Document VjX3Ob6N22zEEJrmVJ7BZ3NDK

SHELL OIL COMPANY BSeE9NC &st/4 stos- to SEE ATTACHED LIST PLAINTIFF'S EXHIBIT SH-1388 DATE FEBRUARY 3, 1976 rom DEPARTMENT OF OCCUPATIONAL SAFETY & HEALTH JECT OSHA REVIEW COMMISSION CASE OF GAF CORPORATION 4 UNITED ENGINEERS 4 CONSTRUCTORS, INC. CONCERNING AIRBORNE ASBESTOS The OSHA Review Commission has ruled (see attached cases printed in CCH at pages 23976 through 23984) the present asbestos standard to mean if airborne asbesto is present at aV]_ (and in theory the presence of any asbestos may become airborne at some time or other i.e. during installation, maintenance or removal) medical examinations on employees required under the present asbestos standard must be implemented, to wit: 1910.93a(j) has been reindexed to 1910.1001(j). Attached is a copy of this portion of the (old) 1910.93a asbestos standard and the complete (new) 1910.1001 asbestos standard. If airborne asbestos is present at or above the present standard's TLV, you should already be conducting monitoring and providing physical examinations and the case does not present any new or additional problems. However, for all the establishments that have asbestos present, i.e. on boilers, pipes or in construction etc. it opens possible questions by a compliance officer in the event of an inspection: 1. Is there any asbestos at this establishment? 2. Is it or can it be airborne? 3. Have you monitored? 4. Have you advised your employees of the hazard they are exposed to? 5. Are you providing your employees with medical examinations? 6. Where are your records? On January 20, 1976 we discussed the status of this case with Mr. Smutherman of the Atlanta firm of McNeil Stokes representing GAF. He advised us that Notice of Appeal had been sent to the U.S. Court of Appeals in Washington, D.C. and that United Engineers 4 Constructors, Inc. were going to appeal to the 3rd Circuit in Philadelphia, PA. See attached copy of Attorney Brynn F. Aurelius memorandum to the undersigned, dated February 2, 1976. LAM 024440 ABS-007619 2- - The present asbestos standard is being revised by the U.S. Labor Department. However, the sections dealing with medical examinations and work place monitoring are unchanged. We disagree with the decision of the Review Commission in the captioned cases and pending the outcome of the judicial appeals of these two cases we would not propose any changes in existing work practices. The purpose of this memorandum is to alert you to a potentially very troublesome problem and the present activities that may or may not change the effect of this case. The Legal Department will follow this litigation and we will advise you of significant developments. Attachment .0. W. A. Roquftt LAM 024441 ABS-007620 DISTRIBUTION "A11 LIST MESSRS. B. F. AURELIUS C. E. BISHOP W. C. BLUHM J. BOYAJIAN P. A. DENNIE W. R. HARP R. M. GRISWOLD R. G. JOBE H. L. KUSNETZ F. B. LOE H. LOW L. L. MC DOWELL J. W. PITTMAN, JR. W. A. PRICE I. A. ROBERTS J. C. SCHRATWIESER 0. J. SHIRLEY J. F. WEILER S. G. WILES PROFESSIONAL LIST MEDICAL DIRECTOR R. E. JOYNER, M.D. INDUSTRIAL HYGIENISTS F. M. PARKER III R. K. JONES H. J. MC DERMOTT _u.c c0PY C. F. PHILLIPS^TH H. L. KUSNETZ D. P. ATWOOD J. RANSDELL WESTHOLLOW RESEARCH CENTER J. R. MILLER M. A. MUHS LAM 024442 ABS-007621 RULES AND REGULATIONS 2-:r ir* Sam* n the s, on Legend lN>e*ux.----------- --------------- Notation 1" Sans Serif, Gothic or Block. :r pofllter Dust Hazard--------------------- *4" Sans Serif. Gothic or ir the tlme:ntra- ons of Avoid Breathing Dust-- Wear Assigned Protective Equipment. Du Not Remain In Area Block. " Gothic. " Gothic. VI" Gothic. terns, qHired Unless Tour Work Re quires It. Drmlhlng Asbestos Dust 14 point Qothic. <raph. May Be Hazardous To y and Tour Health. inable if eming be ' lonthfl bestos exceed >h (b) fencing between lines shall be at least equal to the height of the upper of any t*o lines. it) Caution labels--(i) Labeling. Cau tion labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, slid other products containing asbestos sr--(1) eas of resentons of h the imples-1 e Alter Pbers. or to their containers, except that no label is required where asbestos fibers have been modified by a bonding agent. . .laung, binder, or other material so that during any reasonably foreseeable use, Iuntiling, storage, disposal, processing, or transportation, no airborne concentra- ited In Uuiii of asbestos fibers In excess of the 's shall M;vure limits prescribed in paragraph the 8- .*! of this section will be released. rborne ill Label specifications. The caution g con-.. required by subdivision (i) of this ittems, equlred agraph, viuparagraph shall be printed in letters ! Mifflcient size and contrast as to be mdity visible and legible. The label shall icy add Caution sonable of the Contains Asbestos Fibers Ming be Avoid Creating Dust iths for Urc*thing Asbestos Dust May Cause ubeetet Serious Bodily Harm exceed n para- h> Housekeeping--(1) Cleaning. All Mirmnl surfaces In any place of employ lonifor-j Mr rep* isonable I nltorlngl iall hare] er nt shall be maintained free of accu mulations of asbestos fibers if. with their i >:irrsiun. there would be an excessive inn miration. ji Waste disposal. Asbestos waste, .rroii. debris, bags, containers, equip- 1) Can-1 in slgnij at each itratloas] ss of the iragrapti ] posted location he slgBij .teps be-1 .irr.t. and asbestos-contaminated cloth:t,/ consigned for disposal, which may j.iuci- in any reasonably foreseeable handling, storage, processing, dis- ... ai. or transportation airborne conceniia'ioti.s of asbestos fibers in excess of the Miaivure limits prescribed in paragraph of this section shall be collected and .riaaed of in sealed impermeable bags, ntiicr closed, impermeable containers. .1 Reeorikeeping--(1) Exposure rec- I by the I all ap- excessive] asbestttj ,,,i, Every employer shall maintain rec- aib of any personal or environmental m.aiaorinK required by this section. Rec.rh Khali be maintained for a period of vast 3 years and shall be made avail- wi ar mion request to the Assistant Secre- ) of irv of Labor for Occupational Safety > the <*] uul llimlth. the Director of the National il formal' ii.iutute lor Occupational Safety and (4>, and uia.th. and to authorized representa- hall dfe ,.r< ul cither. he lower] ! r.mployee access. Every employee vies of `' uvi limner employee shall have reason- specifiedI 'i- accivis to any record required to be -.ui.iainrd by subparagraph (1) of this paragraph, which indicates the em ployee's own exposure to asbestos fibers. (3) Employee notification. Any em ployee found to have been exposed at any time to airborne concentrations of asbes tos fibers in excess of the limits pre scribed in paragraph <b> of tills section shall be notified in writing of the expo sure as soon as practicable but not later than 5 days of the finding. The employee shall also be timely notified of tire cor rective action being taken. (j) Medical examinations--(1) Gen eral. The employer shall provide or make available at his cost, medical examina tions relative to exposure to asbestos re quired by this paragraph. (2t Preplacement. Tlie employer shall provide or make available to each of his employees, within 30 calendar days fol lowing his first employment in an occupation exposed to rJrborne con centrations of asbestos fibers, a compre hensive medical examination, which shall include, as a minimum, a chest roent genogram (posterior-anterior 14 x 17 Inches), a history to elicit symptom atology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEVi.). (3> Annual examinatjgn^Onjjr beESZZSZgnjftja rjgasFTuP elude, os a minimum, a chest roentgenogram (posterior-anterior 14 x 17 Inches), a history to elicit symptom atology of respiratory disease, and pulmonary function tests to Include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEVi.k). (4) Termination of employment. The employer shall provide, or make avail able. within 30 calendar days before or after the termination of employment of any employee engaged in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination which shall Include, as a minimum, a chest roentgenogram (pos terior-anterior 14 x 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to Include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV,.,). (5> Recent examinations. No medical examination Is required of any em ployee. if adequate records show that the employee has been examined in ac cordance with this paragraph within the past 1-year period. (6) Medical records--(1) Mainte nance. Employers of employees examined pursuant to this paragraph shall cause to be maintained complete and accurate records of all such medical examina tions. Records shall be retained by employers for at least 20 years. (11) Access. The contents of the rec ords of the medical examinations required by this paragraph shall be made available, for Inspection and copying. to the Assistant Secretary of Labor for Occupational Safety and Health, the Director of NIOSH. to authorized physi cians and medical consultants of either of them, and, upon the request of an em ployee or former employee, to his physi cian. Any physician who conducts a medical examination required by this paragraph shall furnish to the employe! of the examined employee all the infor mation specifically required by this paragraph, and any other medical in formation related to occupational ex posure to asbestos fibers. 1910.93b Coal tar pitrli volatile*: in. trrprrtalinn of terra. As used in 1910.83 'Table G-l), coal tar pitch volatiles include the fused poly cyclic hydrocarbons which volatilize from the distillation residues of coal, petroleum, wood, and other organic mat ter. (Sec. 8(g), 84 stat. 1600. 28 VB.C. 897) |37 FR 24749, Nov. 21.1972) 1910.93c 4-iNitrobiplirnyl. () Scope and application. (11 This section applies to any area in which 4-Nitrobiphenyl, Chemical Abstracts Service Registry Number 92933 is manu factured, processed, repackaged, -re leased. handled, or stored, but shall not apply to trans-shipment in sealed con tainers. except for the labeling require ments under paragraphs ' e." 2'. < 31, and 14) of this section. '21 This section shall not apply to solid or liquid mixtures containing less than 0.1 percent by weight cr volume of 4-Nitrobiphenyl. (b> Definitions. For the purposes of this section: (1) "Absolute filter" is one capable of retaining 99 97 percent of a mono disperse aerosol of 0.3 am par(i< its. (2) "Authorized employee" means an employee whose duties require him to be in the regulated area and who has been specifically assigned by the employer. (3) "Clean change room" means a room where employees put on clean clothing and/or protective equipment in an environment free of 4-Nitrobiphenyl. The clean change room shall be con tiguous to and have an entry from a shower room, when the shower room facilities are otherwise required in this section. (4) "Closed system" means an opera tion involving 4-Nitrobiphenyl where containment prevents the release of 4Nltrobiphenyl into regulated ureas, nonregulalcd areas, or the external environ ment. (5) "Decontamination" means the in activation of 4-Nitrobiphenyl or its safe disposal. () "Director" means the Directot. National Institute for Occupational Safety and Health, or any person di rected by him or the Secretary of Health. Education, and Welfare to act for the Director. <7) "Disposal" means the safe re moval of 4-Nitrobiphenyl from the work environment. (8) "Emergency" means an unforeseen circumstance or set of circumstances re sulting in the release of 4-Nitrobiphenyl FEDERAL REGISTER, VOl. 39, NO. 123--THURSDAY, JUNE 27, 1974 ABS-007622 e<4m'v \i LAM 024443 Hh 31:8301 OCCUPATIONAL SAFETY AND HEALTH STANDARDS SUBPART Z-TOXIC AND HAZARDOUS SUBSTANCES (Code of Federal Regulations, Title 29. Chapter XVII, Section 1910.9.1 of Suhpurt G redesignated as 1910.1000 at 40 FR 23072. May 28, 1975) Subpart Z--Toxic and Hazardous Substances Sac.: 19)0.1000 1910.1001 1910.1002 Air Contaminant*. Asbestos. "Coal tar pitch volatiles; Interpre tation of term. 1910.1003 1910.1004 1910.1005 1910.1004 1910.1007 1910.1008 1910.1000 1910.1010 1910.1011 1910.1012 1910.1013 1910.1014 1910.1015 1910.1010 1910 1017 4-Nltroblphenyl. alpha-Naphthylamine. 4.V--Methylene bis (3-chloroanl- Ilne'. Methyl chlorometbyl ether. 3.3'--Dlchlorobenzldlne (and 1U salts) bls-Chloromethyl ether. beta-Nsphthylamlne. Benzidine. 4-Amlnodlphenyl. Ethylenelmlns. beta-Proplolactone. 2-Acetylamlnofluorene. 