Document LmJaggQLgEjVKXLeyXgZvppz

yBC: File THE DISCOVERY COMPANY UNION CARBIDE CORPORATION MINING & METALS DIVISION P.O. BOX 579 NIAGARA FALLS, N. V. 14302 TEL: 716-278-3376 March 10, 1975 Mr. Joe Volk National Gypsum Company R&D Laboratory 1650 Military Road North Tonawanda, NY 14217 Dear Joe: Here is the OSHRC decision we discussed. It has some rather interesting points. Regards, H. B. Rhodes Area Manager Marketing & Technology HBR:cjb Enclosure (Molded Industrial Friction Corp.) (OSHRC Docket No. 6191) ani U NIT-TTD STATE 5 OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION l}ft ftCHllit STRICT. M. l. . EXECUTIVE SECRETARY ATLANTA. CtORCI* C30 JUDGE'S DECISION RE CD KC'/ >'l i PETER J. BRENNAN, Secretary of Labor, U..n.i.ted___S__tates Dk epartmen.t of iL_a*bor, Complainant, ) FFhI"'.`j)j !". i )i' ) ^ p. CP O r> OSHP.C Docket No. 191 v. MOLDED INDUSTRIAL FRICTION CORPORATION, ) Respondent. DECISION .- v - X;; :,r APPEARANCES: George D.- Palmer and Ellis V. Cruse,'Attorneys /V; for the United States Department of Labor,, . ' : Birmingham/ Alabama .. ;v - ;x:.r : . t: ` C. Lash Harrison and G. Paris Sykes, Attorneys for the Respondent, Atlanta, Georgia'. - ' ' ' v STATEMENT OF CASE '"- - ' -'' This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act of 1370, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) to contest two citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citations which v;ere issued December 26, 1973 alleged that as the result of an inspection of the Respondent's workplace at 327 Walnut Street, Prattville, Alabama,Respondent violated section 5(a)(2) of the Act by failing to comply with specific Occupational Safety and Health Standards promulgated by the Secretary pursuant to Section 6 thereof, * notice of proposed penalty was issued with the citation. In citation number 1 the- Secretary alleges tr.at on November 29, 1973 Respondent violated the standard at 29 CFR 1910.93faJ(b)(l). It Is alleged in citation Number 2 that on said date Respondent also violated the standards codified at 29 CFR 1910.93Ja/(d), 29 CFR 1910.93}a}(g), 29 CFR 1910.93ja /(h), 29 CFR 1910.93jjaJ(i) and 29 CFR 1910.93|sJ(j). Molded Industrial Friction Corporation, is a corporation having a place of business at 327 l.'alnut Street, Prattsville, Alabama where it is engaged in the business of fabrication and production of brake lining. The hearing was held May 21, 1974 at Montgomery,-Alabama, and no additional parties sought to inter vene. " MOTION TO DISMISS During the cross-examination of Mr. Anthony Stephanie, the compliance officer who conducted the inspection, Respondent moved to dismiss the complaint on the basis of the Secretary's failure to issue the citation with "reasonabTe__prerrptness11. The motion was based on Section 9(a) of the Act which provides in pertinent part as follows: If, upon inspection or invest:cation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, or any standard, rule or orear promulgated pursuant to section G of this Act, or cf any regulations perscribed pursuant to this Act, ha shall with reasonable promptness issue a citation . to the employer. -2- Mr. Stephanie's testimony revealed that^eig^ days expired between the time It was determined the alleged violation existed and the time the citation-was issuec. Respondent cites the case Secretary of Labor v. Chicago Bridge and Iron Company, 6 OSAh'RC Docket No. 244, in which the Commission set forth a limitation of 72 hours within which to meet the require ments of "reasonable promptness" as provided in the Act. The 72 hour period is deemed to commence when the determination has been made that a violation exists, and it is held to be sufficient time within which to perform the ministerial functions associated with the issuance of the citation. The Secretary argues that the issue was not timely raised and no opportunity was provided to offer evidence on the issuance of the citation. It being asserted that the testimony of the area director of the Occupational Safety and Health Administration, who made the decision to issue-the citation, was necessary. Respondent contends that the oral motion was made at the earlies't possible time upon learning the dates involved in making the decision to issue the citation. It must be held that the Commission decision in the Chicago Eridge and Iron Co. case is binding. The Commission stated: Respondent raised the issue of reasonable promptness during the issue formulation stage of tins proceeding... and requested vacation of the citation. r A footnote to this sentence sets forth: -3- This is the kind