Docket No. 11756

RESEARCH-COTTRELL, INC.

OSHRC Docket No. 11756

Occupational Safety and Health Review Commission

March 31, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Frank L. Armour, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge William J. Risteau is before the Commission on review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). The judge found Respondent, Research-Cottell, Inc., in violation of the Act for failing to comply with the medical examination requirement of the asbestos standard, 29 C.F.R. § 1910.93a(j)(1) n2 and the monitoring provision of the same standard, 29 C.F.R. § 1910.93a(f)(1). n3 For the reasons set out below we affirm the judge's finding of the violations.

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n1 29 U.S.C. § 661(i). Respondent's petition for discretionary review was granted by former Commissioner Moran.

n2 On May 28, 1975, subsequent to the inspection which gave rise to this proceeding, this standard was recodified as 29 C.F.R. § 1910.1001. 40 Fed. Reg. 23072 (1975). Since this recodification consisted only of changing the number of the standard from § 1910.93a to § 1910.1001 the new number will be used. The standard at 29 C.F.R. § 1910.1001(j) provides as follows:

§ 1910.1001 Asbestos.

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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, 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 1.0).

(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 . . . .

(4) Termination of employment. The employer shall provide, or make available, within 30 calendar days sbefore or after the termination of employment of any employee engaged in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination . . . .

(5) Recent examinations. No medical examination is required of any employee, if adequate records show that the employee has been examined in accordance with this paragraph within the past 1-year period.

n3 The standard at 29 C.F.R. § 1910.1001(f)(1) provides as follows:

§ 1910.1001 Asbestos.

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(f) Monitoring -- (1) Initial determinations. Within 6 months of the publication of this section, every employer shall cause every place of employment where asbestos fibers are released to be monitored in such a way as to determine whether every employee's exposure to asbestos fibers is below the limits prescribed in paragraph (b) of this section. If the limits are exceeded, the employer shall immediately undertake a compliance program in accordance with paragraph (c) of this section.

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Respondent constructs cooling towers at nuclear power plants that produce electricity by converting water into steam, which in turn drives turbines. The towers cool the water heated in this process by circulating it through a radiating surface formed by transite sheets consisting of 25 to 35 percent asbestos.

A typical cooling tower consists of a circular foundation between 330 and 400 feet in diameter. Above the foundation, concrete columns and beams about 50 feet high are erected. These columns and beams support the asbestos sheets, which are placed in tiers to create a layer, or "fill," about 20 feet thick. The area below the base of the fill where the columns are located is not enclosed. The chimney, or "shell," of the typical tower extends up from the level of the fill to a height between 400 and 530 feet. The purpose of the shell is to facilitate the cooling process by creating a draft of air through the open area and up past the fill.

It requires two years to build the entire structure. Installation of the asbestos sheeting itself takes seven to eight months. With the exception of [*3] Respondent's supervisors, who do not physically handle the sheeting, the work crew is hired locally. The size of the crew constructing the asbestos fill normally varies from one or two workers at the beginning and end of the work to as many as 15 at other times. There is usually a high turnover rate; generally only one or two employees will remain for the entire fill installation process. And although some employees may work on other phases of the construction in addition to the installation of the fill, nonsupervisory employees are not maintained on Respondent's payroll after a tower is completed. On September 13, 1972, Respondent's insurance company monitored for asbestos exposure at a cooling tower construction site in West Virginia when the employees were cutting but not drilling the asbestos. The insurer's report stated that no asbestos was detected. Approximately a year later, the Secretary inspected a site in Ohio and measured the asbestos concentration; according to his report, the exposure of an employee performing both drilling and cutting varied from less than 0.01 to 0.7 fibers per cubic centimeter. The Secretary, however, did not notify Respondent of these results [*4] until after the inspection at issue in this case.

To install the transite sheets, employees drill holes in the sheets and position them in the fill. Proper fitting of the sheets occasionally requires that the material be scored and broken in a manner similar to that used to cut glass. During OSHA' n4 inspection of Respondent's worksite ("Russellville"), an industrial hygienist for the Secretary of Labor ("Secretary") measured the exposure to asbestos of four employees installing the sheeting over a five hour period. n5 This was done by having each of the employees wear a personal sampler. The measurements varied from 0.32 to 1.37 asbestos fibers greater than 5 microns in length per cubic centimeter when the samples were first analyzed. Several months later, upon reanalysis of the same samples in preparation for the hearing in this matter, the readings varied between 0.17 and 1.03 asbestos fibers greater than 5 microns in length per cubic centimeter. n6 It is undisputed that Respondent had not monitored at the Russellville site for exposure to asbestos fibers and had not given medical examinations to the employees.

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n4 Occupational Safety and Health Administration of the Department of Labor.

n5 According to respondent's witness, its employees normally work on asbestos sheeting installation no more than 6 1/2 to 7 hours per day.

n6 The maximum exposure limits for asbestos fibers are published at 29 C.F.R. § 1910.1001(b). The standard provides:

(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 may 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.

(2) Standard effective July 1, 1976. The 8-hour time-weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed two fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (c) of this section.

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As a result of the inspection, the Secretary issued [*6] a citation charging that Respondent had failed to monitor at the Russellville worksite to determine whether the exposure of the employees installing the asbestos sheeting was within the limits of section 1910.1001(b) as required by 29 C.F.R. § 1910.1001(f)(1) and that Respondent had not provided or made available medical examination for these employees as required by 29 C.F.R. § 1910.1001(j)(1).

