GAF CORPORATION, UNITED ENGINEERS & CONSTRUCTORS, INC.

OSHRC Docket Nos. 3203; 4008; 7355

Occupational Safety and Health Review Commission

November 14, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

McNeil Stokes, for the employer

Hugh P. Francis, for the employer

Richard H. Markowitz, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

These consolidated cases involve a single common issue, the interpretation of the standard at 29 CFR 1910.93a(j) [hereinafter referred to as 1910.93a(j)]. n1 Specifically, we are asked to decide whether 1910.93a(j) requires respondents to furnish, or make available at their cost, medical examinations for all employees engaged in occupations exposed to any airborne concentrations of asbestos fibers or only for employees engaged in occupations exposed to concentrations that exceed the maximum permissible exposure levels set forth in 29 CFR 1910.93a(b) [hereinafter 1910.93a(b)].

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n1 The text of this and other applicable standards is set forth in Section III, infra.

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I. Administrative Law Judges' decisions

A. GAF Corp., No. 3203

GAF Corporation, Floor Products Division (GAF-FPD), was issued a citation alleging an order than serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter referred to as "the Act"] for failing to comply with 1910.93a(j)(1). A penalty of $40 was proposed by the Secretary for this alleged violation. GAF-FPD timely contested the citation and notification of proposed penalty.

The citation and notification of proposed penalty were issued following an inspection of GAF-FPD's Whitehall, Pennsylvania, plant on April 26, 1973, by authorized representatives of the Secretary. At the Whitehall plant, GAF-FPD employs approximately 456 production and maintenance employees who are represented by Local 691, United Paperworkers International Union, AFL-CIO. Local 691, the authorized employee representative, participated as a party in proceedings before the Commission.

In lieu of a hearing, the parties submitted a stipulation of facts and briefs to Judge Henry K. Osterman for a decision. On July 18, 1974, Judge Osterman issued his decision [*3] affirming the citation and proposed penalty. As to the construction of 1910.93a(j), n2 the Judge concluded:

An employer who is engaged in commerce is required to comply with the provisions of 29 CFR 1910.93a(j) with respect to its employees who are engaged in occupations exposed to airborne concentrations of asbestos fibers whether or not the concentration of airborne fibers meets or exceeds the permissible levels established by 29 CFR 1910.93a(b).

GAF-FPD took exception to this construction and petitioned the full Commission for review of the decision.

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n2 Although the citation and complaint alleged a failure to comply with 1910.93a(j)(1), they were amended on motion of the Secretary to allege a failure to comply with 1910.93a(j).

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The petition was granted and review of the decision was ordered on August 19, 1974, pursuant to section 12(j) of the Act on the issue of the Judge's construction of 1910.93a(j).

B. GAF Corp. No. 4008

GAF Corporation, Building Products Division (GAF-BPD), was issued [*4] a citation alleging an other than serious violation for failing to comply with 1910.93a(j)(3). No penalty was proposed for this alleged violation. Thereafter, pursuant to section 10(c) of the Act, GAF-BPD filed a timely notice of contest.

The citation was issued following an inspection conducted in GAF-BPD's St. Louis, Missouri, plant by an industrial hygienist serving as an authorized representative of the Secretary. At this plant approximately 170 production, maintenance, and cleanup employees were affected by the alleged violation.

In lieu of a hearing, a stipulation of facts and briefs was submitted to Judge Vernon Riehl for decision. On July 23, 1974, the Judge issued a decision affirming the citation. Judge Riehl ruled, as did Judge Osterman in the GAF-FPD case, that an employer must comply with 1910.93(j)(3) regardless of whether the concentrations of airborne asbestos fibers to which employees are exposed exceed the permissible levels set forth in 1910.93a(b).

Review of the Judge's decision was directed on August 21, 1974, when GAF-BPD's petition for discretionary review was granted. The sole issue on review, as in the GAF-FPD case, concerned 1910.93a(j) medical [*5] examination requirements.

C. United Engineers & Constructors, Inc., No. 7355

The citation at issue in this case arose out of conditions allegedly existing during the construction of a nuclear power generating station in Salem County, New Jersey. Specifically, United Engineers & Constructors, Inc. (UE & C) was alleged to have violated the Act by failing to comply with subparagraphs (2), (3) and (4) of 1910.93a(j) during its activities at the construction site. Employees of UE & C performing various functions at three specified work areas at the site were allegedly exposed to airborne concentrations of asbestos fibers and not provided with medical examinations as the standard requires.