of issue that can and should be raised early in the proceedings, i.e. in a notice of contest or in the employer's answer. Because it is such an issue we will deem it waived if it is not raised during the issue formulation stage. The.specific language of the Commission clearly has application to the issue of "reasonable promptness" as raised by the Respondent. The issue was raised during the course of the hearing, and certainly after the issue formulation stage. . It has not been shown that the Respondent was in any v/ay prejudiced by the expiration of the time herein, nor were other exceptional The Aliened Violation of 29 CFR 1910.93(a)(b) This standard which pertains to permissible exposure to airborne concentrations of asbestos fibers provides The eicht-hour time-weighted average airborne concentrations of the asbestos fibers of which any employee may be exposed shall not exceed five fibers, longer then five m.icrc-meters, per cubic centemeter of air as determined by the method described in paragraph (e) of this section. The alleged violation is described in the amended complaint as follows: "Employees exposed to airborne concentrations of asbestos fibers exceeding the time and concentration limits specified in the standard ar failed to provide ini strative controls n acceptable level in the press and preform area. Standard violated: 29 CFR 1910.53(a)(b)." -4- \ Mr. Stephanie explained that the operation in the area-inspected -involved_the pressing of brake sheas. He stated that this involved the scooping of asfcestoes from a drum and placing it on a scale for weighing from which it is placed in a mold, where it is pressed into the brake shoe form. This operation involved two employees, Mr. Grady Bowman and Mr. Clem Hauser, from whom air samples were taken with a conventional type sampler strapped to the employee where it could obtain a sample of air in his breathing zone. (Tr. 11) The device was described as an open face sampler with a membrane filter using a small vacuum pump. Two meters of air per minute were pumped through the filter depositing whatever particulates in the air on the membrane. He related that the instrument used for the testing is recognized as standard by processionals in the field. On Movember 2S, Hr. Stephanie stated he took twelve samples in the press and preform area, nine of which were breathing zone samples and three were general air samples. Four samples were also taken in the saw area which was adjacent to the press and preform area. Also, he revealed that two control samples were made to assure the membrane was without any contaminates. (Tr. 12-13) He indicated that the samples were taken during a period of fifteen minutes to half an hour, and explained that if a sample was heavily loaded on the membrane it would present difficulty in counting there fore a sample taken for a shorter period of time is usually less loaded and is easier to count. (Tr. 21) The samples v.'cre forwarded to Salt Lake City for analysis by the National Institute of Occupational Safety and Health Laboratory. (Tr. 13, 14) Ey agreement, the sample identification sheets and analysis worksheets were received into evidence as. \ complainant's Exhibit No. 2. . At the tirce of the closing conference the compliance officer established that employees Clem Hauser and Grady Bov.nan had worked approximately 6 to 7 hours in the area where the samples were taken. (Tr. 19) Mr. Stephanie testified that the only engineering control in the area consisted of a hood which v/as being fabricated and * 4/ installed, however he believed its effectiveness was questionable , in view of the analysis of the samples. On cross-examination Mr. Stephanie agreed that he had inspected Respondent's place of business during the summer of 1973. At' that time he took air samples in the area of the drilling operation. (Tr. 39) He revealed that an analysis of the samples showed they were too heavily leaded with phenylic resin in order to provide an accurate analysis. Also, he stated that the phenylic resifi was added to the asbestos in the high pressure press area which is adjacent to the present preform areas. (Tr.