibers, of whit .er.gnh, per whit volume of nr will constitute i "eoneentrat.on" is nowhere stated or even hinted it--tnd like the regulation, the court's opinion leaves the metier completely to conjecture. This is particularly unset tling to iiw abiding citizens when the agen cy is deiling with tremendously minute quintit.es of infinitesimally small particles. It mikes compulsory 'tw enforcement it-'ficuit and ;t lessens the likelihood of volun tary eompi.ince with the law, a result de voutly to be wisned. The first requirement far uniform and voluntary compuir.ee with the law j a dear understandaoie statement of wnat conduct is required and this regula tion fails woefully short of that min.mai requirement. Regulations that have the great .mportanee '.bat this regulation nas to numan .i.'e should be written in more precise terms--so people of ordinary understanding can deter mine what course of conduct is being re quired of them. What one person mignt consider to constitute a "concentration ` will differ greatly from the mterpretat.on mat another would give to that term, and wnat one person today might regard not to con stitute a concentration" mignt be con sidered tomorrow, on the basis of hindsight as medical know edge increases, to come within that term.1 The statute requires the Secretary to set [a] standard": (5) The Secretary, in promulgating standards dealing with toxie matera.s or harmful physical agents under this sub section, stitll sec the standard which most adequately assures, to the extent ftasioie. on the basis of the oesi avtiiaoie evi dence. that no employee uni! suffer matenil impairment of health or functional capacity even if such employee has regu lar exposure to the hazard dent with by such standard for the perod of Ins work ing life. Development of standards un der this subsection shill be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainmem of the hignest degree of health and safety protection for the employee, other cor.jiaerations shall be the lateat avaiiabte seienttfic data in the field, the feasibiiity of the standards, and experience gamed under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed m terms of objective encena and of the ptrfarnrtnct desired. 29 f 3.C. 655ibh5) (1970) lemphasis add ed). The agency has promulgated scandards that state "objective cnteri and the performance desired" for empioyee exposure on the job but it has not done as much for medical examinations. It j practical to state "objective criteria" for medical examinations and I believe the agency should do so. Merely requir.r.g medicui examinations whenever there is some indefinite, ambiguous, nonspecific degree of "concentration" does not meet the requirement for a feasible standard with objective criteria that Congress imposed an the agency 1 This is a serous dereliction because, .f m the future medical knowledge progresses to the point where more minute quart.t.es of asbestos fibers are fauna to be rarmfthan are presently so cor.siaered. I. A current textBook lelli ui: The toxic cancem.-inon it tsestet n me sir hat not seen eiueiisnec. However me threshold limit vaiuei for its concentration air with n(ht hours expaiurt duly hit Been tccepted ts 3 mUlion particles per cubic foot of iir. Sated on unpinger samples counted 5y '.he light field lecfiniQue. 4 R Grty Attorney t TextBook of Medic.re 1J2-7! ild ed. 197*1 The evidence ,r mu record does not utdicatt now this umpltng meinod might vary from tne Commution i two fibers per cuoie centimeter in 29 C F R. i 1910- 100..0n21 : '.3751. however uhn tundard permm ,eii man wth the numoer a( fibers Grty fines tccepttoie The Cammtman t mterpreat.cn cf ( 1310 :001(j)<2) tnd (3) estaalttfies in even lower .naetermmaie figure far me medical examination requirement. 2. Its conceded that '.he reguittson -equ-.r-.g meqicat extm.hatipr.t n impoteq under me Secretary t authority to prcmuiglte itindtrdt deti.ng with harmful pnyucai tgentt ' 23 L 5 C { 433(8X3). tuprt. J j * < j 1 j 5 x i i t t tier * -- oe -e : im fa...-? am -it.: dov- s-.t g.. t.s :f . seme - . ts on pe- w aw it: . r.:m res. : of :`i at..