Document pyvK6rN3vdo8D7o9wEbbN19d

FILE NAME Talc TALC DATE 1978 Feb 22 DOC TALC023 DOCUMENT DESCRIPTION Case Report - Occupational Safety and Health Review Commission Services of Mead Data Central f 4TH CASE of Level 1 printed in FULL format WARNER CORPORATION PAGE Z OSHRC Docket No. 10757 Occupational Safety and Health Review Commission 6 OSHC BNA 1393 1978 OSHD CCH P22,555 February 22 1978 Before CLEARY Chairman and BARNAKO Commissioner COUNSEL Baruch A. Fellner Office of the Solicitor USDOL Charles W. Houchins Warner Corporation for the employer OPINIONBY CLEARY OPINION DECISION CLEARY Chairman This case is before the Commission for review pursuant to section 12 of 3 the Occupational Safety and Health Act of 1970. n1 At issue is respondent's serious violation of section a 2 n2 of the Act due to its failure to alleged with the occupational safety and health standard at 29 CFR comply and the submission of extensive briefs 1910.93a n3 After a full hearing by both parties Administrative Law Judge Jerry tWh.e MfiutlclheClolmmiissssuieodn hfiosr dreecviisewionof affirming the citation Respondent petitioned the Judge's decision and its petition was granted We affirm the Judge's decision insofar as it is consistent with this opinion n1 29 U.S.C. 651 et seq Referred to infra as the Act n2 Section a 2 provides Each employer . standards promulgated shall comply with under the Act the occupational safety and health n3 Two citations were issued to respondent Citation number 1 alleged four nonserious violations and proposed penalties totalling 90 Respondent did not contest this citation and it has become a final order by operation of law Section 10 of the Act Citation number 2 alleged a failure to comply with eight separate paragraphs 3 of 1910.93a These eight items were deemed to constitute a single serious violation and a 600 penalty was proposed The parties agreed that if item number one failure to comply with S 1910.93a was proved then the items would be conceded Therefore the proof and discussion at remaining seven the rearing was limited to 1910.73a 1910.73a 3 the text of which is set forth infra infra LEXIS NEXIS LEXIS NEXIS Mead 012691 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 3 1. Background The cited standard provides S 1910.93a n4 Asbestos * &* b Permissible exposure to airborne concentrations of asbestos fibers -- x # ' 3 Ceiling concentration No employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers longer than 5 micrometers per cubic centimeter of air as determined by the method prescribed in paragraph e of this section n4 29 CFR 1910.93a was recodified as 29 CFR 1910.1001 on May 28 1975 To be consistent with the discussion by the parties and the Judge we will refer to the standard as 1910.93a Lee tne cre ee a, an a --End Footnotes- Footnotes- During an inspection of respondent's plumbing products manufacturing facility in Mansfield Ohio conducted on July 9 1974 an employee was observed dusting plaster tank molds as the molds passed his work station on a conveyor line The dusting operation involved patting the molds with a filled bag The trade name of the particular tale being used in this operation was NYTAL 200. n5 Because he observed a heavy concentration of airborne talc dust in this area the compliance officer proceeded to take air samples by placing a sampling air pump and a filter cassette on the employee m5 NYTAL 200 is a talc mined by the R.T. Vanderbilt Co. in the Gouverneur mining district had begun about of New York The one week prior to use the of NYTAL 200 talc for dusting the molds inspection its use was discontinued about one week after the inspection asbestos Following the inspection the air samples were analyzed by the OSHA laboratories in Columbus Ohio and Salt Lake City Utah the NIOSH laboratory in Cincinnati Ohio and by an independent firm retained by respondent The individuals performing the various analyses testified at the hearing before Judge Mitchell On the basis of the testimony by these witnesses and other Mitchell concluded that the Secretary had evidence entered at the hearing Judge established that the employee was exposed to concentrations of airborne asbestos fibers in excess of the limit permitted by 1910.93a b LEXIS NEXIS LEXIS NEXIS Mead 012692 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 4 On review respondent raises three major exceptions to the Judge's decision n6 Respondent argues that 1 The cited standard is invalid and unenforceable because the version promulgated is substantively different from the proposed standard thus depriving respondent of a fair opportunity to participate and comment in the rulemaking proceedings 2 Assuming that the standard that the evidence established the asbestos fibers is enforceable the Judge erred in concluding presence of an excessive concentration of 3 Assuming that the existence of a violative condition Secretary did not show that respondent had knowledge of the meaning of section 17 of the Act was established