In order to give the fullest consideration to the contentions of the parties, the history of the standard must be closely examined. The standard was originally adopted as an emergency temporary standard for exposure to asbestos dust pursuant to 29 U.S.C. § 655(c)(1) n7 on December 7, 1971. The Secretary determined that the previous permissible exposure limit of 12 fibers per milliliter (cubic centimeter) greater than 5 microns in length, or 2 million particles per cubic foot of air, n8 "constitutes a grave danger to employees exposed to this 8-hour time weighted average concentration." n9 He decided to adopt the recommendations of the American Conference of Governmental Industrial Hygienists (ACGIH) and the National Institute for Occupational Safety and Health (NIOSH) that the permissible [*7] 8-hour time-weighted average (TWA) be reduced to 5 fibers per milliliter greater than 5 microns in length and that a maximum "ceiling" concentration not in excess of 10 fibers per milliliter be permitted for not more than 15 minutes in an hour up to 5 hours in an 8-hour day. Accordingly, the Secretary promulgated section 1910.1001, n10 which required, among other things, that engineering controls be used to reach these exposure limits and that respirators be used where controls are not feasible or do not achieve a compliance level.

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n7 This section provides:

The Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

n8 This exposure limit had been promulgated under the Walsh-Healey Public Contracts Act, 41 U.S.C. § § 35-45, and was codified at 41 C.F.R. § 50-204.50. The Walsh-Healey Act pertains to procurement of supplies by the Federal government. The safety and health standards issued thereunder are intended to regulate the working conditions of employees engaged in manufacturing supplies for the government. Sections 4(b)(2), 29 U.S.C. § 653(b)(2) and (6)(a) of the Act, 29 U.S.C. § 655(a) provide that those standards and safety and health standards issued under certain other statutes are deemed occupational safety and health standards under the Act and were to be promulgated as such unless the Secretary determined that promulgating a particular standard would not improve safety or health. Pursuant to this authority the Secretary adopted the pre-existing Walsh-Healey asbestos standard as an interim OSHA standard. 36 Fed. Reg. 10466 (1971).

n9 36 Fed. Reg. 23207 (1971).

n10 29 C.F.R. § 1910.1001 was originally promulgated as 29 C.F.R. § 1910.93a.

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The 12-fiber exposure limit at this time also appeared in section 1518.55, n11 the Secretary's standard regulating exposure to airborne contaminants for employees in the construction industry. n12 When promulgating section 1910.1001, the Secretary determined that its requirements for the regulation of asbestos exposure would be more effective than those of section 1518.55. Consequently he amended the construction standard to require construction employers to comply with the temporary emergency standard whenever their employees were exposed to airborne asbestos dust. Feither the original Contrack Work Hours and Safety Standards Act standard, the Walsh-Healey Act standard nor the new emergency standard imposed any requirements for monitoring or medical examinations.

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n11 Now codified at 29 C.F.R. § 1926.55.

n12 This standard originally had been promulgated under the Contract Work Hours and Safety Standards Act, 40 U.S.C. § § 327-333, which requires that an employer performing a construction contract for the Federal government or an agency, or a contract financed by the government or its agency, comply with the safety and health standards issued thereunder. The Secretary adopted these standards as occupational safety and health standards under the Act. 36 Fed. Reg. 10466 (1971). In addition, he prescribed that they would apply to "every employment and place of employment of every employee engaged in construction work." 29 C.F.R. § 1910.12(a).

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The next significant event occurred on January 12, 1972, n13 when the Secretary, pursuant to 29 U.S.C. § 655(c)(3), n14 proposed to adopt the emergency temporary standard as well as some additional provisions n15 as the permanent asbestos standard. In accordance with 29 U.S.C. § 655(b), n16 he invited interested persons to submit oral or written data, views, and arguments on the proposal, and he also requested the recommendations of an Advisory Committee on Asbestos Dust. Based on these submissions, the Secretary revised the exposure limits of the emergency standard. n17 The Secretary also revised substantially the proposed monitoring n18 and medical examination n19 provisions. On June 7, 1972, the Secretary promulgated the revised proposed standard as his permanent standard. n20

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n13 37 Fed. Reg. 466 et seq.

n14 This section reads:

Upon publication of [an emergency temporary standard] in the Federal Register the Secretary shall commence a proceeding in accordance with section 6(b) of this Act, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard. . . .

n15 For example, he proposed to require environmental monitoring of all areas where employees are exposed to asbestos dust in excess of the concentrations permitted by the temporary standard. He also would require individual, personal monitoring of all employees exposed to asbestos dust produced by certain specified operations or to a TWA (time-weighted average) in excess of 250 fibers per cubic centimeter. In both cases the "[s]ampling periods shall be of such number and pattern as to represent accurately the exposure of the employees over their working period." The Secretary also proposed that employers be required to provide, at their cost, periodic medical examinations "to any employee who is exposed to asbestos dust in excess" of 5 fibers per milliliter greater than 5 microns in length. 37 Fed. Reg. 468 (1972).

n16 See note 14 supra.

n17 The permanent standard imposed the 5-fiber TWA limit until July 1, 1976. Effective on that date, the allowable TWA would be reduced to 2 fibers per cubic centimeter. The Secretary also changed the maximum permissible concentration. He provided that it could not exceed 10 fibers per cubic centimeter at any time. Section 1910.1001(b). In his preamble to the permanent standard the Secretary stated:

[T]he controversy has centered . . . between a two-fiber TWA (time-weighted average) concentration and five-fiber TWA concentration, with variations on the time needed for compliance.

* * *

It is concluded that there should be one minimum standard of exposure to asbestos applicable to all workplaces exposed to any kind, or mixture of kinds, of asbestos. Reasons of practical administration preclude a variety of standards for different kinds of asbestos and of workplaces. (emphasis added).

37 Fed. Reg. 11318 (1972).

n18 The Secretary explained the changes as follows:

The proposed standard would have required personal monitoring and environmental monitoring. Many issues have been raised concerning the availability and reliability of measuring instruments, frequency of monitoring, and conditions in which monitoring should be required. The adopted standard takes the objections into consideration. It requires periodic monitoring at intervals no longer than 6 months, thus allowing considerable time and discretation. . . .

37 Fed. Reg. 11318, 11319 (1972).

n19 As to these provisions, the Secretary explained:

The proposed standard would only require an appropriate medical examination on a periodic basis. The generality of the proposal has attracted many objections and also many helpful comments. The recommendations of NIOSH and of the Advisory Committee on Asbestos Dust were much more specific with respect to both frequency and type of medical examinations to be required. The comments vary as to the class of employees to be examined and as to the frequency of the examinations.