-. g-t? UUi- V- fi lispe-: e x: e: t -.: e . - d.scor: ' C jt- Ui .' tv P--.su t ca n i-:. : mn tier'. : r i C-?: LLA 000567 pie vi. r mus ictionsl u reguwith by i workrda lin 'd upon '.mma, aay be acui.n.th and * other avatiae 'tillenenee >td and he. the pressed of the us add1 sun'i and 'or em-as not :ns. It -a' Tor ve t.ne quin.ng '.ere j fie deeet the d wv.n *ed on iiict.on wedge i to 3* dered. xrd per- Gray v.erpreiPiunet 'or me -JUir-g otr -jie indarsi i|tnu f {. GaF CORP. r. OCCUPATIONAL SAFETY * HEALTH REV. QuuHi rzetu iim 921 then employers m the distant future may be .neid ..aoie to the extent of millions of dollars m tort suits based on their alleged failure to provide the required medical ex aminations that would have prevented, or discovered at a preventable stage, what eventually turned out to be a fatal disease. eubie feet of air. or some other unembiguous. quantitative standard. Imposing a aon-specific ambiguous standard is com pletely unsatisfactory. "Concentration ' j a noun, the meaning of which vires greatly depending upon the context in which it is used. Concentration can be high. low. me In such lawsuits for damages the present ambiguous regulation would have the sta tus of a statute and failure to conform to some more strict post hoe interpretation of dium. dangerous, hazardous, insignificant, "negligible." etc.--standing alone its mean,ng a hignly indefinite. It would not be difficult to state a standard with precision. its provisions might constitute negligence per se. As Professor Prosser states the law A recent case before the Connecticut Oc cupational Safety and Health Review Com mission. Tuft!* & Bailey Oiv, of Allied Once the statute s determined to be appncasie--wnicn j to say. once it is interpreted as designed to protect the class of persons m whic.n t.ne plaintiff s Thermal Corp.. No. 75-315 (Conn. 0SAHRC. Dee. 3, 19761, involved a stale medi cal examination requirement m language practically identical to that present here, included, against the risx of the type of ind a similar factual situation. In that harm whicn has in fact occurred as a result of its violation--the great majority of the courts hold that an unexcused vio case the State Comrmsaion decided that the word "concentration" in the sundard must have been intended to have some meaning, lation ,s conclusive on the .ssue of .negli gence. and that the court must so direct the jury. The standard of conduct s taken over by the court from that fixed by the legislature, and 'jurors have ,oo dispensing power by whicr. to reiax it." except in so far as the court may recog because if no threshold of exposure were intended, the word "ooneentmion" could be omitted without chsnging the meaning of the section. It would then address itseif to "airborne asbestos fibers." The State Com mission reasoned: If this Commission were to adopt the nise the possibility of a vaud excuse for disooedience of the law. This usually is interpretation u proposed by the Labor Commissioner, the effect wouid be to es expressed by saying that the unexcused violation is negligence "per se." or .n itself. W Proeser. Torts 200 (4th ed. I97U. When it can be avoided, a statute or regulation should not by its mere mdefiniteness etpose employers to sucn great naiards.1 The tablish s requirement " that wnenever employees are exposed to any trace of asbestos--no matter how tempo rary or insignificant--their employer must furnish (and employees must under- go>--annual physical examination and tests as prescribed, in [the regulation',." agency should state in clear, understanda ble objective terms specifically *nat degj-ce of "concentration" triggers tr.e requirement for medical examinations--be it one fiber per cubic foot of air or one fiber per '.00 This Review Commission cannot con clude that the intent of this regulation s to require such examination for the occa sional "messenger" or "visitor" entering d. The potential problem of '.or. lability s par ticularly serious because of i iign background level of asbestos fibers .n many gecgripmc areas. Some medical itudies trt currently -eported to nave 'ound 'mat; peooie m -ave never seen exposed to tsaestct n :.