Document Edz8g3GxNX6KVDbQwm19Z56d4

PLAINTIFF'S g EXHIBIT I AL-1535 3^2 cJ!yv-C.^ ALCOAO000008004 Organization Resources Counselors, Inc. National Place, Suite 911 1331 Pennsylvania Avenue, N.W. Washington, 0.C 20004 202-7376330 MAR j Q m Memorandum March 4, 1988 To: From: Subject: ORC Asbestos Task Force ORC Respirator Task Force Darrell K. Mattheis Court Decision in Suits Against OSHA's Asbestos Standard; EPA Recommendations for Asbestos Removal in Commercial and Public Buildings On February 2, 1988, the U.S. Court of Appeals for the District of Columbia issued a ruling on the suits that had been filed against OSHA's Asbestos Standard. There are a number of sig nificant issues in the Court's ruling, but I would like to point your attention particularly toward the issues that I have marked below with a double asterisk. A copy of the Decision is included for your interest. I have also included a copy of an article from the March 1, 1988 Wall Street Journal wherein the EPA recommends that commercial and public buildings not necessarily remove all asbestos contain ing materials. <* SIMMARX.PE. DECISION The Court supported OSHA's assumption of a 45 year worklife in its risk assessment (p. 10). ** The Court supported OSHA's decision to include smokers in its risk assessment (p. 12). * The Court supported OSHA's use of exposure at the PEL in its risk assessment rather than an average level of exposure that might exist in a workplace. The Court did, however, suggest that the Secretary study the relation "between legal ceilings and implied real exposures" (p. 13). * The Court supported OSHA's use of higher potency estimates wherever there was a dispute, when doing their risk estimates (p. 14). ALCOA0000008005 2 * The Court supported the technological feasibility of OSHA's monitoring method, and its PEL (pp. 15-16). ** The Court supported OSHA on its policy of dealing with "random uncontrollable fluctuation" in airborne levels of asbestos. If the employer, using state-ofthe-art controls and work practices, shows OSHA that the measurement exceeding the PEL is unrepresentative of normal conditions, OSHA can choose to perform more sampling and may decide not to issue a citation. OSHA rejected the use of "objective criteria" alone (p. 18). * The Court supported OSHA's contention that it need not consider whether or not the same level of safety attributable to a 0.2 f/cc PEL could be achieved by a 0.5 f/cc PEL. This follows from the Secretary's finding that there is significant risk even at con centrations below 0.1 f/cc (p. 21). * Reversed OSHA's ban on spraying of asbestos containing products (pp. 21-22). ** Told OSHA it must reconsider additional smoking control measures (pp. 25-26). ** Required OSHA to consider setting lower PELS for some industry groupings (pp. 27-28). ** Told OSHA it must complete reconsideration of a STEL for asbestos within 60 days (p. 29). ** Told OSHA it must reconsider requiring the use of supplied air respirators to achieve levels lower than the PEL (p. 32). It must be noted that OSHA interprets the Court's remand in this instance as requiring the recon sideration of their whole respirator policy, but not specifically the use of supplied air equipment in place of negative pressure respirators ** The Court supports OSHA's acceptance of "objective data" to reduce initial monitoring requirements (pp. 32-33).* * The Court supported OSHA's decision to not require periodic environmental monitoring at the boundaries of regulated areas (p. 33). ALCOAOOOOOO8OO6 3 * ** * * * * ** t * ** The Court supported OSHA's decision to allow employers to dispense with periodic monitoring within a regulated area if all employees working within that area are equipped with supplied-air respirators (p. 34). The Court ordered OSHA to clarify its Asbestos Standard as to when an employer must resume periodic monitoring, once it has been terminated because fiber concentrations were below the Action Level (p. 34). The Court supported OSHA's medical surveillance threshold requirements, (30 days exposure/year or a requirement to wear a negative pressure respirator) and ruled against expanding medical surveillance requirements of the Asbestos Standard to all construction workers who may be exposed to any airborne asbestos regardless of levels or duration of exposure (p. 35). The Court supported OSHA's position, that annual chest x-rays may not always be necessary, and that the decision on the need for an x-ray may be left up to the examining physician (p. 35). The Court refused to expand OSHA's required medical questionnaire (p. 36). The Court supported OSHA's decision to allow employers to see the results of physical examina tions, strengthening OSHA's authority to balance health against privacy (p. 36). The Court thought more could be done to meet the needs of non-english speaking employees in the workplace, and ordered OSHA to reconsider its requirements for multilingual warnings and labels (pp. 37-38). The Court ordered OSHA to consider requirements that all construction industry employers file reports with it prior to engaging in any asbestos projects (p. 38-39).