violation within the the n6 In addition to the three major exceptions discussed in respondent's petition specific citation for review respondent also findings and conclusions in was issued with reasonable briefly noted its exception to certain the Judge's decision concerning whether the promptness within the meaning of section a of the Act and whether the air samples taken by the compliance officer were valid and adequate samples of the working environment Aside from noting its exception to the Judge's disposition of these issues respondent has not argued on review the reasons for its disagreement with the Judge's decision In view of respondent's failure to seriously pursue these issues on review extendeu discussion of them is not warranted We note our agreement with the Judge's disposition of these issues and adopt his findings and conclusions relevant thereto II The Validity Issue In his decision Judge Mitchell comprehensively summarized the chronological history of the asbestos standard The relevant chronology is as follows 1 On May 29 1971 the Secretary published as an occupational safety and health standard 29 CFR 1910.93 regulating exposure to Air contaminants 36 Fed Reg 10503-06 The threshold limit values TLV's of exposure to mineral dusts were stated in the accompanying Table 3 36 Fed Reg 10506. In Table 3 the assigned minerals tremolite asbestos and talc were TLVs of 5 2 and 20 mppcf millions of particles separately listed per cubic foot of and air respectively 2 On August 13 1971 the Secretary published a revision of 1910.93 correcting 15101-04 and clarifying However Table certain 3 was portions of the not affected by stardard 36 Fed this revision Reg 3 On December 7 1971 an Emergency Standard was issued amending S 1910.93 to regulate employee exposure to asbestos dust 36 Fed Reg 23207-08 This emergency standard revised Table 3 by specifically deleting the references to asbestos and tremolite previously stated therein The emergency standard also added a new section 1910.93a entitled Asbestos Asbestos LEXIS NEXIS LEXIS NEXISfi Mead 012693 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 5 Dust Permissible limits for employee exposure in this new section However no definition of 1910.93a to asbestos dust were stated asbestos appeared in S 4 On January 12 1972 a Notice of Proposed Rulemaking was published concerning the standard for exposure to asbestos dust 37 Fed Reg 4668. In all relevant aspects the Notice paralleled the provisions of the emergency standard previously published i.e. asbestos and tremolite were specifically deleted from Table 6-3 and a new section $ 1910.93a was proposed to regulate exposure to asbestos dust The proposed standard also did not provide a definition of the term asbestos 5 An Advisory Committee was formed pursuant to sections b and b of the Act for the purpose of submitting recommendations to the Secretary concerning the proposed standard A public hearing on the proposed standard held on March 14-17 1972 was 6 On June 7 1972 a Standard for Exposure to Asbestos Dust was published at 37 Fed Reg 11318-22 Like the emergency standard and the notice of proposed rulemaking the new standard specifically deleted asbestos and tremolite from Table 3 and added a new section 1910.93a regulating exposure to asbestos dust Unlike the former provisions however the new standard defined the terms asbestos and asbestos fibers Subpart a of the new standard provides a Definition For the purpose of this section 1 Asbestos includes chrysotile amosite crocidalite tremolite anthophyllite and actinolite 2 Asbestos fibers means asbestos fibers longer than 5 micrometers 7 On October 18 1972 a revision of 29 CFR Part 1910 was published 37 Fed Reg 22102-22356 The purpose of the revision was to consolidate Part 1910 to correct typographical and clerical errors in the standards and to publish an index In this revision Table 3 was amended by replacing the single talc TLV entry with two entries and by adding a tremolite reference as follows Talc non asbestos 20 mppcf Talc fibrous Use asbestos limit Tremolite see talc fibrous footnote omitted The accuracy of this chronology is not disputed by respondent Rather respondent argues that the chronology illustrates the procedural irregularity in the promulgation of the standard under which it was cited Respondent points out that in the original standard talc asbestos listed in Table 3 and assigned different TLVs and tremolite were separately Respondent asserts that this separate were not listing asbesti reflected the common view at that materials Therefore respondent time that talc and tremolite argues the deletion of asbestos and tremolite from Table 6-3 and the simultaneous inclusion of a new asbestos st provision in the emergency standard and the notice of proposed rulemaking did not provide notice that tremolite was henceforth to be regulated as asbestos In this regard respondent emphasizes that it was not until the publication of the final standard on June 7 1972 