Document O1Ny5kjDp1X6kV8No8a2LMmNX

FILE NAME: RT Vanderbilt (RTV) DATE: 1978 Feb 22 DOC#: RTV244 DOCUMENT DESCRIPTION: Occupational Safety Health Review Commission [OSHRC] Ruling - Borg-Warner Corp. BORG-WARNER CORPORATION OSHRC Docket No. 10757 Occupational SafeFteybarundarHy e2a2l,th19R7e8view Commission [* 1] Before CLEARY, Chairman; and BARNAKO, Commissioner. COUNSEL: Baruch A. Fellner, Office of the Solicitor, USDOL Charles W. Houchins, Borg-Warner Corporation, for the employer OPINIONBY: CLEARY OPINION: DECISION CLEARY, Chairman: This case is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. nl At issue is respondent's alleged serious violation of section 5(a)(2) n2 of the Act due to its failure to comply with the occupational safety and health standard at 29 CFR 1910.93a(b)(3). n3 After a full hearing and the submission of extensive briefs by both parties, Administrative Law Judge Jerry W. Mitchell issued his decision affirming the citation. Respondent petitioned the full Commission for review of the Judge's decision and its petition was granted. We affirm the Judge's decision insofar as it is consistent with this opinion. ------------------------------- Footnotes-----------------------------nl 29 U.S.C. 651 et seq. Referred to infra as "the Act." n2 Section 5(a)(2) provides: Each employer ... shall comply with the occupational safety and health standards promulgated under the Act. n3 Two citations were issued to respondent. Citation number 1 alleged four nonserious violations and proposed penalties totalling $90. Respondent did not contest this citation and it has become a final order by operation of law. Section 10(a) of the Act. Citation number 2 alleged a failure to comply with eight separate paragraphs of 1910.93a. These eight items were deemed to constitute a single serious violation and a $600 penalty was proposed. The parties agreed that if item number one (failure to comply with 1910.93a(b)(3)) was proved, then the remaining seven items would be conceded. Therefore, the proof and discussion at the hearing was limited to 1910.93a(b)(3), the text of which is set forth infra. [*2] End Footnotes I. Background The cited standard provides: 1910.93a n4 Asbestos. * * * (b) Permissible exposure to airborne concentrations of asbestos fibers -- * * * (3) Ceiling concentration. No employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section. ------------------------------- Footnotes.......................................... To nb4e 2co9nCsiFsRtent w1i9th10th.9e3daiswcausssrieocnodbiyfitehdeapsa2rt9ieCs FaRndthe19Ju1d0g.1e0,0w1eowniMll areyfe2r8t,o1t9h7e5. standard as 1910.93a. .......... .............................End Footnotes------------------------------ During an inspection of respondent's plumbing products manufacturing facility in Mtanaknsmfioelldd,s Oashitoh,e.cmoonldduscpteadssoendJhuilsyw9o, r1k9s7t4a,tiaonneomnpalocyoenevewyaosrolibnsee.rveTdhe"dduussttiinngg" plaster poapretriactuiolanr itnalveoblveeindgpuatsteindginthtehims oolpdesrawtiiothn awtaaslcN-fYilTleAdLba2g0.0. Tnh5eBtreacdaeusneamheeoobfse[*rv3]ed tahe heavy concentration of airborne talc dust in this area, the compliance officer proceeded to take air samples by placing a sampling air pump and a filter cassette on the employee. .......... ............................... Footnotes-------------------- ---------- n5 NYTAL 200 is a talc mined by the R.T. Vanderbilt Co. in the Gouvemeur mining district of New York. The use of NYTAL 200 talc for dusting the molds had begun about ionnsepewcetieokn.prior to the inspection; its use was discontinued about one week after the ----------------------------- End Footnotes....................................... Following the inspection, the air samples were analyzed by the OSHA laboratories in Columbus, Ohio, and Salt Lake City, Utah; the NIOSH laboratory in Cincinnati, Ohio; and by an independent firm retained by respondent. The individuals performing the various analyses testified at the hearing before Judge Mitchell. On the basis of the testimony by these witnesses and other evidence entered at the hearing, Judge Mitchell concluded that the Secretary had established that the employee was exposed [*4] to c1o9n1c0e.9n3traa(tbio)(n3s).of airborne asbestos fibers in excess of the limit permitted by On review respondent raises three major exceptions to the Judge's decision. n6 Respondent argues that: (1) The cited standard is invalid and unenforceable because the version promulgated is substantively different from the proposed standard, thus depriving respondent of a fair opportunity to participate and comment in the rulemaking proceedings; (2) Assuming that the standard is enforceable, the Judge erred in concluding that the evidence established the presence of an excessive concentration of asbestos fibers; (3) Assuming that the existence of a violative condition was established, the Secretary did not show that'respondent had knowledge of the violation within the meaning of section 17(k) of the Act. --------------------------- - -Footnotes------------------- ----------revnie6wI,nreasdpdoitniodnenttoatlhseo tbhrrieeeflymnajootredexitcsepexticoenpstidoinsctuossceedrtaininrespspeocinfdicenfitn'sdpinegtistiaonndfor