Document XZLY1YmR1YRjJqRKR35B4bNJ

ST028I 026 UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. AMERICAN ASBESTOS CONTROL CO., Respondent. ) ) ) ) ) ) ) ) ) ) OSHRC Docket No.88-2268 MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE Union Carbide Chemicals and Plastics Company Inc. and The Dow Chemical Company (together the "Companies") hereby move the Commission for leave to file a brief in this proceeding as amici curiae on behalf of the Respondent. This case involves the proper interpretation of OSHA's construction industry asbestos standard, 29 C.F.R. 1926.58. The companies are major chemical manufacturers with facilities throughout much of the United States. Many of those facilities contain asbestos. From time to time the Companies engage in asbestos removal, demolition, and renovation operations, and are thus subject to the construction industry asbestos standard. The interest of the Companies is limited to a single issue: whether 29 C.F.R. 1926.58(e)(6)(i) limits the use of negative-pressure enclosures to situations where airborne concentrations of asbestos exceed or can reasonably be expected to exceed the standard's permissible limits. 379219 DOW-947 This issue affects all employers subject to the construction industry asbestos standard. It also raises significant considerations which affect all employers. Because the Respondent in this case plans to address other issues besides this one, and thus may be unable to present a full discussion of it, the Companies request leave to supplement Respondent's brief with their own, focussed solely on that issue. Counsel for the Secretary and for the Respondent have indicated that they have no objection to this motion. [confirm] Respectfully submitted. Of Counsel: Toby Alaska Threet Attorney The Dow Chemical Company Date: August 9, 1990 Mark N. Duvall Health and Safety Counsel Union Carbide Chemicals and Plastics Company Inc. ST028I 027 2- - 379220 ST028I 020 UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION No. 88-2268 ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, AMERICAN ASBESTOS CONTROL CO., Respondent. BRIEF OF AMICI CURIAE UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC. AND THE DOW CHEMICAL COMPANY Of Counsel: Toby Alaska Threet Attorney THE DOW CHEMICAL COMPANY Legal Department 2030 Willard H. Dow Center Midland, MI 48674 Date: August 9, 1990 Mark N. Duvall UNION CARBIDE CHEMICALS AND PLASTICS COMMPANY INC. 39 Old Ridgebury Road, E3 Danbury, CT 06817-0001 379221 ST02GI 029 UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v. AMERICAN ASBESTOS CONTROL CO., Respondent. ) ) ) ) ) ) ) ) ) OSHRC Docket No. 88-2268 AMICUS CURIAE UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC.'S DECLARATION OF PARENT, SUBSIDIARIES, AND AFFILIATES REQUIRED BY COMMISSION RULE 36(c) Amicus curiae Union Carbide Chemicals and Plastics Company Inc. is a wholly-owned subsidiary of Union Carbide Corporation ("UCC"). Attached is a list of UCC's affiliates and subsidiaries. This declaration is made in order to provide the Commissioners with the information they need to determine whether they have a financial interest in a party to this proceeding. Mark N. Duvall Health and Safety Counsel Union Carbide Chemicals and Plastics Company Inc. 379222 ST020 I 030 UCE AFFTI TATED COMPANIES (Subsidiary, Associated & Minority Interest Companies) NOTE: Percent of ownership may reflect direct ownership through UCC or indirect ownership through'its subsidiaries. Place of Incomoratlon UCC % of Ownership ACI S.p.A. ACM Services, Inc. Ace Polymer Co., Ltd. Adminlstraclon y Servlclos Carmex, S.A. de C.V. Advanced Silicon Materials Inc. The African Manganese Company Limited Agromore, Ltd. Amerchol Corporation Amko Service Company Andaluza De Gases S.A. Argon, S.A. Arlasa S.A. Australia and New Zealand Exploration Company Beaucar Minerals, Inc. Beaumaris Resources, Inc. Benefit Capital Management Corporation Beralt Tin and Wolfram Limited Beralt Tin and Wolfram (Portugal) S.A. Blue Creek. Coal Companv, Inc. Bridle Company Limited British Acheson Electrodes Limited Cal Ida Gas B.V. Calidrla Corporation Callendar Limited 1 Carbide Hashlm Industrial Gases Company Carbltalla S.p.A. Carbogas S.p.A. Carbographite Limited Carburo del Clnca S.A. Catalysts, Adsorbents and Process Systems, Inc. Cellulosic Products, Inc. Chemicals Marine Fleet, Inc. Cl a. National de Calcareos e Derlvados Clark Chemical Industry Co., Ltd. CGT S.p.A. Coast Composites, Inc. Codim Desenvolvlmento de Industries Minerals Ltda. Companhla Naclonal de Oxlgenlo, Lda. Companla Navarra del Oxlgeno S.A. Concal-Carbureto de Calclo S.A. Concoat Integrated Technologies Limited Dexter Realty Corporation Italy Texas Japan Mexico Delaware U.K. India Delaware Ohio Spain Spal n Spain Delaware Delaware Canada Delaware U.K. Portugal Delaware Hong Kong U.K. Netherlands Delaware Bermuda Saudi Arabia Italy Italy Rep. So. Africa Spain Maryland Delaware Delaware Brazl1 Japan Italy CalIfornla Brazl1 Portugal Spain Brazl1 England Ohio 14% 33.33% 101 48.5% 100% 100% 25% 100% 100% 25% 50% 13.49% 100% 100% 100% 1001 25% 20.14% 100% 100% 100% 50% 100% 100% 25% 8.27% 10% 50% 5% 100% 1001 100% 50.14% 2.5% 4.25% 100% 100% 41.67% 33.34% 50.14% 30% 1001 379223 ST02GI 03 I Place of Incornoratlon UCC 1 of Ownershid G C Realty, Inc. Elarc - Equlpamentos de Soldagem Electrjca Ltda. Electric Furnace Products Company Limited Elektrode Maatskappy van Suld-Afrlka (Elendoms) Beperk Eletrometalurgica Saudade Ltda. Empresa Brasilelra de Reflorestamento e Agro-Pecuaria Ltda. Empresa Brasilelra de Clllndros Ltda. Errany Limited ESA Ferralloy (Glossop) Limited Ferrygas S.A. The Foundation for Social Justice In South Africa, Frao Fin Frao Ind Gacesa Gas Technics Gases and Equipment Centers of Eastern Pennsylvania, Inc. Gastronomla Baska Global Industrial Corporation Greenwich Oil Corporation Grupo Condumex, S.A. de C.V. Hlspano Sueca de Soldadura S.A. Hokuetsu Kasei (Chemical) Co., Ltd. Hokuetsu Kasei Shojl (Trading) Co., Ltd. IGI-Itallana Gas Industrlall S.p.A. IGISUD Gas Industrlale S.p.A. Incarmex, S.A. de C.V. Indaver, N.V. Indugas N.V. Indugas Nederland B.V. Inc. Minnesota Brazi1 Ontario 1001 25.581 1001 Rep. So. Africa 501 Brazl.l 50.141 Brazil Brazi1 U.K. Italy England Spal n New York Italy Italy Italy 45.131 45.131 1001 3.51 1001 251 * 4.791 4.81 2.81 Pennsylvania Spain New York Delaware Mexico Spain Japan Japan Italy Italy Mexico Belgium Belgium Netherlands 1001 12.51 1001 42.71 3.51 51 101 7.91 37.51 37.51 48.51 0.91 501 501 1 Industrias Carllsll, S.A. Innovative Membrane Systems, Inc. Integrated Technologies, Inc. International Cryogenic Equipment Corporation International Diagnostic Systems Corp. IPPO S.p.A. Itallana Gas Industrlall Sud S.p.A. ITGC Iwatanl Industrial Gases Corporation Jacksonville Heldlng Supply, Inc. Katallstlks Brasllelros Comerclo Industrial e Participates Ltda. K5C Liquidating, Inc. KTI Chemicals G.m.b.H. KTI Chemicals Limited KTI Chemicals, Inc. Kyowa Shokal Co., Ltd. Mexlco Delaware Massachusetts Delaware Michigan Italy Italy Italy Japan Florida Brazi1 Delaware Germany United Kingdom Delaware Japan 1001 1001 1001 1001 301 2.81 341 101 11.11 1001 1001 1001 1001 1001 1001 6.31 * Non-Profit Organization 379224 ST020I 032 Llncare Inc. Linde Comerclo e Partlclpacoes Ltda. Linde Gases of Florida, Inc. Linde Gases of the Great Lakes, Inc. Linde Gases of the Mid-Atlantic, Inc. Linde Gases of the Midwest, Inc. Linde Gases of New England, Inc. Linde Gases of the Northwest, Inc. Linde Gases of the Southeast, Inc. Linde Gases of the South, Inc. Linde Gases of Southern California, Inc. Linde Gases of the West, Inc. Linde Puerto Rico, Inc. London Chemical Company, Inc. Master Marble Finishing, Inc. Miami Welding Supply, Inc. Mimosa Mining Company (Private) Limited Mlnbeau (Proprietary) Limited Mlneracao Liguria Ltda. Mlneracao Sao Damaso Ltda. Mopane Mines (Private) Limited National Carbon Company Pakistan (Private) Limited Nepal Battery Company Limited Nippon Unicar Company Limited Nltropet, S.A. Nova Tran Corporation Nova Tran Limited Operadora Perlnote, S.A. de C.V. Ore Sales & Services Limited Orshlp Incorporated Osaka Hokuetsu Kasel Co., Ltd. ; Oxlgenlo Edy, S.A. Oxlgeno Del Norte, S.A. Oxlgenus S.A. Oxlmesa, S.A. Oxlsud S.p.A. Phoenix Research Corporation Poly Pack Polysar Limited Prentiss Glycol Company S.A. Rapldox Rio Comerclo e Partlclpacoes Rapldox Gases Industrials Ltda. RMF S.r.l. Rhee Beheer B.V. Rlvolra S.p.A. Rlvolra Sud S.p.A. Rulghoek Chrome Mines (Proprietary) Limited SACI S.p.A. Sankyo Plastics Co., Ltd. Seadrlft Pipeline Corporation SEO Place of UCC 7. of Incorporation Ownership Connectlcut Brazl1 Florida Ohio New Jersey Illinois Connecticut Oregon North Carolina Delaware California Delaware Puerto Rico Delaware CalIfornla Florida Rhodesia South Africa Brazl1 Brazi1 Rhodesia Pakistan India Japan Mexico W1sconsin England Mexico England Panama Japan Brazl1 Spain Spal n Spain Italy Delaware Japan Canada Delaware Brazl1 Brazi1 Italy Netherlands Italy Italy South Africa Italy Japan Delaware Italy 501 1001 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 92X 5 OX 100X 100X 100X 100X 100X 100X 39.44X 5 OX 48.5X 100X 100X 48.5X 100X 100X 7.5X 50.14X 25X 21 .25X 21.25X 3.85X 100X 8.25X 8.75X 100X 50.14X 50.14X 0.96X 25X 29.37X 29.37X 100X 1.67. 27.5X 100X 3X 379225 ST020I 033 Servlcios Administrativos Carmex, S.A. de C.V. Servlcios de Qulmicos Agricolas, S.A. Servlcios DYC, S.A. de C.V. Shaklns Limited SIAD Austria SIAD-Socleta Itallana Acetllene e Derlvate S.p.A. SMI South Charleston Sewage Treatment Company Tecnoproject Tenngasco Gas Gathering Company Three Rivers Realty Company TRI Tsuda Wire & Cable UCAR Carbon Canada Inc. L1CAR Carbon Company Inc. UCAR Carbon (Europe) S.A. UCAR Carbon Foreign Sales Corporation UCAR Carbon France S.A. UCAR Carbon Italia S.r.l. UCAR Carbon Limited UCAR Carbon S.A. UCAR Carbon Spain S.A. UCAR Carbon Technology Corporation UCAR Coatings Resinas, C.A. UCAR Energy Services Corporation UCAR Industrial Gases N.V. UCAR Industrial Services B.V. UCAR Interam, Inc. UCAR Limited UCAR Louisiana Pipeline Copany UCAR Pipeline Incorporated UCAR, Pollmeros y Quimicos C.A. UCAR Specialty Gases N.V. UCAR Specialty Gases Nederland B.V. UCAR Vanor (Proprietary) Limited UCFC, Inc. U.C. Carbon Products Limited U.C. Investment Limited ; Ucex (U.K.) Limited UCORE Limited Umetco Minerals Corporation Umetco Minerals Exploration Corporation Unlcarb Comerclo e Parti clpacoes Ltda. Unlcarb Industrial, S.A. de C.V. Unlcarb International, Inc. Unicarbon Comerclal Ltda. Unigas, Inc. Unigas S.p.A. Unigases Comerclal Ltda. Place of IncorDoration UCC X of OwnershlD Mexico Mexico Mexico United Kingdom Austria Italy Italy West Virginia Italy Delaware Ml chigan Italy Japan Canada Delaware Switzerland U.S. Virgin Islands France Italy United Kingdom Brazl 1 Spain Delaware Ecuador Delaware Belgium Netherlands Delaware England Delaware Delaware Ecuador Belgium Netherlands South Africa Delaware England British Virgin Islands England Delaware Delaware Delaware Brazi1 Mexico British Virgin Islands Brazl1 New York Italy Brazil 48.57. 1001 48.51 100X 10X 10X 10X 100X 4X 13.78X 100X 6X 1.50X 100X 100X 100X 100X 100X 100X 100X 50.14X 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 100X 1007. 