-.e o.-place thow a scarring cf tissues around meir lungs tnat looks exactly nke scarring 'ouno n asbestos workeri ~ Area Ouji found H-g.i .n Asbestos Fibers. WasAingion Post. Dec. i9. 1975. it A*, col. 1. The digit incidence of tsoetcoi fibers in me nr of nuts may be irtce bie io me um of isbettos brake Urungt n lutamobilee. ind to me use of rock aggregates containing ubestss fibers The extent of tir pollution ay iioestot from mete tourcet nit not yet been tccurateiy suetied See ?A C.im Aioestos Hazard. Montgomery Parxi Closure Lrged. Waitungton Post. June I. 19"7. at Al. col. a A Aid. col. 1. ? r 4* i; 11 ! ii ILfl 000568 922 Ml FEDERAL REPORTER. 2d SERIES the exposure trea. nor '.he employ** far removed from '.he source who** exposure is ,n fset minimis concentration of sirborme isoestos fibers. The Review Com mission concludes '..nit the word "concen tration" has a meaning u used within One regulation. where the concentration of the air eontaminant^js negiipble compared to the !imit tstaoushed by the standard." Western Electric. Inc., No. 8902. at 7 (CSHRC. Jan. 24, 1977) (emphasis added). What "stan dard" ths Commission had in contemplation was not disclosed, nor was there any refer Id tt 5-9. ence to what "limit" they were applying. The Commission slso noted: One can conceive of very different cir cumstances wnerem employees wouid be exposed to airborne eoncentrttion of as bestos fiber, to varying degrees snd for varying periods of time. For en employ er to try to determine wnethtr or not medical examination^] as required by [the regulation] should be provided or not provided under a "reasonaoie man ' theory would oe most difficult To sttempt to apply a "reasonable person" standard in recognizing a hazard of microscopic concentration of asbestos fiber m the air. is not in itself reasonaoie. Reasonable Itymen cannot conceive s rule of conduct in an ares woere reasonable experts can not agree. But ths reference of the Commission to a "negligible" amount indicates some quanti tative sundtrd wU intended. It would be helpful if the Secretary wouid atata what that "standard" is. That is not a difficult task if he naa one in mind, [f he does not have one in mind he should have. Maya* the Secretary does not have substantial evi dence to prov* that the "standard" of "con centration" the Commission applying consti tutes a "hazard," and that may be the rea son the Secretary ehoee to leave it m an ambiguoua state. Aj it is now. both the Secretary and the Commission are home free leaving the public in the dark aa to what degree of "concentration" is more than "negligible" according to some unstat ed "standard" of "concentration." Id. at 6-7 'emphasis added). The Commis sion therefore concluded that .t was unaole to determine what [the] threshold [of concentration] is or should be, nor does this Commission accept that a rea sonable employer could so determine. Id. at 7. Finally, it held that until the regulation >u redrafted to state its intend ed meaning in dear understandable terms, the Commission would assume that the 5 fiber standard applied as well to the physi cal examination provision. The State Com mission appeared to recognize that this in terpretation was not directly supported by the language of the regulation, but pased its holding on the necessity for some under standable meaning. If the instant case were disposed of on a similar rationale, the two-fiber limit presently :n force in 29 C.FR. S 1910.1001(b)(2) would aiso govern Such imprecision should not be counte nanced in such an important matter. Noth ing would be lost by requiring the agency to slate a specific objective standard--and everybody would benefit It could be done quickly and there would not be any delay m enforcement It is also my opinion that permitting the entire state of California to have a specific standard that la different, and more liberal, from that applied to appellants m this case, and throughout the rest of the nauon. s highly questionable. The mere availability of more investigators in