conclusions in the Judge's decision concerning whether the citation was issued with "reasonable promptness" within the meaning of section 9(a) of the Act, and whether the awior rskaimngpleensvtiarkoennmbeyntt.he compliance officer were valid and adequate samples of the Aside from noting its exception to the Judge's disposition of these issues, respondent has not argued on review the reasons for its disagreement with the Judge's decision. In view of respondent's failure to seriously pursue these issues on review, extendeu discussion of them is not warranted. We note our agreement with the Judge's disposition of these issues and adopt his findings and conclusions relevant thereto. [*5] End Footnotes II. The Validity Issue In his decision, Judge Mitchell comprehensively summarized the chronological history of the asbestos standard. The relevant chronology is as follows. (1) On May 29, 1971, the Secretary published, as an occupational safety and health standard, 29 CFR 1910.93 regulating exposure to "Air contaminants." 36 Fed. Reg. 10503-06. The threshold limit values (TLV's) of exposure to mineral dusts were stated in the accompanying Table G-3. 36 Fed. Reg. 10506. In Table G-3, the minerals "tremolite," "asbestos," and "talc" were separately listed and assigned TLVs of 5, 2, and 20 mppcf (millions of particles per cubic foot of air), respectively. (2) On August 13, 1971, the Secretary published a revision of 1910.93 correcting and clarifying certain portions of the standard. 36 Fed. Reg. 15101-04. However, Table G-3 was not affected by this revision. ' (3) On December 7, 1971, an "Emergency Standard" was issued amending 1910.93 to regulate employee exposure to asbestos dust. 36 Fed. Reg. 23207-08. This emergency standard revised Table G-3 by specifically deleting the references [*6] to "asbestos" and "tremolite" previously stated therein. The emergency standard also added a new section, 1910.93a, entitled "Asbestos Dust." Permissible limits for employee exposure to "asbestos dust" were stated in this new section. However, no definition of "asbestos" appeared in 1910.93a. con(c4e)rOninngJatnhueasrtyan1d2a,rd19f7o2r,eaxp"NosoutriceetoofaPsbreosptoossedduRstu.l3e7mFakedin.gR"ewg.a4s6p6u8b.liIsnhealdl relevant aspects, the Notice paralleled the provisions of the emergency standard previously pnuewblissehcetdio, ni.,e., "a1s9b1e0s.t9o3sa",awnads"ptrreompooslietde"towreergeuslpateeciefxicpaolslyurdeetloet"eadsbfreosmtosTdabulset."GT-3heand a proposed standard also did not provide a definition of the term "asbestos." Act(5fo) rAtnheApduvripsoosrey oCfosmubmmititteteinwgarsecfoomrmmeednpduartsiounasnttotothseecStieocnrset6a(rby)c(1o)ncaenrdni7n(gb)thoef the p1r9o7p2o. sed standard. A public hearing on the proposed standard was held on March 14-17 (6) On June 7, 1972, a "Standard for Exposure to Asbestos Dust" was published at 37 Fed. Reg. 11318-22. Like the emergency standard and the [*7] notice of proposed rulemaking, the new standard specifically deleted "asbestos" and "tremolite" from Table UGn-3li,kaentdheadfdoermd earnperwovsiesciotinosn,,how1e9v1er0,.9th3ea,nreewgusltaatnindgaredxdpeofsiunreedtothe"atsebremssto"sadsbusets.t"os" and "asbestos fibers." Subpart (a) of the new standard provides: (a) Definition. For the purpose of this section, (1) 'Asbestos' includes chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite. (2) "Asbestos fibers" means asbestos fibers longer than 5 micrometers. 221(072) -O22n3O56c.toTbheer.p18u,rp1o9s7e2,oaf trheevirseivoinsioofn2w9aCsFtoRcPoanrsto1li9d1a0tewPaasrtpu1b9l1i0sh, etod.co3rr7ecFted. Reg. typographical and clerical errors in th standards, and to publish an index. In this revision, Table G-3 was amended by replacing the single talc TLV entry with two entries, and by adding a tremolite reference, as follows: Talc (non-asbestos-form) 20 [mppcf] Talc (fibrous). Use asbestos limit Tremolite (see talc, fibrous) (footnote omitted). The accuracy of this chronology is not disputed by respondent. Rather, respondent argues that the chronology illustrates [*8] the procedural irregularity in the promulgation ostfatnhdearsdtatnadlca,rdasubnedsetorsw, ahnicdhtriet mwoaslitceitwede.reRseepsparoantdeleyntlipsoteidntisnoTuatbtlheaGt i-n3tahnedoarisgsiinganled different TLVs. Respondent asserts that this separate listing reflected the common view at that time that talc and tremolite were not asbesti materials. Therefore, respondent argues, the deletion of asbestos and tremolite from Table G-3, and the simultaneous inclusion of a new asbestos st provision in the emergency standard and the notice of pasroapsobseesdtorsu.lIenmtahkisinrge,gadridd,nroetspporonvdiednet neomtipcheatshizaetstrtehmatoiltitwe awsansohteunncteilfothrtehptuobbliecraetigounlaotefd the final standard on June 7, 1972, that a definition of "asbestos" was included in the regulation. For these reasons, respondent concludes, it was not provided-a fair opportunity troevpiasertdicsitpaantdeairnd.the amendment proceedings and to comment on the desirability of the The procedure required to be followed by the Secretary in promulgating, modifying, or revoking an occupational