100X 100X 48.5X 100X 100X 100X 100X 100X 48.5X 48.5X 100X 100X 100X 100X 379226 379227 Union Carbide Argentina S.A.I.C.S. Union Carbide Asia Limited Union Carbide Asia Pacific, Inc. Union Carbide Austria G.m.b.H. Union Carbide Benelux N.V. Union Carbide do Brasil Llmltada Union Carbide Canada Limited Union Carbide Carlbe Inc. Union Carbide Chemicals (Australia) Pty. Ltd. Union Carbide Chemicals France S.A. Union Carbide Chemicals S.p.A. Union Carbide Chemicals G.m.b.H. N Union Carbide Chemicals Iberlca S.A. Union Carbide Chemicals (New Zealand) Limited Union Carbide Chemicals and Plastics (Europe) S.A. Union Carbide Chemicals and Plastics Company Inc. Union Carbide Chemicals & Plastics Technology Corporation Union Carbide Coatings Service Corporation Union Carbide Coatings Service (Europe) S.A. Union Carbide Coatings Service G.m.b.H. Union Carbide Coatings Service Ltd. Union Carbide Coatings Service S.A. Union Carbide Coatings Service S.p.A. Union Carbide Coatings Service Technology Corporation Union Carbide Comerclal, C.A. Union Carbide Comerclal Chile Ltda. Union Carbide Comerclal Nicaragua, S.A. Union Carbide Communications Company, Inc. D Union Carbide Diagnostics Inc. Union Carbide Eastern, Inc. Union Carbide Engineering and Hydrocarbons Service Company, Inc. Union Carbide Ethylene Oxide/Glycol Company Union Carbide Eurofinance B.V. Union Carbide Finance Corporation Union Carbide Foreign Sales Corporation Union Carbide Formosa Co., Ltd. Union Carbide Graflto, Inc. Union Carbide Hellas Ltd. Union Carbide Iberlca, S.A. Union Carbide Imaging Systems, Inc. Union Carbide India Limited P.T. Union Carbide Indonesia Union Carbide Industrial Gases Asia Inc. Union Carbide Industrial Gases (Europe) S.A. Union Carbide Industrial Gases G.m.b.H. Union Carbide Industrial Gases Inc. Union Carbide Industrial Gases K.K. Union Carbide Industrial Gases Ltd. Union Carbide Industrial Gases N.V. Union Carbide Industrial Gases S.A. Union Carbide Industrial Gases S.p.A. Union Carbide Industrial Gases Technology Corporation Union Carbide Industrial Services Company Place of UCC 1 of Incorporation Ownership Argentina Hong Kong Delaware Austria Belgium Brazi1 Canada Delaware Australia France Italy Germany Spain Australia Switzerland New York 1001 1001 1001 1001 1001 1001 74.391 1001 1001 1001 1001 1001 1001 1001 1001 1001 Delaware Delaware Switzerland Germany United Kingdom France Italy Delaware Venezuela Chile N1caragua Delaware 1001 1001 1001 981 1001 1001 1001 1001 1001 1001 1001 1001 (Unknown) Delaware 1001 1001 Delaware Delaware Netherlands Delaware U.S. Virgin Islands Taiwan New York Greece Spain Delaware India Indonesia Delaware Switzerland Germany Delaware Japan United Kingdom Belgium France Italy Delaware Texas 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 50.91 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 *1C0 I GZOIS ST020I 035 rage b or ii Union Carbide Inter-America, Inc. Union Carbide Inter-America, Inc. Union Carbide International Capital Corporation Union Carbide International Sales Corporation Union Carbide Japan K.K. Union Carbide Korea Limited Union Carbide Land and Investments (Private) Limited R Union Carbide Lanka Limited Union Carbide Management Services (Private) Limited Union Carbide Marble Care, Inc. Union Carbide Metals G.m.b.H. Union Carbide Mexlcana, S.A. de C.V. Union Carbide Middle East Limited Union Carbide Navarra, S.A. Union Carbide Pakistan Limited Union Carbide Pan America, Inc. Union Carbide Philippines (Far East), Inc. Union Carbide Polyolefins Development Company, Inc. Union Carbide Puerto Rico, Inc. Union Carbide Ranches (Private) Limited Union Carbide S.A. Union Carbide Services K.K. Union Carbide Services Eastern Limited Union Carbide South Africa (Proprietary) Limited Union Carbide Southern Africa (USA), Inc. Union Carbide Subsidiary C, Inc. Union Carbide Thailand Limited Union Carbide Turkey, Inc. Union Carbide U.K. Limited Union Carbide Zimbabwe (Private) Limited - Union Gas Company Limited Union Polymers Sdn. Bhd. Union Technology Company, Limited UNISON Carlbe Transformer Services, Inc. UNISON Transformer Services, Inc. United States Welding, Inc. Vltaphore Corporation Wako Jushl Co., Ltd. S.A. White Martins White Martins Admlnistracao e Investimentos Ltda. White Martins Comerclal Ltda. White Martins Gases Industrials S.A. White Martins Gases Industrials do Nordeste S.A. White Martins Gases Industrials do Norte S.A. White Martins Productos de Carbono S.A. White Martins Soldagem Ltda. White Martins Trading S.A. Zimbabwe Mining and Smelting Company (Private) Limited Place of Incorporation Delaware New Jersey New York Delaware Japan Rep. of Korea Zimbabwe Sri Lanka Zimbabwe Delaware Germany Mexico Delaware Spain Paklstan Delaware Phi 1Ipplnes Delaware Puerto Rico Zimbabwe Switzerland Japan Hong Kong South Africa Delaware Delaware Thailand Delaware U.K. Zimbabwe Rep. of So. Korea Malaysia Korea Delaware Delaware Colorado CalIfornla Japan Brazl1 Brazl1 Brazl1 Brazl1 Brazl1 Brazl1 Brazl1 Brazil Brazl1 Zimbabwe UCC 1 of Ownership 1001 1001 1001 1001 1001 1001 1001 491 1001 921 1001 48.51 1001 1001 601 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 1001 86.151 601 1001 1001 1001 501 1001 251 50.141 50.141 50.141 50.141 50.141 50.141 50.141 50.141 50.141 1001 379228 S T 020i036 UNION CARBIDE CANADA LIMITED SUBSIDIARIES Place of Incomoratlon UCC X of OwnershlD Acetogen Welding Supplies (1985) Ltd. Ampro Oxygen Ltd. Atlantic Oxygen Ltd. B. C. Welding Supplies Ltd. Borstad Welding Supplies Ltd. Borstad Welding Supplies (1985) Ltd. Broulllette Oxygene Ltee Brunswick Oxygen & Welding Supply Co. Ltd. Buckwold Welding Supplies Ltd. Cane Associates Limited Canadian Welding Gases Limited Coastal Plastics Limited Commercial Alcohols Reg'd** Commercial Alcohols Limited Consumers Welders Supplies Inc. CSI Carbonatlon Service Inc. Ernest Gilbert Inc. Essex Welders Supply Limited Island Welding Supplies Ltd. L. & L. Equipment Ltd. Linde Marketing & Distribution Inc. Linde Technologies Inc. M & M Suppl1es Ltd. Medlgas Canada Inc. Medlgas Homecare Service Lakehead Ltd. Medigas Inc. Medlgas (New Brunswick) Limited Medlgas (P.E.I.) Ltd. Medigas (Saskatchewan) Limited Medlgas (Territories) Limited Metalwelding Supply Company Limited Morgan Industries Inc. Niagara Welders Supply Limited North Shore Oxygen (1969) Inc. Petromont Inc. Richelieu Welding Supplies Ltd. Rloux Oxygen Inc. Rocky Mountain Welding Supplies (1985) Ltd. Saguenay Oxygene (1968) Ltee. Shawlnigan Pipeline Reg'd** Supreme Welding Supplies Limited Tri-Valley Welding Products Inc. Trillium Respiratory Care and Services Inc. Union Carbide Performance Plastics Ltd. Vandry Gas & Welding Products Ltd. Welders Supply Company Wetmore Welding Supplies Limited British Columbia Quebec Nova Scotia British Columbia Canada Canada Quebec New Brunswick Manitoba Ontario Ontario Nova Scotia Canada Canada Alberta Ontario Quebec Ontario British Columbia British Columbia Canada Ontario New Brunswick Canada Ontario Canada New Brunswick Prince Edward Island ; Saskatchewan North West Territory Ontario Ontario Ontario Quebec Quebec Quebec Quebec British Columbia Quebec Canada Ontario Ontario Ontario Canada Quebec Ontario Ontario 74.39X 74.39X 74.39X 74.39X 74.391 74.391 74.391 74.391 74.391 37.201 59.481 74.391 37.201 37.201 74.391 74.391 74.391 74.391 74.391 74.391 74.391 74.391 74.391 52.331 37.201 74.391 74.391 74.391 74.391 74.391 74.391 74.391 74.391 74.391 37.201 74.391 37.201 74.391 37.931 37.201 74.391 74.391 70.421 74.391 74.391 37.201 37.201 ** Partnership 379229 Joint Ventures and Partnerships Name Business Group/Division and/or Company 1 of Participation AHBC Associates BC Chesapeake Corporation (Armada/Hoffler-Greenleaf Associates L.P.) 501 Agri-Diagnostics Associates C&P-UC Diagnostics Inc. (Koppers Agri-Research Co.) 601 Alestra Energy Company Umetco-Dexter Realty (National Production Corp.) 501 American Acetyls C&P-Solvents & Coatings (BP Chemicals International) 501 Baker Cummins Dermatologlcals, Inc. UCC&P-Speclaity Chemicals (Baker Cummins Pharmaceuticals) 501 DCS Capital Corporation Elocar Company C&P-Prentlss Glycol Co. (Dow Chemical) (Shell Oil) C&P-Solvents & Coatings (Swiss Polymer) 33.331 501 Gas & Equipment Limited Catesby House Antiques Ltd. CylInder Gases Ltd. Gas & Equipment A/S Gas & Equipment Inc., USA Gas & Equipment International B.V. Dive Products Sdn. Bhd. Koehler Inc. Gas & Equipment Ltd. Gas & Equipment Pte. Ltd. Gas & Equipment Willemstad B.V. UCUKL-Speclalty Gases (Gas & Equipment Group) U.K. (1001 G&E Ltd.) U.K. (1001 G&E Ltd.) Norway <1001 G&E Ltd.) USA <1001 G&E Ltd.) Netherlands (1001 G&E Ltd.) Brunei (1001 G&E Int'l) USA (1001 G&E Int'l) Hong Kong (1001 G&E Int'l) Singapore (1001 G&E Int'l) Netherlands Antilles (1001 G&E Ltd.) 501 501 . 501 501 501 501 501 501 501 501 501 GenEx, Ltd. Genesis, Ltd. Genesis Systems Group, Ltd. Hill Equipment Company Illlnl Tec Systems, Inc. Welders Supply Company Gopher Welding Supply Co. Gopher Medical Co., Inc. Golden Quarry UC Industrial Gases Inc. (1001 GenEx) (401 Genesis, Ltd.) (1001 Genesis, Ltd.) (1001 Genesis, Ltd.) (1001 Genesis, Ltd.) Minnesota (1001 GenEx) Minnesota (1001 Gopher Weld) Mimosa Mining & Smelting [Falcon (U.K.)] 83.51 83.51 33.41 83.51 83.51 83.51 83.51 83.51 561 OQ --1 CD PO CD CD CO 379230 ST028I 030 Joint Ventures and Partnerships (Continued) Name Business Group/Division and/or Company X of Participation Hecla Umetco 5 OX Hexatech Polymers C&P (Sekisul America Corp.) 50X Iwatanl-UCISCO Corp. UCIG (Iwatani International Corp.) 5 OX KEMET Electronics Corporation KEMET Electronics Asia Limited KEMET Electronics Marketing (S) Pte. Ltd. KEMET Electronics S.A. KEMET Electronics G.m.b.H. KEMET Electronics Limited KEMET Electronics SARL KEMET International, Inc. KEMET de Mexico, S.A. de C.V. C&P-Solvents & Coatings (General Electric Credit Corp.) Hong Kong (100X KEMET Elec.) Singapore (100X KEMET E. Asia) Switzerland (100X KEMET Elec.) Germany (100X KEMET E. SA) U.K. (100X KEMET E. SA) France (100X KEMET E. SA) U.S.V.I. (100X KEMET Elec.) Mexico (100X KEMET Elec.) 52.77X 52.77X 52.77X 52.77X 52.77X 52.77X 52.77X 52.77X 52.77X Keren Limited UCC/General Services 25X Nlject Service Company Llnde/UCAR Energy Svs. Corp. (Ingersol1-Rand) 50X Petromont and Company Limited (Limited Partnership) Union Carbide Canada Limited 49.95X (UCCL Ownshp) Polypropylene Partnership (CUA/Tax Partnership) C&P-UNIPOL Systems Dept. (Shell Oil) 5 OX RC Development Associates Limited Partnership UCC/General Services (Related Danbury Associates L.P. 33.33X Seadrlft Polypropylene Company C&P-UNIPOL Systems Dept. (Shell Oil) 5 OX Seoul Cold Air Products Co., Ltd. Union Gas Co., Ltd (Korea Industrial Gas) (Korea Gas Corp.) (Daesung Sanso) (Jung Woo Development) 22.37X (UGC Ownshp) 379231 ST020I 039 Joint Ventures and Partnerships (Continued) Name Business Group/Division and/or Company X of Participation Cataieasco, Inc. Nikki-Universal Co., Ltd. Shanghai UCC-UOP Molecular Sieve Co. UOP B.V. UOP Equltec Service, Inc. UOP G.m.b.H. UOP International Services Ltd. UOP K.K. UOP Limited UOP France S.A. UOP S.p.A. UOP Management Services, Inc. UOP Management Services (Saudi Arabia) Ltd. UOP N.V. UOP Processes Industrials de Brasil Ltda. UOP Spain, S.A. Union Carbide Engineering & Technology Services (Africa & Middle East), Inc. UOP M.S. S.p.A. Union Showa K.K. Universal Oil Products Company Ltd. C&P-Catalysts, Adsorbents and Process Systems, Inc. (Allied Signal Inc.) (100X UOP) Japan (50X UOP) Shanghai (70X UOP) The Netherlands (100X UOP) (100X UOP) Germany (100X UOP) United Kingdom (100X UOP) Japan (100X UOP) United Kingdom (100X UOP) France (100X UOPL) Italy (100X UOPL) (100X UOP) Saudi Arabia Belgium (49X UOPMSI) (100X UOP) Brazi1 Spain (100X UOP) (100X UOP) Delaware Italy Japan (100X UOP) (100X UOP) (50X UOP) (100X UOP) 5 OX 5 OX 25X 35X 50X 50X 5 OX 50X 50X 5 OX 5 OX 5 OX 5 OX 24.5X 5 OX 50X 5 OX 5 OX 5 OX 25X 5 OX Umetco/H-B Limited Partnership Umetco (Hanksville-Blanding Limited Partnership) 75X Union Carbide-Atlas Umetco (Atlas Corporation) 5 OX Union Carbide-Rajah Umetco (Rajah Ventures, Ltd.) 5 OX Union Carbide-Taminco Umetco (Tamlnco, Inc.) SOX Union Marine Transport Co. C&P-Solvents & Coatings (CMF) 50X (Marine Transport Lines, Inc.) Melinite Services World Ethanol Company Linde (Halliburton Company) C&P-Solvents & Coatings (Archer Daniels Midland Co.) 5 OX 50X 379232 Associations Business Group/Division X of Name________________________________ and/or CompaPnyarti clpation Union Carbide/Bechtel Association UCC&P (Bechtel Corporation) O'lOIOZOlS July 23, 1990 amy506-4a 379233 ST020I 04 I TABLE OF CONTENTS. Page RULE 3 6(c) DECLARATIONS ..................... ................................................................. i Declaration of Union Carbide Chemicals and Plastics Company Inc.................................................................. .................. Declaration of The Dow Chemical Company............................................ TABLE OF AUTHORITIES ................................................................................................. STATEMENT OF INTEREST ............................................................................................... PROCEEDINGS BELOW ......................................................................................................... SUMMARY OF ARGUMENT .................................................................................................... ARGUMENT ................................................................................................................................ I. THE STANDARD EXPRESSLY LIMITS THE NEGATIVEPRESSURE ENCLOSURE REQUIREMENT TO SITUATIONS IN WHICH AIRBORNE CONCENTRATIONS ABOVE THE PEL ARE AT LEAST REASONABLY LIKELY ....................................................................... A. Overview of the Negative-Pressure Enclosure Requirement ....................................................................... B. The Text of the Standard ............................................................... C. Employers Have a Right to Have the Standard Enforced as It Is Written ..................................... II. THE SECRETARY'S INTERPRETATION IS NOT ENTITLED TO DEFERENCE .................................................................................... A. Deference Is Due to Interpretations of the Commission, Not to Interpretations of the Secretary .................................................................................... B. Alternatively, the Secretary's Interpretation Is Not Entitled to Deference Because It is Unreasonable and Inconsistently Applied .... 1. The Secretary's Interpretation Is Inconsistent With the Standard .................................. 2. The Secretary's Interpretation Directly Contradicts Earlier Authoritative Interpretations .......................................................................... 379234 ST020I 042 3. The Secretary's Interpretation Would Apply the Requirement in the Absence of Significant Risk ..................... 4. The Secretary's Interpretation Is Unsupported by Reasoning ..................... 5. The Secretary's Interpretation Was Not Thoroughly Considered ................ Ill. INTERPRETING THE NEGATIVE-PRESSURE ENCLOSURE REQUIREMENT AS LIMITED TO SITUATIONS IN WHICH OVEREXPOSURES ARE AT LEAST REASONABLY LIKELY IS CONSISTENT WITH THE PURPOSES OF THE REQUIREMENT .......................................................................................... A. Preventing Overexposure B. Graduated Response C. Enforcement Burden CONCLUSION ...................................................................................................... ATTACHMENTS 1. Letter from John Pendergrass to Thomas R. Kupfer (Oct. 30, 1986) 2. Letter from Charles A. Adkins to Daniel Hoffman (Oct. 10, 1986) 379235 C*l0r'8201S TABLE OF AUTHORITIES CASES: Page American Asbestos Control Co., 1989 CCH OSHD If 28,704 (No. 88-2268, 1989) .......................................................... American Textile Mfrs. Ass'n Donovan, 452 U.S. 490, 9 BNA OSHC 1913 (1981) .................................................. . Asbestos Information Association/North America v. OSHA, 727 F.2d 415, 11 BNA OSHC 1817 (5th Cir. 1984) ........................ Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 6 BNA OSHC 1440 (3d Cir. 1978) .................................................................. Bonessa v. U.S. Steel Corp., 884 F.2d 726 (3d Cir. 1989) ........................................................................................................... Brennan v. OSHRC (Pearl Steel Erection Co.) 488 F.2d 337, 1 BNA OSHC 1429 (5th Cir. 1973) ........................... Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713, 3 BNA OSHC 1001 (8th Cir. 1975) ............................................................... CFS.I Steel Corp., 12 BNA OSHC 2067 (No. 79-4786, 1986), affirmed sub nom. Dole v. OSHRC (CF&I Steel Corp.), 891 F. 2d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted, 58 U.S.L.W. 3811 (U.S. June 25, 1990) ............................................................................................ Collier-Keyworth Co., 13 BNA OSHC 1208 (No. 80-2848, 1987) .............................................................................................. Dole v. OSHRC (CF&I Steel Corp.), 891 F.2d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted, 58 U.S.L.W. 3811 (U.S. June 25, 1990) ........................ Dravo Corp. v. OSHRC, 613 F.2d 1227, 7 BNA OSHC 2089 (3d Cir. 1980) .................................................................. Ehlert v. United States, 402 U.S. 99 (1971) ..................................... Expert Environmental Control, Inc., 14 BNA OSHC 1666 (No. 88-1956, 1990) .................................................. Fluor Constructors, Inc. v. OSHRC, 861 F.2d 936, 13 BNA OSHC 1956 (D.C. Cir. 1988) .......................................................... 379236 ST020I 044 GAF Corp. v. OSHRC, 551 F.2d 913, 5 BNA OSHC 1555 (D.C. Cir. 1977) ............................................. Honeywell, Inc. v. United States, 661 F. 2d 182 (Ct. Cl. 1981) ...'.................................................. Industrial Union Dep't, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 8 BNA OSHC 1586 (1980) ------ Lisbon Contractors, Inc., 11 BNA OSHC 1971 (No. 80-97, 1984) .................................................................................... .. Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368, 7 BNA OSHC 1105 (10th Cir. 1979) ............................................... Marshall v. Anaconda Co., 596 F.2d 370, 7 BNA OSHC 1382 (9th Cir. 1979) ............................................................................... Miller v. Bond, 641 F.2d 997 (D.C. Cir. 1981) .................. National Fuel Gas SupDly Corp. v. FERC, 811 F.2d 1563 (D.C. Cir. 1987) . .................................................................................. Northern Indiana Public Service Co. v. Porter County Chapter of the Izaak Walton League of America, Inc., 423 U.S. 12 (1975) .................................................................................... UAW v. General Dynamics Land Systems Div., 815 F.2d 1570, 13 BNA OSHC 1201 (D.C. Cir.), cert, denied, 484 U.S. 976 (1987) .................................................................................. Union of Concerned Scientists v. NRC, 711 F.2d 370 (D.C. Cir. 1983) .......................................................... ;............................ United States v. Paddack, 825 F.2d F.2d 504 (D.C. Cir. 1987) ......................................................................................... United Transportation Union v. Dole, 797 F.2d 823 (10th Cir. 1986) ......................................................................................... Usery v. Kennecott Copper Corp., 577 F.2d 1113, 6 BNA OSHC 1197 (10th Cir. 1977) ............................................................... STATUTES: Occupational Safety and Health Act of 1970 Section 3(8), 29 U.S.C. 652(8) ............. 379237 ST020I 045 29 C.F.R. 1910.1001 ....................................... 29 C.F.R. 1926.58 ............................................. 29 C.F.R. 1926.58(b) ....................................... 29 C.F.R. 1926.58(c) .....................'................. 29 C.F.R. 1926.58(e)(1) ............................... 29 C.F.R. 1926.58(e)(6) ................................ 29 C.F.R. 1926.58(e)(6)(i) ........................ 29 C.F.R. 1926.58 (e)(6)(ii) ................... 29 C.F.R. 1926.58(e)(6)(iv) ..................... 29 C.F.R. 1926.58(f)(3) ................................ 29 C.F.R. 1926.58(i) (4) ................................ 29 C.F.R. 1926.58(j) (2) ................................ 29 C.F.R. 1926.58, Appendix F ................ 29 C.F.R. 1926.58, Appendix G ................ FEDERAL REGISTER: 48 Fed. Reg. 51085 (Nov. 4, 1983) ........... 49 Fed. Reg. 14116 (Apr. 10, 1984) .... 51 Fed. Reg. 22612 (June 20, 1986) .... 53 Fed. Reg. 35610 (Sept. 14, 1988) ... 54 Fed. Reg. 52024 (Dec. 20, 1989) .... 55 Fed. Reg. 29712 (July 20, 1990) _____ MISCELLANEOUS: Letter from Charles A. Adkins to Daniel Hoffman (Oct. 10, 1986) ................................ 379238 ST028I 046 Letter from John A. Pendergrass to Thomas R. Kupfer (Oct. 30, 1986) ................... OSHA Instruction CPL 2-2.40 (Sept. 1, 1987) 379239 DRAFT 8/2/90 WP+ 53 UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ELIZABETH DOLE, SECRETARY OF LABOR, ) ) Complainant, ) ) v. ) ) AMERICAN ASBESTOS CONTROL CO., ) Respondent. ) ) :) OSHRC Docket No. 88-2268 BRIEF OF AMICI CURIAE UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC. AND THE DOW CHEMICAL COMPANY STATEMENT OF INTEREST This case involves the proper interpretation of OSHA's construction industry asbestos standard. Amici Curiae Union Carbide Chemicals and Plastics Company Inc. and The Dow Chemical Company (together "amici") are major chemical manufacturers with facilities throughout much of the United States. Many of those facilities contain asbestos. From time to time amici and/or their contractors engage in asbestos removal, demolition, or renovation operations, and are thus subject to the construction industry asbestos standard. As determined by industrial hygiene monitoring, many of those operations are conducted with airborne concentrations of asbestos well below the permissible exposure limits ("PEL") of OSHA's construction industry asbestos standard, due to the use of wet methods and other techniques. ST028I 047 379240 ST020I 04 0 The interest of amici in raised. argued, and decided 29 C.F.R 1926 58 ( e)(6)( i) negative-pressure enclosures to situations where airborne concentrations of asbestos exceed or reasonably can be expected to exceed the PEL prescribed in 29 C.F.R. 1926.58(c). Amici believe that the requirement is so limited. The Secretary argued, and Judge Salyers held, that that requirement applies regardless of the potential for overexposure. Amici urge the Commission to reverse the Administrative Law Judge's decision on this point. PROCEEDINGS BELOW Respondent American Asbestos Control Company ("AACC") was issued several citations. The item of interest here is the citation for an alleged willful violation of 29 C.F.R. 1926.58(e)(6)(i) stating: 29 CFR 1926.58(e)(6)(i) : The employer did not establish negative pressure enclosures where feasible, before commencing removal, demolition and renovation operations: (a) On August 11, 1988, employeyees [sic] removed asbestos containing material from the interior of pot A at door 661 at Armco, Inc.'s Middletown Works and a negative pressure enclosure was not constructed around the removal operation. AACC timely contested the citation. On September 18, 1989 Judge Salyers issued a decision and order affirming this item as a serious violation and assessed a penalty of $1,000. The decision noted that: The Secretary does not challenge the results obtained in the air sampling performed by respondent during the removal procedures at "pot A" which reflect a range (.003 to .004 fibers per cubic centimeter) well below the PEL. 2- - 379241 ST028I 049 American Asbestos Control Co. ("AACC"), 1989 CCH OSHD K 28,704 (No. 88-2268, 1989), slip op. at 7. But the Judge deferred to the Secretary's interpretation that 29 C.F.R. 1926.58(e)(6)(i) requires use of negative-pressure enclosures where feasible in asbestos removal, demolition, and renovation operations, regardless of the level of airborne concentration of asbestos. Respondent timely filed a petition for discretionary review with the Commission. Acting Chairman Arey granted the petition on October 25, 1989 with respect to four issues. The second issue stated: Did the Judge err in concluding that the Secretary did not have the burden of proving that the Respondent's employees were working in "an area . . . where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the permissible exposure limit"? SUMMARY OF ARGUMENT The Commission has the opportunity to resolve a conflict between Administrative Law Judges concerning an important issue arising under the asbestos standard for construction: whether the Secretary must prove that it is at least reasonable to expect that airborne concentrations of asbestos will exceed the PEL before requiring employers engaging in asbestos removal, demolition, and renovation operations to implement negativepressure enclosures and related procedures. Judge Salyers decided below that the Secretary has no obligation to prove reasonable likelihood of overexposure before requiring a -3 - 379242 0S0I 0201S negative-pressure enclosure. Subsequently, in a different case Judge Barkley came to precisely the opposite conclusion. Reviewing the express terms of the standard, the standard's purpose, and the Secretary's "graduated response" strategy. Judge Barkley concluded that the Secretary must prove that it is at least reasonable to expect overexposures. Under the facts of that case, he found that the Secretary had proven that overexposures were reasonable to expect. Expert Environmental Control. Tnc. ("EEC"). 