UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-414 OSHRC DOCKET NO. 78-555 OSHRC DOCKET NO. 78-741
MILLER CERAMICS, INC., RESPONDENT R. T. VANDERBILT COMPANY, INC., INTERVENOR HULL POTTERY COMPANY, RESPONDENT R. T. VANDERBILT COMPANY, INC., INTERVENOR BALDWIN INDUSTRIES, INC., RESPONDENT R. T. VANDERBILT COMPANY, INC., INTERVENOR

May 29, 1979

APPEARANCES

Bruce C. Heslop, Esq., and Allen J. Rapoport, Esq., for the complainant.

Guy F. Driver, Esq., for the respondents.

Francis C. Clark, Esq., for the intervenor.

DECISION AND ORDER

Taylor, Judge:

Background

The above-captioned cases were consolidated by an order of former Chief Judge David H. Harris, dated May 30, 1978. Hearings were conducted at Columbus, Ohio on June 19–22, 1978, and at Washington, D.C. on September 11–13, 1978.

The Complainant’s Case Against Miller

Following an inspection of Miller’s ceramic manufacturing business in Weedsport, New York, on September 28, 1977, Miller was issued a citation for a nonserious violation of 29 C.F.R. § 1910.1001(j)(3).[4] The citation alleges that Miller did not provide, or make available, comprehensive annual medical examinations to employees who were exposed to airborne levels of asbestos on the

[m]ain floor, wet clay packing area, slip mixing tanks loading platform and elsewhere throughout the plant where talc is unloaded out of bags, handled or is airborne.

During the inspection, Peter Brown, an industrial hygienist employed by the Occupational Safety and Health Administration (OSHA), observed two of Miller’s employees mixing and packing wet clay in Miller’s ‘wet clay area.’ (Tr. 2:153, 163–164.) The employees, (names redacted), were using talc from 50-pound bags of Nytal 100HR bearing the name of R. T. Vanderbilt Company as the manufacturer. (Tr. 1:39; 2:164, 190–191. Item 43, Respondent’s Third Request for Admissions.) Brown observed dust as the bags were poured into the mixing tank. (Tr. 2:164.) Thereafter, Brown obtained six air filter samples from the breathing zones of each of the two employees over a period of 7–1/2 hours. (Tr. 2:165, 173, 175.) Brown also obtained a bulk sample from one of the bags of Vanderbilt talc. (Tr. 2:178.) Both (names redacted) told Brown that they had not received any medical examinations while working for miller. (Tr. 2:189–190.) (name redacted) told (name redacted) that he had been working for Miller for 2–1/2 years, and(name redacted), told him that he had been employed by Miller for three months. (Tr. 2:190–191.)

(name redacted) forwarded all of the samples to OSHA’s Salt Lake City laboratory for analysis. (Tr. 2:180.) The laboratory assigned the following identifying numbers: bulk sample, A–6393; (name redacted) air filter samples, A–6395 through A–6400; (name redacted) air filter samples, A–6402 through A–6437. (Tr. 2:182; Exh. C–9.)

Using phase contrast microscopy, dispersion staining, and related petrographic techniques to analyze a portion of bulk sample A–6393, Willard Dixon, an industrial hygienist employed by OSHA’s Salt Lake City laboratory, concluded that two anthophyllite fibers,[5] four tremolite fibers, and 10 fibers of either tremolite or anthophyllite were present. (Tr. 4:644, 674, 696–699; Exh. C–21.) The remainder of the sample was sent for further analysis to Ian Stewart, the manager of the electron optics group of Walter C. McCrone Associates, Incorporated. (Tr. 2:317, 4:699–700; Exh. C–22.) Using transmission electron microscopy and related techniques, Stewart ascertained that more than two fibers of anthophyllite were present in the portion of the sample that he analyzed. (Tr. 5:52–53, 121–122.)