* * *

It has been pointed out that in certain industries, such as construction, an employee may work for several employers during the same year. Accordingly, the standard does not require either preemployment, or termination, or periodic examination of any employee who has been examined in accordance with the standard within the past year.

37 Fed. Reg. 11318, 11319 (1972).

n20 Thereafter a petition was filed under 29 U.S.C. § 655(f), challenging the validity of the standard. Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). With the exception of a provision, not relevant to the case now before us, pertaining to the period for retention of monitoring records, the court rejected petitioners' challenge to the medical examination and monitoring portions of the standard. The court did, however, remand for further consideration that part of the standard that would require all industries to achieve compliance with the 2-fiber standard by the same date, July 1, 1976. The court found that significant inter-industry as well as intra-industry differences existed concerning the time employers needed to meet the 2-fiber standard, and concluded that on the record the Secretary had not adequately supported his decision to assign one single inter-industry effective date. The court found the Secretary's asserted "reasons of practical administration" to be neither explained nor readily apparent. As the court stated:

Separate standards for different industries would not appear to create opportunities for employers in one industry to challenge their standards on the grounds that standards for another industry were less demanding. The only relevant question would be whether the time schedule established for each industry was feasible for that industry; therefore, comparisons with the standards established for a different industry with different technological problems would be pointless unless the two industries were in competition with one another.

499 F.2d at 480-81.

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III

On October 9, 1975, the Secretary proposed to revise the standard. The proposed revision would, among other things, significantly reduce both the (time-weighted average) TWA and ceiling exposure levels n21 and would substantially revise the provisions pertaining to the type of monitoring and frequency required. n22 The proposal would retain the requirements for preplacement, annual, termination, and recent physical examinations. The proposed standard by its terms, however, would not apply to construction work. The Secretary explained this exclusion as follows:

The standard, as revised, would continue to apply to all workplaces where occupational exposure to asbestos is present, but would exclude the construction industry.

It is OSHA's intention to develop and propose a separate revision to the existing asbestos standard for the construction industry. Approximately three-fourths of all asbestos products in 1972 were used in the construction industry. In addition, the uniqueness of the construction industry itself (viz., the multiplicity of non-fixed workplaces, and the utilization of highly [*11] transient work-forces) strongly suggests separate treatment. These structural differences were reflected in the 17-18 September 1975 deliberations of the OSHA Advisory Committee on Construction Safety and Health.

Although OSHA believes that health hazards faced by employees in the construction industry with regard to occupational exposure to asbestos are similar to those faced by their counterparts in other covered employments, OSHA recognizes that alternative administrative and engineering controls may be more appropriate and feasible for the construction industry. Therefore, OSHA intends to consult with the Construction Advisory Committee in order to further explore such alternatives. Upon publication of the proposal to revise the existing asbestos standard for the construction industry, OSHA will consider the possibility of consolidated hearings on that proposal and the proposal contained herein for all other covered employments.

In addition, the Secretary stated that the medical examination provisions of the proposal and its requirements for retention of medical and monitoring records "may pose special problems to some employers, especially those who have small numbers of [*12] employees, operate with non-fixed places of employment, or use workforces which are highly transient in nature." n24

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n21 The Secretary proposed to lower the TWA limit to 0.5 fibers per cubic centimeter and the ceiling concentration to 5 fibers per cubic centimeter "as determined over a period up to 15 minutes . . . ." 40 Fed. Reg. 47652, 47660 (1975).

n22 The Secretary explained the proposed change:

The proposal also revises monitoring requirements for initial occupational exposure to asbestos, and increases the frequency for subsequent monitoring in order to provide a more adequate basis for relating employee's (sic) health records to their exposure levels. The adoption of this proposal would revoke the current specific requirements for both personal and environmental monitorings. . . . Such revocation, and the permission to discontinue monitorings after two consecutive measurements below the permissible exposure levels would allow the exercise of some judgment as to when and how monitoring would have to be performed. An employer would be expected to exercise this judgment with an adequate appreciation of the purpose of monitoring, and the possible grave consequences of over-exposure.

40 Fed. Reg. 47652, 47658, 47660-61.

n23 40 Fed. Reg. 47652, 47657.

n24 40 Fed. Reg. 47652, 47657.

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Before the judge, Respondent argued that it was in compliance with the monitoring requirement because measurements taken at other cooling tower construction sites showed concentrations of asbestos fibers far below limits allowed by the standard. In Respondent's view, it was justified in relying on the prior monitoring. In its experience, all cooling tower construction sites are similar because all cooling towers are similarly constructed and have the same ventilation characteristics. Respondent contended, therefore, that monitoring at the Russellville site was not required as it would have served no useful purpose. Respondent also pointed out that its worker's compensation insurance carrier found no detectable asbestos concentration at a cooling tower constructed prior to the one at issue and that the Secretary of Labor failed to issue a citation or inform Respondent of any asbestos concentrations after an inspection of a second cooling tower. n25 Thus, Respondent argued, it had no reason to believe that there was any exposure of its employees to asbestos fibers at the Russellville cooling tower [*14] site.

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n25 A letter from the acting area director for Region V of the Occupational Safety and Health Administration was introduced into evidence by Respondent. That letter indicated that a 1973 inspection of a cooling tower under construction by Respondent in Cheshire, Ohio, revealed asbestos concentrations of 0.7, 0.01, and 0.02 fibers per cubic centimeter.

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Similarly, Respondent contended that, considering the relatively low levels of asbestos and the open, ventilated conditions existing at cooling tower sites, as well as the temporary nature of these projects and the work force, it could not reasonably be expected to provide medical examinations. To have to do so on these facts, it argued, would have imposed a substantial economic burden with negligible benefit to employees.