A hearing was held before Judge John J. Morris following UE & C's filing of a notice of contest. Judge Morris found that employees in the three cited work areas were exposed to airborne concentrations of asbestos fibers that did not necessarily exceed the permissible levels set forth in 1910.93a(b). Nevertheless, the Judge ruled that the evidence established a failure to comply with 1910.93a(j)(2), (3) and (4) at the three cited work areas. In so ruling, he held that concentrations [*6] of airborne asbestos fibers in excess of the 1910.93a(b) levels were not prerequisites to the medical examination requirements of 1910.93a(j). Rather, Judge Morris stated:

The correct rule of law is the test of a reasonable man. . . . Would a reasonable man recognize a hazard to its employees warranting the preventative medicine approach? On this record this must clearly be answered affirmatively. Respondent was advised April 1972 by its own monitoring laboratory that certain job processes were "a health hazard -- per title 29 Labor -- Part 1910 -- Occupational Safety and Health Standards."

Accordingly, in his decision dated December 11, 1974, n3 Judge Morris affirmed the citation and assessed no penalty.

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n3 On December 18, 1974, Judge Morris filed an "errata sheet" correcting certain clerical errors in his December 11, 1974, decision.

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Chairman Moran directed review of the Judge's decision on January 2, 1975. Submissions were invited on the following issue:

Whether the occupational safety and health standard [*7] published at 29 C.F.R. 1910.93a(j) requiring medical examinations for employees engaged in occupations involving the possibility of exposure to concentrations of asbestos fibers, requires that such examinations be afforded employees exposed to

(1) any trace of asbestos fibers at all, or

(2) only a level of asbestos fibers approaching or exceeding the permissible exposure level specified in 29 C.F.R. 1910.93a(b).

II. Consolidations

On September 5, 1974, the Secretary moved to consolidate the GAF-FPD and GAF-BPD cases for review purposes, noting the identity of issue and parties. This motion was granted on September 16, 1974.

On January 7, 1975, UE & C moved for review purposes to consolidate its case with the already consolidated GAF cases and Amoco Oil Co., No. 4804. n4 This motion was granted as to the GAF cases but denied as to the Amoco Oil Co. case.

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n4 The Judge's decision in Amoco Oil Co. was directed for review on June 17, 1974. While Amoco Oil Co. involved the interpretation of 1910.93a(j), it also involved other provisions of the asbestos standard.

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III. Relevant standards

1910.93a Asbestos.

(a) Definitions. For the purpose of this section, (1) "Asbestos" includes chrysotile, amosite, crocidolite, tremolite, anthophyllite, and antinolite. (2) "Asbestos fibers" means asbestos fibers longer than 5 micrometers.

(b) Permissible exposure to airborne concentrations of asbestos fibers -- (1) Standard effective July 7, 1972. The 8-hour time-weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed five fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section.

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(j) Medical examinations -- (1) General. The employer shall provide or make available at his cost, medical examinations relative to exposure to asbestos required by this paragraph.

(2) Preplacement. The employer shall provide or make available to each of his employees, within 30 calendar days following his first employment in an occupation exposed to airborne concentrations of asbestos fibers a comprehensive medical examination, [*9] which shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 10).

(3) Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers. Such annual examination shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 10).

(4) Termination of employment. The employer shall provide, or make available, within 30 calendar days before or after the termination of employment of any employee engaged in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination which shall include, as a minimum, a chest roentgenogram (posterior-anterior [*10] 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 10) (emphasis added).

IV. Discussion

In both the GAF-FPD case and the GAF-BPD case, the parties stipulated that, while all of the occupations referred to in the citations were exposed to some level of airborne concentrations of asbestos fibers, these levels did not equal or exceed the levels of permissible exposure set forth in 1910.93a(b)(1). Moreover, respondents in both cases admitted that they did not provide medical examinations for their employees engaged in the cited occupations. Consequently, in both cases, the sole issue for determination is the interpretation of the phrase "exposed to airborne concentrations of asbestos fibers" as it appears in 1910.93a(j)(2), (3) and (4).