safety and health standard is set forth in section [*9] 6(b) of the Act. n7 In relevant part, section 6(b) provides: heaTlthhesStaencdreatradryinmthaeyfboylloruwleinpgrommaunlngeart:e, modify, or revoke any occupational safety or * * * (2) The Secretary shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments. . . . (3) On or before the last day of the period provided for the submission of written data or comments under paragraph (2), any interested person may file with the Secretary written objections to the proposed rule, stating the grounds therefor, and requesting a public hearing on such objections.... (4) Within sixty days . . . the Secretary shall issue a rule promulgating, modifying, or revoking an occupational safety or health standard or make a determination that a rule should not be issued.. .. (Emphasis added.) AAdltmhoinugishtrtahtievsee PprroocveisdiuornesAocftth(Ae PAAc)t,snu8ppthlaenyt athree cruhlaermacatkerinisgticproofcethdeurfeasmoilfiathreinformal "notice and comment" procedures [*10] provided for in section 4 of the APA. Industrial Union Dep't., AFL-CIO v. Hodgson, 499 F.2d 467, 472 (D.C. Cir. 1974); Associated Industries of New York State, Inc. v. U.S. Dept, of Labor, 487 F.2d 342, 345 (2d Cir.' 1973). ------------------------------- Footnotes------------------------------- n7 The Secretary has also published regulations relating to the publication of proposed rules. 29 CFR 1911.11 provides: The Assistant Secretary may promulgate, modify, or revoke a standard . . . in the following manner: * * * (b) The Assistant Secretary shall publish in the Federal Register a notice of proposed rulemaking.... The notice shall include: (1) The terms of the proposed rule; * * * arg(u3m) Aenntsin..vitation to interested persons to submit... written data, views, and (4) Either the time and place of an informal hearing on the proposed rule rinufleor.m..ataionnd troeqiunetesrteasnteidnfpoerrmsoanlshtehaartinthgeoynmthaeyofibljeec.t.io. nwsr.it.t.en. objections to the proposed Also see 29 CFR 1911.18. n8 5 U.S.C. 551 et seq. .......... .............................End Footnotes----------------- [*11] - ............. When issuing a final standard pursuant to these procedures, the Secretary is not constrained to adopt the identical version of the standard previously published in the notice of proposed rulemaking. GAF Corp. v. O.S.H.R.C. & Dunlop, 561 F.2d 913, 91819 (D.C. Cir. 1977). Cf. South Terminal Corp. v. E.P.A., 504 F.2d 646 (1st Cir. 1974). The purpose of requiring that notice of a proposed regulation be given, and of allowing interested parties to comment or request a hearing, "is to educate an agency to approaches different from" that proposed to be taken. South Terminal Corp., supra, 504 F.2d at 659. The record developed directly in response to a notice of proposed rulemaking provides a useful basis for evaluating the desirability and effect of the proposal. In order to use the notice and comment procedure effectively, an agency must be free to adopt a regulation different from that proposed without incurring a concomitant obligation .to solicit further comment. GAF Corp., supra; South Terminal Corp., supra; Ethyl Corp. v. E.P.A., 541 F.2d 1, 48 (D.C. Cir. 1976). Therefore, the relevant inquiry in determining whether adequate [*12] notice under the Act has been given is not whether the final regulation differs from that originally proposed, but whether the proposed regulation sufficiently alerts interested parties to the opportunity to offer their informed criticism and comments. Cf. South Terminal Corp., supra, 504 F.2d at 659; Ethyl Corp., supra, 541 F.2d at 48. Measured against this pstaatnendta.rd, we conclude that the adequacy of the notice provided in the present case is As described previously, the Notice of Proposed Rulemaking in the present case set forth the text of the emergency standard and announced the intent to adopt this provision as a final standard. The notice repeatedly stressed the opportunity for interested parties to participate in the proceedings. The availability for public inspection of all comments trreacnesicvreidptwwaassstsapteecdi.fieAd.puTbhliecihneteanritntgo wfoarsmseatn, aanddvitshoeryavcaoimlambiiltitteyeowfathseanhneaoruinngced, and the availability of the committee's recommendations was stated. Also, it was expressly stated that the proposed standard might be adopted with or without changes. As had the emergency standard, [*13] the notice expressly deleted "tremolite" and "asbestos" from Table G-3 and added a new provision specifically regulating exposure to ""aassbbeessttooss,"duwset."agArletehowuigthh JthuedgperoMpoitscehdelsltathnadtatrhdedpidronpoetrcinofnetraeinncaestpoebceifidcradwefninfirtoiomntohfe deletion of tremolite and asbestos, and the addition of the asbestos dust provision, was that the deleted substances were to be regulated by the new provision. n9 Furthermore, the proposed regulation provided sufficient notice to parties interested in the regulation of the deleted substances that the regulation of those substances was being affected. Even if it is assumed that,the precise parameters of the proposed standard were unclear