that a definition of asbestos was included in the regulation for these reasons respondent concludes it was not provided a fair opportunity to participate in the LEXIS NEXIS LEXIS NEXIS Mead 012694 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 6 amendment proceedings and to comment on the desirability of the revised standard The procedure required to be followed by the Secretary in promulgating modifying or revoking an occupational safety and health standard is set forth in section b of the Act n7 In relevant part section b provides The Secretary may by rule promulgate modify or revoke any occupational safety or health standard in the following manner ** 2 The Secretary shall publish a proposed rule revoking an occupational safety or health standard shall afford interested persons a period of thirty submit written data or comments . . . promulgating modifying or in the Federal Register and days after publication to 3 On or before the last day of the period provided for the submission of written data or comments under paragraph 2 any interested person with the Secretary written objections to the proposed rule stating therefor and requesting a public hearing on such objections ... may the file grounds 4 Within sixty days " . the Secretary shall issue a rule promulgating modifying or revoking an occupational safety or health standard or make a determination that a rule should not be issued . . . Emphasis added Although these provisions of the Act supplant the rulemaking procedures of the Administrative Procedure Act APA n8 they are characteristic of the familiar Informal notice and comment procedures provided for in section 4 of the APA Industrial Union Dep't AFL v Hodgson 499 F.2d 467 472 D.C. Cir 1974 Associated Industries of New York State Inc. v U.S. Dept. of Labor 487 F.2d 342 345 2d Cir 1973 M7 The Secretary has also published regulations relating to the publication of proposed rules 29 CFR 1911.11 provides The Assistant Secretary may promulgate modify or revoke a standard . - " In the following manner *** b The Assistant Secretary shall publish in the Federal Register a notice of proposed rulemaking . . . The notice shall include 1 The terms of the proposed rule * *& & 2 An invitation to interested persons to submit . . . written data views and arguments . ; 4 Either the time and place of an informal hearing or the proposed rule . information to interested persons that they may file . . . writter objections , to the proposed rule . . . and request an informal hearing on the onections onections LEXISfiNEXIS LEXIS NEXIS Mead 012695 Services of Mead Data Central 6 OSHC BNA 1393 1978 05HD CCH P22,555 PAGE 7 Also see 29 CFR 1911.18 m8 5 U.S.C. 551 et seq When issuing a final standard pursuant to these procedures the Secretary is not constrained to adopt the identical version of the standard previously published in the notice of proposed rulemaking GAF Corp. v O.S.H.R.C. & Dunlop 561 F.2d 913 918-19 D.C. Cir 1977 Cf. South Terminal Corp. v E.P.A. 504 F.2d 646 1st Cir 1974 The purpose of requiring that notice of a proposed regulation be given and of allowing interested parties to comment or request a hearing is to educate an agency to approaches different from that proposed to be taken South Terminal Corp. supra 504 F.2d at 659. The record developed directly in response to a notice of proposed rulemaking provides a useful basis for evaluating the desirability and effect of the proposal In order to use the notice and comment procedure effectively an agency must be free to adopt a regulation different from that proposed without incurring a concomitant obligation to solicit further comment GAF Corp. supra South Terminal Corp. supra Ethyl Corp. v E.P.A. 541 F.2d , 48 D.C. Cir 1976 Therefore the relevant inquiry in determining whether adequate notice under the Act has been given is not whether the final regulation differs from that originally proposed but whether the proposed regulation sufficiently alerts interested parties to the opportunity to offer their informed criticism and comments. Cf. South Terminal Corp. supra 504 F.2d at 659 Ethyl Corp. supra 541 F.2d at 48. Measured against this standard we conclude that the adequacy of the notice provided in the present case is patent As described previously the Notice of Proposed Rulemaking in the present case set forth the text of the emergency standard and announced the intent to adopt this provision as a final standard The notice repeatedly stressed the opportunity for interested parties to participate in the proceedings The availability for public inspection of all comments received was stated A public hearing was set and the availability of the hearing transcript was specified The intent to form an advisory committee was announced and the availability of the committee's recommendations was stated Also it was expressly stated that the proposed standard might be adopted with or without changes As had the emergency standard the notice expressly deleted tremolite and