After a hearing in the UE & C case, Judge Morris found that the three occupations referred to in the citation were exposed to airborne concentrations of asbestos fibers. He also found that the evidence did not establish that the levels of exposure exceeded those set forth in 1910.93a(b)(1). n5 Inasmuch [*11] as the Judge found that medical examinations were not provided, the issue to be resolved in that case is the same issue presented in the two GAF cases. We have reviewed the evidence in the UE & C case relating to exposure levels and the alleged absence of medical examinations and agree with the Judge's findings. Consequently, as in the GAF cases, the sole issue before the full Commission is the interpretation of 1910.93a(j).

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n5 In his decision, Judge Morris refers to the permissible limits in 29 CFR 1910.93a(2)(b). It is clear from his discussion, however, that he was referring to 1910.93a(b)(1).

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We have examined the arguments of the parties and have considered the entire record. For the reasons set forth below, we hold that 1910.93a(j) requires an employer to provide, or make available at his cost, medical examinations to employees engaged in occupations that require exposure to concentrations of airborne asbestos even though the levels of exposure may not exceed those set forth in 1910.93a(b)(1). [*12]

In enacting the Occupational Safety and Health Act of 1970, Congress expressed grave concern over the alarming number of work-related deaths, injuries, and illnesses occurring in all sectors of the economy. See e.g., Section 2(b) of the Act; S.Rep. No. 91-1282, 91st Cong., 2d Sess. 2 (1970). While concern was expressed over the general state of occupational safety and health, emphasis was placed on studies of safety and health in particular industries. Occupational exposure to asbestos was recognized as an especially vexing problem. Indeed, it was noted that:

Asbestos is another material which continues to destroy the lives of workers. For 40 years it has been known that exposure to asbestos caused the severe lung scarring called asbestosis. Nevertheless, as an eminent physician and researcher, Dr. Irving J. Selikoff, testified during the hearings on this bill.

It is depressing to report, in 1970 what the disease that we knew well 40 years ago is still with us just as if nothing was ever known.

It has also since been found that manufacturing and construction workers exposed to asbestos suffer disproportionately from pulmonary cancer and mesothelioma. Because nothing [*13] has been done about the hazards of asbestos, even after the association of asbestos and lung cancer was first reported in 1935, 20,000 out of the 50,000 workers who have since entered one asbestos trade alone -- insulation work -- are likely to die of asbestosis, lung cancer or mesothelioma. Nor is the potential hazard confined to these workers, since it is estimated that as many as 3.5 million workers are exposed to some extent to asbestos fibers, as are many more in the general population.

S.Rep. No. 91-1282, supra at 3.

It is in light of this legislative background that we construe the remedial rules before us. We note that it is of paramount importance that this Commission construe occupational safety and health standards so as to effectuate congressional objectives. Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). Occupational safety and health standards should be construed in favor of the workers whom the Act seeks to protect. Prineville Mouldings, Inc., No. 1045 (November 11, 1974) (Clearly, Commissioner, concurring).

The thrust of respondents' primary contention is that the phrase "exposed to airborne concentrations of asbestos [*14] fibers" n6 is ambiguous. They argue that the term "concentration" implies a quantitative limitation. Moreover, it is urged that, in absence of a specific quantitative limitation within 1910.93a(j), the term "concentration" refers back to the permissible level of exposure set forth in 1910.93a(b)(1).

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n6 1910.93a(j)(2), (3) and (4).

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We reject this contention for several reasons. Contrary to respondent's position, we note that the term "concentration" does not necessarily imply a quantitative limitation. The term "concentration" may also denote a relative dispersion of particles in the air. n7 Moreover, it is a well-settled principle in the construction of writings that a single phrase should not be read in isolation. Common sense requires that a particular phase be read in the context of the entire writing. Richards v. United States, 369 U.S. 1, 11 (1962); Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 285 (1956), reh. denied, 351 U.S. 980 (1956). Applying this principle to 1910.93a, [*15] it is clear that the term "concentration" as it appears in 1910.93a(j) is not ambiguous and does not refer back to 1910.93a(b)(1).

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n1 Websters Third New International Dictionary 469 (unabr. ed. 1971).