Moreover, according to Respondent, the absence of a definition of "concentrations" renders the standard requiring medical examinations unenforceably vague, as evidenced by OSHA's inconsistent enforcement where low concentrations of airborne [*15] asbestos are found. Respondent pointed out that no citation was issued following the Secretary's previous inspection of the Cheshire, Ohio, worksite even though the asbestos levels measured there were substantially similar to those at the Russellville site. In order to avoid invalidating the standard on vagueness grounds, Respondent proposes that the standard be interpreted to require medical examinations only where the asbestos concentrations exceed the limits specified under section 1910.1001(b). Alternatively, Respondent argued that under the circumstances a reasonable person would not have recognized a hazard warranting preventive medical examinations because the Secretary failed to establish the existence of a health hazard in this case. Respondent contends that under the "reasonable man" test applied to the medical provisions of this standard by Judge Morris in United Engineers & Constructors, Inc., 75 OSAHRC 3/D13 (No. 7355, 1974) (ALJ), n26 no such examinations should be required.

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n26 Judge Morris' decision was subsequently affirmed by the Commission on other grounds. United Engineers & Constructors, Inc., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (1975), petition for review dismissed, 546 F.2d 419 (3d Cir. 1976).

[*16]

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In his decision, Judge Risteau rejected Respondent's arguments and affirmed the citation. n27 With respect to Respondent's arguments relating to the monitoring requirement, he found that they were contrary to the plain wording of section 1910.1001(f)(1) which by its terms requires monitoring to be conducted "at every place of employment where asbestos fibers are released." (emphasis added). He therefore concluded that Respondent was not entitled to rely on the results of the prior monitoring by the Secretary and by its insurance carrier. In addition, he found the insurance carrier's monitoring to be unreliable in that it was conducted under different conditions, that is, where the asbestos sheets were being cut but not drilled.

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n27 The judge also rejected Respondent's argument that issuance of the citation in issue is barred because the Secretary had previously issued another citation arising out of the same inspection but alleging an unrelated violation. We agree with the judge's disposition for the reasons he assigns. Cf. FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977) (an internal guideline intended only to promote efficiency in the Secretary's enforcement operations is not binding).

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The judge also reasoned that because the standard requires a compliance program if the specified limits are exceeded, it clearly contemplates monitoring at levels below the maximums allowed "as part of the enforcement pattern." Nevertheless, he stated:

It may well be that construction procedures and the results of the tests which are part of the record in this case render it unlikely that the permissible maximum will be exceeded at any of respondent's installations, so that even initial testing will be little more than expensive formality.

In the judge's view, considering the plain language of the standard, the appropriate remedy was for the Respondent to apply to the Secretary for a variance from the requirements of the standard under 29 U.S.C. § 655(d).

The judge interpreted the medical examination provision to apply according to its terms to employees exposed to concentrations of asbestos regardless of the amount of such concentrations. Further, he concluded that the language of the regulation, rather than being vague, "clearly defines the standard to be applied," and obviated any need to resort [*18] to a reasonable person test to determine applicability.

On review, the Secretary asserts that Judge Risteau properly interpreted the standards. In the Secretary's view, each place of employment presents different conditions that must be monitored to apprise employers of possible asbestos hazards. Employee safety, the Secretary asserts, cannot depend upon an employer's "guess" as to the similarities of conditions among various worksites. In any event, he argues, under Commission precedent reliance on tests taken at other, even similar, worksites does not excuse failure to monitor at the worksite in issue, regardless of the testing results at the other worksites.

With respect to the medical examination standard, the Secretary argues that it is irrelevant whether, as Respondent claims, the exposed employees are transient and the worksite is in an open and ventilated area, for the standard does not provide exceptions for such conditions. Moreover, the Secretary points out that employees were exposed to airborne asbestos dust despite the claimed ventilation. He contends that the release of asbestos was reasonably foreseeable and, indeed, that Respondent knew of its presence. [*19] Since the standard, as interpreted by Commission precedent, requires medical examinations even if the asbestos fiber limits are below the limits set forth at 29 C.F.R. § 1910.1001(b), the Secretary argues Respondent violated the standard. The Respondent makes the same arguments on review as it did before the judge. It also raised an issue regarding the effect on the construction industry of the Secretary's October 8, 1975 revisions to the asbestos standards. This issue became the subject of a subsequent briefing order issued by the Commission.

By contending that monitoring each worksite and providing medical examinations to all its employees is not justified by the benefit to be gained from such precautions, Respondent raised the issue of whether those requirements are economically feasible. n28 It buttressed this argument by asserting that the Secretary's exclusion of the construction industry from a proposed revision of the asbestos standard and his statement of reasons for doing so indicate that the Secretary himself recognizes that the medical examination provisions of the present standard are unsuitable for application to the construction industry. n29 Because the Secretary [*20] had not argued the point and because of the importance of the question, the Commission issued a supplemental briefing order asking the parties to brief the question of whether the Secretary's statements made when proposing amendments to the asbestos standard could be considered an admission that the present standard is economically infeasible with respect to the construction industry.

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n28 See Samson Paper Bag Co., Inc., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980).

n29 See discussion infra.

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The Commission also noted that there was some question as to whether the asbestos standard is applicable in this case in view of the standard's opening phrase: "Within 6 months of the publication of this section . . . ." The parties were directed to brief the question of whether the standard's requirements for initial monitoring expired on December 7, 1972, prior to the alleged violation in this case.

Both parties replied to the supplemental briefing order, presenting argument on both [*21] questions. n30

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n30 In its response to the supplemental briefing order, Respondent also argues that the current asbestos standard was invalidly promulgated because the version promulgated by the Secretary differed in some respects from that proposed. Thus, it contends that interested persons did not have an adequate opportunity to comment on the version that was finally adopted.

This issue is beyond the scope of the supplemental briefing order, and was not previously raised by Respondent. Normally, therefore, we would not consider it. We note, however, that the Court of Appeals for the District of Columbia has rejected the same argument now advanced by Respondent. GAF Corp. v. OSHRC, 561 F.2d 913 (D.C. Cir. 1977).