California ia not a permissible basis for allowing employees to b exposed to more uoestos fibers before a medical examination is required. The num ber of investigators is not german# to the hazard produced by the added contamina tion of more asbestos fibers. the medical examination requirement. The evidentiary record in this case does Recently, the Federal Commissioners it- not ,n my opinion present a case of suffi tempted to distinguish their cectsion pres cient strength to justify setting aside the ently under review on the ground that regulation, but there is every indication "GAF did not involve tK. situation that a proper case an be mads to achieve ! t i LLA 000569 UNITED STATES . GENERAL MOTORS CORP. OuwMI fJIIU llTT) 923 such -e*u:'.. I accord:.tg1'y st.-ongiy suggest '..".it the Secretary srouid amend '.he reguation to eiuoi.sn '.he definite workable and unaerstandaoie 'standard'" with "objective enema" ..oat -.he statute requires. demonstrated "unreasonable rak of iceidenta' stemming from conceded defect Reversed and reminded. Leventhal. Circuit Judge. Hied opinion dissenting in part 3 ty *y Automobile* 16 Uncontradicted facts that automobile manufacturer sold six times as many pit man arm replacements for models in ques UNITED STATES of America. Appellant. y. GENERAL MOTORS CORPORATION, a corporation. GENERAL MOTORS CORPORATION, a Delaware Corporation V. Brock ADAMS et al- Appellanti. No*. 7^1751. 75-1732. U.oited States Court of Appeals. District of Columbia Circuit. tion as for adjacent model yean, that sieer,r.g pitman arm failures had occurred whiie moceis were toeing ir.ven. and that when steering pitman arm fails driver loses con trol of automobile demonstrated "unreasonaoie r.sk of accidents'" summing from conceded defect in steenng system compo nents within meaning of the National Traf fic and Motor Vehicle Safety Act thus enti tling Government to relief in its action to enforce notification order and seeking im position of civil penalty. National Traffic and Motor Vehicle Safety Act of 1966. 102109(a), 15 U.3.CA. 1391(1), 1398< ai. See publication Words nd Phrases for otrier judicial constructions and definitions. Argued Sept. 23. 1976. Decided June 28. 1977. Rehearing Denied Aug. 18. 1977 Aetions by automobile manufacturer to set aside order directing manufacturer to notify automobile owner* of defect in steer ing system component and by Government to enforce notification order and for imposi tion of civil penalty were consolidated. The Appeals from the United States Dvstr.et Court for the District of Columbia iD. C. C.v.i Actions No*. 74-277 & 74-1053). Neti H. SCoslowe, Atty , Dept, of Justice. Washington. D. C., with whom Rex E. Lee, Asst. Atty Gen.. Earl J. Silbert, U. S. Ally., ind Wi'i'iam Kanter, Ally.. Dept, of Justice. Washington, D. C.. were on the brief, for abpeiiants. Morion Hollander. Any. Dept, of Justice. Washington, D. C., also entered in appearance for appellants. United States District Court for the District of Columbia. Oliver Gasch. J.. denied sum mary judgment to Government and. after tr.ai. held lor manufacturer, and Goiern.. ment appealed. The Court of Appeals neid that uneontndicted facts that manufactur er told six times as many pitman arm re placements for models in question as for James Robertson. Washington. D. C.. wr.n wnom Michael L. Buracx and Corneli as J Golcen. Jr. Washington. D C- and Frazer F Hiider. Detroit. Mich., were on tae or.ef. for appellee. Before WRIGHT. LEVENTHAL and R053. C.rcuit Judges. adjacent model years, that steenng pitman sj-m failures had occurred when .node.i were being driven, and that when steering pitman arm fails driver loses control of car Opi.ron for '..he court per :urxm. Opinion dissenting in part fled by L'ENTHAL Circuit Judge. I of SliQg. Roy tier'* ^iOion edge's :n* be aware uon of the vet of I9.*3. -liter '`the d before i !n Jeei'OU .2. 