to an interested party, ample opportunity was afforded to accomodate inquiries or comments concerning any uncertainties. If participation had been undertaken, the intent of the Secretary to regulate tremolite as asbestos would have been known. nlO ------------------------------- Footnotes------------------------------- n9 During its consideration of the proposed standard, the advisory committee was aware that this would be the effect of the proposed revisions. Exhibit P, Advisory Committee On Asbestos Dust Conference, at 78-9 (hereinafter referred to as the "Advisory Committee Report"). nlO See Exhibit F, National Institute for Occupational Safety and Health, criteria for a rreefceormremdetondaesdthseta"nNdIaOrdS.H. ..CriOtecrciaupDaoticounmalenEtx"p];oAsudrveitsoorAysCbeosmtoms,itateteIIRI-elp[ohretraetin7a8f-t9e.r [*14] ----------------------------- End Footnotes------------------------------ For these reasons, respondent's argument that the cited standard is invalid because it was denied the opportunity to comment on the proposed asbestos dust provision is rejected, nil ------------------------------- Footnotes------------------------------shanpeiloRr efosprmoncdoennftirsmtattehseinprietssebnrcieefothf aatsbtheesto"ps.r"esBenriceef aotf5tr.emForolimte tdhoeecsonnottexint iannywhwiacyh, tSheiscrsettaatreym'seancttiiosnmoafdienictluisdainpgpatrreemntotlhitaet rinestphoenddeefnint iitsionnotodfiasspbuetsintogstfhoerlpeugrapliotsyeosfotfhtehe tshtaantdaarredp. roIpnefralyctt,erremspeodnadsebnetsthoass."cPonetcietidoendftohraRt "etvhieerwe eaxti1s.t cReratathinerv, athrieetsiteasteomfetrnetmolite appears to be made in relation to the argument that only tremolite that is "fibrous" from a mineralogical viewpoint should be considered "asbestos," an argument rejected infra. To the extent that respondent's argument can be read as a challenge to the legality of regulating tremolite as a form of absestos, we conclude that respondent has not carried its burden of proving that such regulation is illegal. Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., 534 F.2d 541, 551-52 (3d Cir. 1976). To the extent that respondent challenges the wisdom of regulating tremolite as asbestos, we need only note that it is not the function of the Commission to review the wisdom of a standard. The Budd Co., 74 O21S5A, H19R7C4),1a2f/Afd2, 511B3NFA.2dO2S0H1C(31d54C8ir,.11997735-)7.4 CCH OSHD para. 17,387 (Nos. 199 & [*15] ....................................... End Footnotes....................................... III. Merits of the Citation Respondent also argues that the Judge erred in concluding that a failure to comply with 1910.93a(b)(3) was established. Respondent asserts that the evidence fails to prove the presence of excessive amounts of asbestos fibers in the air samples taken at its workplace. According to 'espondent, the procedures followed by the Secretary in . identifying particles present in the samples as asbestos are erroneous in that they result in the counting of non-asbestos particles as asbestos fibers. Our review of the record, however, convinces us that Judge Mitchell correctly affirmed the citation. A. The Meaning of the Term "Fiber." Section 1910.93a(b)(3) provides that "[n]o employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers. ..." (Emphasis added.) Although the standard specifies six minerals considered asbestos for the purposes of tfhibeesrstalnodnagrder, tahnadnp5romviicdreosmtheatetrfso,"r cthoeuntetirnmg "pfuibrpero"seiss n"o'atsbfuerstthoesrfdibeefirns'emd einanthseassbtaensdtoasrd. [*16] Judge Mitchell found that a fiber "is a particle which has an aspect ratio of 3 to 1 or more and is 5 microns or more in length." nl2 Respondent argues that this finding is erroneous. The Secretary urges that this finding is supported by a preponderance of the evidence. We affirm the Judge's finding. Footnotes nl2 Finding of Fact No. 6. -------------------------------Encj Footnotes-- .................................. The Secretary's witnesses testified that, when air samples are analyzed to determine their asbestos content, a particle is counted as a "fiber" if its length is at least three times greater than its width, i.e., if the particle has at least a three-to-one aspect ratio. Conversely, a particle with an aspect ratio of less than three-to-one would be considered "non-fibrous." nl3 ------------------------------- Footnotes------------------------------- nl3 See, e.g., Transcript at 375-6, 552, 555-56, 788-89. -------------------- ---------End Footnotes----------------------------- The use of the three-to-one aspect ratio test for determining whether a particle is [*17] a fiber has its basis in the Criteria Document submitted to the Secretary by NIOSH during the promulgation of the asbestos dust standard. In the section of the NIOSH Criteria Document discussing the methodology to be followed in obtaining and analyzing air samples, it is stated: The filter samples mounted in the manner previously described are calculated in terms of the concentrations of asbestos fibers greater than 5 micrometers in length.... Twenty fields located at random on the sample are counted and total asbestos