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Respondent contends that the statement by the Secretary accompanying the proposed revision of the asbestos standard issued on October 9, 1975, is an admission or finding by the Secretary under 29 U.S.C. § 655(b)(5) n31 that compliance with the present asbestos standard is not feasible in the [*22] construction industry. According to Respondent, factors present in this case, particularly the small size of the work force, the transient nature of the employees, and the openness of the environment, are typical of the construction industry generally and distinguish that industry from the typical industrial or manufacturing plant. Respondent claims that prior to the Secretary's October 1975 statement, the Advisory Committee on Construction Safety and Health n32 had already determined that applying the asbestos standard to an industry with these characteristics raised serious questions of feasibility and practicality. Respondent contends that the Secretary in his statement determined that compliance with the standard was infeasible in view of these factors. n33

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n31 That section provides in pertinent part that:

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. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. . . .

n32 This committee was established by 40 U.S.C. § 333(e). See note 12 supra. Its purpose is to advise the Secretary of Labor "in the formulation of construction safety and health standards and other regulations." 40 U.S.C. § 333(e)(2).

n33 Respondent also contends that the Advisory Committee on Construction Safety and Health was not consulted in the adoption of the present standard and that no public hearings were held on the question of whether the standard would be feasible if applied to the construction industry. Respondent further asserts that the Advisory Committee on Asbestos Dust, whose recommendations were considered by the Secretary in promulgating the standard, was primarily concerned with the feasibility of the standard in the asbestos fabrication industry and that, after the standard had been promulgated, a subcommittee of the Advisory Committee on Construction Safety and Health recommended to the full committee that a specific construction industry asbestos standard be developed. Respondent raised these issues for the first time in response to the supplemental briefing order. They are not properly before us on review.

[*23]

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The Secretary, on the other hand, asserts that there is no evidence to show it is economically infeasible for the construction industry to comply with the monitoring and medical examination provisions of the asbestos standard. Nor, in the Secretary's view, does the October 1975 proposed revision constitute an admission to the contrary. First, the Secretary notes that this is only a proposal and that the revised standard as finally adopted might be substantially different. Indeed, in the Secretary's view, the standard could include rather than exclude the construction industry. Second, the Secretary contends that because the proposal by its terms contemplates a separate revision to the existing standard for the construction industry, the intent is to exclude the construction industry from the proposed revision only and not from the existing standard.

Similarly, the Secretary urges that the proposal is not an effort to revoke the current standard as it applies to construction and that, in any event, such an attempt would require a clear and unambiguous statement of revocation in order to satisfy the [*24] rulemaking provisions of the Act. Even assuming that the intent had been to revoke the current standard, nothing in the proposal indicates that the basis for such action is the infeasibility of any of the provisions. In the Secretary's view, the proposed revision merely noted that potential problems exist for some employers, which is not a recognition of infeasibility in an entire industry.

The Secretary also argues that since the standard does not by its terms place on him the burden of showing that compliance is feasible, the burden of proving that the standard as applied is arbitrary, capricious, unreasonable, or contrary to law is on the Respondent, citing Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541 (3d Cir. 1976). He asserts that Respondent's "vague" assertion that medical examinations would be economically burdensome and without benefit to employees is insufficient as a matter of law to show infeasibility. According to the Secretary, medical examinations are important in the early detection and treatment of possible asbestos diseases, and they can also act as a warning to a conscientious employer that an apparently adequate protection program is in fact deficient. [*25] Because this is a carcinogenic substance with no known safe exposure level, the Secretary also argues that the Commission precedent would require rejection of a cost-benefit analysis of infeasibility. n34 In any event, he asserts that any argument that compliance may be economically burdensome is not a valid defense. In regard to monitoring, the Secretary asserts that monitoring at each worksite is warranted because the evidence shows that the concentrations of asbestos to which employees were exposed at three worksites varied significantly from one worksite to the next. The fact that none of these measurements were in excess of the levels permitted by the standard does not, in the Secretary's view, make monitoring unnecessary because the effects of asbestos exposure are cumulative and there is scientific uncertainty as to what levels of exposure, if any, are safe. The Secretary also asserts that Respondents' claim that the costs of compliance are not justified by the benefits to be derived is without proof.

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n34 In support of this contention the Secretary cites Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), petition for review withdrawn, No. 76-3229 (9th Cir. 1977).

[*26]

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By his plain terms the Secretary proposed revisions to the asbestos standard that would not apply to the construction industry. His proposal, therefore, cannot be read to mean that the existing standard has been found infeasible as to the construction industry. Furthermore, the Secretary specifically stated that he intended to develop and propose a separate revision that would apply only to the construction industry. Accordingly when the Secretary indicated that the "uniqueness" of the construction industry warrants' "separate treatment" he meant treatment apart from the proposed revision of the standard rather than from the existing standard.

We recognize that in the preamble to the proposed standard, the Secretary stated that a requirement for medical examinations, as well as some of the proposed monitoring provisions "may pose special problems to some employers" with non-fixed places of employment or transient work forces. We are also aware that these characteristics exist in the construction industry. In making this statement, however, the Secretary was simply highlighting possible problem [*27] areas for individual employers. He did not find as a fact that such problems exist. Furthermore, even if we were to assume the Secretary had determined that there are problems in individual situations, it does not follow that he found such problems throughout the construction industry. Finally, as indicated above, there is nothing in his statement to suggest such a determination.

Thus, we conclude that the Secretary's statements accompanying the proposed revision do not constitute an admission that the existing standard is infeasible or even impractical as it applies to the construction industry. Furthermore, the publication of a proposed standard does not affect the applicability of an existing standard to Respondent's worksite. See United States Steel Corp., 77 OSAHRC 192/B5, 5 BNA OSHC 2063, 1977-78 CCH OSHD P22,269 (No. 15500, 1977); United Telephone Co. of the Carolinas, Inc., 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD P21,043 (No. 4210, 1976). Modification or revocation of a standard may only occur following formal rule-making under section 6(b)(2) of the Act, 29 U.S.C. § 655(b)(2). n35

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n35 Because we conclude that the Secretary's statements accompanying the proposed revisions to the asbestos standard have no effect on the existing asbestos standard, we do not address the Secretary's contention that the Commission is without authority to determine whether a standard is feasible under § 6(b)(5) of the Act.