4-Dtmethylamlnoazobenzene. N-Nltrosodlmethylamlne. Vinyl chloride. S 1910.1000 Air contaminants. An employee's exposure to any mate rial listed in table Z-l. Z-2, oi Z-3 of this section shall be limited In accord ance with the requirements of the follow ing paragraphs of this section. (a) Table Z-l: (1) Materials with names preceded by "C"--Ceiling Values. An employee's ex posure to any material in table Z-l, tlic name of which Is preceded by a "C" (e.g., C Boron trlfluorlde), shall at no time exceed the celling value given for that material in the table. (2) Other materials--8-hour time weighted averages. An employee's expo sure to any material in table Z-l, the name of which is not preceded by "C". in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material In the table. (b) Table Z-2: (1) 8-hour time weighted averages. An employee's exposure to any material listed in table Z-l. in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table. (3) Acceptable ceiling concentrations. An employee's exposure to a material listed in table Z-l shall not exceed at any time during an 8-hour shift the ac ceptable celling concentration limit given for the material in the table, except for a time period, and up to a concentration not exceeding the maximum duration and concentration allowed In the column under "acceptable maximum peak above the acceptable celling concentration for an 8-hour shift". (3) Example. During an 8-hour work shift, an employee may be exposed to a concentration of Benzene above 25 p.pjn. (but never above 50 p.p.m.) only for a maximum period of 10 minutes. Such ex posure must be compensated by expo sures to concentrations less than 10 p.pjn. so that, the cumulative exposure for the entire 8-hour work shift does not exceed a weighted average of 10 p.p.m. (c) Table Z-3. An employee's expo sure to anv material listed In table 0-3, In any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material In the table. (d) Computation formulae: (1) il) The cumulative exposure for an 8-hour work shift shall be computed as follows: Z=C.T.fC>Tn- . . . C.T. 8 where: E Is the equivalent exposure for the work ing shirt. C la the concentration during any pertoJ of time T where -.he concentration remains constant. T Is the durs'i.o, of the exposure at the concentration C The value of E shall not exceed the 8hour time weighted averaee limit In table 6-12-75 LAM 024444 Copyright <9 1975 by The Bureau of Notional Affairs Inc ABS-007623 (Sec. 1910 lOOOtdl I 59 31.8302 REFERENCE FILE Z-l. Z-l. or 7.-3 lor the material in volved. (II) To Illustrate the formula pre scribed In subdivision (i) of this subpara graph. note that isoamyl acetate has an 8-hour time weighted average limit of l MO p.p.m. (table Z-l). Assume that an employee is subject to the following exposure: Two hours exposure at ISO p.pan. Two hours exposure at 75 p.p.m. Four hours exposure ac SO p.p.m. Substituting this information in the formula, we have 2 X 150+2 X 75 + 4 X 50 ---------------------------------------=81.25 p pm. 8 Since 81.25 p pm. is less than 100 p.pm., the 8-hour time weighted average limit, the exposure is acceptable. (2) (i) In case of a mixture of air con taminants an employer shall compute the equivalent exposure as follows: c, c, c. E-=--+--+ . . . -- L, L, L. Where: E> la the equivalent exposure for the mixture. C Is the concentration of a particular con taminant. L la the exposure limit for that contami nant. from tabic Z-l, Z-l. or Z-3. The value of E. shall not exceed unity (1). (ii) To illustrate the formula pre scribed in subdivision (i) of this subparagraph. consider the following exposures: Material Actual con* cent/milon of S-hour eipanra 6-hour time weighted averaga expoourt limit Acetone Table Z-l)....... 500 p.p.m... 1,000p.p.m. 2>Bat4nonetTable Z-l}. 46p.pjn___ 300 p.p.m. Toluene < Z-2>....... 40p.p^n____ 200p.p.m. Substituting in the formula, we have: 500 45 40 1.000 200 200 E = 0.500 + 0325 +0300 E. =0.925 Since E_ Is less than unity (1), the expo sure combination is within acceptable limits. (e) To achieve compliance with para graph (a) through (d) of this section, administrative or engineering controls must first be determined and imple mented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits pre scribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each par ticular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with i 1910.134. Table Z-l- Substanco p.p.m.* Acetaldehyde............................ 200 10 5 Ao* tone.................................. . 1.0U0 Acetonitrile............................... 4U Aoetylene dlcldorlde. see 1, 2- Dlohloroelhylene.................. Acetylene tclrahromlde........ 1 Acrolein .................................. Acrylamide- Skin...................... Acrylonitrile -Skin.................... Aldrln--Skin. .................... Allyl alc^hol-Skln.................... Allyl chloride.... .............. (' Allylirlyoldvl ether (AOR). loi Allyl propyl disulfide.... 2-Amlnocthanol, set* Ethanol- amine.................................... 2>Amlnopyridlne........................ Ammonia.............................. 0. s 50 Ammonium sulfamate (Am- mate)........................................ n-Amyl acetate......................... sec-Amyl neetftte...................... mi us Aniline--Skin.. ........................ Anlsldlne (o, p-laomers) -- Sktn.. s Antimony and compounds (us Sb)................................... ANTU (alphanaphthyl thiourea).................................. Arsenic and compounds (as As). Arsine.......................................... Arinphos-methyl -Skin............ Barium (soluble compounds)... rvHenioOulnone, see Quinone. - Hnuoyl peroitde....... ................ Bentyl chloride........................ Biphenyl, see Diphenyl............ Btsphenol A, see Dlglycidyl ether......................................... Boron oxide................................. C Boron trifluoride.................... 1 Bromine...................................... at B romotorm--8ktn....................... Butadiene (1. 3-butsdlene)........ 1.000as BuUnethiol. see Butyl mer captan ..................................... 2-Hutannne.................................. 200 2-Butoiy ethanol (Butyl Ol* losolre)--Bkln ........................ Butvl acetate (n-butyl acetate). 50 ISO Mc-Botyl aceute........................ 300 tert-Buty) acetate....................... 200 Butyl alcohol.............................. 100 sec-Butyl alcohol........................ ISO tert-Batyl alcohol.,................... 100 C Butylamtn*--Skin.................. 6 C tert-Butyl ehromatatas CrOO-Skln............................ . n-Butyi flyetdyl ether (BOR).. "Butyl mercaptan...................... 5ID0 p-Mrt-Butyltoluene.................... 10 Calcium arsenate......................... Calcium oxide................. . ......... ""Camphor................................. Cari>aryl (Serin).......... .......... Carbon Mark.............................. . Carbon dioxide........................... Carbon monoxide....................... 6,00600 Chlordane--Skin......................... Chlorinated campheoe--8ktn-- Chlorinated diphenyl oxide........ Chlorine..................................... l Chlorine dioxide......................... ai C Chlorine trifluoride................ C ChioroaeataMehyde............... ai i -Chloroaretopherv>ne (Obenacylchlorlde).................. a os Chlorobecuene (monochloro- bensene).................................. 0-Chlarotonsylldene maloftonttrUe (OC BM)........... 0.06 Chtorobromomethane.............. 200 2-Chloco-l.3-butadiene, see Chloroprena.............................. Chlorodiphenyl (42 percent Chlorine)--Skin ...................... Chlorodiphenyl (54 percent Chlorine)--Skin........................ 1-Chloro.2.3-epoxypropane, see Bptehktrhydrln......................... 2-Chloroethanol, see Ethylene chlornhydrtn............................. Chlnroethylene, Me Vinyl chloride ................................... C Chloroform (Uichloro- methane)............................... 60 IChlnro-l-nltropropane........ . ai Chloruptrrln............................. ai Chloroprena (2-chloro-l,3- butadiene)-Skin.................. 25 Tublc / -1 -r'ontinucd me./VM > Substance p.p :n 3410 :s *> 2, 4iW> 70 14 n. 25 0.3 45 0.16 46 I? 15 5hS2O5 10 0.5 0.5 0.3 0.5 0.2 0.2 Ol 5 16 3 0.7 5 2,200 500 240 710 050 050 300 450 300 15 0.1 270 35 60 1 5 .......6 * 3.5 9.000 65 0.5 as as 3 as at 3 a3 350 a4 1,060 1 as 240 100 ar uo Chromium. ,ol. chromic. Coal tar pilch yntaliUis (hen- ten* viluhle fraction' anthra cene. Mul*. phertiinthretie; acridine, chrysene, pyrene................. Cobalt, metal fume and dust................ Copper fume... Dusts iind Minis . Cotron .lust Cracijri herbicide . . rresol v til isomer*) Skm f^olotialdehydv.. ( imienr Skin___ Cy.mide (as CN)-Skin.. . . Cyclohexane........................... Cyclohexanol........................... Cyclohexanone........................ V Cycloheiene....................... CyclOpentMliene......................... 2. 4-f>.. ............................ 3' 75 HOT-Skin .. ............. DDVP. see Dlchlorvoa.. . . Dccahorane - Skin...................... Demctott Skin.................... ft U5 Dlaceume alcohol (4hydri>*>4-niethyl*2-pentanone)........... 1,2-dlomlnoethane. see JO El hy lenedlamlne.................... ntiifomcthane...................... Dlbomne....................................... j.; ii. i Dlhmylphthalate.-. C o- M Ich leruhenzene.. .VI p-I >1c hlurobenxcne............ 75 Dlchlnrodlfluoromelhatie.......... 1.00) 1,3- D(rhlorv3,4UUmcthy l hydantoin.............................. I.l-DIchloroeihane..................... inn l.2*Dlch1ornethylene... . ... 2a* C Dk'hloioethyl ether--Skin.. 15 Dlchioromethaue, see Methytenechlorlde................... Dlchioromonofluoromethane... l.nm C t.l-DIchlorO'l-nltToethane.. 1,2-Dlchlocoprnpane. see 10 Propylenedlchloride .............. IMchtorotetraflunroethane......... lMchlonroe (Dl>VP)- Skin......... Dleldrln-Skin............................. Dtothylamhie............................. Dlcthylamlno ethanol--Skin__ Diethyiether. see Ethyl ether. 25 lo Dlfluorodlhromomei hane........... C Dlidyridyl ether (POE)........ Dlhydroxyhenreue, see uw 0.5 Hydroqutnone........................... Dilaoliutyl ketone..................... DUsopropylamlne--Skin............. Diniethotymethane. see 5P 3 Meihytal..................................... Dimethyl acetamide-Skin___ Dlmethy lamine............................ IP IP Dlmethylamlnobenxene, see Xylldene.. Dlmethylai\lUne(N-dlniethylaniline)--Skin......................... nimethylbentene, see Xylene___ Dimethyl t,2-dlbronio-2.2-<ll- chloroethyl phosphate, (LHbrotn)...... ................... Dimethylfonnamlde - Skin....... 2>Dfmethyllt4tptanone, see Dllsobutyl ketone...................... l.l-Olmethylhydrailno--Skln... Dimethylphthaiate....................... Dlmethy lsulfate-- Skin.............. Dinitrobencene (ail Isomers) -- Skin............................................ D Ini tro-o-cresol--Skin................... 0.5 V Dfnltrotoluene--Skin........ ............ Dfoxanr iDlethylene dioxide)-- Skin......................................... Diphenyl................................... Dlphenylmcthone dUsocyanate HW u. - (see Methytene htaphenyl isocyanate (Ml)I)..................... Dipropylene glycol methyl ether-Skln.. ................. Dl-sec, octyl phthalate (Db2- etlvvlhexylphthalaie).. Endrln - Main Eplehlochydrtn--Skin RI*N- Skin................. 1.2*F.poxyprMPti*, see Propylmeoxlde. 2.3-KlKixy-l-propanol. s> Olvcldcd......... See footnotes at end of table. U. 6 l o; i 1. n5> o ;j i i m 4r4* 4. \A) * L 2 4P MO *.2Pn 6*' MP - AI ;*6 la 30 i a i. is u1 1'. P. 5 ABS-007624 Occupational Safely & Health Reporter (Sec. 1910.1000(e)! 00 LAM 024445 TOXIC SUBSTANCES 31 8303 Tabic Z- l -('onlinucil T.ibtc /.- I Continual I .lldv Substance p p.m.* Etbcnetiiioi. see Ethylmer- cnptxn..................................... Ethac.olxtrdne. 2-Ethoxyethanol--Skin............. 2-Etlox\ethyUcetate (Cello- 200 solve ac-jate)-Skin.......... ... Ethv! ic'tate................................ Etnvl acrylate--Skin....... .......... Itn 40 23 EthvI 'ilcohol (ethanol)............ 1,000 F.t'ivi4mn;c.................................. 10 Kr iu yrc-nmyl kcronc (8ns. tT.vl-'t-heptanon?)................ Ft h\ Iienzme............................. . Ftlivl :*roiit-le.............................. 25 KX> 200 F.th\! butvl ketone (3- Hcpt'iiione)................................ Elhvl ch.'irlde................................ Kthvl ether.................................... Etl.vi (ornmte............................... 50 l.OPd 400 100 C Ethyl mercaptan...................... 10 Kthvl sthcate................................. Ethvlen** rhlorohydrin--Skin.. m 5 EthylenodUmlne.......................... 10 Ethylene dlbromldc, see 1.2rilhromoetluiue.................... Frhvlcne dlchior.de. see 1.2- rMchlornethane....................... C Ethyleneglycol dlnltmte and'or Nitroglycerin --Skin. Ethy^ne glycol monomethyl ether acetate, see Methyl ce.lios*>te acetate. Ethvlene tmine--Skin................. Ethylene oxide.............................. 0.6 80 Ethvlldne chloride, see 1,1- Pichloroethane.......................... N-Elhylmorphollne--Skin....... 20 Ferboni........................................ - Fermvanadluru dust.. Fluoride (M F)........................ Fluorine..................................... Fluorntrichloromeihane......... Formic acid.............................. Furfurol--Skin................... . Furfuryl alcohol....................... Glyctdo! (2-3-Epoxy-l- propanol!....... ....................... 0.1 1,000 5 3 80 60 Glycol moncethyl ether, see 2-Eflioxvethanol.................. Guthlon see Atlnphoa- methyl.................................... Hafnium.................................... Tleptachlor--Skin. Heptane (n-heptane)............ Hexachlorethane--Skin-- Hexaehtoronaphthalene--Skin. Hexane (n-hexane)................... 2-lIexanona............................... Heione t Methyl toobutyl ketone)................................... 800 l 800 100 100 sec-Hrxyl acetate...................... Hydmme--Skin...................... Hydrogen bromide................... C Hydrogen chloride............... Hydrogen cyanide--Skin......... 60 l 3 5 10 Hydrogen peroxide (90%)........ Hydrogen selenide..... ............... t a 05 Hydroqulnone........................... C Iodine.................................... Iron oxide fnme........................ Isoamyl acetate......................... Isoamyl alcohol......................... tsobutyJ acetate........................ Isobutyl alcohol........................ Isophorone.............................. Isopropyl acetate...................... Isopropyl alcohol...................... Isopropylamine......................... at 100 100 ISO 100 25 280 400 5 Isopropykther........................... Isopropyl glycldyl ether (I (IK) Katana............ -......................... Lead arsenate............................ 600 60 0.6 Lindane--Fklu........................................ LHhlum hydride..................................... L.P.G (liquified petroleum gas)........................................... 1,000 Magnesium oxide fume........................... Malathlon- Skin..................................... Maleic anhydride........................ a C Manganese............................. Mesityl oxide............................. Methanethlol, see Methyl 26 mercaptan............................. Methuxychlor.......... ................. 2-Methoxyethanol, see Methyl cellosdva.............................. Methyl acetate.......................... 200 Methyl aretylene (propyne)... 1,000 Methyl arfitylene propadlene mixture (MAPP).................... 1,000 Methyl arrvlate -Skin............... 10 Melhylal fdlmethoxymethane).. 1,000 Methyl alcohol (methanol)........ 200 Methylamlna............................... 10 Methyl amyl alcohol, see Methyl Isobutyl carblnoi........ mg.At* * 740 M0 1,400 inn 1.1*00 18 130 435 ^00 230 2,N)0 1,200 300 25 880 16 23 l 90 94 15 t 2.8 0.2 6,600 9 20 200 180 0.8 0.6 2.000 10 1,600 410 410 300 1.3 10 7 11 1.4 0.2 2 1 600 700 600 140 960 W0 12 2,100 240 ao a 16 0.6 a 028 1,800 16 16 I 6 100 16 010 1.660 1.800 u 6,100 260 12 Mcthv'1 (n-amyl) keion*' (2Ilcptanone).............................. lik) ( Methyl bromlde-Skin............ 20 M*flivi butyl ketone, vee 2- Hcximnne......................... Methyl ceilosolve -Skin.............. Methyl eellosnlve acetate -Sksu 25 25 Methyl chloroform........................ Mcthylcvcluhexaue...................... 500 Methylcyclobevanol..................... o.Methylryelohexauon* -Skin.. 100 100 Methyl ethyl ketone (MRK), 5*e 2-Hulauono .......................... Methyl formate............................. Methyl iodide--Skin.................... Methyl IsobiUyl carbhiol--Skin. Methyl isobutyl ketone, seo lIe\one... Mcthvl isocyauftte-Skin.......... 0 02 C Mothvl mercaptan.................. 10 Methyl methacrylate... _____ 100 Methyl propyl ketone, see .* I'enfanone.................................. O a Methylstyrene...................... 100 C Methylene lilsphenyl isocyanate (MDI)................... Molybdenum: Solublo compounds................ Insoluble compounds............. Mouomethyl aniline Skin... C Mnuorocthyl hydrazine Skin............................................ n.2 Morpholine--Skin....................... 20 Naphtha (coaltar)...................... 100 Naphthalene............................... Nickel carbonyl.......................... 10 0.001 Nickel, ntctal and soluble empds,as N!........ ................... Nicotine--Skin............................ Nitric acid................................. Nitric oxide. p-NUroaniline-- Skin. Nitrobenzene--Skin.. p-Nitrochlorobentene--Skin....... Nltroethana................................ Nitrogen dioxide........................ Nitrogen trifluoride.................... .............. 2 23 1 1 100 5 10 Nitroglycerin--Skin................... Nltromethana............................. 1-Nltmpropane........................... 2-Nltropropane........................... Nltrotoluene--Skin................... Nitrotrlchloromethane, see 0.2 ino 25 25 6 Chloropicrln............................. Octachlornnaphthalene -Skin... 'Octane................. ..................... Oil mist, mineral........................ Osmium tetroxtde........................ Oxalic acid.................................... Oxygen diRuortde....................... Ozone.......................................... 0.08 0.1 Paraquat--Skin........................... Parathton--8kln.......................... Pentaborane............................... 0.008 Pentachloronaphthalene--Skin.. Pentachlorophenol--Skin............ Pentane..................................... t.ooft 2Pentanone................................ Perchloromethyl mercaptan.... Perchloryl fluoride..................... Petroleum distillates (naphtha). Phenol--Skin.............................. 200 Oil 3 800 5 p-Phanylene diamine--Skin....... Phenyl ether (vapor)................. Phenyl ether-biphenyl mixture (vapor)...................... Phenykthylene, see Styrene....... Phenyl glycidyl ether (1*0 E)... Phenylhydroslne--Skin............ 10 5 Phoedrtn (Mevinphoa ) Skin........................................... Phosgene (carbonyl chloride)... Phosphine........ .......................... 0.1 0.3 Phosphoric acid........................... Phosphorus (yellow)................... Phosphorus pentachlodde.......... Phosphorus pentasulflde............. Phosphorus trichloride.............. 0.3 Phthalic anhydride................... Picric sold--Skin....................... 2' Pival $ (2P1valyM> indandlone)............................... Platinum (Soluble Salts) as Pt............................................... Propargyl alcohol--Skin............ Propans...................................... n-Propyl acetate......................... Propyl alcohol............................ tvPropyl nitrate......................... 1,000 200 200 23 Propylene dlchlorhle................. Propylene imlno- Skin.............. Propylene oxide......................... 76 2 IOO Propyne, see Mathylaeelylene... Pyrethnim................................... . . ___ Pyridine...................................... 6 Quinone...................................... KDX--Skin......................... ........ mg./M * 4<!5 00 50 12li 1. W) 2. 470 UK) ':*a\ ,,* loo 0.05 20 410 490 5 15 y dll 4*0 50 a 007 i 0.6 6 30 6 5 l 310 n 2 250 90 9ft 30 0.1 2,350 8 0.002 0. I 0.2 0.5 ai i 0.01 0.8 as 2,050 700 0.8 13.3 2,000 10 ai 7 60 22 0.1 04 a4 1 ai i i 3 12 0.1 &1 0.002 1,000 M0 500 no 3806 240 & 15 a <s 1.8 Substance Rhodium, Af<*Uxl fum*4 dut, as Kb............ Soluble salts . Rmutel.. . Rotenone (rnrr.incta*!' Selenium compound* tasc Selenium hcx.iiHHtrule.. Mlwr, llu t.i! J1I<I 5u>ul':< i*ii*1 ^ pounds Sodium Iturrnnc 't.ilr Skln.. Sodium hydroxide Srthlm*. . .. SimMurd . Ivriit. . Strychnine . Sulfur dlolldc. Sulfur hox.ifluoridr.. Nilfnrie arid Suifur u:iiiiv)il,in<lf Si.ltur p*ui.ilW: tl> >ulfur\ I fluoriih* . .see 1`enn'foiv JT 2.4.5T. . Tartulum. rEDp. Skill . (i>. .iill S 0l u4 0 01 >t 5 . y.'-i 'i ti n r.*S A n f.4 n s ; Tellurium hexafluoride TEPP Skin . <* Terpheuyls 1.1.1.J TetrMChlori*-.\2 dirluc r* 1.1.2.2-Trfruchloro l.J dtflriTo ethane... . 1.1.2.2-Tc1rarnlrtr*>^tlmnf *k'.n TcrcjchloriadhyU-n**. s* r. i chlorocthyleue .. . Trtr.ichloronu'th me. s*** OartJ>i. t`tr:u-hl**rlde .. Tet'.tchlornii.iphtliaU'ni1 'kin Tetraethyl lead (as Sktn .. Tctrjhyilrofuran. Tttnmieihyl lead (us J`b> Skin......... .. Tflrainelliji snccipotiiinlv Skin............................... Tetr.uiltromctliane. .. Teirvl i2,4.H-trtntrfopi.Htu!- methymitraiinnei -Sktu... Thallium (soluble com* pounds)-Skin as Tl .. Thlnm. .. Tin anorganic empds. exc pt oxides. .. Tin (urganlc cnipdst... . C Toluene.L4*<illsncyanat`... , o-Toliitdln**- Skin Toxaphetie. -we Chlorltmlfd camphette ... Trthutyl phosphate 1.1.bTrtchlorifc'thimr w Methyl chloroform.. l.I^-Tnchlona'thane Skm. . . Titaniumdioxldc................................ Tdrhloromethane, .see i.'hlnro- form......................... .... Trt.hloronaphlhslene Skin . .. 1,2.3'Trtehlofoprnpane.. 1.1.2- Trlehloro l,2,2 Ulftu^v> ethane...................................... Trlethylantlne..................... 25 Trlfluoromonobnnnomethane... l.ou* 2.4.<t<Trlnltroplienol, see Pb ri* acid ........................... ....... 2.4.A-Tr1uitroplietiy Imethyl- uitramtne, see Tetryl.. . . Trinitrotoluene - $klu. ... Triorthocrcsyt phophate Trtphenyl phosphate___ Turpentine..... .......................... Uranium (soluble compounds). Uranium (insolublecompounds).. C Vanadium: V|0 dust......................................... VjO fume........................................ Vinyl benzene, see SHrene............. Vlnylcyanlde, seo Acrylonitrile. . Vinyl roluene............................... Warfarin.................................... Xylene (xylol)............................... XyUdlne-Skin............................. 1 5 Yttrium............................................ 7.lnc chloride fume..................... Zinc oxide fume................................. Zirconium compounds (as Zr)___ 4. 1. 4 i; 4 "1 44 It .4 3rt) 7. W l'*> 6. luO I8 o1 3 .MO 00. n25s 0. 5 0. I 435 28 I 1 6 5 *1070 Addition. Parts of vapor or gas per mUllon parts of conlamlnated air by volume at *J54 <`. ami 7t,n))i. Ilg pressure. `Approximate mllllgranw <( purtbulate per ruble meter of air. (No footnote "c" Is used To .ivotd ronftibm with celling value notations.) 4 An atmospheric ronri'nirarton <| 1114 more than 0.02 p.p.m., or personal protetibm innv i>e neei.err to avoid headache As sampled by method (hat )* not collect vapor. t For control of general mom air, biologic mmiilorlng U essential for personnel rontml f Vinyl dthuulc ikl. lal ,i( W I K I ' 1-1 ? April 5, I9 7-4J 6-12-75 Copyright C 1975 by Tho Buvoou of Notionot Affairs, Inc. tSc. 1910.1000(a) Table Z 1l 01 LAM 024446 31:8304 REFERENCE FILE Tdblc 2-2 <c> Methods of compliance--U) En gineering methods. (1) Engineering con Material -hour time weighted ararage Acceptable maximum pea| above trols. Engineering controls, such as. but Acceptable the acceptable ceiling concentre- celling tlon for an ft-hour shift. concentration --------- --------------------------------------- not limited to. Isolation, enclosure, ex haust ventilation, and dust collection, Concentration Maximum duration shall be used to meet the exposure limits prescribed In paragraph i b) of this Be*eane<Z37.4-1980).................... -...............lOp.p.m............... 2fl p.p.m............... 60 p.p.m............... 10 minutes. beryllium and beryllium compounds 2 pgjM1......... . 5 sg./M*............. 26>*f./M.................SOmluutea. (ZJ7.29-1070). Cadmium fume (Z37.A-1970)........................ 0.1 mg./M*............3 mg./M*............................................. Cadmium dust (Z37.S-1970)..........................0.2mg./M............ 0.6 mg./M*.......................................... Carbon disulfide (Z37.3-1966)...................... 20 p.p.m...............30 p.p.m............... 100 p.p.m............. Do. Carbon tetrachloride (Z37.I7-I967).............. lOp.pjn.............25 p.p.m............... 200 p.p.m........... A minutes In any 4 hours. Ethylene dlbromkle (Z37J1-1970)................ 20 p.p.m.............lOp.p.m...............50 p.p.m...............G minutes. Ethylene dtchtortde (ZJ7.21-1969)................GO p.p.m............. lOu p.p.m........... 2u0 p.p.m............. fi minutes in any 3 hours. Formaldehyde (ZJ7.16-1967).........................3p.p.m................ Ap.p.m.................lOp.p.m............... 30minutes. Hydrogen fluoride (Z37.26-1969)...........................do............................................ ,,........................ . Fluoride as dust (Z37.26-1969)...................... 2.5 mg./M*...................................................................... Lead and Its Inorganic compounds (ZJ7.U- 0.2 mg./M*....................................................................... 1909). Methyl chloride (237.16-1909)...................... 100p.p.m........ 200 p.p.m.............. 300p p.m...........5 minutes In any 3 hours. Methylene Chloride (Z37.3-I9Q9)..................G00 p.p.m.......... 1,000 p.p.m........... 2,000 p.p.m........ 5 minutes In any 2 hours. Organo (alkyl) mercury (Z37JO-1909).........0.01 mg./M >... 