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Several of the provisions of 1910.93a expressly refer back to the permissible level of exposure set forth in 1910.93a(b). For example, paragraph (g)(1)(i) of 1910.93a requires the posting of caution signs at locations "where airborne concentrations of asbestos fibers may be in excess of exposure limits prescribed in paragraph (b) of this section." n8 It is reasonably clear, therefore, that viewing the asbestos standard as a whole, the term "concentration" in 1910.93a(j) does not refer back to 1910.93a(b). Indeed, if such a cross reference were intended, it would likely be expressed as in the case of paragraph (g)(1)(i).

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n8 For other examples, see paragraphs (g)(2)(i) and (h)(2) of 1910.93a.

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In support of their contentions regarding the term "concentration," respondents cite the findings and proposals of the National Institute for Occupational Safety and Health (NIOSH) regarding an asbestos standard. It is argued that NIOSH intended the medical examination requirements to be triggered only when a threshold level exposure was reached in a particular occupation. Respondents argue that this threshold value is that set forth in 1910.93a(b). We disagree.

It is true that the NIOSH recommendation for a medical examination requirement contained a "triggering level" of exposure to concentrations of airborne asbestos. NIOSH recommended medical examinations in those occupations where there were "time-weighted average exposures above 1 fiber/cc or peak exposures above 5 fibers/cc." n9 The NIOSH recommendation for maximum permissible exposure levels was, however, a time-weighted average exposure of 2 fibers/cc or peak exposures above 10 fibers/cc. n10 It is clear from these recommendations that different threshold exposure levels were attached to the maximum permissible exposure levels and medical examination [*17] requirements. Thus, respondents are incorrect when they contend that the NIOSH recommendation concerning medical examinations was intended to refer back to their recommendations concerning maximum permissible exposure levels.

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n9 NIOSH, Criteria for a Recommended Standard . . . Occupational Exposure to Asbestos at I-3 (1972) [hereinafter referred to as "NIOSH Criteria Document"].

n10 Id. at I-1.

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Moreover, the fact that NIOSH recommended any threshold level of exposure does not necessarily mean that the standard as adopted by the Secretary of Labor incorporates a threshold value. On the contrary, NIOSH recommendations plainly have only advisory force. Indus. Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 477 (D.C. Cir. 1974). They may or may not be followed by the Secretary of Labor. In the case of the medical examination requirements the Secretary obviously chose not to follow the recommendation regarding threshold levels of exposure. The recommerded levels are absent from the text of [*18] 1910.93a(j). n11

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n11 In support of their contention, respondents cite a memorandum directed to the former Assistant Secretary of Labor by Dr. Marcus Key, the Director of NIOSH. This memorandum supports respondents' position that there is a threshold triggering level incorporated in the medical examination requirements.

We do not consider this memorandum as dispositive of the issue before the Commission inasmuch as we have concluded that the Secretary has rejected this portion of the NIOSH recommendation.

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The concept that compliance with portions of the asbestos standard may be required regardless of whether impermissible concentrations have been detected is not novel to 1910.93a(j). The Court of Appeals for the District of Columbia, in Indus. Union Dep't, AFL-CIO v. Hodgson, supra at 482-483, held that certain specific control measures within the asbestos standard are applicable even though violations of 1910.93a(b) are not detected.

Respondents also argue that 1910.93a(j), when construed in light [*19] of sections 6(b)(5) and 6(b)(7) of the Act, requires medical examinations only when a threshold level of exposure to airborne asbestos fibers is exceeded. These sections, in pertinent part, provide:

6(b)(5)

The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. . . .

6(b)(7)

. . . [W]here appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure. In the event such medical examinations are in the nature of research, as determined by the Secretary of Health, Education, and Welfare, such examinations may be furnished at [*20] the expense of the Secretary of Health, Education, and Welfare. The results of such examinations or tests shall be furnished only to the Secretary or the Secretary of Health, Education, and Welfare, and, at the request of the employee, to his physician. The Secretary, in consultation with the Secretary of Health, Education, and Welfare, may by rule promulgated pursuant to section 553 of title 5, United States Code, make appropriate modification in the foregoing requirements relating to the use of labels or other forms of warning, monitoring or measuring, and medical examinations, as may be warranted by experience, information, or medical or technological developments acquired subsequent to the promulgation of the relevant standard (emphasis added).

