THE PROKO COMPANY OF TEXAS, INC.

OSHRC Docket No. 12748

Occupational Safety and Health Review Commission

April 20, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

H. M. Self, President, The Proko Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge J. Paul Brenton, dated November 4, 1975, is before the full Commission for review by separate directions for review issued by Chairman Barnako and me pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

The issue is whether the ALJ erred in vacating one item of a citation against respondent employer, a paint and drywall manufacturer using asbestos in its manufacturing process, by concluding that 29 CFR 1910.1001(j)(3) n1 does not require an employer to furnish annual medical examinations to employees engaged in occupations exposed to airborne concentrations of asbestos fibers when the level of exposure is within that permitted by 29 CFR 1910.1001(b)(2). n2

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n1 Respondent was cited for noncompliance with 1910.93a(j)(3), which was recodified as 1910.100(j)(3). All references to the asbestos standard in this opinion reflect the recodification. See 40 Fed. Reg. 23072 (1975).

The standard states in pertinent part:

(j) Medical examinations.

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(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 1.0).

n2 The standard states in pertinent part:

(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.

(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 (e) of this section.

(3) Ceiling concentration. No employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section.

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We hold that the Judge did err, and reverse his action.

The Judge's decision preceded by ten days the Commission's decision in GAF Corp. and United Engineers & Constructors, Inc., BNA 3 OSHC 1686, 1975-76 CCH OSHD para. 20,163 (Nos. 3203, 4008 and 7355, 1975). There, we held that 1910.1001(j)(3) requires an employer to provide, or make available at its cost, medical examinations to employees engaged in occupations that require exposure to concentrations of airborne asbestos in any degree. GAF Corp. is controlling here.

Concentrations of asbestos were released into the air during respondent employer's manufacturing process, which includes the opening of bags of asbestos and the mixing of the asbestos with other materials. Respondent's president, Mr. H. M. Self, admitted that asbestos fibers were released in the air each time a bag was opened, and the asbestos poured into a mixing machine. Thus, the standard requires that comprehensive annual medical examinations be furnished to respondent's employees.

Accordingly, it is ORDERED, that the Judge's decision is reversed, and the item of the [*3] citation alleging noncompliance with 29 CFR 1910.1001(j)(3) is affirmed. The Secretary proposed no penalty for this item, and we assess none.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Brenton correctly decided this case. His well-reasoned decision, which is attached hereto as Appendix A, should therefore be affirmed.

The record establishes that respondent, through engineering and monitoring controls, had dutifully protected its employees from exposure to any harmful concentrations of asbestos fibers. I fully share Judge Brenton's view that it is sheer folly to interpret 29 C.F.R. 1910.93a(j) so as to require that medical examinations be given under these circumstances. Secretary v. GAF Corporation, OSAHRC Docket No. 3203, November 14, 1975 (dissenting opinion).

Moreover, vacation of the charge is warranted because the cited standard was invalidly promulgated. As I indicated in GAF, substantive changes made by the Secretary of Labor in the text of 1910.93a(j) as initially proposed - without adherence to the proper rulemaking procedures required by 29 U.S.C. 655(b) - render that regulation unenforceable.

APPENDIX A

DECISION AND ORDER

William E. Everheart, [*4] for the Secretary of Labor

Messrs. Bill Hearn and H. M. Self, for the Respondent

STATEMENT OF THE CASE

J. Paul Brenton, Judge, OSAHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act.

The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at 1910 Wall Street, Dallas, Texas, and described as follows: "Warehousing and manufacturing of dry wall products", the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation, which was issued on February 25, 1975, alleges that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1910.

One item of the citation is in contest. Its description as contained on [*5] the citation states:

Item 6 "29 CFR 1910.93a(j)(3) Annual medical examinations were not provided for each employee engaged in occupations which exposed them to airborne concentrations of asbestos fibers. Location: Paint department."

The standard as promulgated by the Secretary provides as follows:

Item 6 "Section 1910.93a -- Asbestos (j) Medical examinations.

(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 (posterioranterior 14 X 17 inches), a history of 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.])."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated February 25, 1975, from Tom Littrell, Acting Area Director of the Dallas area, Occupational Safety and Health Administration, U.S. Department [*6] of Labor proposed to assess no penalty for the violation alleged.