14 BNA OSHC 1666 (No. 88-1956, May 10, 1990). The Commission should endorse Judge Barkley's resolution of the issue. By its own terms, the construction industry standard for asbestos limits the application of the negative-pressure enclosure requirement, paragraph (e)(6)(i), to those asbestos removal, demolition, and renovation operations for which airborne concentrations exceed or can reasonably be expected to exceed the PEL. Paragraph (b) defines "regulated area" to include a negative-pressure enclosure and states that a regulated area, whether of a traditional nature or a negative-pressure enclosure, is an area established "to demarcate areas where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the [PEL]''. Similarly, paragraph (e)(1), entitled "General", repeats that limitation on the scope of the ''regulated area" requirement. If the Secretary believes that the negative-pressure enclosure requirement should say something it does not now say, -4- 379243 I SO 18201S she should amend the standard through rulemaking. She has just proposed to do exactly that. The Commission should not interfere in this belated effort to effect a policy change through the appropriate mechanism, rulemaking, rather than through interpretation in an enforcement proceeding. The Secretary's interpretation in this case is not entitled to deference. It is the Commission's interpretation, not that of the Secretary, to which deference is due. Even if the Secretary's interpretation of OSHA regulations were generally entitled to deference, however, deference is not appropriate in this case. Here the Secretary's interpretation is inconsistent with the text of the standard and with prior authoritative interpretations. It would require use of a negative-pressure enclosure even in the absence of significant risk. The interpretation is unsupported by reasoning, and it was not thoroughly considered. Construing the negative-pressure enclosure requirement in accordance with the language of the standard would be consistent with the purpose of the requirement, to protect employees from overexposure to asbestos. It is perfectly consistent with that purpose to limit the application of the requirement to situations where overexposure is at least reasonably likely. ARGUMENT I. The Standard Expressly Limits the Negative-Pressure Enclosure Requirement to Situations in Which Airborne Concentrations Above the PEL Are at Least Reasonably Likely. -5- 379244 ST020 I 052 A. Overview of the Negative-Pressure Enclosure Requirement Like employers, the Secretary is bound by the terms of the asbestos standard for construction as it is written. Those terms are unambiguous, because in two separate places they limit the negative-pressure enclosure requirement to- situations in which it is at least reasonably likely that airborne concentrations above the PEL will occur. In his decision. Judge Salyers deferred to the Secretary's interpretation as reasonable without rigorously considering whether in fact it is reasonable. The Judge noted the employer's arguments based upon the language of the standard, but relied upon the Secretary's quotations from the preamble and the compliance directive. In sharp contrast. Judge Barkley scrutinized the text of the standard, quoting key provisions at length. Then he stated: I find that the requirement of a negative-pressure enclosure is not applicable until the Secretary establishes evidence of actual overexposure, or that overexposure can reasonably be expected from the cited activity. EEC. slip op. at 7. In another case involving the appropriate interpretation of a regulated area provision, the Commission has stated the criteria to be applied in resolving questions of regulatory construction: In construing the standard, we are mindful of several principles. We must look first to the language of the standard. Bunae Corp.. 86 OSAHRC __ /___, 12 BNA OSHC 1785, 1789 , 1986 CCH OSHD 1(27,565 p. 35,804 (No. 77-1622, 1986), and cases cited. Second, although legislative history and other extrinsic aids to interpretation may be -6- 379245 ST020I053 used to determine the intent of the drafter, standards should be construed in a way that does not deprive employers of fair notice of the requirements of the law. See id. . 12 BNA OSHC at 1790-91, 1986 CCH OSHD at p. 35,806, and cases cited. See also Userv v. Kennecott Copper Corp.. 577 F.2d 1113, 1119 [6 OSHC 1197, 1200J (10th Cir. 1977); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161-62 [6 OSHC 1440, 1443-44] (3d Cir. 1978); Diamond Roofing Co. v. OSHRC. 528 F.2d 645, 650 [4 OSHC 1001, 1005] (5th Cir. 1976); Lisbon Contractors, Inc., 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD 126,924, p. 34,500 (No. 80-97, 1984). CF&I Steel Corp.. 12 BNA OSHC 2067, 2073 (No. 79-4786, 1986), affirmed sub nom. Dole v. OSHRC (CF&I Steel Corp.), 891 F.2d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted. 58 U.S.L.W. 3811 (U.S. June 25, 1990). Both criteria must be applied to resolving this issue, as Judge Barkley found. EEC. slip op. at 9-10. As amended in 1988, the construction industry asbestos standard establishes two permissible exposure limits: an 8-hour time-weighted average ("TWA") of 0.2 fibers per cubic centimeter of air ("f/cc"), and an excursion limit of 1 f/cc averaged over 30 minutes. 29 C.F.R. 1926.58(c). The action level is 0.1 f/cc (8-hour TWA). id- 1926.58(b). Another provision requires establishment of regulated areas "where airborne concentrations of asbestos . . . exceed or can reasonably be expected to exceed the TWA and/or excursion limit prescribed by paragraph (c) of this section." Id- 1926.58(e)(1). A species of regulated area, the negative-pressure enclosure requirement appears in paragraph (e)(6)(i). It has no counterpart in the general industry standard for asbestos, 29 C.F.R. 1910.1001. -7- 379246 ST020I054 5 Paragraph (e)(6)(i) provides: Wherever feasible, the employer shall establish negative-pressure enclosures before commencing removal, demolition, and renovation operations. A negative-pressure enclosure is essentially a large bag built over an asbestos abatement work area. It is typically constructed of 6-mil polyethylene plastic sheet, sealing tape, air locks, and negative-pressure systems. See 29 C.F.R. 1926.58, Appendix F. OSHA provides the following explanation: The negative pressure enclosures contemplated by the 1986 standard are area enclosures in which abatement and renovation employees work. The enclosures are required to be placed under negative pressure (a partial vacuum) so that asbestos fibers remain inside even if a leak develops in the enclosure shell. OSHA believes that negative pressure enclosures reduce employee risk primarily by reducing leakage and containing the asbestos material being disturbed. Thus areas outside the work area are not contaminated and bystander employees are protected from exposure. 54 Fed. Reg. 52024, 52026 (Dec. 20, 1989). Where the negative- pressure enclosure requirement is triggered, employers must also meet special requirements for supervision by a competent person, paragraph (e)(6)(ii); monitoring, paragraph (f)(3); protective clothing, paragraph (i)(4); and use of hygiene facilities and practices, paragraph (j)(2). There is an exemption from the negative-pressure enclosure requirement for small-scale, short-duration operations. 29 C.F.R. 1926.58(e)(6)(iv) and Appendix G. OSHA has proposed to amend the negative-pressure enclosure requirement to impose an explicit provision that the requirement is triggered not by the actual or reasonably likely 8- - 379247 ST020I 055 3 exposure level, but by the nature of the work involved. The proposal would also cut the 8-hour TWA PEL in half, from 0.2 f/cc to 0.1 f/cc. 55 Fed. Reg. 29712 (July 20, 1990). B. The Text of the Standard It is undisputed that a negative-pressure enclosure is a kind of regulated area. The negative-pressure enclosure requirement appears in paragraph (e), captioned "Regulated areas". Paragraph (b) defines the term "regulated area" as follows: "Regulated area" means an area established by the employer to demarcate areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals exceed or can reasonably be expected to exceed the permissible exposure limit. The regulated area may take the form of (1) a temporary enclosure, as required by paragraph (e)(6) of this section, or (2) an area demarcated in any manner that minimizes the number of employees exposed to asbestos, tremolite, anthophyllite, or actinolite. (Emphasis added.) Thus, this definition explicitly couples the negative-pressure enclosure requirement to actual excursions beyond the PELs or the reasonable likelihood of such excursions. Further confirmation of this coupling appears in paragraph (e)(1), captioned "General". It provides: The employer shall establish a regulated area in work areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals exceed or can reasonably be expected to exceed the permissible exposure limit prescribed in paragraph (c) of this section. (Emphasis added.) Since paragraph (b) classifies a negative- pressure enclosure as a regulated area, and since the requirement for negative-pressure enclosures appears in -9- 379248 ST028I 056 paragraph (s), captioned "Regulated areas", the negative- pressure enclosure requirement is subject to the provisions of this "general" limitation on the requirement to establish regulated areas. Where, as here, the language of a standard or statute is clear, that language controls, and no resort may be had to legislative or regulatory history or agency interpretations to construe the requirement contrary to its plain meaning. See, e.a., UAW v General Dynamics Land Systems Div., 815 F.2d 1570, 1575, 13 BNA OSHC 1201, 1205 (D.C. Cir.), cert, denied. 484 U.S. 976 (1987); Honeywell Inc, v. United States, 661 F.2d 182, 186 (Ct. Cl. 1981) ("legislative history is, in any event, unnecessary when the language and purpose of the regulation is plain"). In his opinion below. Judge Salyers did not carefully consider the language of the provisions set forth above. He quoted a portion of the definition of "regulated area", but made no comment on it, and he made no reference to paragraph (e)(1). AACC, slip op. at 7. In contrast. Judge Barkley quoted the complete text of the paragraph (b) definition, paragraph (e)(1), and paragraph (e)(6)(i). He then concluded: It seems clear to this Judge the standard requires a regulated area only if there is a showing of actual overexposure or that overexposure can be reasonably expected. The requirement of a regulated area is not triggered simply by engaging in asbestos removal. To read the standard as the Secretary suggests would require an employer to construct a negative-pressure area any time he was engaged in asbestos removal without consideration to whether there was a reasonable expectation of a hazard. I find this interpretation to be inconsistent with the language of the standard. If the employer is to be required to establish a negative-pressure area with the - 10 - 379249 ST028I 057 attendant requirements of respirators, hygiene facilities, employee training and medical surveillance, there must be at a minimum a reasonable expectation of overexposure. EEC, slip op. at 8-9. C. Employers Have a Right to Have the Standard Enforced as It Is Written. To depart from the terms of the standard as written, as the Secretary advocates, would be to deprive employers of notice of the conduct required of them. With penal sanctions imposed for violations of the standard, this would be an intolerable situation. Employers could reasonably determine that airborne concentrations would not be reasonably likely to exceed the PEL during particular removal, demolition, or renovation operations. In the preamble to the construction industry asbestos standard, OSHA found that in many instances employers may use glove bags, wet methods, and other techniques to keep airborne concentrations of asbestos below the action level. 