5 3NA :D 7 21.51 J -j doe/ted. 1977), :ae on super* il unaware violation! Jxcauie o/ the hoard m prox* id Hu care- Here, in 'he hui/d iuj rjv Jx eo mauiled hive been uform.' a reran ind ire of spe* . ruirdmii. tnere j no ne Judge's made son* s with hu {*. \?9H z*y 'snanded -?j of fict. netmirf the i basis upon the voli* :ne absence condicr.nf ness ot the iriy be re* rr m rted -a. !t I irfM* 2lAlAt*A4AOr -action -.31. "5' Ue Wat :r L+*cr, 5U 'at ita< J.rvi Lkfil* for Houm. Lac. 11T9,77,--_,1T97,1B OSHO 26,993 CSfiRC Joite t decisions become 6atl t( review not directed viebia .'3 deyr ot SliatFur i under ecrioa. if taj. tee Cue Tedie et 1 799S. !n addition. I no:: '.."at the maxrsniit pattern consisted 3t nine wooden pa.lets ,.ed an -ns tonci ot a forklift raised .a a reign: af approximately IS feet I liio note the Judies findings :.--U die makepnit't piai- ferm wu aovicxuiv haaardous'' and dial die tn.ing -Hard presented hr such rig (was) obvious.' Royster's indifference to the ob vious `ailing hssard should be compared with IL'u.'.sms znuremjes. Inc, 4 3NA CSHC ;56J. '.975-77 CCH DSHD/21.371 [So. aiJJ. ;975> In Afu.'iamj. the Commis- v.on :our.d that the existence of a recog nised n:ard ` at an employer s worxs.te aa not a uulfui violaum of the Ac: because Respondent. oo the facts before us. was not ndiffertnt to the nasard. It did not choose to ignore completely the preanous situation. Instead, rrspondant m^e an attempt, albeit inadequate, to steady the Large counterweight on the inclined street surface. We conclude that this effort removes respondent s action from the pale of willful activity. . . . Here, the extent to which Landers dis cussed the hazard with his supervisors may be determinative as to whether respondent wiiifuiiy disregarded die fuaard. - [I 23.390] H. 3. Zachry Co- (laumauoruil Z jest of Judge's Decision hied wii.n the Commission October 20, ',977. OSHRC Docket No. 77-0470. Garvin Lee Oliver. Judge. Employer Defenses--Isolated Occurrence--Construction Standards--Personal Prp. tective Equipment--Safety Beit--Guardrails. Serious violations of i 192603(a). nfery belts, and } 1925 *5Ii c)( 13). guardrails on tube and epupier scaffolds, were affirmed over the employer's argument that they were isolated instances oi employee misconduct. It was found :hat a safety consultant had issued four reports to the company indicating some employees were not wearing iiuety sens and some scaffolds did not have guardrails. A painter who worked without a safety belt from a cable tray 12 feet above the ground aid ne seldom wore a safety belt, and two workers on an open-sided scaffold 14 feet abovu concrete said they nad asked for belts but were told by a supervisor to get to work be cause mere veren : enough to go around 3eits were purchased and distributed when the compliance officer pointed out the violations. Because the employer had a good safety program, had fired emplovees tor saiety violations sr.d was cooperative with OSHA. the two prooosed SI XO penalties were reduced to S60Q each. 3ack reletrnres: " 4637. 77016; 7725-5- Raiael Rodr'guet-Lebron for tne employer Luis A. Micheli. Edwin A. Tyler and Freddie r ranco-Garcia for the Secretary. (J 22.391] GAP Corp. D.gest of Judge's Decision filed with the Commission October 31, 1977. OSHRC Docket No. 7743616. Edward V. Allien. Judge. Aabrsoe Eapoinri. Medical Examination*--When Required--Experarc Lrrei-- Effect of OSHA Letter Interpretation. A manufacturer of asbestos siding was held in nonsenous violation of f 1910.1001 (j)( 3) and .;) ` 4). failure to provide workers exposed to airborne asbestos fibers with annuli medical examinations and to provide examinations at termination of employment, even though the workers were exposed only to concentra tions below permissible limits set by J l9!Q!00!fb) No penalty was assessed. The employer arguerl that '.he standard does not requite examinations when exposure does not exceed permissible limits. This was reiected based on the Court of Appeals ruling in CAP Core (1977-1<973 CSHD T 2!.9!6i. n which : was Reid under identical circumstances ihat the standard ma/ioates medicai examinations for ail employees exposed to airborne aaoestos in any measurable concentration. The employer submitted letters from ;omer Assistant Secretary of Labor Morton Com informing two other