Daryl Peterson, a physical science technician at OSHA’s Salt Lake City laboratory, analyzed the 12 air filter samples obtained by (name redacted). (Tr. 4:734, 7:737; Exh. C–10.) Using dispersion staining on a slide prepared from sample A–6395, Peterson found six fibers of the tremolite-actinolite series. (Tr. 4:739, 746; Exh. C–23.) At the request of Dixon, Peterson did another analysis on A–6395, either with the same or a different slide, and detected at least 10 asbestos fibers. (Tr. 4:747, 750; Exh. C–23.) On examining a portion of A–6396 using dispersion staining, Peterson observed 11 tremolite-actinolite fibers and one anthophyllite fiber. (Tr. 4:748; Exh. C–23.) Using the same procedure on a part of A–6397, he ascertained that 11 tremolite-actinolite and six anthophyllite fibers were present. (Tr. 4:749; Exh. C–23.) With dispersion staining, he found seven tremolite fibers and three anthophyllite fibers in the portion of A–6405 that was analyzed. (Tr. 4:753; Exh. C–23.) He did ‘just routine phase contrast counting for total number of fibers present’ on specimens from the remaining samples. (Tr. 4:750; Exh. C–23.)

Stewart performed transmission electron microscopy on samples A–6404 and A–6405. (Tr. 5:118.) His analysis of A–6404 reflected no asbestos fibers greater than five micrometers long. (Tr. 5:118.) On analyzing A–6405, Stewart identified 20 to 30 anthophyllite fibers. (Tr. 5:121.)

The Complainant’s Case Against Hull

Hull, a manufacturer of pottery tableware, was inspected by Donald Cagle, an industrial hygienist employed by OSHA, during the period September 20–21, 1977. (Tr. 2:209, 211.) As a result of the inspection, Hull was issued a citation for three nonserious violations. Item 1 of the citation alleges that Hull violated 29 C.F.R. § 1910.1001(c)(2)(i)[6] in that spilled Ceramitalc HDT was dry swept in Hull’s raw material storage area. Item 2 avers that Hull violated 29 C.F.R. § 1910.1001(g)(2)(i)[7] by not having caution labels affixed ‘[o]n the pallets and/or bags of Ceramitalc HDT prior to dumping in the clay mixer.’ Item 3 alleges that Hull failed to comply with 29 C.F.R. § 1910.1001(h)(2)[8] in that empty Ceramitalc HDT bags were not disposed of in impermeable containers.

During his inspection, Cagle observed the activities of one of Hull’s clay mixers and his helper. (Tr. 2:216.) He saw the clay mixer cutting 50-pound bags of Ceramitalc HDT, dumping them into a mixing machine hopper, and operating the controls that fed water into the mixing machine. (Tr. 2:216–217.) He also saw the clay mixer using a forklift in moving pallets of the material to the mixing machine. (Tr. 2:217.) Cagle testified that from what he recalled the bags indicated that the talc was manufactured by the American Talc Company. (Tr. 2:234.) Apparently, Cagle was mistaken and the talc was manufactured by the International Talc Company, a subsidiary of the R. T. Vanderbilt Company.[9] (Tr. 2:265–268.) Cagle observed the helper cutting clay that extruded from the mixing machine and stacking the extruded clay on a cart. (Tr. 2:217–218.)

Neither the bags of Ceramitalc HDT nor the pallets on which they were stored had any caution labels on them. (Tr. 2:234.) When the bags of Ceramitalc HDT were emptied, they were not disposed of in impermeable containers, rather the clay mixer simply threw them behind him and they were later placed in an open trash receptacle. (Tr. 2:234–235.) Cagle observed broom marks where dry material was on the floor in the area where the Ceramitalc HDT was stored. Hull’s management officer told Cagle that a broom was used for sweeping and that they ‘couldn’t wet the material . . . because it would be slippery.’ (Tr. 2:233.)