51, Fed. Reg. 22612, 22706 (June 20, 1986). It even predicted that: most employers engaged in maintenance and renovation projects in environments that do not lend themselves to the construction of negative-pressure enclosures will elect to use glove bags, wet methods, and other control measures to ensure that their employees' exposures to asbestos remain below the standard's action level. Id. at 22711. In its recent notice of proposed rulemaking on the negative-pressure enclosure requirement, OSHA published estimates of current exposure levels during various asbestos removal, demolition, and renovation operations which showed none of them more than 50% of the current PEL. Most were one - 11 - 379250 ST02GI 050 or two orders of magnitude lower than the PEL. 55 Fed. Reg. 29712, 29735 (July 20, 1990). Indeed, the facts of this case, where monitored levels were two orders of magnitude below the PEL, show that in some operations it is reasonable to conclude that exposures are not reasonably likely to exceed the PEL. AACC, slip op. at 7. Thus, employers engaged in removal, demolition, or renovation operations who use these methods so as to eliminate any reasonable likelihood of airborne concentrations above the PELs may rely on the language of the standard to conclude that the negative-pressure enclosure requirement does not apply. Under OSHA's interpretation, however, they would be in violation of the standard, notwithstanding that reliance. Such a situation deprives employers of their due process rights to notice. As Judge Barkley wrote: While this may not be the result the Secretary intended, it is well settled that "regulations cannot be construed to mean what an agency intended but did not adequately express." L.R. Wilkinson & Sons. Inc.'V. Donovan. 685 F.2d 664, 675 (D.C. Cir. 1982). To hold otherwise would be to deny the employer fair warning of the conduct required. Diamond Roofing v. Occupational Safety and Health Review Commission. 528 F.2d 645 @ 649 (5th Cir. 1976). EEC, slip op. at 9-10. Dravo Coro, v. OSHRC. 613 F.2d 1227, 1231-32, 7 BNA OSHC 2089, 2092 (3d Cir. 1980) ("Because we deal with a penal sanction, we begin with a recognition that the coverage of an agency regulation should be no broader than what is encompassed within its terms."); Userv v. Kennecott Copper Coro.. 577 F.2d 1113, 1119, 6 BNA OSHC 1197, 1200 (10th Cir. 1977) (an employer is "not required to assume the burden of - 12 - 379251 ST028I 059 guessing what the Secretary intended plain and unambiguous words employed in the safety regulation to mean. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A regulation cannot be construed to mean what an agency intended but did not adequately express."); Brennan v. OSHRC (Ron M. Fieoen, Inc.). 513 F.2d 713, 716, 3 BNA OSHC 1001, 1003 (8th Cir. 1975) ("Where, as here, the interpretation derives little support from the language of the regulation, it would be fundamentally unfair to impose on the employer civil penalties for its violation. To do so would subject him to liability without warning that his conduct is prohibited."); Brennan v. OSHRC (Pearl Steel Erection Co.. 488 F.2d 337, 339, 1 BNA OSHC 1429, 1430 (5th Cir. 1973) ("The fault lies in the wording of the regulation."). The Secretary may argue that OSHA regulations are to be liberally construed in order to effectuate better the remedial purpose of the Occupational Safety and Health Act of 1970 ("Act"). But that remedial purpose "does not give the Commission license to ignore the standard's plain meaning." Lisbon Contractors. Inc.. 11 BNA OSHC 1971, 1973 (No. 80-97, 1984). See Marshall v. Anaconda Co.. 596 F.2d 370, 377 n.6, 7 BNA OSHC 1382, 1387 n.6 (9th Cir. 1979) ("Nor can mere citation to OSHA's remedial purpose . . . substitute for analysis of the problem at hand."). If in fact the asbestos standard does not say what OSHA intended it to say, then rather than attempt to amend it through interpretation, the Secretary should do so through - 13 - 379252 ST028I 060 notice-and-comment rulemaking. See Fluor Constructors.__Inc, v. OSHRC. 861 F.2d 936, 939, 13 BNA OSHC 1956, 1957 (D.C. Cir. 1988) ("An agency is bound by the regulations it promulgates and may not attempt to circumvent the amendment process through changes in interpretation unsupported by the language of the regulation."); Bethlehem Steel Corn, v. OSHRC, 573 F.2d 157, 161-62, 6 BNA OSHC 1440, 1443 (3d Cir. 1978) ("The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend."). Ironically, OSHA has just proposed to amend paragraphs (e)(1) and (e)(6) of the construction industry asbestos standard to impose an explicit requirement to use negative-pressure enclosures in certain operations, regardless of the exposure levels. 55 Fed. Reg. 29712 (July 20, 1990). Although OSHA claims that the proposed amendments are simply "clarifying revisions", id., at 29715, it is clear that new requirements would be imposed. For example, whereas currently paragraph (e)(6) applies only to removal, demolition, and renovation operations, under the proposal the paragraph would also apply to maintenance activities. Inexplicably, OSHA does not propose to amend the definition of "regulated area" in paragraph (b) to delete the current linkage between negative-pressure enclosures and actual or reasonably likely airborne concentrations above the PEL. - 14 - 379253 ST020I 06 I 9 Although years late, a rulemaking is particularly appropriate since OSHA has never previously published a proposed negative-pressure enclosure requirement for public comment. The proposed rule which preceded the construction industry asbestos standard did not even propose a separate standard for construction. Instead, it proposed only a general industry standard similar to the then-existing standard but for the PEL and a few other provisions, and solicited comments on the advisability of a separate construction industry standard and what provisions such a standard should have. 49 Fed. Reg. 14116 (Apr. 10, 1984). Thus, to date OSHA has never had the benefit of public comment on the appropriate scope of a negative-pressure enclosure requirement. At a time when OSHA is engaged in rulemaking to revise the negative-pressure enclosure requirement to read as it argues here that it should be read, it would be wholly inappropriate for the Commission, in effect, to declare that action unnecessary because employers can be required to divine OSHA's current intent from the contrary words of the existing standard. II. The Secretary's Interpretation Is Not Entitled to Deference. Judge Salyers ruled as he did below because of the deference that he believed was required to be accorded to the Secretary's interpretation. AACC. slip op. at 10. But deference to the Secretary's interpretation was not appropriate. - 15 - 379254 ST020IQ 62 A. Deference Is Due to Interpretations of the Commission, Not to Interpretations of the Secretary. It is the Commission's interpretations of OSHA standards, not those of the Secretary, which'are are entitled to deference. That position is explained in Dole v. OSHRC (CF&I Steel Coro.). 891 F.3d 1495, 14 BNA OSHC 1388 (10th Cir. 1989), petition for cert, granted. 58 U.S.L.W. 3811 (U.S. June 25, 1990). In that case the Tenth Circuit deferred to the Commission's interpretation of another regulated area provision and refused to defer to the Secretary's contrary interpretation, following the majority rule. The Supreme Court has agreed to resolve a split in the circuits on this issue by reviewing the Tenth Circuit's decision. Unless and until the Supreme Court reverses that decision, the Commission should follow the majority rule and decline to accord the Secretary's interpretation any deference. Under that majority rule, it was inappropriate for Judge Salyers to have accorded the Secretary's interpretation deference. B. Alternatively, the Secretary's Interpretation Is Not Entitled to Deference Because It Is Unreasonable and Inconsistently Applied. Even if the Supreme Court were to reverse the Tenth Circuit's decision in CF&I. however, deference to the Secretary's interpretation would not be appropriate here. Deference to any agency's interpretation of its regulations is appropriate only if the interpretation is reasonable and consistently applied. See Northern Indiana Public Service Co. - 16 - 379255 STO20 I 063 5 v. Porter County Chapter of the Izaak Walton League of America. Inc.. 423 U.S. 12, 15 (1975). Deference does not mean that an agency has the authority to rewrite its regulations through interpretations; on the contrary, the degree of deference is measured by the extent that the agency's interpretation does not strain the plain meaning of the words, or imply language that does not exist. Bonessa v. U.S. Steel Coro., 884 F.2d 726, 732 (3d Cir. 1989); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161, 6 BNA OSHC 1440, 1443 (3d Cir. 1978). It is also measured by the consistency of the agency's interpretation over time. Ehlert v. United States, 402 U.S. 99, 105 (1971). Here the Secretary's interpretation fails on each of these grounds. 1. The Secretary's Interpretation Is Inconsistent With the Standard. The Secretary has made no creditable attempt to reconcile her interpretation with the language of the standard, as discussed above. That alone is enough to prove that her interpretation is unreasonable. See e.a.. Fluor Constructors. Tnc. v. OSHRC. 861 F.2d 936, 939, 13 BNA OSHC 1956, 1957 (6th Cir. 1988) ("An agency's interpretation of a regulation is valid, however, only if that interpretation complies with the actual language of the regulation."); Union of Concerned Scientists v. NRC, 711 F.2d 370, 381 (D.C. Cir. 1983) ("When an agency's interpretation of its own rules flies in the face of the language of the rules themselves, it is owed no deference."); Miller v. Bond, 641 F.2d 997, 1002 (D.C. Cir. 1981). - 17 - 379256 STG28I 064 5 This case may be usefully contrasted with the situation in GAF Corn, v. OSHRC. 561 F.2d 913, 916, 5 BNA OSHC 1555, 1556 (D.C. Cir. 1977). There the court supported the Secretary's interpretation that the medical surveillance provision of the general industry asbestos standard was not triggered by exposures above the PEL. The language of the standard contained no such quantitative trigger, and the court refused to imply one. Here, however, the situation is far different. Instead of silence about a quantitative trigger, the standard has not one but two explicit quantitative triggers for the negative-pressure enclosure requirement: paragraph (b)'s definition of the term "regulated area", and paragraph (e)(1). Both tie the scope of the requirement to airborne concentrations above the PEL, or to the reasonable likelihood of such concentrations. 2. The Secretary's Interpretation Directly Contradicts Earlier Authoritative Interpretations. The deference due an agency's interpretation of its own regulations is dependent upon the consistency or inconsistency in its interpretations of those regulations over time. See. e.c.. United States v. Paddack, 825 F.2d 504, 512 (D.C. Cir. 1987) ("We do not normally defer to a vacillating agency position"); National Fuel Gas Supply Coro, v. FERC. 811 F.2d 1563, 1571 (D.C. Cir. 1987) ("If the agency's interpretation of a contract has vacillated, deference might give the agency license to act arbitrarily by making inconsistent decisions without justification."); Kent Nowlin Construction Co. v. - 18 - 379257 ST028I 065 CJ OSHRC. 593 F.2d 368, 371, 7 BNA OSHC 1105, 1107 (10th Cir. 1979 ) (''The petitioner should not be penalized for deviation from a standard the interpretation of which . . . cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement."). Here OSHA has repeatedly espoused the precise opposite of the interpretation now advocated by the Secretary. Thus, no deference is due to the Secretary's current interpretation. If anything, deference is due to OSHA's contemporaneous interpretation. See United Transportation Union v. Dole. 797 F.2d 823, 829 (10th Cir. 1986) ("Interpretations published by the [agency] at the time the regulation was promulgated are entitled to greater weight than the interpretations the agency now espouses."). As recently as 1988, OSHA formally interpreted the negative-pressure enclosure requirement to mean precisely the opposite of what the Secretary now asserts that it means. In a Federal Register notice signed by Assistant Secretary Pendergrass, who also signed the 1986 asbestos standard, OSHA stated: Paragraph (e) of the construction standard now requires employers to establish regulated areas whenever the PELs are exceeded. Regulated areas required by the standard can take two forms. For most employers who perform asbestos removal, demolition, or renovation operations (other than small-scale short- duration), the regulated area must consist of a negative-pressure enclosure that will confine the asbestos fibers being generated to the area within the enclosure and will thus protect other employees and bystanders on the site from exposure to excessive levels of - 19 - 379258 S T020I066 ey asbestos. For small-scale, short-duration removal, demolition and renovation operations and for asbestos work operations that do not involve asbestos removal, demolition, or renovation, the employer may simply demarcate the regulated area by posted signs that limit the number of employees entering'the area. Regulated areas do not have to be established where engineering and work practice controls reduce employee exposures to asbestos to levels below the standard's TWA and excursion permissible limits. 