After respondent contested this enforcement action, and a complaint and an answer had been filed by the parties, the case came on for hearing at Dallas, Texas, on August 12, 1975.

FINDINGS OF FACTS

1. Respondent admits it is engaged in a business affecting commerce.

2. On February 20, 1975, respondent was engaged in phasing out the manufacture of paint and dry wall products at its Dallas, Texas, facility, for conversion to a warehouse, which was completed in the first half of the month of June 1975.

3. Manufacturing processes in which respondent was engaged on February 20, 1975, included the storage of bags of asbestos and the use thereof by mixing it with other materials in mixing machines.

4. Respondent maintains and operates similar type branch facilities in Waycross, Georgia, Cambridge, Indiana, Madison, South Dakota, and Kaufman, Texas.

5. Complainant's industrial hygienist, Linda Mickey, saw one stored bag of asbestos which had a tear in it and one other bag which an employee ripped open in order to deposit the asbestos in the mixing machine.

6. Complainant did not make any atmospheric tests [*7] for the presence of occupational asbestos fibers at or about any work station or area within respondent's plant.

7. Respondent admitted that some asbestos fibers were dispersed into the atmosphere each time a bag was opened and poured into a mixing machine which consumed five seconds in the process.

8. Each blender, the mixing machine, was equipped with a totally enclosed dust collecting system which draws directly off the blender and filters out all particles except a miniscule amount after which the air is expelled or returned into the building. In addition dust filtration masks were provided for each employee.

9. Prior to February 20, 1975, respondent monitored its work stations and areas where asbestos was used in its manufacturing processes in accordance with regulation 29 CFR 1910.93a(e) n1. At no time did any sample so obtained, over an eight hour time weighted average, measure in excess of two tenths (0.2) asbestos fibers, longer than five micrometers, per cubic centimeter of air.

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n1 Method of measurement. All determinations of airborne concentrations of asbestos fibers shall be made by the membrane filter method at 400-450 X (magnification) (4 millimeter objective) with phase contrast illumination.

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10. Respondent has been monitored by OSHA at two of its other like operations located in other OSHA regions with findgins of airborne concentrations of asbestos below the permissible limits of 29 CFR 1910.93a(b) n2. In these instances it has not been cited for failure to provide and maintain annual medical examinations of employees so exposed.

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n2 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.

(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 (e) of this section.

(3) Ceiling concentration. No employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers, longer than 5 micrometers, per cubic centimeter of air, as determined by the method prescribed in paragraph (e) of this section.

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ISSUE

Whether cited regulation requires employer to provide medical examination for employees exposed to any trace of asbestos fibers regardless of the level of the fibers.

DISCUSSION AND OPINION

Complainant takes the position that the cited standard is all inclusive. He contends that if the evidence shows any trace, however infinitesimal, of airborne concentrations of asbestos fibers within the work site then medical examinations thereby are mandated by 29 CFR 1910.93a(j)(3). He does take some aid and comfort from five decisions of Administrative Law Judges sustaining this position in previous cases. n3 It is observed, however, that each of these cases has been ordered for review by the Review Commission. No one of them to this point in time has become a final order of the Commission. Regardless of the efficacy of those decisions, upon the considerations of the issue, it is the opinion here that complainant's position is untenable.

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n3 Secretary v. Research Cottrell, Inc., OSAHRC Docket No. 11756; Secretary v. American Smelting and Refining, OSAHRC Docket No. 5003; Secretary v. United Engineers & Constructors, Inc., OSAHRC Docket No. 7355; Secretary Corp., OSAHRC Docket No. 3203; Secretary v. GAF Corp, OSAHRC Docket No. 4008.

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Interpretation of the commands of 29 CFR 1910.93a(j)(3) requires consideration of the whole system of the regulations pertaining to asbestos. The whole body of the regulations under 1910.93a have been designed and fashioned to remedy the evil of asbestos fibers where encountered, by employees in the workplace, in the process of inhaling the atmosphere to which they are then and there exposed.