Cagle obtained three air filter samples from the breathing zone of the clay mixer and two from the breathing zone of his helper. (Tr. 2:222–223.) Cagle also took six bulk samples. (Tr. 2:226.) Cagle forwarded all of the samples to OSHA’s Salt Lake City laboratory where they were assigned laboratory numbers and analyzed. (Tr. 2:227, 229, 232.) The samples from the clay mixer were assigned laboratory numbers A–6236, A–6238, and A–6244. (Exh. C–11.) The ones from the helper were given laboratory numbers A–6237, and A–6245. (Exh. C–11.) Cagle took one of the bulk samples, laboratory number A–6239, from a bag of Ceramitalc HDT that had just been opened by the clay mixer. (Tr. 2:226, 230; Exh. C–11.) He took four of the bulk samples, laboratory numbers A–6240 through A–6243, from dust that had settled on the floor. (Tr. 2:227, 231; Exh. C–11.) A–6240 was taken at the base of some steps, about 15 feet from the helper’s location at the mixing machine. A–6241 was taken near a post, about 15 feet from the clay mixer. (Tr. 2:253, 3:619: Exh. C–11.) A–6242 was obtained in the immediate vicinity of where the clay mixer worked at the machine. (Tr. 2:254, 3:619; Exh. C–11.) A–6243 was obtained at the location where the Ceramitalc HDT was stored, about 30 feet from where the clay mixer poured the bags into the machine. (Tr. 2:251, 3:619; Exh. C–11.) On Hull’s request at the end of the inspection, Cagle took the sixth bulk sample from a torn bag of Westex Black Talc. (Tr. 2:226, 253.) That talc, which was not being used, was located in another part of Hull’s plant. (Tr. 2:253.) The laboratory number of that sample is A–6246. (Tr. 2:230–231; Exh. C–11.)

Dan Crane, a physical science technician at OSHA’s Salt Lake City laboratory, analyzed the samples obtained by Cagle. (Tr. 2:333, 3:535.) Using phase contrast microscopy and related techniques, Crane found a number of fibers in filter samples A–6236, A–6237, A–6238, A–6244, and A–6245. (Tr. 3:559–562; Exh. C–18.) However, except for sample A–6238, he did not analyze these samples by dispersion staining to ascertain the mineralogical content of these fibers. (Tr. 3:587, 597, 613–614; Exh. C–18.) Crane’s analyses by dispersion staining of three slides prepared from A–6238 revealed the presence of six tremolite or anthophyllite fibers. (Tr. 3:597; Exh. C–18.) Using dispersion staining on eight slides prepared from bulk sample A–6239 and four slides prepared from each of the bulk samples identified as A–6241, A–6242, and A–6243, he ascertained that the A–6239 specimens contained 79 fibers that were tremolite or anthophyllite, the A–6241 specimens contained 10 tremolite and two anthophyllite fibers, the A–6242 specimens contained seven fibers that were tremolite or anthophyllite, and the A–6243 specimens contained 34 asbestos fibers. (Tr. 3:537–548, 551–554, 558; Exh. C–18.) Crane’s analysis of bulk sample A–6240 indicated that no fibers were present. (Tr. 3:550.) Similarly, he detected no asbestos in his analysis of the Westex bulk sample, A–6246. (Tr. 3:559.)

Subsequently, Ian Stewart performed dispersion staining on bulk samples A–6239, A–6242, and A–6243 and found about 2 to 3 percent fibrous tremolite-actinolite present in A–6239 and A–6243 and ‘probably less than about 1/4 per cent in A–6242.’ (Tr. 5:47, 49.) He also analyzed these samples using transmission electron microscopy. As a result, he identified four anthophyllite fibers in A–6239. (Tr. 5:105.) Although he saw fibers in A–6242, he could not positively them as asbestos. (Tr. 5:106–107, 109.) By electron microscopic examination of A–6243, Stewart found that A–6243 was substantially similar to A–6239 in that anthophyllite fibers were present in A–6243. (Tr. 5:107–109.)

The Complainant’s Case Against Baldwin

Baldwin, a paint manufacturer, was inspected by David Barnhill, an OSHA industrial hygienist, during the period June 28–30, 1977, and by Sally Barber, another OSHA industrial hygienist, on October 6 and 11, 1977. (Tr. 3:620–621; 2:269, 272.) Following these inspections, Baldwin was issued, on January 17, 1978, a citation for four nonserious violations, which is designated as Citation Number 2.[10] Item I of the citation alleges that Baldwin’s paint mixing area had not been monitored to determine whether the paint mixers were exposed to excessive levels of asbestos fibers as required by 29 C.F.R. § 1910.1001(f)(1).[11] Item 2 avers that Baldwin violated 29 C.F.R. § 1910.1001(g)(2)(i)[12] in that raw materials being used in the paint mixing area did not contain caution labels. Items 3 and 4 allege that Baldwin violated 29 C.F.R. § 1910.1001(j)(2)[13] and (3),[14] respectively, by not providing employees working in the paint mixing area with preplacement and annual medical examinations as required by these two standards.