53 Fed. Reg. 35610, 35622-23 (Sept. 14, 1988). Furthermore, OSHA's contemporaneous interpretations of the negative-pressure enclosure requirement, interpretations by the very individuals responsible for its promulgation, were directly contrary to the Secretary's current interpretation. Assistant Secretary of Labor Pendergrass, who signed the asbestos standard on June 12, 1986 (51 Fed. Reg. at 22733), just six months later expressly interpreted the negative-pressure enclosure requirement to be triggered by the reasonable likelihood of exposures above the PEL: The intent of 1926.58(e) is to require a negative pressure enclosure only where a regulated area is required. Regulated areas are established only where asbestos concentrations exceed the permissible exposure limit . . . . Depending on the nature and extent of exposure, the requirement for a negative pressure enclosure may not be applicable in your case. Letter of October 30, 1986 from John A. Pendergrass to Thomas R. Kupfer (Attachment 1). Similarly, Charles Adkins, then OSHA's Acting Director of Health Standards Programs, wrote about the same time: The intent of 1926.58(e) is to require a negative pressure - 20 - 379259 ST028I067 enclosure and "competent person" only where a regulated area is established .... Regulated areas are established only where concentrations exceed the PEL. Your second issue dealt with the type of operations that could qualify for exemption from the requirements of paragraph (e)(6). It should be noted that any operation can qualify for exemption provided airborne levels of asbestos are kept at or beiow 0.2 f/cc. This can best be accomplished by means of engineering controls used in conjunction with appropriate work practices since these two methods, when used either singly or in combination can be employed effectively to reduce asbestos exposures to below 0.2 f/cc. Letter of Oct. 10, 1986 from Charles A. Adkins to Daniel Hoffman, National Steel Corporation (Attachment 2). In his decision below, Judge Salyers relied heavily upon OSHA's interpretation expressed in the compliance directive for the standard, OSHA Instruction CPL 2-2.40 (Sept. 1, 1987). AACC. slip op. at 8-9. As an initial matter, that directive cannot be said to be controlling. Amici are aware of no evidence in the record that it reflects the intent of the drafters of the standard. It was issued over a year after the standard was published, June 20, 1986. There is no evidence in the record of which amici are aware that the drafters of the directive were also the drafters of the standard or that they consulted with the standard's drafters. See CF&I Steel Corp.. supra, 12 BNA OSHC at 2074. More importantly, the directive supports the precise opposite of the Secretary's interpretation. Appendix D of the directive is the only portion which explicitly classifies provisions of the standard as triggered by airborne concentrations above the PEL, triggered by airborne concentrations above the action level, or triggered regardless - 21 - 379260 ST020I068 of level of airborne concentrations. It classifies all of paragraph (e) among the requirements triggered by the PEL. The only requirements identified as being triggered regardless of level are paragraph (k) (labels) and (1) (housekeeping). (Paragraph (k)(3) is classified as being triggered by the action level.) Thus, the directive itself is unambiguous in limiting the negative-pressure enclosure requirement, along with almost all of the rest of the standard, to situations where the PEL is exceeded or is reasonably likely to be exceeded. The provisions of the directive quoted by Judge Salyers do not support the Secretary's interpretation either. They acknowledge that paragraph (e) requires two distinctly different types of regulated areas to be established, but it does not explicitly state that paragraph (e)(1), with its linkage to potential exposure above the PEL, is inapplicable to paragraph (e)(6). This is not to say that from time to time OSHA officials have not also expressed the Secretary's current interpretation in informal statements; they have. Among others, the current rulemaking proposal asserts that the proposed amendments to paragraphs (e)(1) and (e)(6) are simply clarifications. The Commission should give no weight to that assertion. See Col1ier-Kevworth Co.. 13 ENA OSHC 1208, 1222-23 (No. 80-2048, 1987). - 22 - 379261 ST028I 069 It should be obvious that OSHA's interpretations of paragraph (e)(6)(i) shortly after issuing the standard and its formal interpretations since then have construed the standard contrary to how the Secretary now argues that it should be read. In light of this vacillation, the Secretary's interpretation is entitled to no deference. 3. The Secretary's Interpretation Would Apply the Requirement in the Absence of Significant Risk. The Secretary may regulate exposure to toxic materials, such as asbestos, only where a significant risk is present and can be eliminated or lessened by a change in practices. Industrial Union Deo11. AFL-CIO v. American Petroleum Institute. 448 U.S. 607, 8 BNA OSHC 1586 (1980). But the Secretary interprets paragraph (e)(6)(i) to apply even where there is no significant risk. Accordingly, her interpretation is unreasonable. Under the Secretary's interpretation, the complete absence of asbestos fibers would nevertheless trigger the full negative-pressure enclosure requirement if removal, demolition, or renovation operations were involved. Yet clearly in that situation no significant risk would exist, nor would use of an enclosure lessen any risk. This interpretation thus fails to meet the signficant risk requirement. If endorsed by the Commision, it would make paragraph (e)(6)(i) invalid. Such an interpretation is to be avoided. - 23 - 379262 0Z.0 I o z o is This dilemma is not averted by citing OSHA's conclusion that signficant risk continues to exist at airborne concentrations below the PEL. while significant risk may exist at some levels below the PEL, there is some concentration below which it does not exist. Yet the Secretary's interpretation would apply paragraph (e)(6)(i) even where it does not exist. OSHA effectively concedes this point in the current rulemaking, where it discusses its finding that signficant risk exists even below the PEL: Most importantly, as noted above and by the Court, significant risk exists at levels below the PEL. Therefore requiring that the spread of asbestos be contained where it is likely, even if not certain, that the PEL would be exceeded is both appropriate and necessary to reduce still significant risk to bystander employees. 55 Fed. Reg. 29712, 29716 (July 20, 1990). That conclusion is consistent with the interpretation that paragraph (e)(6)(i) is currently triggered by the reasonable likelihood of exposure above the PEL. Significantly, OSHA did not state that to address residual significant risk below the PEL it was necessary to impose the negative-pressure requirement even where exposure above the PEL is not reasonably likely. This situation differs from the medical surveillance provision at issue in GAF Corn, v. OSHRC. 561 F.2d 913, 5 BNA OSHC 1555 (D.C. Cir. 1977). OSHA may properly adopt "backstop" provisions, such as initial monitoring or medical surveillance requirements, which are not triggered by exposures above the PEL or action level. See Industrial Union Dept.. AFL-CIO v. - 24 - 379263 ST020I07I American Petroleum Institute. 448 U.S. 607, 655-58, 8 SNA OSHC 1586, 1604 (1980). But such "backstop" provisions differ sharply in nature from control provisions such as requirements for PELs and negative-pressure enclosures. Those must eliminate or lessen a significant risk. Id.. Where the regulation is interpreted to apply in the absence of significant risk, the significant risk requirement is not met. 4. The Secretary's Interpretation Is Unsupported by Reasoning.______________ The Secretary's interpretation is also unreasonable because the proffered justifications for it do not withstand scrutiny. First, the Secretary suggests that her interpretation is appropriate because: The removal or encapsulation of asbestos-containing products . . . are typically associated with the highest asbestos exposures occurring in construction .... 51 Fed. Reg. at 22706. But an association with high exposures in some instances, even many instances, would not explain the necessity for a negative-pressure enclosure where that association is demonstrably absent, i.e.. where it can be demonstrated that airborne concentrations above the PEL are not even reasonably likely. Secondly, the Secretary cites a tiering approach to the hazards of asbestos, with the strictest controls reserved for operations with the highest exposure potential. As discussed in Part III below, that tiering approach of adjusting the degree of control to the degree of risk is inconsistent with an interpretation that controls are required even where there is - 25 - 379264 ST02G I 072 no reasonable likelihood of risk. On the contrary, triggering a negative-pressure enclosure requirement with the reasonable likelihood of high exposure would appear to advance the Secretary's avowed purpose far better than would her own interpretation. 5. The Secretary's Interpretation Was Not Thoroughly Considered.!----------------------------------------------------------------------------------- As further support for the conclusion that the Secretary's interpretation is unreasonable, it is noteworthy that she has shown little indication that her interpretation was thoroughly considered. The evidence is to the contrary, since the issue was not specifically proposed for public comment, and within the last few weeks OSHA has found it necessary to request public comments on the appropriate scope of the provision. Preceding adoption of the construction industry asbestos standard, OSHA published two proposed rules, neither of which contained a negative-pressure enclosure provision. The first was an emergency temporary standard, 48 Fed. Reg. 51085 (Nov. 4, 1983), which was later invalidated by a court. Asbestos Information Association/North America v. OSHA, 727 F.2d 415, 11 BNA OSHC 1817 (5th Cir. 1984). The second solicited comments on whether a separate construction industry standard should be adopted, and, if so, what its provisions should include, but it proposed only amendments to the general industry standard. 49 Fed. Reg. 14116 (Apr. 10, 1984). In response to the preamble to the proposed rule, some commentors suggested adoption of a negative-pressure enclosure requirement, but of necessity there - 26 - 379265 ST028I073 was no thorough discussion of what its provisions should be. 51 Fed. Reg. 22612, 22710-11 (June 20, 1986). Thus, the Secretary cannot maintain that her interpretation is solidly based upon thorough public discussion of the issue. In effect, OSHA has acknowledged its lack of thorough consideration of the appropriate scope of the negative-pressure enclosure requirement by belatedly, years after adoption, specifically requesting public comment on its appropriate scope. 55 Fed. Reg. 29712 (July 20, 1990). The recent proposal stated: In 1986, OSHA believed, based on limited reports of experience using such enclosures for asbestos work, that the full enclosure, which encloses the work and the workers and limits access, would be effective in containing asbestos .... OSHA seeks comment on applying the requirements for negative pressure enclosure for all removal, demolition and renovation jobs which involve asbestos. Id. at 29715, 29716. Whatever the outcome of the present rulemaking, it presumably will be well considered, based upon a full record. In contrast, the Secretary's interpretation of the current standard was not thoroughly considered. III. Interpreting the Negative-Pressure Enclosure Requirement as Limited to Situations in Which Overexposures Are at Least Reasonably Likely Is Consistent With the Purposes of the Requirement. In construing the meaning of paragraph (e)(6)(i), the Commission should keep in mind the purposes of that provision. The main purpose is a limited one, preventing overexposures. Thus, it is perfectly consistent to interpret the requirement's - 27 - 379266 ST020I 07h application as limited to situations in which overexposures are at least reasonably to be expected. A. Preventing Overexposure The preamble to the 1986 construction industry asbestos standard recognized that "employees engaged in asbestos removal, demolition, and renovation operations generally have the highest asbestos exposures of all construction workers." 