Document 7M1dZg15JyXV5Bmeev0kV489j

FILE NAME: RT Vanderbilt (RTV) DATE: 1978 July 18 DOC#: RTV 114 DOCUMENT DESCRIPTION: Letter from RTV to Quebec Asbestos Mining Association RE Caution Labels R. T. V a n d e r b i l t c o m p a n y , i n c . 3 0 WtN FIELD STREET NORWALK, CO N N EC TIC U T 0 6 8 5 5 July 1, 1978 CAULK A D D A * . "OILTVAW NOAWAL*. C O M N K 'O nCLir ' -TWA 7 I O 'A f 'H B A O . . iiosi ei'Moo Mr. Marcel Cossette Quebec Asbestos Mining Association University of Sherbrooke, P.Q. Sherbrooke, ' QUEBEC J1K 2R1 Dear Mr. Cossette: .... . ' It has come to my attention that the requirement for caution labels as stated in paragraph 5.3.1. of the 12th draft of the ASTM E-34 Standard for Occupational Exposure to Asbestos is unworkable as written. The wording "caution labels should be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing asbestos fibers, .or to.their containers," could be interpreted by the courts, in the absence of any qualifying minimum concentration of asbestos fibers in the'product, to mean any concentration above zero. Such an interpretation was taken by the courts in the case:GAF Corp- . oration v. OSAHRC and Dunlcp (No. 76-1028). in relation to the OSHA asbestos: standard' requirements for medical exams for exposed employees. The court ruled that "con centrations of asbestos", as .stated in the regulation, meant any concentration of asbestos.above zero. Obviously, a similar interpretation of "containing asbestos fibers" for pur poses of labeling, would mean that the asbestos warning label would be required on mineral product containers where the concentration of asbestos was in the parts per million range.. The possibility that this might happen is supported by a recent finding, through Freedom of Information Requests, of a recommendation by the OSHA Solicitor's office that talcs containing any amount of asbestos be labeled with the official Asbestos Warning Label. It has been argued that the OSHA requirements for labeling products containing asbestos, which uses essentially the same language as the ASTM draft standard, might be interpreted to mean that only products containing sufficient asbestos "so that during any reasonably foreseeable use, handling, storage, disposal, processing, or transportation, no airborne concentrations of asbestos fibers in excess of the pre scribed exposure limits" be labeled. Naturally it would be unreasonable to believe that a product containing, for example, 0.1% asbestos could release more than 2 fibers/c.c. under normal conditions of use. But as long as the language of the standard remains vague or unspecific, the courts, in their efforts to favor the protection of the employee, might easily adopt an attitude similar to that applied in the GAP case. However, the GAP case points out the need for precise terms in regulations of importance to human life. Circuit Judge- MacKinnon, in his concurring opinion in i the GAF case criticizes the regulation: *cr tn e of w mstsneis kb AX C R M O M A D " 000322 pv f de netflfMsthe m u te to t* obtained R. T. VA N D E R B ILT COMPANY. IN C . 2*) C.F.K. flMO.IOOUb)ll) and (2) <m>). The prescribed standards in these rcgulaliimi were: "five fibers, longer than 5 micro meters, ncr cubic centimeter of air," and after July 7. 1976, " w o fibers." These standards inform the nation's employers precisely what degree of exposure ts per mitted and wbnl exposure is excessive, but the regulation requiring medical examina tions is almost completely deficient in this respect. What number o i fibers, of what length, per what volume of air will constitute a "concentration" is nowhere slated or even hinted at--and like the regulation, the court's opinion leaves the matter completely to conjecture. This is particularly unsettling Page 2 to law abiding citizens when the agency is dealing with tremendously minute quan tities of infinitesimally small particles. It makes compulsory law enforcement diffi cult and it lessens the likelihood of vohin- . taiy compliance with the law, a result devoutly to be wished.. The lint requirement for uniform and voluntary compliance with the law is a clear understandable statement . of what conduct is required and this regula tion falls-woefully short of that minimal, requirement. _ Regulations that have the great im portance that this regulation has to human . life should be written in more precise .terms--so people of ordinary understanding can determine what course of conduct is being required of them. What one person might consider to constitute a "concentra tion" -ill differ greatly from the interpre tation