During his inspection, Barnhill met Baldwin’s president, Mr. Carneal. (Tr. 3:455, 622.) Carneal told Barnhill (Tr. 3:455, 622.) Carneal told Barnhill by Baldwin did not contain asbestos and showed Barnhill some letters from Vanderbilt indicating that the talcs did not contain asbestos. (Tr. 3:628.) Carneal also told Barnhill that Baldwin’s employees had not been given any type of physical examination and that Baldwin had done no monitoring ‘for lead or silica or talc, or any compound.’ (Tr. 3:628–630.) Barnhill obtained a bulk sample from a 50-pound bag of Nytal 200 that was being used in Baldwin’s plant. (Tr. 3:626, 629, 634.) Barnhill saw no asbestos caution labels on the bags of Nytal 200 that he observed. (Tr. 3:629.) He also testified that he had no knowledge as to how long Baldwin had been using Nytal 200. (Tr. 3:632.)

The bulk sample of Nytal 200 was sent to OSHA’s Salt Lake City laboratory, where it was assigned laboratory number A–4976 and analyzed by Willard Dixon. (Tr. 3:631, 4:668; Exh. C–15.) Initially, in August 1977, Dixon analyzed A–4976 by using dispersion staining and related techniques. (Tr. 4:668.) By scanning slides prepared from A–4976, he concluded ‘that asbestos fibers were present in low concentration around one percent or less.’ (Tr. 4:669, 678; Exh. C–15.) In May 1978, he performed another analysis on A–4976 using the same petrographic techniques, but taking an actual fiber count on that occasion. (Tr. 4:679, 681; Exh. C–20.) This analysis indicated the presence of five anthophyllite fibers, 17 tremolite fibers, and 19 fibers that were either anthophyllite or tremolite fibers. (Tr. 4:688–691.)

Ian Stewart subsequently analyzed A–4976 using dispersion staining and found 3 to 5 per cent by weight of fibrous tremolite-actinolite. (Tr. 5:47–49.) His electron microscopic examination of that sample indicated the presence of anthophyllite fibers. (Tr. 5:116.)

During her inspection, Barber observed two of the respondent’s paint mixers pouring talc and other dry materials into a paint mixing vat. (Tr. 2:280–281.) The talc was in 50-pound bags of Nytal 200 manufactured by R. T. Vanderbilt. (Tr. 2:281, 3:453–454.) The bags had no caution labels on them to indicate that they contained asbestos material. (Tr. 2:300.) Carneal told Barber that Baldwin had not performed any initial monitoring for the presence of asbestos and that Baldwin’s employees had not been given any physical examinations. (Tr. 2:300–301.) Barber did not know how long Baldwin had been in business or how long Baldwin had been using Nytal 200. (Tr. 2:314, 3:454–455.) One of the paint mixers told Barber that he had worked for Baldwin for one year. The other employee told her that he had worked for Baldwin for three months. (Tr. 3:457.) Barber obtained five air filter samples from the breathing zones of each of the paint mixers. (Tr. 2:280, 282, 287.) These samples were sent to OSHA’s Salt Lake City laboratory where they were assigned laboratory numbers A–7015 through A–7024. (Tr. 2:290–292, Exh. C–13.)

The samples were analyzed by Dan Crane. (Tr. 3:465; Exh. C–14.) Using phase contrast microscopy and related techniques, he found a number of fibers in his analysis of all the samples except A–7021, which was unacceptable for analysis. (Tr. 3:465, 512–515, 591; Exhs. C–14, C–17.) In addition, he performed dispersion staining on a part of A–7016 and ascertained that 10 asbestos fibers, either tremolite or anthophyllite, were present. (Tr. 3:518, 529–531; Exh. C.–17.) Subsequently, by electron microscopic analysis of a portion of A–7016, Stewart identified two anthophyllite fibers and a large bundle of fibers that were comprised of anthophyllite fibers and what he believed to be chrysotile fibers. (Tr. 5:110–112 115–116.)