51 Fed. Reg. at 22706. Accordingly, OSHA adopted several provisions applicable only to those operations, including paragraph (e)(6)(i). But to say that some removal, demolition, and renovation operations are associated with high airborne concentrations is not to say that all or even most of those operations are so associated. On the contrary, as discussed in Part I.C. above, OSHA explicitly found that many removal, demolition, or renovation operations do not involve high potential exposures when certain techniques are followed, such as use of glove bags or wet methods. In the preamble OSHA explained the purpose of the negative-pressure enclosure requirement as follows: The regulated area requirement in paragraph (e)(6) of the revised construction standard requires employers who perform asbestos removal, demolition, or renovation operations to establish regulated areas that consist of negative-pressure enclosures that will confine the asbestos fibers being generated to the area within the enclosure and will thus protect other employees and bystanders on the site from exposure to excessive levels of asbestos. 51 Fed. Reg. at 22710 (emphasis added). Thus, the purpose of the requirement is to protect employees outside the work area from overexposure. For some kinds of removal, demolition, or - 28 - 379267 ST02GI 075 renovation operations, the risk of overexposure of those employees may be substantial. But OSHA has recognized that for others kinds of those operations, use of certain techniques is sufficient to avoid even the reasonable likelihood of overexposures. Interpreting the requirement to be triggered by the reasonable likelihood of exposures above the PELS rationally relates the obligation to provide protective measures for bystanders to the need for such measures. B. Graduated Response Limiting the application of the negative-pressure enclosure requirement is also consistent with the tiering approach espoused in the preamble. There OSHA explained: Accordingly, the final standard applies to all occupational exposures to asbestos in the construction industry, but is tiered to apply increasingly stringent requirements to those work operations associated with the highest exposures . . . . OSHA believes that this tiering approach will simultaneously ensure maximum employee protection while scaling the burden of compliance with the standard to the degree of hazard associated with particular operations OSHA notes that the final standard has been carefully structured by the Agency to relate the stringency of the requirements to the extent and duration of employee exposures. OSHA therefore believes that no compliance burden will be placed on construction employers . . . who maintain asbestos exposures in their workplaces to levels below the action level of 0.1 fiber/cc. Id. at 22706, 22707. If the degree of risk is very low because airborne concentrations are not reasonably likely to exceed the PEL, then under this approach the lesser risk should have less stringent requirements. Conversely, where the risk of airborne concentrations above the PELs is at least reasonably likely, more stringent requirements are appropriate. - 29 - 379268 ST028I 076 In the passages quoted above, CSHA recognized the need to correlate the "compliance burden" placed upon construction employers with the degree of risk involved. That recognition is compelled by Section 3(8) of the Act, 29 U.S.C. 652(8), which requires that OSHA standards be "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." While the Act may not require explicit balancing of costs and benefits for health standards, the provisions of Section 3(8) apply even to those standards. See American Textile Mfrs, Ass'n v. Donovan, 452 U.S. 490, 514 n.32, 9 BNA OSHC 1913, 1922 n.32 (1981) (OSHA could not insist on a feasible requirement for use of five respirators if use of one respirator would achieve the same reduction in health risk). Accordingly, the Secretary must be able to establish that the negative-pressure enclosure requirement is "reasonably necessary or appropriate". That burden cannot be sustained when the requirement is interpreted to apply where airborne concentrations above the PEL are not at least reasonably likely. Judge Barkley found that linking the negative-pressure enclosure requirement to the reasonable likelihood of overexposure was consistent with this tiering approach: Reading the standard to require a reasonable expectation of overexposure does not harm the Secretary's "graduated response" mentioned in the preamble to the standard. If there is a reasonable expectation of overexposure and the employer is engaged in asbestos removal, the employer is prohibited from utilizing the less restrictive regulated area, the demarcated area, but instead must utilize a negative pressure area, which in turn without any further showing imposes such requirements as respiratory protection, hygiene facilities, employee training and medical surveillance. - 30 - 379269 ST028I 071 EEC, slip op. at 9. Ironically, the Secretary's interpretation departs from this tiering scheme. It ignores the reasonable likelihood of airborne concentrations above the PEL, or the lack of such a likelihood, and instead lumps together all removal, demolition, and renovation operations. The only exceptions are for small-scale, short-duration operations, and where the use of negative-pressure enclosures is infeasible. For all others, it ignores OSHA's findings that in some cases there is no reasonable likelihood of overexposures and treats them all as though they uniformly pose a high degree of risk. OSHA's own tiering scheme can only be furthered by linking the negative-pressure enclosure requirement to the reasonable likelihood of overexposure. C. Enforcement Burden Although nowhere articulated by the Secretary, a sub silentio purpose underlying her interpretation may be the perception that enforcement of the negative-pressure enclosure requirement would be hampered by a linkage to the reasonable likelihood of overexposure. Certainly, if every removal, demolition, or renovation operation were subject to the requirements of paragraph (e)(6)(i), OSHA inspectors could cite employers for failure to comply with that provision simply based upon the objective fact of whether or not a negative-pressure enclosure was used. But linking the requirement to the reasonable likelihood of overexposure is not a significant obstacle to OSHA's enforcement of the provision. - 31 - 379270 ST020I 070 Significantly, OSHA has no need to prove actual exposures above the PELs. If that were the case, OSHA would have a difficult burden of proof where the employer has not conducted monitoring. But OSHA needs only to prove a reasonable likelihood of airborne concentrations above the PELS. That can be established after the fact, even without monitoring results. Judge Barkley's decision in EEC. which the employer chose not to appeal to the Commission, illustrates this point. CONCLUSION The Commission should endorse the views of Judge Barkley in EEC rather than the views of Judge Salyers in this case on the issue of what triggers the provisions of 29 C.F.R. 1926.58(e)(6)(i). Judge Barkley carefully considered both the language of the construction industry asbestos standard and the purposes of the negative-pressure enclosure requirement in concluding that the Secretary's interpretation was unreasonable and not entitled to deference. In addition, the Commission should consider OSHA's history of interpreting the requirement as Judge Barkley concluded that it should be interpreted, rather than how the Secretary now argues that it should be interpreted. The Secretary's position is contrary to the language of the standard, and it works against the tiering approach endorsed in the preamble. The Secretary has an immediate opportunity to revise the standard to read as she feels it should read. Yet - 32 - 379271 sound policy reasons, as well as the current text of the standard, support retaining the standard's linkage of the negative-pressure enclosure requirement to the reasonable likelihood of airborne concentrations above the PEL. For the foregoing reasons, Judge Salyers' decision on the issue of what triggers 29 C.F.R. 1926.58(e)(6)(i) should be REVERSED. Respectfully submitted, Of Counsel: Toby Alaska Threet The Dow Chemical Company Legal Department 2030 Willard H. Dow Center Midland, MI 48674 Mark N. Duvall Health and Safety Counsel Attorney Union Carbide Plastics Plastics Company Inc. Danbury, CT 06817-0001 Date: August 9, 1990 ST028I 079 33 379272 ST028I080 ATTACHMENT 1 379273 deposit" tc iniurr vrif nfjrtior* irvuiu: w.r...---------- -- -turned if and when the employee finds ether maloymert. in official irtereretatior cn this issue would be ereatlv appreciated. Thank you very much fer rrur help in thi* witter. /err truly Yours* 'JATIPNAL ABEEST05 TRAINING INSTITUTE Jt Scot Kerei Director 4SK/w . S t028I 08 I >*END OF DOCUMENT REACHED** ITEM 46- 3TANDARH NUMDER ` 1926.56(f)(J) INFORMATION DATE -061030 SOURCE DESCRIPT. Lrtter to Mr. Thottis R Kup ferer STATUS ' Currer t DOT 30 1VB6 1r. Thon.-as R. Kuaferer 2231 Ramins(on Drive Haaerville* Illinois 60565 Dear Mr. Kupferer* This is in resrf'ose tc rot r letter of October 2 ccncernins resulatory rovisjep.s cortiined in Up new standarc for exposure to asbestos* iremoiite* mthophYllite ird actinolite in the construction industry. four f"ist area of ccncern was the provision that requires daily ftonitorins within a. rfv.irec ret. You stated that cor scientious maleyprs will estpblish i resulaled area for every istestos removal iob* reserdlts* of evratien* end that this would result in a aultitude of simples that essentially wruld be meamrsless because tr.pl ore es will he wearirs rEsrirators. The intent of 1926.56(f)(J) is to require daily monitorins only where airborne levels exceed 0.2 fiher/cd. Wien it is necessary to stablish a resulatpd im as required by the standarc* daily tionitenni rot only verifies the adequacy of the respiratory rotective trvicts work* tut serves as a check to ensure that snsinperir.s controls are furciionins properly and the specified work radices a* e bein? carried out. It should be noted that where daily Tveojtorine reveals that emrlevee exposures (as indicated by statistically reliatle measurements) are below the action level* the employer may discontirue moritorins for those employees whose exposures are represerted by those samples. In addition* daily aonitorins it not reauiree in a resulaled area where all employers are eayipptr with sueelirc air resriraters operated in the positive ressure moce. four -second issue dealt wit) 'the -establishment of -a relative pressure nclosure for asbestos removal* demolition and renovation operations. The intent cf 1925.55(e) is to require a relative eressure enclosure only wh*re * re*ulPcted area is required. -Resulated -areas ore established enlv*wh*ere asbestos concentrations exceec the-rermissible exposure limit.-* The reauireme-t for spttirj up a negative pressure enclosure closely parallels the Envlrcnmer1 a 1 Protection Aaencv's requirement for proper work, area coni a i r mr n t. Without such containment measures* asbestos coMainirs materials would.be cisaersed outsice the area and a sisnificatf exposure tar.ard could resilt for plant or buildins . occupants. The use of relative pressure systems* tosether with hash efficiency particulate <NEFA) filtratior to move air from within the wort, area to outside the /emulated area* will provide added protection. A harmful level of contamirants would net* as a rule* build ua in a reiulated area* as nesptive pressure is required durine work activities. 