0.04 mgVM *........................................... Styrene (Z37.15-1M0).................................... 100 p.p.m........ 200 p.p.m.............. 600 p.p.m........... 5 minutes in any 3 hours. Trtchloroethylana (Z37.10-1967)............................do...................... do.................... 300 p.p.m........... 5 minutes In any 2 hours. Tatrechloroathylana (Z37.22-1967)........................do...................... do............................. do................. A minutes In any 3 hours. Toluene (237.12-1967) .................................. 200 p.pjn........ 300p<p.m............... 500 p.p.m........... 10 minutes. Hydrogensulfide (Z37.2-1966)................................................. 20p.p.m................ 50 p.p.m............... lOminuteeonce only if no other measur able exposure section. (!1> Local exhaust ventilation, (a) Local exhaust ventilation and dust col lection systems shall be designed, con structed, Installed, and maintained In accordance with the American National Standard Fundamentals Governing the Design and Operation of Local Exhaust Systems. ANSI Z9.2-1971, which Is In corporated by reference herein. (b) See } 1910.6 concerning the avail ability of ANSI Z9.2-1971. and the maintenance of a historic file in connec tion therewith. The address of the Amer ican National Standards Institute Is given In S 1910.100. (Ill) Particular tools. All hand-op erated and power-operated tools which may produce or release asbestos fibers in excess of the exposure limits pre scribed in paragraph <b) of this section, such as. but not limited to, saws, scorers, abrasive wheels, and drills, shall be pro vided with local exhaust ventilation sys Mercury (Z37.S-1971)................................................................ 1 mgJUM Chromic acid and chromates (Z37.7-1971)............ ...................... .do *.... tems In accordance with subdivision (11) of this subparagraph. Tam** G-*--Mihuui Dusts Substance Mppcf Mg/M* Aerodynamic diameter (unit density sphere) Percent passing selector (2) Work practices--il> Wet methods. Insofar as practicable, asbestos shall be nanaietL mixed, applied, removed, cut scored, or otherwise worked in a wet Silica: Crystalline: Quarts (respirable).............. 2 1 lOmg/M1 %SiOt+6 %S10s-t-2 Quarts (total dust).................................. 30mg/M* Crtstobalite: Use H the value calculated from the count or mass formulae for quarts. Tndymite: Use the value calculated from the for mulae for quarts. Amorphous, including natural diatomaceous earth................. %8iOi+2 20 sumg/M* %SiO> 2 90 2. A 75 3-5 00 5.0 25 10 U The measurements under this note refer to the use of an ABC instrument. Tf the respirable fraction of coal dust is determined with a M H E the figure corresponding to that of 2.4 Mg/M* in the table for coal dust is 4.A Mg/M*. S 1910.1001 Asbestos. (a) Definitions. For the purpose of this section. (1) ggBSSBS includes chrysotlle. amoslte, crocidollte, tremo lite, anthophyllite, and actlnollte. (2) "Asbestos fibers" means asbestos state sufficient to prevent the emission oi airborne fibers In excess of the ex posure limits prescribed in paragraph (b) of this section, unless the usefulness of the product would be diminished thereby. (11) Particular products and opera tions. No asbestos cement, mortar, coat ing, grout, plaster, or similar material containing asbestos shall be removed from bags, cartons, or other containers in which they are shipped, without being either wetted, or enclosed, or ventilated so as to prevent effectively the release ol airborne asbestos fibers in excess of the Silicates (less than 1% crys talline silica). Mica.............................................. Soapstone..................... ........ 20 Talctnon-ashestoa 4orm) . 20 Talc (fibrous). Use asbestos limit ... . Tremolite (see talc, fibrous) Portland cement......................... Graphite (natural).................. 1A Coal dust (respirable fraction leas than S% blOt)................................... For more than A% 8iOi.............................. 20 50 2.4mg/M* or Hhng/M* iert or Nuisance Dust: Respirable fraction.............. Total dust............................ %81CM-2 1A 5mg/M* AD lAmg/M* Not*: Conversion factors-- mppcfxU.3-million panicles per cubic meter particles per c.c. Millions of particles per cnble foot of air, based on Implngrr samptescounted by light-field technics. 1 The percentage of crystalline silica in the formula Is the amount determined from air-borne samples, ex cept in those Instances In which other methods have been shown to be applicable. i As determined by the membrane Altar method at 430xphaae contrast magnificatIon. Roth concentration and percent quarts for the appli cation of (his limit are to be determined from the fraction passing a 'Ite-wlartnr with the following characteristics: Containing < 1% quarts; If > l% quarts, use quarts limit. fibers longer than S micrometers. (b) Permissible exposure to airborne concentrations o/ asbestos fibers--(1) Standard effective July 7, 1972. The 8-hour time-weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed five fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method pre scribed in paragraph (e) of this section. (2) Standard effective July 1, 1976. The 8-hour time-weighted average air borne concentrations of asbestos fibers to which any employee may be exposed shall not exceed two fibers, longer1 tflXh snySjjjmeters^per cuoic centimeter of air, as determined by the method pre scribed in paragraph e) of this section. (3) CeUlnoconcenfrofion^ No em ployee TEalIoF7xpoaSr"aFany 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 pre scribed In paragraph (e> of this section. limits prescribed In paragraph (b) of this section. (ill) Spraying, demolition, or removal. Employees engaged In the spraying of asbestos, the removal, or demolition of pipes, structures, or equipment covered or insulated with asbestos, and in the removal or demolition of asbestos in sulation or coverings shall be provided with respiratory equipment in accord ance with paragraph (d)(2) (ill) of this section and with special clothing In ac cordance with paragraph ' d > (3 of this section. (d) Personal protective equipment-- (1) Compliance with the exposure limits prescribed by paragraph <b> of this sec tion may not be achieved by the use of respirators or shift rotation of em ployees, except: (I) During the time period necessary to Install the engineering controls and to Institute the work practices required by paragraph <c> of this section: (II) In work situations In which the methods prescribed In paragraph ic> of ABS-007626 Occupational Safety A Health Reporter [Sec. 1910.1001(d)(1)(ii)l 62 LAM 024447 TOXIC SUBSTANCES S HH 31.8305 this section are either technically not feasible or feasible to an extent insuffi cient to reduce the airborne concentra tions of asbestos fibers below the limits prescribed by paragraph (b> of this section: or (ill) In emergencies. Uv) Where both respirators and per sonnel rotation are allowed by subdivi sions (i), (ID. or (ill) of this subpara graph, and both are practicable, person nel rotation shall be preferred and used. (2) Where a respirator is permitted by subparagraph (1) of this paragraph, it shall be selected from among those ap proved by the Bureau of Mines. Depart ment of the Interior, or the National In stitute for Occupational Safety and Health, Department of Health, Educa tion. and Welfare, under the provisions of 30 CFR Part II (37 PR. 6244, Mar. 25, 1972). and shall be used in accordance with subdivisions (1), tii), (iii). and (iv) of this subparagraph. (i> Air pari/vino respirators. A reusa ble or single use air purifying respirator, or a respirator described in subdivision iii) or (iii) of this subparagraph, shall be used to reduce the concentrations of airborne asbestos fibers in the respirator below the exposure limits prescribed in paragraph (b) of this section, when the ceiling or the 8-hour time-weighted aver age airborne concentrations of asbestos fibers are reasonably expected to exceed no more than 10 times those limits. tii) Powered air nuritying respirators. A full'facepiece powered air purifying respirator, or a powered air purifying respirator, or a respirator described in subdivision (iii) of this subparagraph, shall be used to reduce the concentra tions of airborne asbestos fibers in the respirator below the exposure limits pre scribed in paragraph (b) of this section, when the celling or the 8-hour timeweighted average concentrations of asbestos fibers are reasonably expected to exceed 10 times, but not 100 times, those limits. (ill) Time "C" supvlied-air respirator*. continuous now or pressure-demand class. A type "C" continuous flow or nres- sure-demand. supplied-air respirator shall be used to reduce the concentra tions of airborne asbestos fibers in the respirator below the exposure limits pre scribed in paragraph <b) of this section, when the ceiling or the 8-hour timeweighted average airborne concentra tions of asbestos fibers are reasonably expected to exceed 100 times those limits. (iv) Establishment o/a respirator pro gram. <a) The employer shall establish a respirator program in accordance with the requirements of the American Na tional Standards Practices for Respira tory Protection, ANSI Z88.2-1969, which is incorporated by reference herein. 6. See i 1910.6 concerning the avail ability of ANSI Z88.2-1969 and the main tenance of an historic file in connection therewith. The address of the American National Standards Institute is given in 5 1910.100. (c) No employee shall be assigned to tasks requiring the use of respirators if. based upon his most recent examination, an examining physician determines that the employee will be unable to function normally wearing a respirator, or that tne safety or health of the employee or other employees will be impaired by his use of a respirator. Such employee shall be rotated to another job or given the opportunity to transfer to a different po sition whose duties he is able to perform with the same employer, in the same geo graphical area and with the same senior ity. status, and rate of pay he had just prior to such transfer, if such a different position is available. (3> Special clothing: The employer shall provide, and require the use of. spe cial clothing, such as coveralls or similar whole body clothing, head coverings, gloves, and foot coverings for any em ployee exposed to airborne concentra tions of asbestos fibers, which exceed the celling level prescribed in paragraph (b) of this section. (4) Change rooms: <i) At any fixed place of employment exposed to airborne concentrations of asbestos fibers in ex cess of the exposure limits prescribed in paragraph (b) of this section, the em ployer shall provide change rooms for employees working regularly at the place. tii) Clothes lockers: The employer shall provide two separate lockers or con tainers for each employee, so separated or isolated as to prevent contamination of the employee's street clothes from his work clothes. (ill) Laundering: (a) Laundering of asbestos contaminated clothing shall be done so as to prevent the release of air borne asbestos fibers in excess of the ex posure limits prescribed in paragraph (b) of this section. (b) Any employer who gtves asbestos- contaminated clothing to another person for laundering shall inform sifeh person of the requirement in (a) of this.subdi vision to effectively prevent the release of airborne asbestos fibers in excess of the exposure limits prescribed in para graph (b) of this section. (c) Contaminated clothing shall be transported in sealed impermeable bags, or other closed, impermeable containers, and labeled in accordance with para graph (g) of this section. (e) Method of measurement. All de terminations of airborne concentrations of asbestos fibers shall be made by the membrane filter method at 400-450 X (magnification) (4 millimeter objective) with phase contrast illumination. if) Monitoring--(1) Initial determi nations. Within 6 months of the publi cation of this section, every employer shall cause every place of employment where asbestos fibers are released to be monitored in such a way as to determine whether every employee's exposure to asbestos fibers is below the limits pre scribed in paragraph (b> of this sec tion. If the limits are exceeded, the em ployer shall immediately undertake a compliance program in accordance with paragraph (c) of this section. (2)1 Personal monitorlna-idl) Sam ples shall be collected from within the breathing zone of the employees, on membrane filters of 0.8 micrometer po rosity mounted in an open-face filter holder. Samples shall be taken for the determination of the 8-hour timeweighted average airborne concentra tions and of the celling concentrations of asbestos fibers. tii> Sampling frequency and patterns. After the initial determinations required