- 41, 42) He returned to the plant during October but it was not in operation due to the installation of a ventilation system and therefore no inspection was conducted. It was his understand'; ng that the purpose of ventilation system was to remove dust from the areas where employees were exposed. (Tr. 47) -o- r i 1 1i * i j i ) On his return visit November 29, 1973, he observed the progress made in the installation of the system which was operational in the drilling, saw, press, and weighing areas, however it was made known to him that the installation was not completed and the plant had not returned to production. (Tr. 50, 51) * k He requested an opportunity to take air samples in the press and preform area where asbestoes was being used by two employees, namely, Grady Bowman, and Tommy Gibson. The mixing area was not in operation at that time however but a sufficient amount of substance v/as on hand so that operation of the mixer was not required. (Tr. 5355) He did not inquire as to the composition of the mixture. (Tr. 7677) . : l/hen he returned on the 18th of December he was able to verify the time the employees spent on the job in the areas tested. He indicated the working conditions were much better than on the day of the sampling, and much cleaner. (Tr. 68, 69) fir. Willard Dixon testified that he is an analytical chemist with the United States Public Health Service in Salt Lake City, Utah, where he is in charge of counting asbestos fibers. (Tr. 126) The evidence shows that samples taken by Jir. Stephanie, * were counted by J!r. Dixon. His count of five or more fibers per cubic centimeter resulted in totals of 33.1, 14.2, 26.4, 20.8, 7.0, 6.9, and 23.4. Such samples were taken within the breathing zones of the employees tested. He testified that he counted -/- asbestos fibers of a chrysotile typo using a magnification of 400 4 tir.es and utilizing phase contrast ill uni nation. (Tr. 134) He used a number 12.5 circle which is 5.5 microns in diameter. (Tr. 135) Mr.-Dixon indicated that Joint Exhibit Ho. 1-C which % contained recommended methods for air sampling, contained the : w * fc following: The concentration of any air ccntaminent : resulting from an industrial operation I also varies with time. Therefore, a longer . sampling will better approximate the \ actual average. i With the following recommended sampling procedure, i it is possible to collect samples in the workers breathing zones for periods from 4 to 8 hours, thus permitting the evaluation of average exposures for a half or full 8-hour shift--a desirable i and recommended procedure. ; i Furthermore, dust exposures of the more I/ informal work pattern results from the :- use of personal samplers. Evaluating daily exposures, samples should be collected as near as possible to workers breathing zones. (Tr. 152-154) Hr. Dixon described the characteristics of asbestos and pointed out whenever he has the least suspicion of the nature of the fiber he employs a cross-poller with a rotating crystal 1 4 which more specifically identifies the fibers. He did not recall using this technique in this case. (Tr. 160) He did not knew the composition of the substance which contained the asbestos in this case. (Tr. 161) Cut the presence of ether substances would not ! ] i! J i KJ , ' -I . A 1 1 t I chance his analysis because h.2 was looking for asbestoes fibers which he could specifically identify, however, he revealed that he had not seer, chipped brass or barytes under a microscope. (Tr. 164, 166) He agreed that the more variation that exists between the samples the less reliable the sample is in determining the accuracy of the condition being sampled, but he indicated that ii this could be compensated for by Counting larger numbers in order ;i to obtain an average, as the minimum1number of fibers recommended . I / ; : for counting is 100. (Tr. 170) Heagreed that this number was established perhaps to obtain more statistical reliability. (Tr. 172) He agreed that five samples taken, m-12 through m-16, varied between- 275 and 300%, however, he pointed out that the samples were not taken at the same time and precisely the same place. (Tr. 175) Mr. Dixon also explained the problem with reference to the sampling for asbestos in that the longer the period of time a sample is taken, the more the possibility of rontamination with dust, which presents difficulty in counting the asbestos fibers. (Tr. 177, 173) Mr. Grady Bowman testified that on tiovember 29, 1973, he / worked approximately 7 hours and 10 minutes operating a preform machine and that during the taking of the samples herein he was preforming his usual work. (Tr. 189-191) He stated that he had been laid off while tb plant was shut down, and upon returning to work sample products ware made, but at the time of the inspection he believe the plant had returned to full scale operation. (Tr. 191, 192) In the course of taking the samples Kr. Stephanie was not present at all times however he.would check periodically and chance the filters using his wrist watch for the