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Respondent's claims regarding the utility of the physical examination and monitoring provisions are without merit. The Commission does not have the authority to consider the wisdom of a standard. General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD P19,567 (No. 2379, 1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976). We interpret the requirements of 29 C.F.R. § 1910.1001(f)(1) and § 1910.1001(j) in order to best effectuate the remedial purpose of the Act. See GAF Corp., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977). Thus, the provisions of the asbestos standard apply whenever employees are exposed to airborne asbestos in any measurable [*29] concentration. CAF Corp. v. OSHRC, 561 F.2d 913, 916 (D.C. Cir. 1977); cf. Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977) (initial monitoring is required in any work environment where vinyl chloride is released). Respondent, whose employees were exposed to airborne asbestos in measurable concentrations, is required to comply with the provisions of the standards. Because the express terms of 29 C.F.R. § 1910.1001(f)(1) and 29 C.F.R. § 1910.1001(j) contemplate the existence of a hazard when their terms are not met, however, the Secretary is not required to prove that noncompliance with these standards creates a hazard in order to establish a violation of the Act. See Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1979 CCH OSHD P23,935 (No. 76-93, 1979); Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977). It is enough that he show employee exposure to measurable concentrations of airborne asbestos and a concomitant failure on the part of Respondent to monitor or provide medical examinations.

The medical examination standard is not unenforceably vague. Since the standard's [*30] terms are unequivocal it is unnecessary to apply a reasonable man test to ascertain when medical examinations are required. The standard clearly states that when employees are exposed to airborne concentrations of asbestos fibers, an employer is required to provide medical examinations for all exposed employees. See GAF Corp., supra. The different readings obtained from the three worksites demonstrate that regardless of the similarity in construction and materials, the levels of airborne asbestos must be determined on a site by site basis. See Amoco Oil Co., 76 OSAHRC 39/A2, 3 BNA OSHC 1745, 1975-76 CCH OSHD P20,183 (No. 4804, 1975).

Since we found no merit in Respondent's contention that the Secretary, in his proposed revision to the asbestos standard, conceded the infeasibility of the present asbestos standard as applied to the construction industry, the only arguments of Respondent remaining to be considered are its contentions that "physical examinations for [its] transite installers impose[s] a substantial economic burden on [it] with negligible value to employees," and its claim that compliance with the monitoring provision would be merely an "expensive [*31] formality." Although an employer may affirmatively defend against a citation by demonstrating that compliance with a standard is impossible, M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979), a claim by an employer that compliance with a standard would be expensive or economically burdensome is not relevant to an employer's obligation to comply, Arkansas Pest Freight Systems, Inc., 529 F.2d 649, 654 (8th Cir. 1976); Dun-Par Engineered Forms, 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1049, 1980 CCH OSHD P24,238 at p. 29,492 (No. 16062, 1980), appeal filed, No. 80-1401 (10th Cir., April 17, 1980), except where feasibility is specifically encompassed by the terms of the standard. See Samson Paper Bag, 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980). Neither the physical examination nor the monitoring standards provide for such a defense.

VII

The supplemental briefing order also presented the question of whether the cited monitoring standard applies to respondent's worksite in light of the "initial determination" provision of section 1910.1001(f)(1). n36 Respondent argues it did not violate [*32] section 1910.1001(f)(1) because the jobsite in question was not in existence during the 6-month period commencing June 7, 1972, the date the standard was promulgated. It notes that during this period it did monitor a comparable worksite in West Virginia.

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n36 29 C.F.R. § 1910.1001 Asbestos.

* * *

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The Secretary contends that the standard should not be interpreted in this manner because to do so would create an arbitrary distinction between employers whose worksites existed during the first 6 months following adoption of [*33] the standard and those who established their worksites or introduced asbestos after that period. According to the Secretary, where exposure to asbestos existed when the standard was promulgated, employers were required to begin monitoring within six months of that date. When the exposure commenced after the expiration of the 6-month period, the duty to monitor commenced when the exposure was created. In the Secretary's view, his interpretation must be adopted because it is most consistent with, and best effectuates, the purposes of the Act. To rule otherwise, the Secretary argues, would "eviscerate" the purposes of both the standard and the Act. The Secretary also notes that the asbestos standard contains a requirement for periodic monitoring, n37 and contends that this requirement, read together with the cited standard, establishes that the "clear intent of the monitoring provisions, . . . is to require periodic monitoring of all worksites where asbestos fibers are released."

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n37 29 C.F.R. § 1910.1001(f)(2)(ii) provides:

After the initial determinations required by paragraph (f)(1) of this section, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of employees. In no case shall the sampling be done at intervals greater than 6 months for employees whose exposure to asbestos may reasonably be foreseen to exceed the limits prescribed by paragraph (b) of this section.

[*34]

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The cited standard should not be read to exempt certain worksites from the initial monitoring requirement solely because these worksites did not exist within six months of the date of the standard. The six month provision was designed merely as a grace period for existing worksites, after which all worksites where asbestos fibers are released were under an obligation to monitor. In interpreting the cited standard it is appropriate to construe the standard so as to best effectuate the purposes of the Act. See Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343 (2d Cir. 1974); Marshall v. Western Electric, Inc., supra. The overall design of the standard can leave little doubt that the Secretary intended that all workplaces with concentrations of asbestos be initially monitored for asbestos, whenever they might have been established, 29 C.F.R. § 1910.1001(f)(1), and monitored every six months thereafter. 29 C.F.R. § 1910.1001(f)(2)(ii). Moreover, given the serious health problems posed by asbestos, GAF Corp., 3 BNA OSHC at 1690, 1975-76 CCH OSHD pp. 23,979-80, there can be little doubt [*35] that the purposes of the Act can only be effectuated by interpreting the six-month provision as a grace period rather than as a statute of limitations. See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 471, n.7 (D.C. Cir. 1974).