by subparagraph ip of this paragraph, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of em ployees. In no case shall the sampling be done at intervals greater than 6 months for employees whose exposure to asbestos may reasonably be foreseen to exceed the limits prescribed by paragraph ib> of this section. i3) Environmental monitoring--(i) samples shall be collected from areas of a work environment which are represent ative of the airborne concentrations of asbestos fibers which may reach the breathing zone of employees. Samples shall be collected on a membrane filter of 08 micrometer porosity mounted in an open-face filter holder. Samples shall be taken for the determination of the 8hour time-weighted average airborne concentrations and of the ceiling con centrations of asbestos fibers. <ii> Sampling frequency and patterns. After the initial determinations required by subparagraph 11 > of this paragraph, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of the employees. In no case shall sampling be at intervals greater than 8 months for employees whose exposures to asbestos may reasonably be foreseen to exceed the exposure limits prescribed m para graph <b> of this section. <4) Employee observation a> monitor ing. Affected employees, or their rep resentatives. shall he giver, a reasonable opportunity to observe anv monitoring required by this paragraph and shall have access to the records thereof. (g) Caution signs and labels. U> Cau tion signs. ti> Posting. Caution signs shall be provided and displayed at each location where airborne concentrations of asbestos fibers may be in excess of the exposure limits prescribed in paragraph (b) of this section. Signs shall be posted at such a distance from such a location so that an employee may read the signs and take necessary protective steps be fore entering the area marked by the signs. Signs shall be posted at all ap proaches to areas containing excessive concentrations of airborne asbestos fibers. (ii) Sign specifications The warning signs required by subdivision (i) of this subparagraph shall conform to the re quirements of 20" x 14" vertical format signs specified in 5 1910.145 f d < 41, and to this subdivision. The signs shall dis play the following legend in the lower panel, with letter sizes and styles of a visibility at least equal to that specified in this subdivision. Legend Asbestos ________ Dust Hazard____ Avoid Breathing Dust Wear Assigned Protecilve Equipment. Do Not Remain In Area Unless Tour Work Re quires It. Nota'mn 1 ' Sans Serif, O o t h I c or Block V Sans Ser flot h lc Block ' Ooihlc '4 *' Gothic. i4 ' Gothic 6-12-75 Copyright C 1975 by The Bureou ol Notionol Allu.rs, Inc. (See. 1910.1001(qH1)ln)i LAM 024448 31:8306 REFERENCE FILE Legend Breathing Asbestos Dust May Be Hazardous To Tour Health. Notation 14 point Oothlc. Spacing between lines shall be at least equal to the height of the upper of any two lines. <2> Caution labels-- (i> Labeling Cau tion labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing asbestos fibers, or to their containers, except that no label is required where asbestos fibers have been modified by a bonding agent, coating, binder, or other material so that during any reasonably foreseeable use. handling, storage, disposal, processing, or transportation, no airborne concentra tions of asbestos fibers in excess of the exposure limits prescribed in paragraph < b' of this section will be released. iji Label specifications. The caution labels required by subdivision (1) of this subparagraph shall be printed in letters of sufficient size and contrast as to be readily visible and legible. The label shall state: Caution Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm (h) Housekeeping--< 1) Cleaning. All external surfaces in any place of employ ment shall be maintained free of accu mulations of asbestos fibers if, with their dispersion, there would be an excessive concentration. < 2 > Waste disposal. Asbestos waste, scrap, debris, bags, containers, equip ment, and asbestos-contaminated cloth ing, consigned for disposal, which may produce in any reasonably foreseeable use, handling, storage, processing, dis posal. or transportation airborne concen trations of asbestos fibers in excess of the exposure limits prescribed in paragraph ib) of this section shall be collected and disposed of in sealed impermeable bags, or other closed, impermeable containers. (i> Recordkeeping--U> Exposure rec ords. Every employer shall maintain rec ords of any personal or environmental monitoring required by this section. Rec ords shall be maintained for a period of at least 3 years and shall be made avail able upon request to the Assistant Secre tary of Labor for Occupational Safety and Health, the Director of the National Institute for Occupational Safety and Health, and to authorized representa tives of either. (2) Employee access. Every employee and former employee shall have reason able access to any record required to be maintained by subparagraph (1) of this paragraph, which Indicates the em ployee's own exoosure to asbestos fibers. (3) Employee notification. Any em ployee found to have been exposed at any time to airborne concentrations of asbes tos fibers In excess of the limits pre scribed in paragraph <b) of this section shall be notified in writing of the expo sure as soon as practicable but not later than 5 days of the finding. The employee shall also be timely notified of the cor rective action being taken. <J) Medical examinations--il) Gen 1910.1002 Coal tat pitch w>latile<>; in eral. The employer shall provide or make terpretation of term. available at his cost, medical examina tions relative to exposure to asbestos re quired by this paragraph. <2> Preplacement. The employer shall provide or make available to each of his employees, within 30 calendar days fol lowing his first employment in an occupation exposed to '.lrborne con As iim'iI ill Sec. 1910.1 OOP I l.ibli- / I < ,>.il tar pitch volatiles include the fused poly cyclic hydrocarbons which volatilize from the distillation residues of coal, petroleum, wood, and other organic mat ter. |'7IR 24749 I HWiiw Novi ,;tN r . I'<:2| centrations of asbestos fibers, a compre hensive medical examination, which shall | Itliloi's Noiv: lor ihe toll.o in- ,,r,ui include, as a minimum, a chest roent occnc' *[;ukl.irih. mclliv;il c\.iiihii.iII"M pri.vi genogram < posterior-anterior 14 x 17 clone were rcin.nulcil In the llnril in, no Inches), a history to elicit symptom (,'ouri of Appeals. I'roiicionc rec.ir.lmc le atology of respiratory disease, and search laboratories were s.u.uc.l In die pulmonary function tests to include court. | forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV,.,,). (3) Annual examinations. On or be fore January 31, 1973. and at least an nually thereafter, every employer shall provide, or make available, comprehen sive medical examinations to each of his employees engaged in occupations ex posed to airborne concentrations of as bestos fibers. Such annual examination shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 x 17 inches), a history to elicit symptom atology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced exnlratory volume at 1 second (FEV..). (4) Termination of employment. The employer shall provide, or make avail able, within 30 calendar days before or after the termination of employment of any employee engaged in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination which shall include, as a minimum, a chest roentgenogram (pos terior-anterior 14 x 17 Inches), a history .to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV,.,). (5) Recent examinations. No medical examination is required of any em ployee. if adequate records show that the employee has been examined in ac cordance with this paragraph within the past 1-year period. (8) Medical records--(1) Main fe 1910,1003 4-Nitrobiphenyl. (a) Scope and application, d) This section applies to any area in which 4-Nitrobiphenyl, Chemical Abstracts Service Registry Number 92933 Is manu factured, processed, repackaged, re leased, handled, or stored, but shall not apply to transshipment in sealed con tainers. except for the labeling require ments under paragraphs (e> <2>, (3). and (4) of this section. (2) This section shall not apply to solid or liquid mixtures containing less than 0.1 percent by weight or volume of 4-Nitrobiphenyl. (b) Definitions. For the purposes of this section: (1) "Absolute filter'' is one capable of retaining 99.97 percent of a mono disperse aerosol of 0.3 am particles. (2) "Authorized employee" means an employee whose duties require him to be in the regulated area and who has been specifically assigned by the employer. (3) "Clean change room" means a room where employees put on clean clothing and/or protective equipment in an environment free of 4-Nitrobiphenyl. The clean change room shall be con tiguous to and have an entry from a shower room, when the shower room facilities are otherwise required in this section. (4> "Closed system" means an opera tion involving 4-Nitrobiphenyl where containment prevents the release of 4Nitroblphenyl Into regulated areas, nonregulated areas, or the external environ ment. (5) "Decontamination" means the in rnoce. Employers of employees examined activation of 4-Nltrobiphenyl or its safe pirsuant to this paragraph shall cause disposal. to be maintained complete and accurate (8) "Director" means the Director, records of all such medical examina National ' Institute for Occupational tions. Records shall be retained by Safety and Health, or any person di employers for at least 20 years. rected by him or the Secretary of Health. (11) Access. The contents of the rec ords of the medical examinations required by this paragraph shall be made available, for Inspection and copying, to the Assistant Secretary of Libor tor Occupational Safety and Hca!-.,i. the Director of NIOSH. to authorized !>hv:., Education, and Welfare to act for the Director. (7) "Disposal" means the safe re moval of 4-Nltroblphenyl from the work environment. (8) "Emergency" means an unforseen circumstance or set of circumstances re ci.tns and medical consultant.'' oi cuncr sulting In the release of 4-Nltroblphenyl of them. and. upon the reque: t of a:i em which may result In exposure to or con ployee or tormer employee, to ltts physi tact with 4-Nitrobiphenyl. cian. Any phyrinar. who conducts a imUirat cx.".iiiiiialioii riquirou by lilt* paragraph shall furnish to the employer of the examined employee all the infor mation specifically required by this paragraph, and any other medical in formation related to occupational ex posure to asbestos fibers. (9) "External environment" means any environment external to regulated and nonregulated areas. (10) "Isolated system" means a fully enclosed structure other than the vessel of containment of 4-Nitrobiphenyl, which la Impervious to the passage of 4Nltrobiphenyl. and which would prevent Occupofionol Sofety & Health Raporter (Sac. 1910.1003(bl(10S I t'.4 ABS-007628 LAM 024449 23,976 Decision! 237 ,2`3-7* OSHRC Judge's decisions become 6nal if review not directed within JO days oi Sling. For lurther action, if any, see Case Table at $ 7995. Discussion The Board has previously held " * * that Congress did not intend that * * * a civil penalty (be) assessed where compliance with a mandatory health or safety standard is impossible due to unavailability of equip ment, materials, or qualified technicians." Buffalo Mining Company, 2 IBMA 226, 259, 80 1. D. 630, 644, 1973-1974 OSHD par. 16,618 (1973). This principle was applied in Associated Drilling, Inc., 3 IBMA 164, 81 I. D. 285, 1973-1974 OSHD par. 17,813 (1974), and again in Itmann Coal Company, supra at 62, 82 I. D. 96 (1975). In each of these penalty cases, the record indicated that the required material was unavailable to the mining industry in general. The Judge concluded in this case that the telephone instrument was unavailable based solely upon the fact that it was on order. There is a singular lack of evidence show ing when it was ordered, general availability in the market, or any effort by the operator to obtain the instrument other than by placing the order. There is no evidence whatsoever in this record to support the finding that the operator had not received the equipment "because of factors beyond his control." As stated by MESA in its brief: * * * To excuse an operator because required materials have been ordered but not delivered--where such materials are available--is to excuse an operator from its obligation to keep replacement ma terials on hand or to have them imme diately available so as to maintain a con tinuance of the high degree of safety compliance which the law establishes. * * (Brief, p. 3). The defense of unavailability as set out in Buffalo is predicated upon a finding in the record of either the nonmanufacture of the equipment or its unavailability or scarcity in the market in general. This principle was applied in Lucas Cool Company, ct al.,' 3 IBMA 258, 268, 81 I. D. 430, 1973-1974 OSHD par. 18,226 (1974), in which the record evidence did not show that adequate backup alarms were unavailable. There we ruled that the operator had not borne his burden of proof and failed to show by a preponderance of the evidence that the alarms were unavailable on the market. In the instant proceeding, the record is devoid of any evidence which indicates at the time of the issuance of the Notice cither the general unavailability on the market, or scarcity, of telephone instruments. (1) Accordingly, we conclude that the fact that the telephone instrument was on order, standing alone, is insufficient evidence upon which to base a conclusion of un availability. Since Robbins was found to be in default, the Board assumes and finds that the subject violation did occur. 