asbestos from Table 3 and added a new provision specifically regulating exposure to asbestos dust Although the proposed standard did not contain a specific definition of asbestos we agree with Judge Mitchell that the proper inference to be drawn from the deletion of tremolite and asbestos and the addition of the asbestos dust provision was that the deleted substances were to be regulated by the new provision n9 Furthermore the proposed regulation provided sufficient notice to parties interested in the regulation of the deleted substances that the regulation of those substances was being affected Even if it is assumed that the precise parameters of the proposed standard were to unclear to an interested party ample opportunity was afforded accomodate inquiries or comments concerning any uncertainties If participation had been undertaken the intent of the Secretary to regulate remolite as asbestos LEXIS NEXIS LEXIS NEXIS Mead 012696 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 would have been known n10 PAGE 8 n9 During its consideration of the proposed standard was aware that this would be the effect of the proposed Advisory Committee On Asbestos Dust Conference at 78-9 as the Advisory Committee Report the advisory committee revisions Exhibit P hereinafter referred to n10 See Exhibit , National Institute criteria at III for a recommended standard hereinafter referred to as . . the Committee Report at 78-9 for Occupational Safety and . Occupational Exposure to NIOSH Criteria Document Health Asbestos Advisory For these reasons respondent's argument that because it was denied the opportunity to comment provision is rejected n11 the cited standard is invalid on the proposed asbestos dust n11 Respondent states in its brief that the presence of tremolite does not in any way shape or form confirm the presence of asbestos Brief at 5 From the context in which this statement is made it is apparent that respondent is not disputing the legality of the Secretary's action of including tremolite in the definition of asbestos for purposes of the standard In fact respondent has conceded that termed asbestos there exist Petition for certain varieties of tremolite that Review at 1. Rather the statement are properly appears to be made in relation to the argument that only tremolite that is fibrous from a mineralogical viewpoint should be considered asbestos an argument rejected infra To the extent that respondent's argument can be read as a challenge to the legality of regulating tremolite as a form of absestos we conclude that respondent has not carried its burden of proving that such regulation is illegal Atlantic & Gulf Stevedores Inc. v O.S.H.R.C. 534 F.2d 541 551-52 the wisdom of 3d Cir 1976 To the extent that respondent challenges tremolite as asbestos we need only note that it is not the function regulating of the Commission to review the wisdom of a standard The Budd Co. 74 OSAHRC A2 1 BNA OSHC 1548 1973-74 CCH OSHD para 17,387 Nos 199 & 215 1974 aff'd 513 F.2d 201 3d Cir 1975 III Merits of the Citation Respondent also argues that the Judge erred in concluding that a failure to with 1910.932 was established Responcent asserts that the 3 comply of excessive amounts of asbestos fibers in evidence fails to prove the presence the air samples taken at its workplace According to espondent the procedures followed by the Secretary in identifying particles present in the samples as astestos asbestos are erronecus in that they result in the courting courting of astestos particles as asbestos fibers Our review of the record Powever convinces us that Judge Mitchell correctly affirmed the citation LEXIS NEXIS LEXIS NEXISfi Mead 012697 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 A. The Meaning of the Term Fiber PAGE q Section 1910.933 a provides that o employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers . " Emphasis added Although the standard specifies six minerals considered asbestos for the purposes of the standard and provides that for counting purposes asbestos fibers means asbestos fibers longer than 5 micrometers the term fiber is not further defined in the standard Judge Mitchell found that a fiber is a particle which has an aspect ratio of 3 to 1 or more and is 5 microns or more in length n12 Respondent argues that this finding is erroneous The Secretary urges that this finding is supported by a preponderance of the evidence We affirm the Judge's finding The Secretary's witnesses testified that when air samples are analyzed to determine their asbestos content a particle is counted as a fiber if its length is at least three times greater than its width i.e. if the particle has at least a three aspect ratio Conversely a particle with an aspect ratio of less than three would be considered fibrous n13 The use of the three aspect ratio test for determining whether a particle is a fiber has its basis in the Criteria Document submitted to the Secretary by NIOSH during the promulgation of the asbestos dust standard