purpose of timing. (Tr. 194, 155.) He indicated that on Koverr.ber 25, while working in the preform area he wore a respirator, pursuant to policy. (Tr. 155-153) policy. (Tr, 196-198) Mr. Murrell Amos, process engineer for Respondent V testified that the product manufactured was brake blocks for large tractors and trailers. He stated that the basic formula of the substance used for making the blocks in weight percentage is 5.73 brass, 20.67 resin, 41.32 asbestos, and 17.36 re-processed rubber. (Tr. 204) His testimony revealed that pursuant to the requirements of the State Environmental Protection Agency, Respondent undertook to clean the air being deposited on the outside of the plant. The plant had been shut down during the installation of the necessary equip ment to clean the air both on the inside and outside of the plant. (Tr. 205, 207) He indicated that an air collection system and new duct work was^to be installed. (Tr. 203, 209) The duct work including the suction devices for the whole plant was scheduled i for completion about the ..first of December. The remodeling also included the purchase of a new mixer and air compressor in addition to the new hydraulic system, and the roving of various machinery. (Tr. 214, 215) He briefly explained that the raw materials'are weighed according to formula, mixed end then poured into the preform presses, after which the blocks are placed in the high pressure press. (Tr. 217, 213) However, at the tire of the inspection herein the i i J * i * 'i * "I . A5 (i / -j - .i ; i ; t --' '3 -- i 'A .i ' -1 -I ii < -*44 machinery v/2S in the process of being cleaned and adjusted as a result of the lay off offihree or four months. (Tr. 219) Upon Hr. Stephanie's request to take air samples in the preform area he informed him the controls and ducts were not in operation and at * that^time the preform press was not being operated. (Tr. 224, 225) He instructed employees Bowman, Gifcscn and Hauser to perform duties in * order to provide the samples for the Compliance Officer. He indicated that it was his understanding that Mr. Stephanie would return at a subsequent time for further sampling in order to compare readings. (Tr. 228, 229) He indicated that possibly two or three days prior to the inspection, stock was placed in the press to see if production could be run. He pointed out that considerable work was involved in preparing the presses for production as a result of: material sticking to the molds. (Tr. 247) A small amount of material had been processed the day preceeding the inspection and actual production commenced around the first of December. (Tr. 235, 233, 239) Mr. Thomas Terrell, plant manager, testified that he had first met Mr. Stephanie in September or October of 1973, who, upon learning the plant was not in operation indicated he would return at a later date. (Tr. 256) He indicated that on November 29, Mr. Stephanie wanted to take some air samples in the preform and press areas, but he explained that installation of the air poluticr. equipment had not been completed nor were the mixers in cperaticn. He indicated that the air sampling was performed ever the objections of ,r. r.m.os wr.c :s wording on tne "srv.no cr I i j I i- i \rr. . presses end believed such tests should he performed upon complete * installation of the equipment. (Tr. 260) Mr. Terrell also testified that it was his understanding Mr. Stephanie was to return at a later date for further sampling to be used for comparative purposes. (Tr. 269) He revealed that tne conditions under which the samples were taken were not represented . *. t of the normal preform operation. {Tr. 273, 274) Mr. Tom Gibson testified that his usual job was operating the cure press (hot press). (Tr. 276) On Hover,her 29, prior to the inspection he worked at cleaning and scraping the cure press as there was a problem with the material sticking to the molds. (Tr. 278) He was then asked to work in the preform area for the purpose of running.some samples. (Tr. 280) In order to establish a violation of the standard it necessarily is incumbent upon complainant to show that the essentiiaa\^ factors which constitute such violation are present. Upon reviewing \ the evidence of record regarding the'alleged violation it must be concluded that complainant has failed to sustain the allegations by j / a preponderance of the evidence. Brennan v. Armor Elevator Company, Inc. 5 OSAHRC 260. In defining asbestos the analyst stated that there were other fibrous minerals which met the same general description of asbestos. Joint Exhibit 1 E-Supplement, which is a draft