** The Court ordered OSHA to explicitly consider requiring all employers contracting or subcontracting asbestos related work to establish, maintain and transfer to building owners written records of the presence and locations of any asbestos or asbestos products in any actual or prospective workplace (pp. 39-40). ALCOA000008007 -4 The Court ruled that The Secretary must either expand the applicability of the competent person requirement or give a better explanation of why it is not necessary (pp. 40-41). The Court supported OSHA's not requiring that the "competent person" have authority to suspend work and remove affected employees when hazardous conditions exist (p. 42). The Court ordered OSHA to consider adding the following clarification of the "small-scale" exemp tion from the preamble of the standard to the rule itself: The exemption was meant to apply only to "those work operations where it is impractical to construct a negative pressure enclosure because of the configuration of the work environment" (pp. 4243) In a footnote on page 41 of the decision, the Court commented: "We observe that neither the record nor common sense provides clear support for the "small-scale short term operations" exception from the competent person requirement for removal, demolition and renovation operations...". Later, the court commented that: "Indeed, the exception as now worded seems to erase the. rule" (p. 42). And finally: "In so far as the exemption applies to the competent person requirement, we can discern no logic whatever in OSHA's choice of language, with or without the preamble's gloss" (p. 43). ALCOAOOOOOO8OO8 iOMIS 1*494 17. ica magelage>nships lopers ility n North pan Rank 5 profit lillion). mtlv r of fine at Brit,erica, iorth pofseasful US. Is. We mbinaExpertion and its. jssible ?ase Earns, lO. <way '48 tnounce to our olio of The tton Hotel, Myrtle 'ma. IKS starting snag oe ** ew cxnic growth tills year at more than 3%, up (ran his earlier estimate el 2Jt%. The government has predicted growth this year of IB%. Since ISM, Canada has bad the strangest employment and output growth among major industrial countries. Canada's Strang growth has been spurred by various developments including an upturn in prices of many o( the com modities Canada produces. Michael Manford, chief economist at Merrill Lynch Canada Inc., predicted Ca nadian growth this year of 3*% to 3H%, |NWM4|TWW .--^ fourth quarter. Statistics QrmHr aid that as a result of the higheT Imports Canada's deficit on the current account of tts bal ance of payments widened to a record 3.5 billion Canadian dollars <22.78 billion) in the fourth quarter from 2.57 billion dollars in the third quarter. The current account Includes trade In goods and services and Investment income flows. Statistics Canada said the rise tn im ports was led by automotive products and rising demand for a "broad range" of ma chinery and equipment EPA Doesn't Recommend Asbestos Rules For Commercial and Public Buildings UJSZ Vi-gg ____________________ By Barbaka Rosewicz Staff Reporter of The W am. Street Journal WASHINGTON - The Environmental Protection Agency estimated that one in five commercial and public buildings may have asbestos problems, but said it won't recommend federal rales to inspect or re move the cancer-causing material. The result is a far less aggressive ap proach to asbestos In the nation's office, government and apartment buildings than in its schools. The EPA's latest action quickly drew fire from Capitol Hill. By federal law, public and private schools must inspect their buildings by Oct. 12 for any materials containing as bestos. which can cause lung cancer and other diseases, and draw up maintenance or cleanup programs. Congress left the is sue of asbestos in other publicly used buildings to the EPA. In its report to Congress, the EPA yes terday said it would cost SSI billion-17 times the school program-if a nationwide inspection and cleanup program were re quired for some 3.S million commercial and public buildings. Before taking that plunge, the EPA recommended instead a three-year program of further study and beefed-up training for asbestos inspectors and removal crews. "We've got finite resources." John Moore, begd of the EPA's toxic substances division, told reporters. For now. the EPA needs to keep the primary focus on schools, be said, because children are at greater risk from the Jong-term effects of inhaling asbestos fibers and because schools have worse asbestos problems than Other hnlirtinp Gelman Sciences Inc. ` Accused by Michigan Of Water Pollution Be r Wall Street Journal Staff Ktpamr ANN ARBOR. Mich.