43 CFR 4.544(a). In lieu of a remand, the Board may make the required findings of fact to coincide with the record evidence regarding any of the six criteria of section 109(a). Buffalo Mining Company, supra at 230. Accordingly, the Board finds that: (1) Robbins employs 20 persons with a production of 40 tons of coal daily and 8,000 tons annually; (2) the his tory of its previous violations is insubstan tial; (3) its ability to stay in business will not be affected by the civil penalties assessed; and (4) it exhibited good faith in abating the violation. We further find that Robbins was not negligent as its knowledge and at tempted abatement of the violation were manifest in its ordering the requisite tele phone prior to the issuance of the Notice and that the violation was nonserious since the only working section affected thereby was located 5 minutes from the surface. Based upon the foregoing findings, we con clude that an appropriate penalty assessment for such violation is $50. Order Wherefore, pursuant to the authority dele gated to the Board by the Secretary of the Interior (43 CFR 4.1(4)), it is hereby ordered that the Judge's decision and order vacating Notice of Violation No. 3 FJ, October 30, 1973, in the above-captioned case is reversed; that said notice is rein stated; and that Robbins Coal Company pay a civil penalty in the amount of $50 within 30 days from the date of this decision. [$ 20,163] GAF Corp. and United Engineer! & Constructors, Inc. Text of ReviewConmuMmt7TT5ecis!onTate<rT7,ovember 14, 1975. OSHRC Docket Nos. 3203, 4006 and 7355. The Judge's Decisions at 3203 and 4008 appear at IF 18,289 and $18,318, 1973-1974 OSHD (GAF Corp.). The Decision at 7355 appears at $19,138. 1974-1975 OSHD (United Engineers & Constructors, Inc.). 1 Air'd tub turn. Lucas Coal Company, et al . Interior Board of Mina Operations Appeals, -- F. 2d -- (3rd Or. August 29, 1975). 1 20,163 1975, Commerce Clearing House. Inc. ABS-007629 lam 024450 UT ,2-*-75 1975--1976 OSHD 23,977 OSHRC Judge's decisions become final if review not directed within 30 days of filing. For further action, if any, see Case Table at ft 7995. Asbestos Exposure--Medical Examination Requirements--When Applicable. Section 1910.93a (j > requires employers to furnish medical examinations for all employees engaged in occupations exposed to any airborne concentrations of asbestos fibers, a majority of the Review Commissioners held. The employers argued unsuccessfully that the examination requirements should not be triggered until the concentrations met or exceeded the per missible levels established by 1910.93a(b). On the contrary, the Judges properly deter mined that there is no threshold exposure level in the standard's requirement for examination of employees exposed to the fibers. Since several of the provisions of 1910.93a expressly refer back to the permissible level of 1910.93a(b), if such a cross reference were intended for 19l0.93a(j) it would have been so worded. The employers maintained that NIOSH intended the examinations to be triggered only at a threshold level exposure. Although the proposed NIOSH standard contained a triggering level, it was TWA exposures above 1 fiber/cc or peak exposures above 5--half that of the Institute's recommended maximum permissible exposure level and not comparable to the final standard's 19l0.93a(b) permissible level of 5 fibers TWA. In any case, the NIOSH recommendation was merely advisory and the Secretary chose not to follow the threshold level suggestion with regard to examination. There is substantial uncertainty among scientific authorities as to exactly what levels of prolonged exposure to the carcinogen are fatally hazardous, lending force to the conclusion that the examination requirements were deliberately intended to cover employees exposed to asbestos in any degree at all. Back reference: ft 7602.3. Hugh P. Francis and McNeil Stokes for the employer. Marshall H. Harris, T. A. Housh, Jr. and Francis V. LaRufTa for the Secretary. [Text of Review Commission's Decision] Before Barnako, Chairman; Moran and Cleary, Commissioners. Cleary, Commissioner: These consolidated cases involve a single common issue, the interpretation of the standard at 29 CFR I910.93afj) (herein after referred to as 1910.93a(j)].` Specifi cally, we are asked to decide whether $ 1910.93a(j) requires respondents to fur nish, or make available at their cost, medi cal examinations for all employees engaged in occupations exposed to any airborne concentrations of asbestos fibers or only for employees engaged in occupations ex posed to concentrations that exceed the maximum permissible exposure levels set forth in 29 CFR 1910.93a(b) [hereinafter 5 1910.93a(b) ]. I. Admimstrotivr Law Judgei decisions A. GAF Corf., No. 3203 GAF Corporation, Floor Products Divi sion (GAF-FPD), was issued a citation alleging an other than serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U. S. C. S651 et seq., [hereinafter referred to as "the Act"] for failing to comply with $ 1910.93a (j)(l). A penalty of $40 was proposed by the Secretary for this alleged violation. GAF-FPD timely contested the citation and notification of proposed penalty. The citation and notification of proposed penalty were issued following an inspection of GAF-FPD's Whitehall, Pennsylvania, plant on April 26, 1973, by authorized rep resentatives of the Secretary. At the White hall plant, GAF-FPD employs approximately 456 production and maintenance employees who are represented by Local 691, United Papenvorkers International Union, AFLCIO. Local 691, the authorized employee representative, participated as a party in proceedings before the Commission. In lieu of a hearing, the parties submitted a stipulation of facts and briefs to Judge Henry K. Osterman for a decision. On July 18, 1974, Judge Osterman issued his decision affirming the citation and proposed penalty. As to the construction of ft 1910. 93a(j),` the Judge concluded: An employer who is engaged in com merce is required to comply with the provisions of 29 CFR $ 1910.93a(j) with respect to its employees who are engaged in occupations exposed to airborne con centrations of asbestos fibers whether or not the concentration of airborne fibers meets or exceeds the permissible levels established by 29 CFR 1910.93a(b). GAF-FPD took exception to this construc tion and petitioned the full Commission for review of the decision. The petition was granted and review of the decision was ordered on August 19, 1974, pursuant to section 12(j) of the Act on the issue of the Judge's construction of 11910.93a(j). 1 The text of this and other applicable standards Is set forth In Section m. infra. 1 Although the citation and complaint alleged a failure to comply with I 1910.93a())(l>, they were amended on motion ot the Secretary to allege a failure to comply with 11910.99x0). Employment Safety and Health Guide 1 20,163 ABS-007630 LAM 024451 23,978 Decisions *w ia-a- OSHRC Judge's decisions become final if review not directed within 30 days of Sling. For further action, if any, see Case Table at 11 7995. B. GAF Corp. No. 4006 GAF Corporation, Building Products Di vision (GAF-BPD), was issued `a citation alleging an other than serious violation for failing to comply with 1910.93a(j)(3). No penalty was proposed for this alleged vio lation. Thereafter, pursuant to section 10(c) of the Art, GAF-BPD filed a timely notice of contest. The citation was issued following an in spection conducted in GAF-BPD's St. Louis, Missouri, plant by an industrial hygienist serving as an authorized representative of the Secretary. At this plant approximately 170 production, maintenance, and cleanup employees were affected by the alleged violation. In lieu of a hearing, a stipulation of facts and briefs was submitted to Judge Vernon Riehl for decision. On July 23, 1974, the Judge issued a decision affirming the cita tion. Judge Riehl ruled, as did Judge Ostcrman in the GAF-FPD case, that an employer must comply with 1910.93(j)(3) regardless of whether the concentrations of airborne asbestos fibers to wrhich em ployees are exposed exceed the permissible levels set forth in 1910.93a(b). Review of the Judge's decision was di rected on August 21, 1974, when GAFBPD's petition for discretionary review was granted. The sole issue on review, as in the GAF-FPD case, concerned 1910.93a (j) medical examination requirements. C. United Engineers & Constructors, Inc., No. 7355 The citation at issue in this case arose out of conditions allegedly existing during the construction of a nuclear power gener ating station in Salem County, New Jersey. Specifically. United Engineers Sc Construc tors, Inc. (UE Sc C) was alleged to have violated the Act hy failing to comply with subparagraphs (2), (3) and (4) of 1910.93a (j) during its activities at the construction site. Employees of LTE Sc C performing various functions at three specified work areas at the site were allegedly exposed to airborne concentrations of asbestos fibers and not provided with medical examina tions as the standard requires. A hearing w>as held before Judge John J. Morris following UE Sc C's filing of a notice of contest. Judge Morris found that employees in the three cited work areas were exposed to airborne concentrations of asbestos fibers that did not necessarily exceed the permissible levels set forth in 1910.93a(b). Nevertheless, the Judge ruled On December 18, 1974, Judge Morris tiled an "errata sheet" correcting certain clerical errors In his December 11. 1974, decision. * The Judge's decision In Amoco Oil Co. was that tho evidence established a failure to comply with 1910.93a(j)(2), (3) and (4) at the three cited work areas. In so ruling, he held that concentrations of airborne as bestos fibers in excess of the $ 19l0.93a(b) levels were not prerequisites to the medical examination requirements of 19I0.93a(j). Rather, Judge Morris stated: The correct rule of law is the test of a reasonable man. . . . Would a reasonable man recognize a hazard to its employees warranting the preventative medicine approach? On this record this must clearly be answered affirmatively. Respondent was. advised April 1972 by its own monitoring laboratory that cer tain job processes were "a health hazard-- per title 29 l-abor--Part 1910--Occupa tional Safety and Health Standards." Accordingly, in his decision dated Decem ber 11, 1974,* Judge Morris affirmed the citation and assessed no penalty. Chairman Moran directed review of the Judge's decision on January 2, 1975. Sub missions were invited on the following issue: Whether the occupational safety and health standard published at 29 CL F. R. 11910.93a(j) requiring medical examina tions for employees engaged in occupa tions involving the possibility of exposure to concentrations of asbestos fibers, re quires that such examinations be afforded employees exposed to (1) any trace of asbestos fibers at all, or (2) only a level of asbestos fibers ap proaching or exceeding the per missible exposure level specified in S 29 C. F. R. 1910.93a(t>). II. Consolidotions On September 5, 1974, the Secretary moved to consolidate the GAF-FPD and GAFBPD cases for review purposes, noting the identity of issue and parties. This motion was granted on September 16, 1974. On January 7, 1975, UE Sc C moved for review purposes to consolidate its case with the already consolidated GAF cases and Amoco Oil Co., No. 48(H.` This motion was granted as to the GAF cases but denied as to the Amoco Oil Co. case. directed for review on June 17. 