copy of USPHS/HICSH Membrane Filter Method for Evaluating-Airborne-Asbestos Fibers, indicates that all objects with an aspect ratio of 3 to 1 -12- ii 1I \ O ' (length to width) or greater ar;d a length of 5 micrometers or greeter should, in the absence- of other ini'orr.ation, be considered to be asbestos fibers and counted as such. The analyst stated that at the time of his analysis and counting he did not know the mineral composition of the substance used by the employees tested, he was not familiar with the component barytes, nor had he seen chipped brass-under a microscope. He had * * seen reprocessed rubber, and believed that it should have been noted on the sample identification sheets, in addition to anything else that could possibly interfere with the count of asbestos fibers. The Compliance Officer testified that during an inspection of July 1973 he tested for possible air contaminants including phenylic dust. However, throughout the inspection and air sampling procedure, there'was no indication of- the presence of phenyl ic dust or of the other components contained in the substance used which / / could possibly interfere with the proper count of asbestos fibers. / Item 10 of Exhibit C-2 (sample identification sheets) reveals no/ possible interferences were present for the analysis of asbestos. In view of the method used for evaluating the asbestos fibers, it is quite possible other fibers could have been counted as asbestos, or, interferences were present which could prevent an accurate count thereof. There is no dispute that in sampling the -ore samples taker, the more accurate the testing procedure becomes.- The record . indicates that employee Cowman was sameled most often--five tires, within a total period or approximately 57 minutes, and there was a variation of approximately 275m in the count of the samples. This \ ! ; I / I pt o_ec,:re was inconsistent v;i tn the reccr-.-ndod procedure, set forth. i :O in joint Exhibit 1-C for the collection of samples for evaluation ' of averace exposures from a half to a full work shift. It is a iso noted`complainant learned at a subsequent tine from the employees tested, the approximate time they worked under the circumstances alleged, in order to establish a violation of the standard herein. -The evidence is not in dispute that for some time prior i to the inspection of November 29, Respondent's plant had not been I in operation, and during the period in question it was not in production but Respondent was in the process of installing ventilation \l equipment for reducing dust levels. Respondent maintains that upon commencement of full operation the system reduced employee exposure to within acceptable limits. 'Complainant introduced no evidence to show ' that upon resuming full operation the system v/as ineffective in reducing exposure to concentrations of any contaminants. In view of the"evidence in reference to Respondent's .plant being closed down for the'purpose of installing engineering controls, the nature j of the work performed at the time of the inspection, and the procedure used in obtaining the count of asbestos fibers, a violation of this standard cannot.be sustained. j The alleged violation of 29 CFR Section 1910.93(a)(b) The standard which relates to personal protective equip ment reads in pertinent p_art as follows: (1) Compliance within the exposure limits r prescribed by Paragraph (b) of this section may not be achieved by the use of respirators or shift rotation of employees, except: -K- L 4t i -11* *.Ss * "J J T ] 11 '"N * (i) During the tiro period necessary to install the engineering c cntrols ancl to institute the work practi ces required by paragraph (c) of this sec t "i on y * The alleged violation is des.-'bsd in the citation as follows: -- x Employer failed to provide personnel exposed to asbestos fibers during the period whan enginearing`controls ware being.installed: (a) Respiratory protection (b) Special Clothing and Change Rooms. ilr. Stephanie testified that he observed asbestos fibers on the floor and on the clothes of employees Ecwman, Hauser and Gibson. He indicated that Bowman was wearing a respirator, but Hauser and Gibson were not.' (Tr. 23, 24) He indicated that the type of respirator in use was acceptable, however, there was no special clothing used by the employees which l could be left on the job to prevent employees from further contaminating the surroundings. (Tr. 25) Also, there were no change rooms provided for the removal of such clothes however he did observe a mobile type change room in the process of being . installed. (Tr. 