fibers longer than 5 micrometers are recorded. Any particle having an aspect ratio of three or greater is considered a fiber. (Emphasis added.) nl4 ------------------------------- Footnotes------------------------------nl4 NIOSH Criteria Document at VIII-6. The three-to-one aspect ratio formulation of a fiber was based on the experience gained from the development of a standard for asbestos dust in Britain. The Criteria Document stated that the development of the British standard "was given great weight in the development of this standard," and admitted that "the standard recommended in this [criteria] document is similar to the ssttaatnedmaredntaadtoppategde"VinIIBI-r2itaoifnt.heVC-r1i0te,r1ia7.DoIncutmhiesnrtegthaartd,"tihteisBirmitpisohrtdaenftintoenao'tfeibtehre' as a particle, of length between 5 microns and having a length to breadth ratio of 3:1. . . ." [*18] ...................... ............End Footnotes----------------------------- Respondent argues that application of an aspect ratio test is an incorrect method of determining whether a particle is a fiber. According to respondent, "non-fibrous" mineral particles, referred to as "laths" or "cleavage fragments," can also have aspect ratios of three-to-one or greater, and under an aspect ratio test these particles erroneously would be counted as asbestos fibers. Respondent's argument is based on the testimony of two witnesses called in its behalf, Sarkas G. Ampian nl5 and C. Sheldon Thompson. nl6 These witnesses testified that, from a mineralogical viewpoint, a "fiber" is a mineral particle that forms in an "elongated" "threadlike" fashion, and which is "delicate," "flexible," and capable of being separated into individual "fibrils" of "high tensile strength." According to these witnesses, the distinguishing characteristic of asbestos fibers is their capacity for being woven and pressed into commerically useful products, whereas "non-fibrous" particles lack similar attributes. For this reason, respondent asserts, laths or cleavage fragments are not considered "fibers" even though [*19] they might have aspect ratios ofthree-to-one or greater. nl7 ------------------------------- Footnotes------------------------------- nl5 Mr. Ampian was identified as the Chief of the Ceramics and Clay Section of the U.S. Bureau of Mines. He possessed a Bachelor's degree in geology and a Master's degree in chemical petrology, and was pursuing his doctorate in crystal chemistry, geochemistry, and x-ray crystallography. nl6 Dr. Thompson was identified as the Manager of Research and Development for the Ceramics, Paper, and Specialties Department of the R.T. Vanderbilt Company, the manufacturer of NYTAL 200. Dr. Thompson's Bachelor's degree and Doctorate were obtained in the field of mineralogy. nl7 Respondent also asserts that the Judge erred in excluding OSHA "Field Information Memorandum #74-92" from the record. That memorandum announced certain changes in the guidelines to be followed in determining the asbestos content of ptaalrctiscalmesp"lems.ustTahpepemaermtoobraenfdiubmrousstartaetdhethratht atonbaes ccorynsstiadlesroedr salsivbeersst"ifoarnmd tohratfitbhreouasspthecet ratio of the particle must be at least 5 to 1. Judge Mitchell did not admit the memorandum into evidence since it had been issued more than four months after the inspection in this case had occurred. We need only note tmhaetmaonryanqduuemstiwonascorenscceirnndiendg bthyefroerlmevearnAcyssoisftathnet SmeecmreotararyndoufmLahbaosrbMeeonrtoobnvCiaotemd.onThe January 19, 1977. 6 BNA OSHR Current Report 1135 (Feb. 3, 1977). [*20] End Footnotes Where the proper meaning of a term used in a standard cannot be determined on the face of the standard, it is appropriate to interpret the.term in accordance with the intent of the drafter, where that intent is discernible. United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD para. 21,795 (Nos. 10825 & 10849, 1977). As previously discussed, as used in the standard recommended by NIOSH, the term "fiber" referred to any particle having an aspect ratio of at least three-to-one. The Secretary is the drafter of the involved standard, however, and it is his intent that governs our interpretation. nl8 In this regard, we find nothing in the record suggesting that the Secretary intended the term "fiber" to have a different meaning in the standard adopted. The evidence shows that in performing analyses under the standard, the Secretary has consistently applied an aspect ratio test. Although this practice might be considered a subsequent interpretation of the standard rather than evidence of intent contemporaneous with the standard's promulgation, it nevertheless is probative [*21] on the question of intent. U.S. Steel Corp., supra. Furthermore, although the Secretary did not accept the NIOSH recommendations in all particulars, see, e.g., GAF Corp. v. O.S.H.R.C., supra, the recommendations concerning permissible exposure level concentrations were accepted. Compare Criteria Document, Recommendations For An Asbestos Standard, Section 1(a), with 29 CFR 1910.93a(b)(l)-(3). Permissible exposure level concentrations are the crucial aspects of any standard regulating exposure to toxic substances or harmful physical agents. Since the exposure level concentrations in both the recommended and adopted standards were expressed in terms of "fibers," to attach a different meaning to that term as used in the adopted standard, would be to alter the premise upon which the exposure level recommendations were made. The Secretary's intent to do so can not be inferred on the basis of the record before us. ..............................'