Srms that OSHA would not cite asbestos violations unless erpoiure leveu exceed 0.10 fibers per rude centimeter, and argued that it was not in viola tion since the letters were written before t received the citations. A standard may not 1 Under section Siejlli o[ the Acs. me <n rei duty clause ' an employer haa a duty io furruih nil employee* a ptace ot empiay-riaat tree rrom recogniied -111.01 tike!y :o cause deem or lenoua pnrsuau harm. ,<a employer a Employment Safety and Health Guide uo)ees to uua duty wnen ao pcorauitaieU rtarudards eppir See .Votiowof .teoily 4 Coeir To tee v 03HRC, m P 2d 1ST. 1 10. C Or 'JTi) I 22.391 ii `i 000571 26.994 0tenon i be unended under the guise of interpretation and an be modified only by ale of pla ced urn under |5(b) oi toe Act. the court ruled ,n rejecting the argument. Back references: 11029; 'SOI-1. 3 Ira J. Sraothermut. Jr. tor the employer. Frauen V LaJliaffi tad Manuel del v3~ for the Secretary , igg 23.392) Republic Steel Corp. - aaHfc Digest of Judge's Decision filed with the Commnnon October 27. 1977. OSH2C ' Docket N'o. 74-2012. Louis J Rubin. Judge. _ General Duty CUose--Recognized Hzxard--Safety Belt*--Replacement of Hatd^l coeen Over Opes Tank. Failure to provide safety belts for two employees lifting u4 % positioning two 250 to JCO-pound metai dates caver piates aver a 12 to l*-foot deep openag * on a tank containing steaming hot 'water and tar was a general dury clause violation for f whic.n a citation and S500 penalty were affirmed, One employee slipped and feil into the 7 tank and later died from Purns and .niur.es suatained in the falL Working without fall protection wax a reeogmaed haaud exposing employees to the likelihood of serious iniary or death. The employer failed to exercise raionable prudence in that no 10b ulcer y instructions were written (or tne work aaaignmenti, and employee* were not given safety ,, .instructions before the work began. The ungmng foreman, who had never seen a bate# ' cover replaced and erroneously assumed .: to be a routine task, failed to ascertain whetba . employees could manage the task and did not tupemse them. The employer could have protected employees by providing safety belts on a short line attached to a cable running 7 from guardrail to guardrail on the tank surface. -71JI A $700 penalty and citation for failure to lock out the tank while paddles operated on a continuous chain drive to tkim tar was vacated because the operation posed an hiiard while employees worked on top of the tank. Movement of the paddles was barely " discernible--at tne rate pf pne foot an nour--and was only a hazard in the event of a iaIL Gerald F Penea for the employer Mark D Katz for the Secreory. Protection from Are Welding Rays--Unanted Safety Glasaaa with Wire Mesh Side Shadd*--Adjacent Workers. A nonsenouj violation of | l9lO.S2(e)(21!iii). protection of adjacent workers from are welding rays, waa vacated along with a proposed $25u penalty because the untinted safety glasses with wire mesh side shields that the employer required its non-welding workers to wear were found to be sufficient welding glare protec tion. The employer used an arc air process, a submerged are process, and a stick- electrode process. ^ . The stick-electrode process was the only one which was considered to be "welding within the meaning pi the standard and ,t was used only tO^e of the time as a back-up method whesi the other two methods could not be used. The compliance officer incsrrectly assumed that most of the epe-atten vaj done with stick-electrodes and that bO'u people svere exposed to the hazard pi *e:d fiasn. [1 waa determined that three adjacent workers were exposed to the nvi but that their goggles provided protection witaia threshold limit values der-veo by divi.ng n:o three milluoules ithe permissible exposure per square centimeter at 272 nanometers 1 tne numoer of microwatts per square centimeter ^ observed at the wonrer s eye. Back reference: $ 72363. Edward J. Cummings. Jr. for the employer James A. Magenheizner for the pecreary 1 22,392 197$, Commerce Oaring House. lac. =cr~ -2-.r+*'. G