In the section of the NIOSH Criteria Document discussing the methodology to be followed in obtaining and analyzing air samples it is stated The filter samples mounted in the manner previously described are calculated in terms of the concentrations of asbestos fibers greater than 5 micrometers in length . . . total asbestos Twenty fields fibers longer located at random on the sample are counted and than 5 micrometers are recorded Any particle having an aspect ratio of three or greater is considered a fiber Emphasis added n14 m14 NIOSH Criteria Document at VIII The three aspect ratio formulation of a fiber was based on the experience gained from the development of a standard for asbestos dust in Britain The Criteria Document stated that the development of the British standard was given great weight in the development of this standard and admitted that the standard recommended in this criterial document is similar to the standard adopted in Britain LEXIS NEXIS LEXIS NEXIS Mead 012698 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 10 10 17. In this regard it is important to note the statement of the Criteria Document that the British define a fiber as a length between 5 microns and having a length to breadth ratio of at page VIII particle of 3 , motes sme we em we se = -End Footnotes- - - - - - > te ttt tt Respondent argues that application of an aspect ratio test is an incorrect method of determining whether a particle is a fiber According to respondent fibrous mineral particles referred to as laths or cleavage fragments can also have aspect ratios of three or greater and under an aspect ratio test these particles erroneously would be counted as asbestos fibers Respondent's argument is based on the testimony of two witnesses called in its behalf Sarkas G. Ampian n15 and C. Sheldon Thompson n16 These witnesses testified that from a mineralogical viewpoint a fiber is a mineral particle that forms in an elongated threadlike fashion and which is delicate flexible and capable of being separated into individual fibrils of high tensile strength According to these witnesses the distinguishing characteristic of asbestos fibers is their capacity for being woven and pressed into commerically useful products whereas fibrous particles lack similar attributes For this reason respondent asserts laths or cleavage fragments are not considered fibers even though they might have aspect ratios of three or greater n17 n15 Mr. Ampian was identified as the Chief of the Ceramics and Clay Section of the U.S. Bureau of Mines He possessed a Bachelor's degree in geology and a Master's degree in chemical petrology and was pursuing his doctorate in crystal chemistry geochemistry and ray crystallography n16 Dr. Thompson was identified as the Manager of Research and Development for the Ceramics Paper and Specialties Department of the R.T. Vanderbilt Company the manufacturer of NYTAL 200. Dr. Thompson's Bachelor's degree and Doctorate were obtained in the field of mineralogy n17 Respondent also asserts that the Judge erred in excluding OSHA Field Information Memorandum 74-92 from the record That memorandum announced certain changes in the guidelines to be followed in determining the asbestos content of talc samples The memorandum stated that to be considered asbestiform or fibrous the particles must appear to be fibrous rather than as crystals or slivers and that the aspect ratio of the particle must be at least 5 to . Judge Mitchell did not admit the memorandum into evidence since it had been issued more than four months after the inspection in this case had occurred We need been only note obviated that The any question concerning the memorandum was rescinded by relevancy of the former Assistant memorandum has Secretary of Labor Morton Corn on January 19 1977. 6 BNA OSHR Current Report 1135 Feb. 3 1977 Where the proper meaning of a term used in a standard cannot be determined on the face of the standard it is appropriate to interpret the term in LEXIS NEXIS LEXIS NEXIS Mead 012699 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 11 accordance with the United States Steel para 21,795 Nos intent of the drafter where that intent Corp. 77 OSAHRC 64/08 5 BNA OSHC 1289 10825 & 10849 1977 is discernible 1977-78 CCH OSHD As previously discussed as used in the standard recommended by NIOSH the term fiber referred to any particle having an aspect ratio of at least three The Secretary is the drafter of the involved standard however and it is his intent that governs our interpretation n18 In this regard we find nothing in the record suggesting that the Secretary intended the term fiber to have a different meaning in the standard adopted The evidence shows that in performing analyses under the standard the Secretary has consistently applied an aspect ratio test Although this practice might be considered a subsequent interpretation of the standard rather than evidence of intent contemporaneous with the standard's promulgation it nevertheless is probative