1974. While Amoco CHI Co. Involved the Interpretation ot I 1910.93a(j). It also Involved other provisions ot the asbestos standard. I 20,163 1975, Commerce Clearing House, Inc. ABS-007631 LANl 024452 nr 12-2-71 1975--1976 OSHD 23,979 OSHRC Judge's decisions become 6nal if review not directed within SO days of Sting, For further action, if any, see Case Table at f 7995. III. Relevant standards 1910.93a Asbestos. (a) Definitions. For the purpose of this section. (1) "Asbestos" includes chrysotile, amosite, crocidolite, tremolite, anthophyllite, and antinolite. (2) "Asbestos fibers" means asbestos fibers longer than S micrometers. (b) Permissible exposure to airborne con centrations of asbestos fibers--(1) Standard effective July 7, 1972. The 8-hour timeweighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed five fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section. * ** (j) Medical examinations--(1) General. The employer shall provide or make avail able at his cost, medical examinations relative to exposure to asbestos required by this paragraph. (2) Preplacement. The employer shall provide or make available to each of his employees, within 30 calendar days fol lowing his first employment in an occu pation exposed to airborne concentrations of asbestos fibers a comprehensive medical examination, which shall include, as a minimum, a chest roentgenogram (pos terior-anterior 14 x 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV,,,). (3) Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees en gaged in occupations exposed to airborne concentrations of asbestos fibers. Such an nual examination shall include, as a mini mum, a chest roentgenogram (posterioranterior 14 x 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV). (4) Termination of employment. The employer shall provide, or make available, within 30 calendar days before or after the termination of employment of any employee engaged in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination which shall include, as a minimum, a chest roentgenogram (posterior-anterior ' In his derision. Judge Morris refers to the permissible limits In 29 CFR i 1910.93a(2)(b>. Employment Safety and Health Guide 14 x 17 inches), a history to elicit symp tomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expira tory volume at 1 second (FEV,,) (em phasis added). IV. Discussion In both the GAF-FPD case and the GAF-BPD case, the parties stipulated that, while all of the occupations referred to in the citations were exposed to some level of airborne concentrations of asbestos fibers, these levels did not equal or exceed the levels of permissible exposure set forth in I9l0.93a(b)f 1). Moreover, respondents in lx>th cases admitted that they did not pro vide medical examinations for their em ployees engaged in the cited occupations. Consequently, in both cases, the sole issue for determination is the interpretation of the phrase "exposed to airborne concentra tions of asbestos fibers" as it appears in 1910.93a(j)(2), (3) and (4). After a hearing in the UE & C case. Judge Morris found that the three occupa tions referred to in the citation were ex posed to airborne concentrations of asbestos fibers. He also found that the evidence did not establish' that the levels of exposure exceeded those set forth in $ 1910.93a(b)(l).` Inasmuch as the Judge found that medical examinations were not provided, the issue to be resolved in that case is the same issue presented in the two GAF cases. We have reviewed the evidence in the UE & C case relating to exposure levels and the alleged absence of medical examinations and agree with the Judge's findings. Consequently, as in the GAF cases, the sole issue before the full Commission is the interpretation of 1910.93a(j). We have examined the arguments of the parties and have considered the entire record. For the reasons set forth below, we hold that S 1910.93a(j) requires an em ployer to provide, or make available at his cost, medical examinations to employees en gaged in occupations that require exposure to concentrations of airborne asbestos even though the levels of exposure may not ex ceed those set forth in $ 1910.93a(b)(l). In enacting the Occupational Safety and Health Act of 1970, Congress expressed grave concern over the alarming number of work-related deaths, injuries, and illnesses occurring in all sectors of the economy. See e. g.. Section 2(b) of the Act; S. Rep. No. 91-1282; 91st Cong., 2d Sess. 2 (1970). While concern was expressed over the gen eral state of occupational safety and health, emphasis was placed on studies of safety and health in particular industries. Occu lt Is clear from his discussion, however, that he was referring to 11910.93a(b)(l). I 20,163 ABS-007632 LAM 024453 23,980 Decisions **7 **-*-7* OSHRC Judge's decisions become final il r rview not directed within JO days of filing, For further action, if any see Case Table at J 7993. pational exposure to asbestos was recog nized as an especially vexing problem. In deed, it was noted that: Asbestos is another material which con tinues to destroy the lives of workers. For 40 years it has been known that ex posure to asbestos caused the severe lung scarring called asbestosis. Nevertheless, as an eminent physician and researcher. Dr. Irving J. Selikoff, testified during the hearings on this bill: "It is depressing to report, in 1970 that the disease that we knew well 40 years ago is still with us just as if nothing was ever known." It has also since been found that manu facturing and construction workers ex posed to asbestos suffer disproportionately from pulmonary cancer and mesothelioma. Because nothing has been done about the hazards of asbestos, even after the asso ciation of asbestos and lung cancer was first reported in 1935, 20,000 out of the 50,000 workers who have since entered one asbestos trade alone--insulation work --are likely to die of asbestosis. lung cancer or mesothelioma. Nor is the poten tial hazard confined to these workers, since it is estimated that as many as 3.5 million workers are exposed to some ex tent to asbestos fibers, as are many more in the general population. 5\ Rep. No. 91-1282, supra at 3. It is in light of this legislative background that we construe the remedial rules before us. We note that it is of paramount im portance that this Commission construe oc cupational safety and health standards so as to effectuate congressional objectives. Brennan v OSHRC Sr Gerosa, Inc., 491 F. 2d 1340, 1343 (2d Cir. 1974). Occupational safety and health standards should be con strued in favor of the workers whom the Act seeks to protect. Prinetille Mouldings, Inc., No. 1045 (November 11, 1974) (Cleary, Commissioner, concurring). The thrust of respondents' primary con tention is that the phrase "exposed to air borne concentrations of asbestos fibers" ` is ambiguous. They argue that the term "con centration" implies a quantitative limitation. Moreover, it is urged that, in absence of a specific quantitative limitation within I910.93a(j), the term "concentration" refers back to the permissible level of ex posure set forth in 8 1910.93a(b)(l). We reject this contention for several rea sons. Contrary to respondent's position, we note that the term "concentration" does 1910.93a<jl(2), (3) and (4). ' Webster^t Third New International Diction ary 469 (unabr. ed. 1971). For other example*, see paragraphs (g)(2) (1) and (h)(2) of 3 1910.93a. II 20,163 not necessarily imply a quantitative limita tion. The term "concentration" may also denote a relative dispersion of particles in the air.' Moreover, it is a well settled prin ciple in the construction of writings that a single phrase should not be read in isolation. Common sense requires that a particular phrase be read in the context of the entire writing. Richards v. United States, 369 U. S. 1, 11 (1962) ; Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 285 (1956), reh. denied, 351 U. S. 980 (1956). Applying this principle to 1910.93a, it is clear that the term "con centration" as it appears in 1910.93a(j) is not ambiguous and does not refer back to 1910.93a(b)(l). Several of the provisions of 8.1910.93a expressly refer back to the permissible level of exposure set forth in 5 19l0.93a(b). For example, paragraph (g)(l)(i) of 8 1910.93a requires the posting of caution signs at locations "where airborne concentrations of asbestos fibers may be in excess of ex posure limits prescribed in paragraph (b) of this section."* It is reasonably clear, therefore, that viewing the asbestos standard as a whole, the term "concentration" in 8 1910.93a(j) does not refer back to 1910.93a (b). Indeed, if such a cross reference were intended, it would likely he expressed as in the case of paragraph (g)(1) (i). In support of their contentions regarding the term "concentration," respondents cite the findings and proposals of the National Institute for Occupational Safety and Health (NIOSH) regarding an asbestos standard. It is argued that NIOSH intended the medical examination requirements to be trig gered only when a threshold level exposure was reached in a particular occupation. Respondents argue that this threshold value is that set forth in 1910.93a(b). We dis agree. It is true that the NIOSH recommenda tion for a medical examination requirement contained a "triggering level" of exposure to concentrations of airborne asbestos. NIOSH recommended medical examina tions in those occupations where there were "time-weighted average exposures above 1 fiber/cc or peak exposures above 5 fibers/ cc."* The NIOSH recommendation for maximum permissible exposure levels was, however, a time-weighted average exposure of 2 fibers/cc or peak exposures above 10 fibers/cc.1* It is clear from these recom mendations that different threshold exposure levels were attached to the maximum per missible exposure levels and medical exam ination requirements. Thus, respondents * NIOSH. Criteria tor a Recommended Stand ard . . . Occupational Sxpaturw to Arbentoe at 1-3 (1972) (hereinafter referred to as "NIOSH Criteria Document"]. Id. at 1-1. 1975, Commerce Clearing House, Inc. ABS-007633 LAM 024454 237 12-2-73 1975--1976 OSHD 23,981 OSHRC Judge's decisions become nai if review not directed within JO days of filing. For further action, if any, see Case Table at f 7995. arc incorrect when they contend that the NtOSH recommendation concerning medi cal examinations was intended to refer back to their recommendations concerning maxi mum permissible exposure levels. Moreover, the fact that NIOSH recom mended any threshold level of exposure does not necessarily mean that the standard as adopted by the Secretary of Labor incor porates a threshold value. On the contrary, NIOSH recommendations plainly have only advisory force. Indus. Union Def t, AFLCIO v. Hodgson, 499 F. 2d 467, 477 (D. C. Cir. 1974). They may or may not be fol lowed by the Secretary of l.abor. In the case of the medical examination require ments the Secretary obviously chose not to follow the recommendation regarding thresh old levels of exposure. The recommended levels are absent from the text of 1910.93a (])" The concept that compliance with por tions of the asbestos standard may be re quired regardless of whether impermissible concentrations have been detected is not novel to 19fO.9Ja.fi). The Court of Ap peals for the District of Columbia, in India. Union Pep't, AFL-CIO v. Hodgson, supra at 482-483, held that certain specific control measures within the asbestos standard are applicable even though violations of 1910.- 93a(b) are not detected. , Respondents also argue that 1910.93a(j), when construed in light of sections 6(b)(5) and 6(b)(7) of the Act, requires medical examinations only when a threshold level of exposure to airborne asbestos fibers is exceeded. These sections, in pertinent part, provide-. 5 6(b)(5) The Secretary, in promulgating stand ards dealing with toxic materials or harm ful physical agents under this subsection, shall set the standard which most ade quately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional ca pacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. . . . 