It is argued that a "hazard," within the meaning of these sections, exists only when levels of exposure exceed those set forth in 1910.93a(b). Thus, respondents maintain that we must construe 1910.93a(j) accordingly. We do not agree. The "hazard" is the exposure to harmful materials and the purpose of a medical examination is to ascertain any adverse effects from this exposure. There is no limitation restricting this to exposure [*21] at the level of the standard, and we imply none.

As noted above, NIOSH did not recommend the position urged by respondents in their briefs that medical examinations be required only when exposure levels equal or exceed recommended maximum permissible exposure levels. Rather, NIOSH recommended a "triggering level" for medical examinations that was less than the level recommended for maximum permissible employee exposure.

On whether a "hazard" exists warranting medical examinations in situations where employees are engaged in occupations exposed to any airborne concentrations of asbestos fibers, we note that there is substantial uncertainty among scientific authorities as to exactly what levels of prolonged exposure are detrimental to human life. This uncertainty is typified by NIOSH observations such as the following:

Information is insufficient at this time to set an exposure standard (other than zero) which would assure prevention of mesothelioma in all workers, as the disease may occur following a very limited exposure 20-30 years earlier. n12

Thus, the effect after several decades of a one-time acute dose of limited duration which overwhelms the clearing mechanisms, and is [*22] retained in the lungs, may be as harmful as the cumulative effect of lower daily doses of exposure over many years of work. n13

There is a lack of data to define with any degree of precision the threshold of development of neoplasms resulting from exposure to asbestos and the relationship of the latent period between exposure and development of neoplasms. n14

This uncertainty lends force to the conclusion that the Secretary promulgated 1910.93a(j) without reference to any threshold levels so as "to most effectively determine whether the health of such employees is adversely affected by such exposure." n15

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n12 NIOSH Criteria Document at III-9.

n13 Id. at V-3.

n14 Id. at V-17.

n15 Section 6(b)(7) of the Act.

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Respondents contend that if the Secretary's interpretation of the standard is adopted, the medical examinations are in the nature of research and, therefore, must be furnished at the expense of the Secretary of Health, Education, and Welfare, pursuant to section 6(b)(7) of the Act. We disagree. [*23] We consider 1910.93a(j) as a provision to monitor continually the health of employees who are exposed to asbestos fibers in order to determine if such employees show signs of asbestos related diseases. While such medical data may incidentally aid research purposes, it also serves to protect directly workers in asbestos-related occupations.

Respondents' contend that the Secretary of Labor's approval of the California State Plan provides a binding interpretation of 1910.93a(j) inasmuch as the State regulations contain a medical examination provision comporting with the NIOSH recommendation. It is enough to have to note that at the time of the Secretary of Labor's approval of the State's inchoate plan, the plan did not contain any asbestos standard corresponding to Subpart G of Part 1910, and we are aware of no subsequent express approval of any state regulation as being "at least as effective as" 1910.93a.

Finally, GAF-FPD and GAF-BPD argue that to find a failure to comply with 1910.93a(j) would violate due process. They argue that the standard as derafted did not give them adequate notice of what conduct was required. n16

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n16 For my own part, I would add that this Commission does not have the authority to rule on the constitutional validity of standards promulgated pursuant to section 6 of the Act. United States Steel Corp., Nos. 2975 4349 (November 14, 1974) (concurring opinion).

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Both employers stipulated that the occupations referred to in the respective citations were, by their nature, regularly exposed to airborne concentrations of asbestos fibers. By its plain wording 1910.93a(j) apprises employers that they must provide medical examinations for all those employees engaged in occupations exposed to airborne concentrations of asbestos fibers. Respondents do not contend that the cited occupations were not exposed to such airborne concentrations. Rather, respondents argue that the standard might violate due process if applied to occupations other than those cited. Such an argument is purely speculative and not based on the concrete facts before this Commission. In short, we conclude on the records before us that respondents were apprised of the conduct required by [*25] 1910.93a(j). Inasmuch as medical examinations were not provided to employees engaged in the cited occupations the citations must be affirmed.

In the UE & C case, Judge Morris found that the evidence clearly showed that the occupations referred to in the citation were regularly exposed to airborne concentrations of asbestos fibers. Nevertheless, in rejecting respondent's 1910.93(b) argument, he stated that the proper test to be applied was whether a reasonable man would recognize a hazard warranting the preventive medicine approach. Application of this test was unnecessary. The evidence showed regular exposure to some concentrations of airborne asbestos in the cited occupations. The standard itself does not require the "reasonable man" or tort test used by the Judge. It clearly states that, if occupations are exposed to airborne concentrations of asbestos fibers, the employer is required to provide medical examinations for employees engaged in such occupations.