on the question of intent U.S. Steel Corp. supra Furthermore although the Secretary did not accept the NIOSH recommendations in all particulars see e.g. GAF Corp. v O.S.H.R.C. supra the recommendations concerning permissible exposure level concentrations were accepted Compare Criteria Document Recommendations For An Asbestos Standard Section a with 29 CFR 1910.93a 3 Permissible exposure level concentrations are the crucial aspects of any standard regulating exposure to toxic substances or harmful physical agents Since the exposure level concentrations in both the recommended and adopted standards were expressed in terms of Fibers to attach a different meaning to that term as used in the adopted standard would be to alter the premise upon which the exposure level recommendations were made The Secretary's intent to do so can not be inferred on the basis of the record before us n18 NIOSH recommendations have only advisory force and can be accepted or rejected by the Secretary GAF Corp. v O.S.H.R.C. supra 561 F.2d at 913 Industrial Union Dep't v Hodgson supra 499 F.2d at 477. The involved standard was adopted following full rulemaking proceedings commenced under section b of the Act Compare U.S. Steel Corp. supra involving a standard as a national consensus standard under section a of the Act in which adopted whether the Secretary was the the present members expressed differing views on drafter of that standard For these reasons we conclude that the purposes of 1910.93a a fiber is least three Judge Mitchell correctly found that for a particle with an aspect ratio of at B. Proof of Excessive Concentration of Asbestos Fibers Respondent also argues that even if a fiber is defined in accordance with an aspect ratio test the evidence does not establish the presence of an excessive concentration of asoestos fibers Respondent submits that the Judge's contrary conclusion is erroneous and is the result of his failure to make the proper distinction between a fiber and an asbestos fiber We disagree To prove a failure to comply that an employee was exposed to with the cited standard it must be established an excessive concentration of asbestos fibers LEXIS NEXIS LEXIS NEXIS Mead 012700 Services of Mead Data Central PAGE 12 6 OSHC BNA 1393 1978 OSHD CCH P22,555 i.e. fibers of chrysotile amosite crocidolite tremolite anthophyllite or actinolite That respondent's employee was exposed to an excessive concentration of fibers is clear The two air samples obtained during the inspection were subjected to four independent analyses n19 In each of these the method of measurement specified in the standard was used and a analyses three aspect ratio test was applied The samples were first analyzed at it was determined that they the OSHA laboratory in Columbus Ohio where contained 76.42 and 17.42 fibers per cubic cenStailmtetLearkeofCiatiyr UtAahsubrseesquluteendt in analysis performed at the OSHA laboratory cuibnic centimeter of air Further fiber counts of 80.1 and 15.9 fibers per fiber counts of analysis by the NIOSH laboratory in Cincinnati Ohio yielded consultant retained by 122 and 23 fibers per cubic centimeter Finally a respondent found that the air samples contained 81 and 4.1 fibers per cubic centimeter of air m20 n19 Much of the evidence and discussion in this case concerned the analysis of talc used at respondent's plant These samples were given to of bulk samples the end of his inspection The samples were of a the compliance officer near NYTAL 200 Tr at 62 variety of talcs used at the plant including Three of the bulk samples were subjected to various analyses and of these one sample i.e. sample 4711 was found to contain fibers Although we can this find no explicit acknowledgment in the record tfhraotm stahmepletre4a71t1menwtasgiavebnulkto sample sample by all those concerned it is apparent of NYTAL 200 Since the cited standard addresses only airborne concentrations of asbestos fibers however the analyses of the bulk sample of NYTAL 200 are composition of the talc relevant only The results insofar as they reveal the mineralogical of the bulk sample analyses are discussed infra n20 There were greater was no dispute between the parties that the than 5 micrometers See 1910.93 2a fibers being counted With the exception of the 4.1 figure reported for one of the samples by each of the analyses showed fiber counts well in excess respondent's consultant of the 10 fiber ceiling limit set by the standard Thus it is clear that the of fiber concentrations of the evidence establishes the presence preponderance limit However to establish a in excess of the standard's permistshiabtlethe fibers were one or more of the six violation it must also be shown minerals specified to be asbestos The standard does not state a method for determining the mineralogical of fibers found in a sample It does state a method for counting composition the number of fibers i.e. optical microscopy with phase contrast illumination of a particle However in the which is used for