that another would give to that term; - and what one person today might regard not to constitute a concentration" might be considered tomorrow, on the basis or hind sight as medical knowledge increases, to come within that term.1 ' ^believe, however, that the Occupational Safety and Health Review Commission . should clarify the regulation governing medical examinations so as to give other persons subject to the regulation reasonable ' notice of some measurable quantity of -,irbornc asbestos the Commission intends >o trigger the mcdicai examination require-ment. Merely to state that all employers most provide medical examinations when ever (heir employees arc exposed to "con centrations" of asbestos fibers docs not prmidc an ascertainable standard for those who wish to comply with (he law. For the above reasons we believe the language of paragraph 5.3,1. concerning .caution labels should read: . CRMC-MAD-000323 R.T. V A N D E R B IL T COMPANY. IN C - Page 3 Caution labels should be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing more than 1 percent asbestos on a dry weight basis or to their containers, except that . no label is required where asbestos fibers have been modifier' by a bonding agent, coating, binder, or other material so that during any . reasonably foreseeable use, handling, storage, . disposal, processing, hr transportation, no airborne concentrations of asbestos fibers in excess of the exposure limits prescribed in 5.1 will be released. This is the same exclusion, allowed in the EPA National Emission Standard for Asbestos (Federal Register 38, 8829 April 6, 1973), for spraying, which reads: (e) Spraying: There shall be no visible emissions to the outside air from spray-on application of materials containing more than 1 percent asbestos, on a dry weight basis, used to . isolate .......... Furthermore, the practice of setting exclusion levels for regulated materials has been followed by OSHA in the case of the 14 carcinogens (29CFR 1910.1003 through 1910.1016) wherein exclusion levels of 0.1 and 1.0 percent were allowed for various carcinogenic chemicals before the regulation applied, and more recently in the case of the OSHA benzene standard (29CFR 1910.1028) wherein there is no warning label requirement for mixtures containing 0.5 percent benzene (0.1 percent after June 27, 1981). C R M C -M A D -000324 The practice of choosing exclusion levels for regulated materials could be considered as an effort by OSHA and otheir regulating agenciesto now recognize "feasibility" in the development of standards. It would not be feasible to analyze all silicate mineral mixtures or any asbestos content, yet a requirement to label calcs or any other silicate minerals assemblages such as pyrophyllite, kaolin, montmorillonite, etc. containing any asbestos would obligate the producers of many non-beneficiated mineral products to maintain an extremely costly, program of trace analysis. In addition to feasibility, the agencies are also questioning the necessity of stringent regulation in areas such as label requirements. The exception to labeling in the OSHA standard for materials containing asbestos that has been- modified with a binder, etc., is evidence of a recognition that only trace amount of asbestos will be released by the normal handling of these products. If only trace amounts of asbestos can be released from a non-modified mixture containing a low percentage of asbestos, then there is similarly no. need to label or regulate the mixture. In a Pinal consideration of the need to Stipule4-^ a concentration of asbestos in a mineral product mixture below which no warning lah . would be required the state of the art of asbestos detection counting should be recognized. Despite some published reports that concentrations of asbestos Ialow 1 percent can be detected with accuracy, it remains that the accurate identification and quantitative determina- TAlMVlMWSP^ if J=t,'T. V A N D E R B I L T C O M P A N Y , INC. Page 4 tion of some, of the amphibole varieties of asbestos in an unknown mixture is difficult below 5 percent and almost impossible below 2 percent by weight concentration. This coupled with the present unresolved controversy over the definition of an asbestos fiber favors the setting of a minimum asbestos concentration for purposes of labeling requirements in the ASTM draft standard for asbestos. I would be pleased to discuss this matter further at our next meeting of E-34 committee. ' . Sincerely, R. T-. VANDERBILT COMPANY, INC. AMH:lsm Allan M. Harvey, Manager 0 Technical Development Department CRMC-MAD-000325