G jm hi >i 1971OSHD 77,149 OSHRC /urfge'j dteitioos btoo me Satl if review set diroettd witbia JO dart af SJiaf. For furthtr sction, if iny, too Cut Ttilo it 1 7HS. standard at } 1924.105(a) 'll affirmed because son* of the enumerated dencae win provided A foreman ordered i worker :o jew proteetire plastic from an I-beam 23 feet above the {round without a lanyard lone enough to nc to the bam. The worker refused and wsj Sred. Other workers received the propert finyards from i distant tool room. A primary obligation af a foreman s to check on the adequacy of i worker's protective equipment. An $800 peniity was affirmed. A serious violation of ( I926.500(c)(l)(i), mil opening guarding, was affirmed aloof with a $*00 penalty because workers were catting metal decking three feet from a wall opening sixty feet above the ground. The anployer argued that msailation uf a guardrail would interfere with handling maternal and machinery aad would inaeaac the hazards. It was found 'Jut work had progressed to a pant where a guardrail could have beep aaftly installed. - Violations of J 192fl.JQ0(b) f I) and fbHfl). guarding of floor opening*, were affirmed without penalties because openings at the 200-foot level were not covered or barricaded. Because a stairway had a caule guardrail only on one side, a aonsertoos violation of | 1924.5001 d)f 1 >. guardrails on stairways, was affirmed without penalty. It was found that employees had access to general construction debns that presented a tripping hazard on a level where they weren't working aad a noascnoui violation of t 1924-2J(a) waa affirmed without penalty The employer unsuccessfully argued that the Act is aneonatstntional. the eoastruerson sandards were mvalidly promulgated, uid an inspection without a torch warrant violated its Fourth Amendment rights, ft also argued that the Aet. penal in nature, doa aac provide constitutional safeguards available in criminal proceeding* The arguments were denied on the basis of previous appellate court and Commission ruling* Review was granted on whether the feasibility of safety belt use must be proven, whether metal decking was an alternative safety device to safety acta, aad whether deck work had proceeded far enough away from the wail opening so that a guardrail could be safely installed. Bach referencm: 17703d: 7703d: 7731J: 774ii H. Lane Dennard. Jr. and J Taylor Greer for the employer. Thomai E. Korean. Jamison Ann Poindexter and T. A. Housh. Jr, for the Secretary. TtpTij --ygTiiri-. [Jf 22,302] Wagner Electric Sales Corp. tA Digest oi Judge's Decision Sled with the Commission December 12, 19T7. OSHRC Docket No. 77-0603. Vernon Ruehl. Judge. Asbeitow--Medical Eraminatioo Requirement--When Arqifirshie RmpL^tt's ReaponaibiUty for Providing gm:ruinnn Brake Lining Grinding Shop. An apioyer whose workers, grinding brake linings, were exposed to airborne concentrations of aideswe beiow permissible limits nonetheless violated the provision requiting the employer to protde medial examinations. ) 1910.1001 (j), because exajrunations art required for worker! exposed to any airborne asbestos. So penalty waa ajsrssed. One employee at the brake luung grinding shop was exposed to 1 Sber/cc and another to 2 fiber/ce. dnrmg an 8-hoar period, which did not exceed the 2 fiber/ee permissible level: however, the standard makee no exemptions from the requirement for medical examinations if any aabestos ia releajed in the workplace. An intention to provide all exposed workers with examinations was shown by the fact that NIOSH had recommended that medical surveailanee begin at an "exposure level" oi 1 Sber/cc, but this recommendation had been omitted from the OSHA standard. Back rtfermsea: 1 7SOU. Frank L Pellegrini for the anployer. Eugene F DeShaao for the Secretary. [1 22.303] Wentarn Electric. Inc. Text of Review Commission'! Decision dated January 17, 1971 C7SHRC Domlee* Mo, 02 The Judge's Decision appears at ! 19.W. 1975-1976 OSHD. Review ecu,onat 121533, 1976-1977 OSHD. and Court of Appeal. Decision at f 22J32, 1977- 178 OSHD. fflfilavmeat Safety and Health Crude 1 22 503 '