observing the size and shaapte the NIOSH laboratory the air course of thealesxotenesxaimvieneadnaulnydseirs pterrafnosrmmiesdsion electron microscopy and samples were selected area diffraction LEXIS NEXIS LEXIS NEXISfi Mead 012701 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 13 Transmission electron microscopy was described as a procedure whereby the fiber being examined is bombarded with electrons which are absorbed by the fiber resulting in an image of the fiber being projected on a screen n21 This type of analysis also enables the analyst to perform selected area diffraction on the fiber Selected area diffraction is an analysis performed at a particular point on the fiber which provides the analyst with a visual crystal pattern of that fiber Since a crystal pattern is unique for a particular mineral the pattern obtained from the fiber being observed is compared with the crystal patterns obtained from mineral standards to determine the fiber's mineralogical composition n22 n21 Transcript at 483 n22 Transcript at 483-84 517-19 Exhibit 19 entered into evidence at the hearing by the Secretary summarizes the results of the electron analyses performed on the air samples by the NIOSH analysts Figures 15 and 16 in Exhibit 19 show the results of the analysis performed on a representative fiber Zumwalde one of the NIOSH analysts that the sults obtained warrant the found in the first air sample Ralph who performed the electron tests testified conclusion that the fibers found in that air sample were tremolite and anthophyllite fibers n23 Figure 18 in Exhibit 19 shows the results of the electron analyses performed on a fiber in the second air sample According to Zumwalde the results establish that this fiber was a tremolite fiber n23 A single chrysotile fiber also was identified in the sample through selected area diffraction The presence of this single fiber was attributed to ambient contamination Exhibit 19 Transcript at 530-31 The fibers depicted in Exhibit 19 were not the only fibers examined by NIOSH under electron microscopy Approximately 100 fibers were examined under selected area diffraction and the resulting diffraction patterns were observed The fibers depicted in Exhibit 19 were selected because they were typical of all those examined with the exception of the single stray chrysatile fiber observed n24 Based on their analyses the NIOSH analysts concluded that the fibers in the air samples were tremolite and anthophyllite fibers and therefore that excessive concentrations of asbestos fibers were present in respondent's workplace LEXIS NEXIS LEXIS NEXIS Mead 012702 Services of Mead Data Central 1 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 14 Respondent did not introduce evidence rebutting the results of NIOSH's electron microscopy analysis In light of the unrebutted evidence that the fibers contained in the air samples obtained from respondent's workplace were tremolite and anthophyllite fibers m25 we conclude that Judge Mitchell correctly found that respondent's employee was exposed to excessive concentrations of asbestos fibers n25 The analyses performed on the bulk sample of NYTAL 200 also warrant the conclusion that the fibers present were tremolite and anthophyllite fibers The NIOSH analysis concluded that approximately 70 percent the sample were tremolite and approximately 30 percent analysis performed at the OSHA laboratory in Salt Lake of the fibers observed in were anthophyllite The City concluded that the bulk sample was 50 to 60 percent fibrous tremolite asbestos Submittal -End Footnotes- - ~~ - 7-7 7 TTT IV Respondent's Submittal of Newly Discovered Authority TTT While this case was pending review by the Commission respondent filed with the Commission a document captioned Submittal of Newly Discovered Authority The submittal consisted of a brief statement requesting that the Commission dismiss the citation and vacate the Judge's findings on the basis of a document prepared by the National Bureau of Standards NBS entitled A Report on the Fiber Content of Eighty Industrial Talc Samples Obtained from and Using the Procedures of the Occupational Safety and Health Administration n26 a copy of which was attached to respondent's submittal According to respondent the NBS report supports Respondent's position throughout this procedure and is dispositive of the issues The Secretary replied by filing a Motion to Strike respondent's submittal The Secretary contends that the NBS report is irrelevant to the issues before the Commission and states several reasons why the NBS report should not be considered The NBS report was prepared pursuant to a request made by Morton Corn former Assistant Secretary of Labor for Occupational Safety and Health In initiated with NBS on September , 1976 Dr. Corn noted that the correspondence the asbestos content of talc samples was being dOiSsHpAutmeedthobdyolroeggyulfaotreddeptaerrtmiiensing In an effort to resolve the dispute NBS was requested among other things