The asbestos regulations at 1910.93a(b)(1) and (2) n4 permit exposure of up to five asbestos fibers through June 30, 1976, thereafter permissible exposure may not exceed two fibers. 1910.93a(b)(3) n5 forbids exposure at any time in excess of 10 asbestos fibers.

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n4 See note 2, pp 5 & 6.

n5 See note 2, p 6.

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It is obvious that respondent had been and apparently is presently complying with the provisions of 29 CFR 1910.93a(f) n6 having to do with monitoring. Moreover, it appears that it had, either with the effective date of the Act or prior [*11] thereto, undertaken a compliance program in accordance with 29 CFR 1910.93a(c). Respondent has not been cited for failure to monitor airborne concentrations of asbestos fibers nor has it been cited for failure to undertake any compliance programs. There is just no evidence, direct or circumstantial, that respondent has any operation or manufacturing process whereby there is produced an airbrone concentration which even approaches the limitations of permissible exposures provided by 93a(b)(1) and (2).

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n6 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.

(2) Personal monitoring -- (i) Samples shall be collected from within the breathing zone of the employees, on membrane filters of 0.8 micrometer porosity mounted in an open-face filter holder. Samples shall be taken for the determination of the 8-hour time-weighted average airborne concentrations and of the ceiling concentrations of asbestos fibers.

(ii) Sampling frequency and patterns. After the initial determinations required by subparagraph (1) of this paragraph, 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.

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It has been made to appear by the evidence in this case, in the handling of raw asbestos from opening the bag to pouring it into the paint mixing machine, which takes five seconds, that a small trace of airborne fibers is unavoidable. But this trace has been by complainant's own regulations declared permissible exposure. It appears obvious the ultimate goal of the entire system of the asbestos regulations is to reduce exposure to two fibers or less per cubic centimeter of air.

The fashioners of these regulations have said in effect that exposure to concentrations of fibers in excess of two but not more than 10 may or may not be dangerous or detrimental to the health. That exposure in excess of 10 fibers is dangerous and detrimental to the health and shall not be permitted. That exposure to two fibers or less is not dangerous or detrimental to the health and shall be permitted. Airborne concentrations of asbestos fibers means these fibers in excess of two, each longer than five micrometers, which are concentrated in a volume within one cubic centimeter of air. The interim permissible exposure of [*13] five fibers from July 7, 1972 to July 1, 1976, is to afford employers a reasonable opportunity to undertake and implement the controls necessary for accomplishing compliance with the ultimate goal of two fibers or less. Thus, if initial monitoring or subsequent sampling as required by 93a(f) produces measurable concentrations in excess of two fibers medical examinations as required by 93a(j) are made necessary in order to monitor the health of the employees so exposed and to maintain a record thereof for reference in any future related medical diagnosis and for analysis by OSHA and NIOSH, in the event it may be determined that concentration in excess of two fibers is in fact injurious.

If an employee has not been and is never exposed to airborne concentrations of asbestos fibers exceeding two, then, according to the complainant's own regulation, medical examinations as required by 93a(j) would be an exercise in futility, absurd, and an unwarranted usurpation of the employer's financial resources as well as a bureaucratic taking of filing space for useless records for 20 years.

It certainly appears that the foregoing is the only realistic interpretation of the medical examination [*14] requirements. Any other interpretation would nullify the ultimate permissible level of exposure as provided by 93a(b)(2) because complainant has by this standard determined that exposure to not more than two fibers is not a health hazard.

In accordance with the foregoing item 6 of the citation should be vacated.

CONCLUSIONS OF LAW

1. The command for annual medical examinations of 29 CFR 1910.93a(j)(3) should be interpreted in light of the whole system of the asbestos regulations.

2. Where monitoring performed as required by the asbestos regulations which consistently show that exposure to airborne concentrations of asbestos fibers is within the permissible level of exposure endorsed by 29 CFR 1910.93a(b)(2) annual medical examinations are not required by 29 CFR 1910.93a(j)(3).

ORDER

Wherefore it is Ordered that:

Item 6 of the citation be and it hereby is vacated.

It is so ordered at Dallas, Texas.

Date: November 4, 1975

J. Paul Brenton, Judge