...........Footnotes---------------------- --------nl8 NIOSH recommendations have only advisory force and can be accepted or rejected by the Secretary. GAF Corp. v. O.S.H.R.C., supra, 561 F.2d at 913; Industrial Union Dep't. v. Hodgson, supra, 499 F.2d at 477. The involved standard was adopted following full rulemaking proceedings commenced under section 6(b) of the Act. Compare U.S. Steel Corp., supra, involving a standard adopted as a national consensus standard under section 6(a) of the Act, in which the present members expressed differing views on whether the Secretary was the "drafter" of that standard. [*22] End Footnotes For these reasons, we conclude that Judge Mitchell correctly found that, for the purposes of 1910.93a, a fiber is a particle with an aspect ratio of at least three-to-one. B. Proof of Excessive Concentration of Asbestos Fibers. Respondent also argues that, even if a fiber is defined in accordance with an aspect ratio test, the evidence does not establish the presence of an excessive concentration of "asbestos fibers." Respondent submits that the Judge's contrary conclusion is erroneous and is the result of his failure to make the proper distinction between a "fiber" and an "asbestos fiber." We disagree. emTploopyreoevweaasfeaxilpuoresetdotcooamnpelyxcwesitshivtehecocnitceednstrtaantidoanrdo,fiatsmbeussttobsefiebsetrasb,lii.seh.,edfibthearst aonf chrysotile, amosite, crocidolite, tremolite, anthophyllite, or actinolite. That respondent's employee was exposed to an excessive concentration of fibers is clear. The two air samples obtained during the inspection were subjected to four independent analyses. nl9 In each of these analyses, the method of measurement specified [*23] in the standard was used and a three-to-one aspect ratio test was applied. The samples were first analyzed at the OSHA laboratory in Columbus, Ohio, where it was determined that they contained 76.42 and 17.42 fibers per cubic centimeter of air. A subsequent analysis performed at the OSHA laboratory in Salt Lake City, Utah, resulted in fiber counts of 80.1 and 15.9 fibers per cubic centimeter of air. Further analysis by the NIOSH laboratory in Cincinnati, Ohio, yielded fiber counts of 122 and 23 fibers per cubic centimeter. Finally, a consultant retained by respondent found that the air samples contained 81 and 4.1 fibers per cubic centimeter of air. n20 -------------------------------Footnotes........................... .............. nl9 Much of the evidence and discussion in this case concerned the analysis of bulk samples of talc used at respondent's plant. These samples were given to the compliance officer near the end of his inspection. The samples were of a variety of talcs used at the plant, including NYTAL 200. Tr. at 62. i.e.,Tsharmeepolef#th4e71b1u,lkwsaasmfopulensdwtoerceosnutabijnecftiebdertso. vAalrtihoouusgahnwaleysceasn, afinnddonfotheexspeliocnite sample, acknowledgment in the record, from the treatment given to this sample by all those concerned, it is apparent that sample 4711 was a bulk sample of NYTAL 200. Since the cited standard addresses only "airborne concentrations" of asbestos fibers, however, the analyses of the bulk sample of NYTAL 200 are relevant only insofar as they reveal the mineralogical composition of the talc. The results of the bulk sample analyses are discussed infra. n20 There was no dispute between the parties that the fibers being counted were greater than 5 micrometers. See 1910.93a(a)(2). [*24] ----------------------------- End Footnotes--------------- ------------- With the exception of the 4.1 figure reported for one of the samples by respondent's consultant, each of the analyses showed fiber counts well in excess of the 10 fiber ceiling limit set by the standard. Thus, it is clear that the preponderance of the evidence establishes the presence of fiber concentrations in excess of the standard's permissible limit. However, to establish a violation, it must also be shown that the fibers were one or more of the six minerals specified to be asbestos. The standard does not state a method for determining the mineralogical composition of fibers found in a sample. It does state a method for counting the number of fibers, i.e., optical microscopy with phase contrast illumination, which is used for observing the size and shape of a particle. However, in the course of the extensive analysis performed at the NIOSH laboratory, the air samples were also examined under "transmission electron microscopy" and "selected area diffraction." Transmission electron microscopy was described as a procedure whereby the fiber being examined is "bombarded" with electrons which [*25] are absorbed by the fiber, resulting