dteoterpmeirnfeormthaenir inadsebpesetnodsentcoanntaelnytsiussionng btuhlekOSHA samples of industrial talc to involved in the analysis were provided by OSHA procedures The samples The results of conclusion of the the NBS study report relied were upon stated in a report dated May 1977 by respondent in requesting that the citation be dismissed is the following The NEXIS LEXIS LEXIS NEXIS Mead 012703 _ Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 15 It is the opinion at NBS that even under favorable circumstances e.g. homogeneous samples easily identifiable samples etc. the existing OSHA procedure is useful only for determining fiber content and not asbestos content n27 The posture in which respondent's submittal appears determined We construe the submittal to be a request the purpose of introducing the NBS report as evidence the record as supplemented the citation be dismissed before us to reopen and that must first be the record for on the basis of Assuming that it is proper to consider the NBS report at this stage of the proceedings we find that reversal of the Judge's decision is not warranted The conclusion of the NBS report relied upon by respondent i.e. that the existing OSHA procedure is useful only for determining fiber content and not asbestos content does not cast doubt upon the validity of the findings in the present case The OSHA procedure referred to in the report is phase contrast optical microscopy As noted previously this procedure was used only to determine the number of fibers present in the air samples It was established that the fibers observed were asbestos fibers through the use of additional procedures that were neither discussed nor considered in the NBS report Therefore even if the NBS report were received in evidence the finding that the fibers present in the air samples were asbestos fibers would not be disturbed 6A Moore's Fed Practice 59.08 at 59-118 2d ed 1974 Warner Corp. v Mall Tool Co. 220 F.2d 803 7th Cir 1955 cert. denied 349 U.S. 946 1955 Accordingly respondent's request that the record be supplemented is denied 4. Knowledge Respondent's final argument is that a serious violation cannot be found because the Secretary failed to prove that respondent had knowledge of the existence of the violative condition within the meaning of the section 17 of the Act n28 According to of asbestos in NYTAL 200. of time that the talc was respondent it had no actual knowledge of Respondent also asserts that due to the used and the special testing procedures the presence brief period involved in an asbestos analysis its failure to determine whether asbestos in fact was present in the talc does not display a failure to exercise reasonable diligence We disagree Tom me ee Re ee -Footnotes- - - - ----------+----- n28 Section 17 provides A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or sericus physical harm could result from a condition which exists . . unless the employer did not and could not with the exercise of reasonable diligence know of the presence of the violation LEXIS NEXIS LEXIS NEXIS Mead 012704 Services of Mead Data Central 6 OSHC BNA 1393 1978 OSHD CCH P22,555 PAGE 16 A divided Commission had held that as part of the proof of a serious violation the Secretary must establish employer knowledge D.R. Johnson Co. 75 OSAHRC 54 3 BNA OSHC 1124 1974-75 CCH OSHD para 19,695 No. 1975 Lumber 3179 The evidence establishes and respondent does not dispute the serious adverse health consequences associated with excessive exposure to asbestos The evidence also establishes that the possibility that talc could contain asbesti minerals was well known at the time of the inspection Table 6-3 which was in effect at the time of the inspection reflected this possibility The evidence further establishes the availability of procedures to determine the mineralogical composition of a particular talc The record does not establish that prior to the use of the talc by its employees respondent undertook to determine whether the talc contained asbesti minerals In light of these facts we conclude that with the exercise of reasonable diligence respondent could have known of the presence of asbestos Accordingly respondent's argument that it lacked knowledge of the violation fails VI Penalty The Secretary proposed a 600 penalty for this serious violation Judge Mitchell assessed the proposed penalty taking into consideration respondent's size its history under the Act its good faith in removing the talc from use following the inspection and the gravity of the violation n29 Although respondent noted its exception to the assessment of the penalty it has not argued that the penalty is unreasonable We conclude that the 600 penalty is appropriate VII ORDER Accordingly insofar as it is consistent with this opinion the Judge's decision affirming the citation for a serious violation of the Act for failure to comply with the standard at 29 CFR 1910.93a and assessing a 600 penalty is affirmed LEXIS NEXIS LEXIS NEXIS Mead 012705