56(b)(7) . . . [Wlhere appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to em- " In support of their contention, respondents cite a memorandum directed to the former As sistant Secretary of Labor by Dr. Marcus Key, the Director of NTOSH. This memorandum sup ports respondents' position that there Is a thresh old triggering level Incorporated In the medical examination requirements. Employment Safety and Health Guide ployees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely af fected by such exposure. In the event such medical examinations are in the nature of research, as determined by the Secretary of Health, Education, and Welfare, such examinations may be furnished at the expense of the Secretary of Health, Edu cation, and Welfare. The results of such examinations or tests shall be furnished only to the Secretary or the Secretary of Health, Education, and Welfare, and, at the request of the employee, to hii physi cian. The Secretary, in consultation with the Secretary of Health, Education, and Welfare, may by rule promulgated pur suant to section 553 of title 5, United States Code, make appropriate modifica tion in the foregoing requirements relating to the use of labels or other forms of warning, monitoring or measuring, and medical examinations, as may be war ranted by experience, information, or med ical or technological developments acquired subsequent to the promulgation of the relevant standard (emphasis added). It is argued that a "hazard," within the meaning of these sections, exists only when levels of exposure exceed those set forth in 1910.93a(b). Thus, respondents maintain that we must construe 5 1910.93a(j) accord ingly. We do not agree. The "hazard" is the exposure to harmful materials and the purpose of a medical examination is to ascertain any adverse effects from this ex posure. There is no limitation restricting this to exposure at the level of the standard, and we imply none. As noted above, NIOSH did not recom mend the position urged by respondents in their briefs that medical examinations be required only when exposure levels equal or exceed recommended maximum permis sible exposure levels. Rather, NIOSH rec ommended a "triggering level" for medical examinations that was less than the level recommended for maximum permissible em ployee exposure. On whether a "hazard" exists warranting medical examinations in situations where employees are engaged in occupations ex posed to any airborne concentrations of asbestos fibers, we note that there is sub stantial uncertainty among scientific author ities as to exactly what levels of prolonged exposure are detrimental to human life. This uncertainty is typified by NIOSH observations such as the following: We do not consider this memorandum as dispositive ot the Issue before the Commission Inasmuch as we have concluded that the Secre tary has rejected this portion of the NIOSH recommendation. 1 20,163 ABS-007634 LAM 024455 23,982 Decisions *37 im-7S OSHRC Judge's decisions become final if review not directed within 30 days of Sling. For further action, if any, see Case Table at If 7995. Information is insufficient at this time to set an exposure standard (other than zero) which would assure prevention of mesothelioma in all workers, as the dis ease may occur following a very limited exposure 20-30 years earlier.1' Thus, the effect after several decades of a one-time acute dose of limited duration which overwhelms the clearing mechan isms, and is retained in the lungs, may be as harmful as the cumulative effect of lower daily doses of exposure over many years of work." There is a lack of data to define with any degree of precision the threshold of development of neoplasms resulting from exposure to asbestos and the relationship of the latent period between exposure and development of neoplasms.14 This uncertainty lends force to the conclusion that the Secretary promulgated 1910.93a(j) without reference to any threshold levels so as ``to most effectively determine whether the health of such employees is adversely affected by such exposure." " Respondents contend that if the Secre tary's interpretation of the standard is adopted, the medical examinations are in the nature of research and, therefore, must be furnished at the expense of the Secretary of Health, Education, and Welfare, pursuant to section 6(b)(7) of the Act. We disagree. We consider 19l0.9Ja(j) as a provision to monitor continually the health of employees who are exposed to asbestos fibers in order to determine if such employees show signs of asbestos related diseases. While such medical data may incidentally aid research purposes, it also serves to protect directly workers in asbestos-related occupations. Respondents contend that the Secretary of Labor's approval of the California State Plan provides a binding interpretation of 8 1910.93a(j) inasmuch as the State regula tions contain a medical examination provision comporting with the NIOSH recommenda tion. It is enough to have to note that at the time of the Secretary of Labor's approval of the State's inchoate plan, the plan did not contain any asbestos standard corres ponding to Subpart G of Part 1910, and we are aware of no subsequent express approval of any state regulation as being "at least as effective as" 5 1910.93a. Finally, GAF-FPD and GAF-BPD argue that to find a failure to comply with 8 1910.93a(j) would violate due process. They argue that the standard as drafted did not give them adequate notice of what con duct was required." Both employers stipulated that the occu pations referred to in the respective citations were, by their nature, regutarly exposed to airborne concentrations of asbestos fibers. By its plain wording $ 1910.93a(j) apprises employers that they must provide medical examinations for all those employees en gaged in occupations exposed to airborne concentrations of asbestos fibers. Respond ents do not comend that the cited occupations were not exposed to such airborne concen trations. Rather, respondents argue that the standard might violate due process if applied to occupations other than those cited. Such an argument is purely speculative and not based on the concrete facts before this Commission. In short, we condude on the rec ords before us that respondents were apprised of the conduct required by 1910.93a(j). Inasmuch as medical examinations were not provided to employees engaged in the cited occupations the citations must be affirmed. In the UE & C case. Judge Morris found that the evidence clearly showed that the occupations referred to in the citation were regularly exposed to airborne concentra tions of asbestos fibers. Nevertheless, in rejecting respondent's 1910.93(b) argument, he stated that the proper test to be applied was whether a reasonable man would recog nize a hazard warranting the preventive medicine approach. Application of this test was unnecessary. The evidence showed regular exposure to some concentrations of airborne asbestos in the cited occupations. The standard itself does not require the "reasonable man" or tort test used by the Judge. It dearly states that, if occupations are exposed to airborne concentrations of asbestos fibers, the employer is required to provide medical examinations for employees engaged in such occupations. VI. Order Accordingly, it is ordered that the Judges' orders in these consolidated cases are affirmed. Moran, Commissioner, Dissenting: The rule of this case is that whenever em ployees are exposed to any trace of asbestos --no matter how temporary or insignificant --their employer must furnish (and employees must undergo)--annual physical examina tions and tests as prescribed in 8 1910.93a(j). This will apply to a rather significant pro portion of the entire workforce of the United Slates. As noted by the United States Court of Appeals for the District of Columbia Circuit m Industrial Union De- " NIOSH Criteria Document at IH-9. 's Id. at V-3. " Id. at V-17. " Section 6(b)(7) of the Act. M For my own part, I would add that this Commission does not have the authority to rule on the constitutional validity of standards pro mulgaled pursuant to section 6 of the Act. United States Steel Corp., Nos. 2975 4M9 (November 14. 1974) (concurring opinion). II 20,163 1975, Commerce Clearing House, Inc ABS-007635 LAM 024456 138 12-9-75 1975--1976 OSHO 23,963 OSHRC Judge's decisions become final if review not directed within 30 days of fdiag. For further action, it any, see Case Table at 17995. partmrnt, AFL-CIO v. Hodgson, 499 F. 2d 467, 471 (D. C. Cir. 1974): "[T]t is estimated that three to five million workers are exposed to some ex tent to asbestos fibers in the building con struction and shipyard industries alone." From this day forth, the Commission deci sion requires annual physicals for millions of employees who, this decision concedes, are not exposed to any hazard whatsoever. The consequences of this upon the- em ployees and employers of America will be astonishing. Its impact upon the medical profession--and even the economy--could be considerable. In my view, such a con struction of the standard is utopian and clearly unreasonable. Nevertheless, the preposterous nature of this ruling is outweighed by the blatant omission of the majority to give any con sideration at all to the validity of the regu lation at issue in this case. In my view it was not subjected to public scrutiny and is, as a result, void because of improper promul gation. As promulgated on June 7, 1972, the relevant standards '* provide for periodic medical examinations when employees are engaged in occupations which expose them "to airborne concentrations of asbestos fibers." However, these standards are considerably different from their forerunners which were published as proposed rules on January 12,' 1972, and provided in pertinent part that: "(a) S-hour tone-weighted average. The 8-hour time-weighted average airborne concentration of asbestos dust to which employees are exposed shall not exceed 5 fibers longer than S microns per milli liter. . . . Concentrations above 5 fibers per milliliter, but not to exceed 10 fibers per milliliter, may be permitted up to a total of 15 minutes in an hour, but for not more than 5 hours in an 8-hour day." "(g) Medical examinations. The employer shall provide, or make available at his cost, appropriate medical examinations c*i a periodic basis to any employee who is exposed to asbestos dust in excess of the limilt specified in paragraph (a) of this section." (Emphasis added.) 37 Fed. Reg. 467 and 468 (1972). It is immediately apparent that the rules as promulgated differ substantially from the proposed'rules. The major, difference is that the proposed rules required medical ex aminations only for employees exposed to concentrations exceeding the levels pro hibited in subparagraph (a) whereas the promulgated rules contain no such limita tion. Additionally, the promulgated rules provide for examinations at particular times and specify what the examinations shall in clude, although the proposed rules did not contain these specifics. Furthermore, the provision. in the proposed rules that per mitted _ exposure to higher levels of con centrations. lor limited periods of time is not contained in the standards as promulgated. When the Secretary of Labor promul gates a standard under 29 U. S. C. 1655(b) he is required to publish the "proposed rule ... in the Federal Register" " (emphasis added) and to afford "interested persons" the opportunity to submit written objections thereto and to participate in a public hear ing thereon. Since the standards as promulgated differ substantially from those that were originallyproposed, they have not been published as proposed rules as required by 29 U. S. C 655(b). Therefore, a new rulemaking pro ceeding is required before they can be en forced in their present form. See Wagner Electric Corporation.v. Volpe, 466 F. 2d 1013 (3d Cir. 1972). Moreover, many employers who read the limitations of the proposed rule would have no reason to participate in the rulemaking process if their operations would be unaffected. These people were effectively eliminated from participation as a result of the "frojan horse" manner in which this portion of the regulation was pushed through, Don process requires that there be public scrutiny of the substance of the actual regulation under consideration. Nothing even approaching that was done here. I therefore conclude,that, contrary to con gressional intent, "interested persons" have been denied the right of participating in the rulemaking process, and that the regula tion adopted had never been exposed to public scrutiny. It is my conclusion, therefore, that all citations for failure to observe this regula tion should be vacated. "37 Fed. Reg. U330 and U333 <1973). The complete texts ot these standards are quoted In the lead opinion. Employment Safety and Health Guide "As contrasted with the Administrative Pro cedure Act which requires only a general notice ot the content ot a proposed rule. 5 U. & C I SSSib). 120,163 ABS-007636 LAM 024457 SM-32 [ R*v. 9-57) SHELL OIL COMPANY REFERENCE * date FEBRUARY 2, 1976 TO MR. W. A. ROQUET - OCCUPATIONAL SAFETY AND HEALTH fbom ENVIRONMENT, LABOR & LITIGATION DEPARTMENT RECEIVlj 5h)': IV 8 mLLH___ HEAD OFFICE LEGAL SUBJECT GAF CORPORATION AND FE8 3 19^6 UNITED ENGINEERS AND CONSTRUCTORS (ASBESTOS BWD CASE) JFB CVJSJ' vV,V{ / 6.v. In response to your note of January 22, I checked with the GAF attorney and was informed that appeals had been filed by both of the captioned companies in the Third and D.C. Circuit Court of Appeals respectively. The litigants have asked for a stay of the decisions as to their companies individually, but as yet it has not been acted upon. It should be kept in.mind that if the stay is granted, it will not technically inure to the rest of affected industry which is not a party to this litigation. However, as a practical matter, since the issue is broad and the ultimate decision by the Courts of Appeal will have an impact on the rest of industry, I suspect that if a stay is granted to the litigants pending the appeal, the DOL will not try to cite other similarly situated employer facilities until a decision is finally rendered. If you would like to discuss this matter further, please give me a call. rynn F. Aurelius ABS-007637 LAM 024458