379274 ,excess of He actior level. however? vrere i* no mn nv.i ... copctntraticns found in tie breathin? xcne of employees actually performin? asbestos removal work. Dererdin? on the riture and extent of exposure? the requirement for 4 nei4tive pressure enclosure mar not be applicable ir mr cite. * Efforts 4re currently urder way to correct the contradictory statements* such as those hishlishted in rour letter* which appear in { Federal Resistor notice will be published in the Ftderal Kesister i.. the near future. I hope this information will be helpful tc you. Sincerely* John A. Penrersrats Assistant Secretary OH:Wainlesstep*10/16/86:act10/17/86 Room N;''67l x37111 Control *C- 38861 Due Date 10/2:4/06 cc: CCU File* OH File* C.Adkins* F'pndersrass* F.White* Wainless* Williams* 8trctfers WPC Filce86-3Z4* Documert#0059e ZOO IGZOiS October 2* 1986 John A. Pencersrass Asit|nt Secretary of l. at or For uccu*ational Safety ard Health 200 Constitution Ae* N.W. Washington* D.C. 20210 Dear Hr. F'er ders r as s I am vri4in to you as ?. fallow professional incustrial hvsienist* to express m.v cei tern for damesr beins dore to our profession br the recently promulgated OSHA standard resulatin? asbestos in constructior activities. 1 rp s ard this standard to be so poerlv conceived and excelled as to be a major embarrassment to tnose o.' us in the profession wto now have been hanced the jcb of trrins to ii. leirent- it. Harr of the provisions call for mere activity which will contritute nothirs tc worker protection. Others will* in some cases* actually create more serious hszarcs than the standard intends to correct. Come are acts ally contradicted within the resulation itself. All of these cculd have been prevented if OShA had simply submitted it e constructior standard to peer review ir the same manner as ther did the far superior asbestos stardarc for seneral industry. As an example of the previsions which acd nothir? to the worker's protection* 1 call rour attention to the section which requires daily monitorin? representative of each worker when a resulated area exist*. ifre c on* c i * n t i < t s employers will establish a resulated area for every asbestos removal job* whsthrr it will last 5 minutes or 5 months* this will result in a multiti.de of samples. These samples will be essentially meaningless* however* sirce* br the standard* all these wrrFers will be wear ins respirators. It is unnecessary tc do Itis much monitorin? to simply verify the adequacy of our respiratory protection choices. Nevertheless* industrial hvsienists row must insist that our employers and clierts perform samrlin? which we know is net- justHied* which certainly does nothin? to enhance the imase of our profession as a professicn. Instead we just Pfrrot rpiulatiors* bans eumrs* anc file away reams of expensive* meaningless data. An example cf the ecssilly ranserous activities prescribed by the standard is its insistrree on buildins enclosures arcurd removal operations. Hr com*arr has frequently pcrtormed area samples at tne perimeter of removal operations of various sorts* anc we have never found levels in excess cf the new actior level. In fact* we usually don't find anythin? above background levels. The new standard would appear to now resuirp us* ir most cases* to create what- amounts to a confined space* wit! all its hazards* ard require our eeoele to work. ; Sin it. This will result in ereater heat stress* ard the Pt iibilitr of trirrin? dansprous concertrations of toxic or flammable eases ir their work environment. We will thvs increase the risk to the health ar.d satetr of these persons in oreir to eliminate a non-existant exposure hazard to what is senerally vncccueied surr oundi ni s. It will also require a let- of work just to construct the enclosures* with all thr well documented risks of seneral cons true11on work. As an example of cor trarictrrr statements withir the mnoira? nviue that the earpsrarh cn fit t-estins requires that? "The employers shall ensure that the respirator issued to the employee exhibits the least possible facepiece leakage..." The note that Appendix C? on fit testins arocpdi'**fs resuirts that- the employee be allcwed to choose the most c onH * r t ?.t 1 e respirator rastins a tit test? rot the one erooidins the best seal. Also note that Appendix C states that when eerformins fit tests hr tie irritant smeke protocol the respirator nearer should be instructed to krer his errs closed curins the test. Shortly afterwards it- has us instruct him to read thf rainbow p assise." The above are only a cerr few examples cf the major problems in this seriously flawed standard. 1 ask you to carefully review the onerous provisions cf this slantard? drawins on vour own consicerable practical experience? ard direct reconsideration to cevelop a more flexible* performance oriented document.. 1 ask tnis as one individual professional tr another? not- as a represer tative of a-nr employer or associaticn. The rrovisions cf the cons trie tion standard? as written? stow a serious lack of appreciation for the true scopp of the werk it is written to cover? and fer the nature of the hazards it tries to control. It will result in a tremendous amount of activity? but little? if any? increase m worker protection. In fact? what it will serue to do more than anythin* elsp'will be to divert this country** already strained industrial hveiene resources away frem more productive activity where far sreater contributions te worker health would be made. I have seent. a tremendoi s amount of my time ouer the last three to four years Irvins where ever I could to contribute semethins to the development ot a meanirrtvl and effective asbestos stardjard. Ueon reidin* the constructior incustry asbestos stanoard? 1 feel the effort was totally wastfd. Sincerely? Thomas E. Kurferer? C1H ST020I 003 END OF DOCUMENT REACHED** ITEM *7 STANDARD NUMBER INFORMATION DATE SOURCE DESCRIPT. COMPANY STATU? 1910.1001(r>(1) tvii) ? 1926.58(?) <2MIiI> 860814 Letter to Mr. Robert J. Eettacchi Ccnstruction Products Division Currer t AUG 14 1986 Mr. Pehert J. P-ettacchi Vice President Construe tion P r o d t c t s Division R. Grace L Company 62 Uhiitemore Avenue Cambridse? Massachusetts 02140 Dear Mr. Dettacchii This is in reseonsr to yoir letter of Jt.tie 2? seekiri interpretation of certain resulatory provisions containcdin thestancards for occupational exposure to astrstos? tremclite? anthoehy11ite and actinolite issued Ume 20 <51 FR 22612). Specifically? your concern is that certain pro*, isions ot the new stardards may apply to many a*-ti >i t i f* that rr*e ro asbestos risk tr worker health and that were not intendcc tr the Gccirational .Safetr H a 1th Administration tUEHrt) to be covered by the new standards. Tour letter raised interpretive issues about three provisions. The first provision state? that* "Materials containing asbestos?, tremolite? ?.n horhvl 11 tr or actinolitr shall not be applied by spray methods" <1vJ0.1001<r)<1)<vi i) and 1926.58 (*) (2) t i i l)).. As you pointed out? ether sovernmerl asencies which have restricted the application of asbestos materials by erchibitins seravins that? since the C`?HA previsions dc rot contain an exclusion? the U?HA refutation will inap?rcpriate]y apply to a wide variety of seravec products that contain fracr ametnts of raturallr cccvrrins levels cf asbestos which you term "de-minimis." 379276 STO20 I 00'* ATTACHMENT 2 379277 *3ahTnston"Dlt.` 202:16 Dear fir. Wainlessi In confirmation of cur phcnr conwrulicn dated 0G-13-B6 it is my iderst andins that the folic wins interpretations of 1926.56 are true nd correct. 1. Sec. (h) (ii) A. Fit tests are only required for half fat* nesative pressure respirators. Either qualitative or quantitative methods mar te used. P. Fit tpstirs fcr full face nesatiue pressure respirators is not required* however* it dcsired cnlr quantitative methods will te accepted. C. Fit testirs for half and.full face psitiue.pressure* powered* powered air purifrin? respirators is not requir ec . 2. Appendix A. to 1926.58 (O.R.M.)* (1st raratrarh) A. The present vcrbiase is.not meant to imply that all s amrline for' asbestos fibers/fibers be conducted by an analytical laboratory* merely that those laboratories analyzing such samples use the O.R.M. Mr thanks aiin frr your inualuahle assistance. 1926.58 will? I*m sum be sreat a boon 1c the abatement industry. Respectfully* James T. Heu-es Health and Safety Director df c^i Richarc A. Clark Richare Ehrlich ST020I005 END OF DOCUMENT REACHED** ITEM 49 STANDARD NUMBER INFORMATION DATE SOURCE J'L'GCRJPT. COMPANY STATUS 1926.5e<t>(6) 1926.58(a)(2) 1926.58(e) 861016 Loiter to Mr. Daniel E. Hoffman National Steel Corporation Current OCT 10 1986 Mr. Daniel E. Huffman Granite City Division National Steel Corporation 20th t State Streets Granite City* Illinois 62040 Dear Mr." Hoffman * This is i* response te yoi r letter of Ai.sust 28 to Ira Uainles* seekins interpretation of certain resvlatory provisions contained in the new stardard for exposure to asbestos* tremolite arthophyl1lte and actinolite in the construction industry. Your first area of concert was whether 1926.58(e)(6)* which imposes requirements for nesatiue pressure enclosures and the cesisnation of a "competent person*" ard I926.58(j)(2)* which requires the e* \blishmert of a decontamination area? apply to all asbestos removal* demolition* anc rerovation operations* or orly those where airborne corcentratiors of asbestos exceec or can reasonably be expected to exceed* tie PEL of 0.2 f/cc. The intent of 1926.58(e) is to require a relative pressure enclosure and "competent- pjrson" only where a reiulated area is established. Similarly* 1926.5s (j)(2) requires thr establishment- of a decontamination area wten a resulated area is required. Reu)atec areas are established orly wherm concentrations exceed tie PEL. 379278 SH.W'K Ks?t js'Uinhi .in .! 5 1 t! iben used either sirslv or ^combination . be fS^SIJJ.tioS IrXS ntornrendeuche t(srb>e(ts)los thexeporseurfeos rdtooesbenloowt ^reend on tthhee lieerrsittnh ootf tliimmee it tit.es to complete * job or the matmtude ft the job.* Your interest in occuetticnal heilth is teereciited. Sincerelvt Chtries E. Adtins Scettilrtsh director Sitncards Prosrams OH:Wiin!es s:c:9/S0/8&s t ec Room tJj;671 5t7111 cc: OH Filer hairless* Ackinsr WPC File#*6-298t DocumenUOOfcO* ST020I 086 379279 Mr. Ir Uarinsless IrdusLrial Hyeienist U.-S. Dee t. of Lbor/OSHA Health Standards branch Room N-3178 200 Constitution Avenue N.W. Washinston* D.C. 20210 s* ar Mr. Wayinslessi Think you fcr Your prompt response to questions I recertlr f0J?^ you br telephone resardins thy new OSHA Asbestos Stardards published June 20 1966 in the Federal Register. m I am writins in request of written confirmation of OSHA'* position concerning several cf the issues we discussed br telephone.. Specifical1Yt if a company such as ours is ensased ir a project, involvins tie removal of astest-o* insulation from duct work or eieinst etc. at one of cur facilities* would we be required to meet the resuiremprls of 29 CFE* Section l926.S0<e)(6) resardless of the employee astestos exposure levels? Mr understandins from your verbal response is that Sectior 1926.30(e)<&>* "Resulated areas only allies to situations in which the P.E.L. of 0.2 f/cc is exceeded. That is* if the use of wet methods or other methods are utilized and are successful in mairtairirs exposures at or below O.Z f/cc tnen nesative pressure erclosures* hrsiene faeillties (decortamination rooms) and the use cf "competent persons" (as definec in the. standard) are not resuirec. We feel this is an important point and is in need cf clarification. Also* please provide clarification as tc what tree of.cperations would svalify for the exception provisions contained ir Section 1926.58(e)(6)(IV). Mr recollection is that you indicated that for jobs which are relatively short duraiior* i.e. eisht hours or less* the exception would apply. Please respond at rcur earliest possible convenience. Verr truly yours* Daniel E. Heffman Manaser* Environmental Health ( DEH/01.44 J sc **END OF DOCUMENT REACHED** ITEM 50 STANDARD NUMBER INFf'RMAl 1 ON DATE SOURCE I'ESCf-lPT. COMPANY STATUS 1910.1001 (j) (4) (ii) (i ) (2) and L:eMt*tMer6 to Mr. Peter T. Earnes E'armir Inc. Current (j)(3) Mr. Pe*er T. Earnes Barmin Inc, P.0, box llO Waterdown* Ontario LOR 2H0 Canada ST020I 087 i / 379280 ST020I 008 CERTIFICATE OF SERVICE I hereby certify that on this 9th day of August, 1990, I mailed one copy of Motion for Leave to File Brief as Amici Curiae and Brief of Amici Curiae Union Carbide Chemicals and Plastics Company Inc. and The Dow Chemical Company to the following by first class, postage-paid mail: Tony Gil, Esq. Office of the Solicitor U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 Robert W. Thomson, Esq. Meyer, Darragh, Buckler, 2000 Frick Building Pittsburgh, PA 15219 Bebenek,:Eck & Hall Date: August 9, 1990 Mark N. Duvall Health and Safety Counsel Union Carbide Chemicals and Plastics Company Inc. 379281