-The Michigan At torney General's office accused Gefanaa Sciences Inc. of contaminating wells and a lake near tts facilities here wtth a can ter-causing chemical. The state is seeking penalties of mm than M00.000. Gelman, a maker of hospital laboratory equipment and filtering materials, in a statement yesterday, denied any wrongdo ing. The company's stock closed on- * e*wiWRt<U twiM. While roughly one-third of U.S. schools have asbestos problems, the EPA esti mated that 20% of commercial and public buildings contain asbestos materials in a potentially hazardous form that can crum ble on touch, sending up airborne fibers. The agency estimated that asbestos In some 14% of the buildings Is damaged meaning it is more likely that fibers have been released-and in 9% is significantly damaged. The most commonly found problem was with thermal insulation, fire-retardant as bestos that was wrapped around pipes and heat ducts from roughly the 1920s through the 1960s. Since most thermal insulation is found in boiler and machinery rooms, building and service workers are more at risk than the public. Mr. Moore said. Mr. Moore stressed that the mere pres ence of asbestos isn't necessarily a health risk. It depends on tts condition and the exposure levels, he said. "There's nothing to suggest there are terrible conditions out there" in tremendous numbers, he said. Some problems can be Inexpensively and quickly contained, he said. He also stressed that removal, which is costly. Isn't always the best alternative because it releases more fibers Into the air. Congress has Introduced - but not passed-bills to tackle asbestos problems In federal buildings. Democratic Rep. James FJorio of New Jersey, who spon sored the 1986 law mandating school as bestos Inspections, promptly blasted the EPA's recommendations yesterday for "sweeping this alarming problem under the rug" and said he will consider Intro ducing more aggressive legislation. The Service Employees International Union, representing more than 150,000 building-service workers, also criticized the EPA for not even requiring that build ing owners inspect for asbestos and inform workers when it is found. A group of former makers of asbestos products also challenged the EPA's esti mates, which were based on inspections of only 231 buildings. John Welch, president of the Safe Buildings Alliance, aid the EPA should set health standards for as bestos, as It does for radon and other con taminants. so that building owners and tenants can have an objective way to measure whether removal Is required or a building la safe. Farm Prices Slipped Rv 0.8% in February Wilfred Gobert, director of research for Peters A Co., estimated Asamera's asset value at about 16 dollars a common share. "We think there's room for a higher price by Gulf or a competitor, and the market thinks that's going to happen," be said. With investors apparently expecting a higher hid, Asamera common shares soared above the offer price to close at 29.375, up 23, in American Stock Exchange composite trading yesterday. More than 2.6 million shares changed hands. Gulf Canada shares dosed at 213.75, up 37.5 cents, on the American Stock Exchange. Gulf said Its offer for common is condi tioned upon tender of more than 50% of the shares. Its offer for preferred and war rants is conditioned upon more than 50% of the preferred being tendered and on the success of the offer for the common. If Gulf acquires most of the shares under the . offer, it said it may consider ways of ac quiring the balance. The offer expires March 30 at 12:01 a.m., local time, at any of the offices where shares may be depos ited. Asamera declined to comment on the offer and urged holders to await its official response. A spokesman said the offer would be discussed Wednesday at a pre viously scheduled board meeting. For the first nine months of 1967, Asa mera reported profit from continuing op erations of 222.8 million, or 55 cents a share, compared with 24.1 million, or two cents a share, a year earlier. Revenue rose to 2101.1 million from 273.5 million. The Asamera spokesman said the com pany currently produces about 23.000 bar rels of oil a day in Indonesia and about 1,000 barrels a day tn Canada. A 90%owned subsidiary holds 51% of the Cannon gold mine in Wenatchee. Wash. Last year, the mine produced 137,800 ounces of gold and 188,400 ounces of silver. As previously reported. Gulf Canada was spun off last year to bold the oil and gas assets of a predecessor company, Gull Canada Corp. ALCOAO 000008009 ALCOAO 000008010 W eigel, Senior Dietriet Judge, dissenting in part: I respectfully dissent only from that portion of the opinion which fails to call fo r medical surveillance for employees t ALCOAO 000008011 > (% 1 O' > to J* o <0 00 00 00 I ?f 10 s K I Sitting by designation pursuant to 28 UAC. (294(d). OS ALCOAO 000008012 ei08000000VOD^ It o5- aE*. 9. a* *1; a 5 S.S3 Eg * a* 3 i S3 | i 5* aa sa 2**. 3a S' ? S a 8.1 a 3 3 _ I y*?; 3 5-d. nITST 5I* 1 "* a> air s3 2n c * s i c |s?i :Mi 111e _ ej aa m a. n illS' c 2. 3 , *o 73* a I X Cz e ^10800000 0VOD1V ST0800000 OVOD1V S9p,T 9*s V"- >f> r- -5 c . cs<*.. K tfi $ "* * c 515*1. S>| ?*8> . *1 cr. 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