25) Mr. Bowman indicated that it was normal policy to wear respirators. (Tr. 1S7, 198) Mr. Amos, the process engineer maintained that the operation of the machines rein for-the purpose of sampling was conducted at the request of H Stephanie, and the operation would net ordinarily be conduct in like manner. -- i -t JI tJ io (Tr. 227, 228) He also indicated that fir. Stephanie suggested the use of respirators for the sampling, and the duties being performed by the employees prior to fir. Stephanie's visit, did not require the use of respirators. However, respirators were provided for the employees. (Trl 230) He also pointed out that the new equipment to be installed in the plant included change rooms and restrooms. > .. (Respondent's Exhibit No. 3., Tr. 23) j The evidence clearly establishes that engineering controls were being installed, ahd that Respondent's plant was pot operating^ on a production basis. Therefore on the basis of the evidence, I' which includes a showing that respiratory protection had been provided employees, and that installation pf change rooms was j I j j in the process, it must be concluded that this standard has not been violated. The alleged violation of 29 CFR 1510.53(a)(g) The standard which relates to caution signs provides C_____________ ___ in pertinent part as follows: Caution signs shall be provided and displayed at each location where airborne concentration of asbestos fibers ray be in excess of exposure limits prescribed in paragraph (b) of this section... The alleged violation is described in the citation as follows: Employer failed to provide display end caution signs at each location v.rore the airborne concentrations of the asbestos are in excess of 5 fibers per cc of air (press/preform and fixing 'areas). -16- * Jl i .: t Mr. Stephanie testified that in the areas where the samples were taken he inspected for caution signs but none were present. (Tr. 28) This standard requires caution signs to be posted where the exposure limits exceed those set forth in paragraph (b). It \ must be held that ink viev/ of complainant's . failure to establish // a violation of the standard at 29 CFR 1919.93(a)(b), the standard'' herein cannot be held violated. . i i The alleced violation of 29 CFR 1910.3(a)(h) . ; The standard which relates to housekeeping states in pertinent part as follows: j All external services in any place of i employment shall be maintained free of I accumulation of asbestos fibers if, with ! their dispersion there would be an excessive ' concentration. The alleged violation is described in the citation as: Employer failed to maintain work areas free of the accumulations of asbestos fibers. Mr. Stephanie testified that he observed asbestos fibers in the areas identified in the citation,more specifically, in the press and preform rooms,on the floors and machinery. (Tr. 229, 239) He believed that asbestos dust could become airborne upon the movement of an individual through the area. On cross-examination he indicated that the asbestos dust observed on the floor could be an "accumulation." (7r. 112) He indicated that the standard does not define an "accumulation" of asbestos. (Tr. 112, 114) j In view of complainant's failure to establish precisely the amount of asbestos fibers present as the result of the sampling, it cannot *be held here that there were "accumulations of asbestos fibers/ which upon dispersion could result in "an excessive concentration,!' in violation of the standard. It is therefore held that this standard has not been shown to be violated by the Respondent The alleged violation of 29 CFR 1910.93(a)(1) The standard which relates to recordkeeping provides in pertinent part: Every employee shall maintain records of ; personal or environmental monitoring , required by this section. Records shall be maintained for a period of at least three years and shall be made available upon request to the Assistant Secretary of Labor... The alleged violation is described in the citation as: Employer failed to maintain records of - . any personal or environmental monitoring. Mr. Stephanie testified that upon his request for records of environ YJ mental monitoring, no such records were produced. (Tr. 31) Respon / dees not deny that personal monitoring was not performed prior to L- the inspection herein, however, it argues that upon complete installation of the ventilation system monitoring was conducted which shewed no excessive concentration of asbestos fibers existed. (Tr. 262-265) Complainant offered no evidence to shew the existence of an asbestos hazard prior to the time of