The Secretary recommended that no penalty be assessed for these nonserious violations. Judge Risteau, noting the low gravity of the violations, found this to be appropriate. We also conclude, after considering the penalty factors set forth in section 17(j) n38 of the Act, that no penalty is appropriate under the circumstances of this case.

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n38 29 U.S.C. § 666(i).

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Accordingly the citation for nonserious violations of 29 C.F.R. § 1910.1001(f)(1) and 29 C.F.R. § 1910.1001(j)(1) is affirmed.

SO ORDERED.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Acting Chairman, Concurring:

I agree with the majority for the reasons they state that the Secretary did not in his proposed revision to the asbestos standard concede that the present standard is infeasible if applied to the construction industry. [*36] I further agree that the medical examination provision of the present standard is not vague and that on the facts of this case Respondent violated both the monitoring and medical examination provisions. I do not, however, join in my colleagues' discussion concerning Respondent's claim that the physical examination and monitoring provisions as applied to it are economically infeasible.

My colleagues conclude the Respondent Cannot defend against the physical examination and monitoring provisions of the asbestos standard on the ground that compliance would be "expensive or economically burdensome." In the past I have joined with my colleagues in stating that an employer cannot defend against a cited standard on the ground that abatement is "expensive." Dun-Par Engineered Forms, 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1049, 1980 CCH OSHD P24,238 at 29,492 (No. 16062, 1980), appeal filed, No. 80-1401 (10th Cir. April 17, 1980). I continue to adhere to that view.

However, I do not join with the discussion of my colleagues concerning Respondent's right to defend on the ground that compliance would be "economically burdensome." In Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA [*37] OSHC 1830, 1836, 1978 CCH OSHD P22,909 at 27,720 (No. 12523, 1978), the Commission stated that with narrow exceptions the proper inquiry is one of "impossibility" rather than "feasibility" where the terms of the standard do not encompass feasibility. Apparently my colleagues adhere to this position, n1 since the phrase "economically burdensome," although ambiguous, may be equated with economic infeasibility as that term has been interpreted by the courts and Commission. n2

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n1 My colleagues' holding is not clear since they cite Arkansas Best Freight Systems, Inc. v. OSHRC & Sec. of Labor, 529 F.2d 649 (8th Cir. 1976), in support of their conclusion. In that case the court assumed, without deciding, that it had the authority to grant "an exemption from compliance" where the cited standard would be economically infeasible as applied to the individual employer. The court did not reach whether a respondent could defend on grounds of economic infeasibility since it concluded the employer had not proven economic infeasibility.

n2 The phrase economic infeasibility may refer to an employer's ability or the ability of its industry to afford the costs of compliance. See United Steelworkers of America v. Marshall, 8 BNA OSHC 1810, 1863-64, 1980 CCH OSHD P24,717 at 30,381-82 (D.C. Cir. Aug. 15, 1980); Arkansas-Best Freight Systems, Inc., 529 F.2d at 653-54; Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C. Cir. 1974). Economic infeasibility may also refer to whether costs, regardless of their magnitude in absolute number of dollars, are justified by the benefits to be achieved. Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1438 n.10, 1977-78 CCH OSHD P21,854 at 26,329 n.10 (No. 10925, 1977), petition for review filed, No. 77-2565 (9th Cir. July 14, 1977); Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1547, 1976-77 CCH OSHD P21,009 at 25,256 (No. 3973, 1976). See Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1520-21, 1980 CCH OSHD P24,555 at 30,043-44 (No. 76-222, 1980).

[*38]

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I have carefully reconsidered the Commission's position that an employer cannot defend on grounds of economic infeasibility when feasibility is not encompassed by the terms of the standard and would not adhere to that precedent. n3 In American Iron & Steel Institute v. OSHA, 577 F.2d 825, 835 (3rd Cir. 1978), the court stated:

In an effort to safeguard the health and safety of employees in the industrial establishments throughout the land, there is nonetheless a very practical necessity to weigh economic costs. Congress did not intend to eliminate all . . . hazards to industrial employees [regardless of costs].

The Commission has the responsibility to insure that the burdens on employers are reasonable. In this regard, we have fashioned befenses in order to take into account the realities of the worksite and have precluded the Secretary from placing on employers unobtainable and unduly burdensome requirements. E.g., Alberici-Koch-Laumand, 77 OSAHRC 179/A2, 5 BNA OSHC 1895, 1977-78 CCH OSHD P22,211 (No. 13026, 1977); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH [*39] OSHD P20,690 (Nos. 3694 & 4409, 1976); Grossman Steel & Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976). By permitting an employer to defend on the ground that compliance would be economically infeasible, we assure that the burden on employers is reasonable. See Atlantic & Gulf Stevedores, Inc., 534 F.2d at 551-552.

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n3 Where the provisions of the cited standard do not require a showing of feasibility as part of the Secretary's case, I would place the burden on the employer to establish infeasibility as a matter of defense. See Atlantic & Gulf Stevedores, 534 F.2d 541, 551-52 (3rd Cir. 1976). See also United Steelworkers of America, 8 BNA OSHC at 1870, 1980 CCH OSHD P24,717 at 30,388.

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A number of courts have concluded that economic feasibility should be considered in enforcement proceedings, even though the standard does not refer to feasibility. E.g., United Parcel Service v. OSHRC & Marshall, 570 F.2d 806, 812 (8th Cir. 1978); [*40] United Steelworkers of America, 8 BNA OSHC at 1870, 1980 CCH OSHD P24,717 at 30,388. The Third Circuit in Atlantic & Gulf Stevedores, Inc., supra, and the First Circuit in ITO Corp. v. OSHRC & Usery, 540 F.2d 543 (1st Cir. 1976), addressed Respondents' claims that the cited standard, 29 C.F.R. § 1910.132(a), n4 was economically infeasible because attempts at enforcement would lead to wildcat strikes by their employees. Although neither court found the standard economically infeasible, the Third Circuit in an exhaustive analysis of the issue specifically stated that economic infeasibility was a defense in an enforcement proceeding. Additionally, in RMI Co. v. Sec. of Labor & OSHRC, 594 F.2d 566, 572 (6th Cir. 1979), the Sixth Circuit stated in dictum that economic feasibility should be considered by the Secretary both in promulgating and enforcing regulations. n5

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n4 29 C.F.R. § 1910.132(a) requires that protective equipment shall be "provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards of processes or environment. . . ."

n5 Although the court in RMI was considering the economic feasibility of the noise standard as applied to RMI's operations, a standard which on its face refers to feasibility, the court's statement that the Secretary should consider economic feasibility in enforcing standards was not limited to any particular standard and was made following a review of court cases that held economic feasibility was an issue in cases involving standards other than noise.