in an image of the fiber being projected on a screen. n21 This type of analysis also enables the analyst to perform selected area diffraction on the fiber.,Selected area diffraction is an analysis performed at a particular point on the fiber which provides the analyst with a visual crystal pattern of that fiber. Since a crystal pattern is unique for a particular mineral, the pattern obtained from the fiber being observed is compared with the crystal patterns obtained from mineral standards to determine the fiber's mineralogical composition. n22 Footnotes n21 Transcript at 483. n22 Transcript at 483-84, 517-19. ----------------------------- End Footnotes-..................................... Exhibit 19, entered into evidence at the hearing by the Secretary, summarizes the results of the electron analyses performed on the air samples by the NIOSH analysts. rFeipgruerseesn1ta5tiavnedfi1b6erinfoEuxnhdibinit t1h9e sfhiroswt atihresarmespullets. oRf tahlpehanZaulmyswisapldeerf,oornmeeodfothneaNIOSH analysts who performed the electron tests, testified [*26] that the suits obtained warrant the conclusion that the fibers found in that air sample were tremolite and anthophyllite fibers. n23 Figure 18 in Exhibit 19 shows the results of the electron analyses performed on a fiber in the second air sample. According to Zumwalde, the results establish that this fiber was a tremolite fiber. ------------------------------- Footnotes------------------------------diffnr2a3ctiAons.ingTlheecphrreysseonticlee foifbtehrisalssiongwlaesfiibdeerntwifaiesdatitnritbhuetesdamtopl"eamthbroieungt"h csoelnetcatmedinaarteioan. Exhibit 19; Transcript at 530-31. ....................................... End Footnotes....................................... The fibers depicted in Exhibit 19 were not the only fibers examined by NIOSH under electron microscopy. Approximately 100 fibers were examined under selected area diffraction and the resulting diffraction patterns were observed. The fibers depicted in Exhibit 19 were selected because they were typical of all those examined, with the exception of the single stray chrysotile fiber observed. n24 Based on their analyses, the NIOSH analysts concluded that the fibers in the air samples [*27] were tremolite and anthophyllite fibers, and, therefore, that excessive concentrations of asbestos fibers were present in respondent's workplace. ......................................... Footnotes------------------------------- n24 Transcript at 580-82, 598-99. ............................-------- End Footnotes------------------------------ Respondent did not introduce evidence rebutting the results of NIOSH's electron microscopy analysis. In light of the unrebutted evidence that the fibers contained in the air samples obtained from respondent's workplace were tremolite and anthophyllite fibers, n25 we conclude that Judge Mitchell correctly found that respondent's employee was exposed to excessive concentrations of asbestos fibers. - ...................................- -Footnotes-------------------------------connc2l5usTiohnetahnaatltyhseesfipbeerrfsoprrmeseednotnwtehreebtruelmk osalimtepalendofanNtYhoTpAhLyll2it0e0faiblseorsw. TarhreanNtItOheSH analysis concluded that approximately 70 percent of the fibers observed in the sample were tremolite and approximately 30 percent were anthophyllite. The analysis performed at the OSHA laboratory in Salt Lake City concluded that the bulk sample was "50 to 60 percent fibrous tremolite asbestos." [*28] ----------------------- ------- Enel Footnotes......................................... IV. Respondent's "Submittal of Newly Discovered Authority" While this case was pending review by the Commission, respondent filed with the Commission a document captioned "Submittal of Newly Discovered Authority." The submittal consisted of a brief statement requesting that the Commission dismiss the citation and vacate the Judge's findings on the basis of a document prepared by the National Bureau of Standards (NBS) entitled, "A Report on the Fiber Content of Eighty Industrial Talc Samples Obtained from, and Using the Procedures of, the Occupational Safety and Health Administration," n26 a copy of which was attached to respondent's submittal. According to respondent the NBS report "supports Respondent's position throughout this procedure and is dispositive of the issues." ..........................................Footnotes------------------------------- n26 Referred to.infra as "the NBS report". ------------- ----------------End Footnotes....................................... The Secretary replied by filing a "Motion to Strike" respondent's submittal. The Secretary contends that the NBS [*29] report is "irrelevant to the issues before the Commission" and states several reasons why the NBS report should not be considered. The NBS report was prepared pursuant to a request made by Morton Com, former Assistant Secretary of Labor for Occupational Safety and Health. In correspondence initiated with NBS on September 1, 1976, Dr. Com noted that the OSHA methodology for determining the asbestos content of talc samples was being disputed by regulated parties. Iinndaenpeenffdoernt ttoanreaslyoslivseotnhebudlikspsuatme,pNleBsSofwiansduresqtruiaelstteadlc, atomdoentgeromthineer tthhienigrsa,stboespteorsfocromntaennt using the OSHA procedures. The samples involved in the analysis were provided by OSHA. The results of the NBS study were stated in a report dated May, 1977. The conclusion of the report relied upon by respondent in requesting that the citation be dismissed is the following: samItpilsest,heeaospiliyniiodnenattifNiaBbSletshaamt,pelvees,neutcn.d),erthfeaveoxriasbtilnegcOircSuHmAstparnocceesd(uer.eg.i,shuosmefougleonneloyufsor determining 'fiber' content and not 'asbestos' content. n27 ----------------- [*30] Footnotes n27 NBS report at 17. ----------------------------- End Footnotes........................................ The posture in which respondent's submittal appears before us must first be determined. We construe the submittal to be a request to reopen the record for the purpose of introducing the NBS report as evidence, and that, on the basis of the record as supplemented, the citation be dismissed. weAfisnsdumthiantgrethvaertsiatlisopfrthoepeJrutdogec'osndseidceisriothneiNs nBoSt rweaprorratnatetdth. isTshtaegceoonfctlhuesioprnoocefethdeinNgsB,S report relied upon by respondent, i.e., that "the existing OSHA procedure is useful only for determining 'fiber' content and not 'asbestos' content," does not cast doubt upon the validity of the findings in the present case. The "OSHA procedure" referred to in the report is phase contrast optical microscopy. As noted previously, this procedure was used only to determine the number of fibers present in the air samples. It was established that the fibers observed were asbestos fibers through the use of additional procedures that were neither discussed [*31] nor considered in the NBS report. Therefore, even if the NBS report were received in evidence, the finding that the fibers present in the air samples were asbestos fibers would not be disturbed. 6A Moore's Fed. Practice, 59.08[3] at 59-118 (2d ed. 1974); Borg-Warner Corp. v. Mall Tool Co., 220 F.2d 803 (7th Cir., 1955), cert, denied, 349 U.S. 946 (1955). Accordingly, respondent's request that the record be supplemented is denied. V. Knowledge Respondent's final argument is that*a "serious" violation cannot be found because the Secretary failed to prove that respondent had knowledge of the existence of the violative condition within the meaning of the section 17(k) of the Act. n28 According to respondent, it had no actual knowledge of the presence of asbestos in NYTAL 200. Respondent also asserts that, due to the brief period of time that the talc was used and the "special testing procedures" involved in an asbestos analysis, its failure to determine whether asbestos in fact was present in the talc does not display a failure to exercise reasonable diligence. We disagree. ..........................................Footnotes------------------------------- n28 Section 17(k) provides: [A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists ... unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. A divided Commission had held that as part of the proof of a serious violation, the Secretary must establish employer knowledge. D.R. Johnson Lumber Co., 75 OSAHRC 54/A2, 3 BNA OSHC 1124, 1974-75 CCH OSHD para. 19,695 (No. 3179, 1975). [*32] ------------------------------End Footnotes----------------------------- The evidence establishes, and respondent does not dispute, the serious adverse health consequences associated with excessive exposure to asbestos. The evidence also establishes that the possibility that talc could contain asbesti minerals was well known at the time of the inspection. Table G-3, which was in effect at the time of the inspection, reflected this possibility. The evidence further establishes the availability of procedures teostdaebtleisrhmtihnaet,thperimorintoertahleoguiscealocfothmeptoaslcitiboyniotsf eampparlotiyceuelas,r rtaelscp.oTnhdeenrtecuonrdderdtooeoskntoot determine whether the talc contained asbesti minerals. In light of these facts, we conclude that with the exercise of reasonable diligence respondent could have known of the presence of asbestos. Accordingly, respondent's argument that it lacked knowledge of the violation fails. VI. Penalty The Secretary proposed a $600 penalty for this serious violation. Judge Mitchell assessed the proposed penalty taking into consideration respondent's size, its history under the Act, its good faith in removing [*33] the talc from use following the inspection, and the gravity of the violation. n29 Although respondent noted its exception to the assessment of the penalty, it has not argued that the penalty is unreasonable. We conclude that the $600 penalty is appropriate. ------------------------------- Footnotes.......................................... n29 Section 17(j) of the Act. ..............................'-------End Footnotes........................................ VII. ORDER affiArmccionrgdtihneglcyi,taitnisoonfafrorasa isteirsiocuosnsviisotleantitownitohftthhiesAopcitnfioornf,atihluerJeutdogceo'smdpelcyiswiointh, the standard at 29 CFR 1910.93a and assessing a $600 penalty, is affirmed.