the inspection which required monitoring. In view of the conditions at the time of 1 r--N the inspection at Respondent's workplace, with r.o evidence shewing the existence of an asbestos hazard prior to close down of the plant, it cannot be held Respondent violated the standard as alleged. The alleced violation of 29 CFR 1 S>10.93(a)(,j) The standard which relates to radical examinations states \ in part as follows: ^ -- *- Er.ployer shall, provide or rake available at his cost, medical examinations relative to exposure to asbestos required by this paragraph. The alleged violation is described in the citation as follows: Employer failed to provide, or rake available, at his cost, redical examinations relative to exposure to asbestos. Mr. Stephanie testified that upon inquiring about redical examinations as required under this standard, no such records were made available, or produced. (Tr. 31) Respondent does not dispute that no redical records were kept prior to the date of the inspection herein, however, considering the facts of this case it rust be determined that the Complainant has failed to show by a preponderance of the evidence the necessity of the medical examinations, and there is r.o evidence as to any previous "exposure to asbestos" as required by the standard. Therefore it cannot be held the standard had been violated as alleged. J FlfiDIRGS OF FACT ' 1. Molded Industrial Friction Corporation, is a corporation doing business at 27 Walnut Street, Prattville, Alabama, where it is encaged in the fabrication and production of brake linings. -19- .!** ) *. O 2. On November 29, 1973, and for approximately four months prior. Respondent's plant was not in production, but had closed down for general remodeling including the installation or a ventilation system to reduce employee exposure to ajrborne contaminates 3. -On November 29, 1973, an authorized representative of the Secretary conducted an inspection of Respondent's worksite V and as a result thereof on December 27, 1973, two citations were issued Respondent. r 4. The substance used by Respondent in the fabrication of brake lining contained barytes, brass, resin, and reprocessed rubber in addition to asbestos. 5. The procedure used by the Secretary for sampling and analysis of asbestos fibers, did net include the consideration of possible interferences of other materials which could have effected I the count thereof. j 6. The samples herein were takenvdurir.g a less period of time than that recommended by the National Institute of Occupational Safety and Health. .. 7. Respiratory protection had beer, provided Respondent's employees, and change rooms were in the process of being installed at the time of the inspection herein. 8. Prior to the close down of Respondent's plant the existence of an asbestos hazard had not been established. CONCLUSIONS CF LAW 1. r.olded Industrial Friction Corporation, at ail times pertinent hereto, was an employer engaged in ?. business affecting I I J 3 if `f--i. y^y ii i J ii commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the*parties and subject matter herein, pursuant to section 10(c) m of the Act. 2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a)' of the Act. 3. Respondent was not in violation of the standard at 29 CFR 1910.9(a)(b) on November 23, 1973, as charged in the amended complaint. 4. Respondent was not in violation of the standard at 29 CFR 1910.93(a)(d) on November 29, 1973, as charged in citation Number 2. 5. Respondent was not in violation of the standard at 29 CFR 1910(a)(g) on November 29, 1973, as charged in citation Number 2. 6. Respondent.was not in violation of the standard at 29 CFR 1910(a)(h) on November 23, 1973, as charged in citation N umb c r 2. f 7. ' Respondent was r.ot in violation of the standard at 29 CFR 1910(a)(i) on November 25, 1973, as charged in citation Number 2. 0. * Respondent was not in violation of the standard at 29 CFR 1910.S3(a)(j) on November 29, 1973, as charged in citation .Number 2 -21- Upqn the basis of the foregoing findings of fact and conclusions of lav/, and the entire record, it is ORDERED 1. That citation number Land the penalty proposed for violation thereof, is hereby vacated. 2. Thatkcitation number 2 and the penalties proposed for violation thereof, is hereby vacated. N0V2I1S74 Dated this day of hoverr.ber, 1974. Copies sent by certified mail to: Mr. Ellis V. Cruse, Attorney U. S. Dept, of Labor Office of the Solicitor 1929 9th Avenue South Birmingham, Alabama Mr. C. Lash Harrison, Attorney Fisher & Phillips 3500 1st national Bank Tov/er Atlanta, Georgia 30303