[*41]

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It is particularly appropriate for the Commission to consider economic feasibility with respect to health standards, such as the asbestos standard at issue in this case. 29 U.S.C. § 655(b)(5) provides that workers are to be protected to the extent "feasible" and requires that "feasibility" be considered in the promulgation of a standard. These considerations set constraints on the agency's mandate to assure employee safety and health and may be the subject of challenges in pre-enforcement review of a standard pursuant to 29 U.S.C. § 655(f). United Steelworkers of America, supra; American Federation of Labor v. Marshall, 617 F.2d 636 (D.C. Cir. 1980). However, the feasibility of a standard may not become apparent to an employer until after the employer has made a good faith effort to comply, which may occur after the sixty-day period for challenge under 29 U.S.C. § 655(f) has passed. In such circumstances the employer should be permitted to challenge the economic feasibility of the standard in an enforcement proceeding. See generally United Steelworkers of America, 8 BNA [*42] OSHC at 1868, 1980 CCH OSHD P24,717 at 30,385. See also Atlantic & Gulf Stevedores, Inc., 534 F.2d at 550.

Respondent contends that the medical examination and monitoring provisions of the asbestos standard would be economically infeasible with respect to its particular operations. n6 As my colleagues acknowledge, the Secretary contends that the cost-benefit test previously recognized by the Commission is not the appropriate test for application to the asbestos standard, and that, in any event, Respondent has not established that the costs of compliance are unjustified by the benefits to employees. Assuming, without deciding, that Respondent need not show that its industry cannot afford the costs of compliance (see note 2, supra), Respondent has not satisfied its burden to show economic infeasibility under any test which might be applied to its particular operation. n7

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n6 As my colleagues indicate, Respondent's argument as to the monitoring provision in issue is that in the circumstances of this case monitoring would not have any useful purpose, whereas Respondent claims that the cost of compliance with the medical examination provision would not be justified by the benefits to be achieved. Although Respondent does not expressly state that compliance with the monitoring provision would be unduly costly, my colleagues in initially characterizing Respondent's arguments conclude that Respondent has raised the issue of economic feasibility with respect to both provisions.

In my view, it is unclear whether Respondent intended to raise as an issue the economic feasibility of compliance with the monitoring provision on the facts of this case. However, since my colleagues conclude that Respondent has raised the issue as to both monitoring and medical examinations and since a liberal reading of Respondent's contentions does not affect the outcome of this case, I join in my colleagues' characterization of Respondent's arguments.

n7 As my colleagues properly note, in Continental Can Co., 4 BNA OSHC at 1547, 1976-77 CCH OSHD P21,009 at 25,256, I stated that cases arising under the Secretary's noise exposure standard -- where the cost-benefit test applies -- are distinguishable from cases involving life-threatening hazards such as those posed by carcinogens. See also Castle & Cooke Foods, 5 BNA OSHC at 1438-39, 1977-78 CCH OSHD P21,854 at 26,329-30.

For a discussion of conflicting judicial opinions regarding the role of cost-benefit analysis under standards regulating toxic substances, see United Steelworkers of America, 8 BNA OSHC at 1848 n.84, 1862-63 n.102, 1980 CCH OSHD P24,717 at 30,366-67 n.84, 30,380-81 n.102, citing Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 100 S. Ct. 2844 (1980), aff'g American Petroleum Inst. v. OSHA, 581 F.2d 493 (5th Cir. 1978) (benzene) and AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979), cert. granted sub nom. American Textile Mfrs. Inst., Inc. v. Marshall, 101 S. Ct. 68 (1980) (cotton dust).

[*43]

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The record shows that the process of installing the asbestos sheeting takes less than one year and that exposed employees are released from Respondent's Payroll once the tower on which they have been working is completed. On these facts, and reading all of the provisions of the standard together, n8 Respondent is required to furnish each employee at least one, but not more than one, medical examination during the course of his employment. Respondent presents no evidence to show the costs of providing such examinations or to support its argument that examinations would not be beneficial to its employees. I cannot therefore conclude on these facts that compliance with the medical examination requirement would be economically infeasible for Respondent. n9

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n8 See note 2 of the lead opinion and in particular 1910.1001(j)(5).

n9 As my colleagues correctly note, we have held that the medical examination provisions apply whenever employees are exposed to any measurable concentration of airborne asbestos. We specifically stated that in view of the "substantial uncertainty among scientific authorities as to exactly what levels of prolonged exposure are detrimental to human life," the medical examination provisions require all employees who are exposed to asbestos fibers to be examined for signs of asbestos-related disease. GAF Corp., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1692, 1975-76 CCH OSHD P20,163 at 23,981-82 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977).

[*44]

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As to monitoring, Respondent argues that monitoring this worksite would serve no purpose because its prior tests at a similar site showed that no asbestos concentration existed and because the Secretary, although he had also previously tested another site, had not prior to the inspection at issue informed Respondent that concentrations of asbestos were detected. Respondent, however, presented no evidence as to the cost of monitoring and did not otherwise show that it would be unduly difficult. Indeed, the record shows that monitoring was conducted at three sites without any apparent expense or difficulty. Moreover, as my colleagues correctly point out, monitoring is necessary as a prelude to compliance with other sections of the asbestos standard. Therefore Respondent has not established that monitoring at the Russellville site as well as the others would have been without tangible benefit to its employees nor in any other manner shown that compliance with the monitoring requirement would be economically infeasible.