VI. Order

Accordingly, it is ORDERED that the Judges' orders in these consolidated cases are affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The rule of this case is that whenever employees are exposed [*26] to any trace of asbestos - no matter how temporary or insignificant - their employer must furnish (and employees must undergo) - annual physical examinations and tests as prescribed in 1910.93a(j). This will apply to a rather significant proportion of the entire workforce of the United States. As noted by the United States Court of Appeals for the District of Columbia Circuit in Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 471 (D.C. Cir. 1974):

"[I]t is estimated that three to five million workers are exposed to some extent to asbestos fibers in the building construction and shipyard industries alone."

From this day forth, the Commission decision requires annual physicals for millions of employees who, this decision concedes, are not exposed to any hazard whatsoever. The consequences of this upon the employees and employers of America will be astonishing. Its impact upon the medical profession - and even the economy - could be considerable. In my view, such a construction of the standard is utopian and clearly unreasonable.

Nevertheless, the preposterous nature of this ruling is outweighed by the blatant omission of the majority to give any consideration [*27] at all to the validity of the regulation at issue in this case. In my view it was not subjected to public scrutiny and is, as a result, void because of improper promulgation. As promulgated on June 7, 1972, the relevant standards n17 provide for periodic medical examinations when employees are engaged in occupations which expose them "to airborne concentrations of asbestos fibers." However, these standards are considerably different from their forerunners which were published as proposed rules on January 12, 1972, and provided in pertinent part that:

"(a) 8-hour time-weighted average. The 8-hour time-weighted average airborne concentration of asbestos dust to which employees are exposed shall not exceed 5 fibers longer than 5 microns per milliliter . . . . Concentrations above 5 fibers per milliliter, but not to exceed 10 fibers per milliliter, may be permitted up to a total of 15 minutes in an hour, but for not more than 5 hours in an 8-hour day."

"(g) Medical examinations. The employer shall provide, or make available at his cost, appropriate medical examinations on a periodic basis to any employee who is exposed to asbestos dust in excess of the limits specified [*28] in paragraph (a) of this section." (Emphasis added.)

37 Fed. Reg. 467 and 468 (1972).

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n17 37 Fed. Reg. 11320 and 11322 (1972). The complete texts of these standards are quoted in the lead opinion.

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It is immediately apparent that the rules as promulgated differ substantially from the proposed rules. The major difference is that the proposed rules required medical examinations only for employees exposed to concentrations exceeding the levels prohibited in subparagraph (a) whereas the promulgated rules contain no such limitation. Additionally, the promulgated rules provide for examinations at particular times and specify what the examinations shall include, although the proposed rules did not contain these specifics. Furthermore, the provision in the proposed rules that permitted exposure to higher levels of concentrations for limited periods of time is not contained in the standards as promulgated.

When the Secretary of Labor promulgates a standard under 29 U.S.C. 655(b) he is required to publish the [*29] "proposed rule . . . in the Federal Register" n18 (emphasis added) and to afford "interested persons" the opportunity to submit written objections thereto and to participate in a public hearing thereon.

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n18 As contrasted with the Administrative Procedure Act which requires only a general notice of the content of a proposed rule. 5 U.S.C. 553(b).

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Since the standards as promulgated differ substantially from those that were originally proposed, they have not been published as proposed rules as required by 29 U.S.C. 655(b). Therefore, a new rulemaking proceeding is required before they can be enforced in their present form. See Wagner Electric Corporation v. Volpe, 466 F.2d 1013 (3d Cir. 1972). Moreover, many employers who read the limitations of the proposed rule would have no reason to participate in the rulemaking process if their operations would be unaffected. These people were effectively eliminated from participation as a result of the "trojan horse" manner in which this portion of the [*30] regulation was pushed through. Due process requires that there be public scrutiny of the substance of the actual regulation under consideration. Nothing even approaching that was done here.

I therefore conclude that, contrary to congressional intent, "interested persons" have been denied the right of participating in the rulemaking process, and that the regulation adopted had never been exposed to public scrutiny.

It is my conclusion, therefore, that all citations for failure to observe this regulation should be vacated.