The Case for the Respondents

Dr. Ann Wylie testified for the respondents as an expert witness on mineralogy and light microscopy. (Tr. 6:51.) Randall Ross testified for the respondents as an expert witness on electron microscopy, electron diffraction, and energy dispersion analysis. (Tr. 6:148–149, 7:4.) The gist of their testimony is that the analytical techniques used by the Salt Lake City laboratory technicians and by Ian Stewart were inadequate to establish the presence of asbestos fibers.

Wylie testified that the Salt Lake City laboratory personnel did not perform all of the steps she would have used in analyzing the samples. (Tr. 6:131.) She would have used the ten step procedure described in Exhibit R–30 if she received a sample for analysis that she did not know anything about. (Tr. 6:52–54, 59.) When asked if she would follow all of these steps if she were asked to analyze a sample for the six asbestos minerals enumerated in 29 C.F.R. § 1910.1001(a)(1), that is, chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite, she answered as follows:

Yes, I would, unless I knew, for example, exactly the locality it came from and what minerals were there to start with, or if I had some previous knowledge about the sample that I could eliminate a large group of minerals for some reason.

Then perhaps maybe it wouldn’t be necessary to go through them all. But without a lot of knowledge, previous knowledge, I wouldn’t, I couldn’t identify without going through those steps, no. (Tr. 6:62–63.)

In her opinion, the Salt Lake City analyses were inadequate to identify the minerals in the samples unless there was prior knowledge of the mineral content of the samples. She would have run an x-ray diffraction on the bulk samples. (Tr. 6:64.)

Wylie stated it was difficult to distinguish tremolite, tourmaline, and prehnite by dispersion staining and that richterite cannot be distinguished from tremolite optically. (Tr. 6:68–69.) However, tremolite can be distinguished from pectolite and wollastonite by dispersion staining if care is used. (Tr. 6:70–71.)

Relying on various publications, Wylie testified that tremolite, anthophyllite, and actinolite exist in both asbestiform and nonasbestiform. (Tr. 6:79–87; Exhs. R–25, R–33.) She explained that from a mineralogical viewpoint a true asbestos fiber is one that grows as a fiber in nature, whereas a cleavage fragment is a fragment that is broken from a larger particle. (Tr. 6:89, 127.) Using Exhibit R–32, she pointed out illustrations of fibers and cleavage fragments. (Tr. 6:90–94.) Although she had not heard that a cleavage fragment presents a health hazard, such a fragment would be classified as an asbestos fiber under the OSHA definition if it contained one of the six minerals enumerated in 29 C.F.R. § 1910.1001(a)(1), was longer than five micrometers, and had an aspect ratio of at least three to one.[15] (Tr. 6:93–94, 102.) However, it should not be classified as an asbestiform mineral because it didn’t ‘grow as asbestos.’ (Tr. 6:127.) In Wylie’s opinion, ‘[a] particle three times longer than it is wide is not a fiber’ from a mineralogical standpoint. (Tr. 6:94–95.) Her study of asbestos, under a grant from the Bureau of Mines, shows that

for particles longer than five micrometers, about 99 percent of all asbestos fibers have an aspect ratio of about ten to one, and more than half have an aspect ratio in excess of 50 to one. (Tr. 6:96.)

In analyzing a massive variety of tremolite that was crushed, she found that only five percent of the particles had aspect ratios in excess of the to one and none were in excess of 50 to 1. (Tr. 6:96–97.)

Ross testified as to the importance of having appropriate internal standards in analyzing material by electron microscopic techniques. (Tr. 7: 4–6, 17–18.) He also testified as to the need to have a tilting capacity on the microscope used in such an analysis. (Tr. 7:6–17, 19–22.)

Ross reviewed Exhibits C–31A–F (Tr. 7:26), consisting of six photographs of the anthophyllite standards that were used by Stewart in performing his analyses. (Tr. 5:57.) Ross also reviewed Exhibits C–26, C–27, and C–28, which are illustrations of the techniques used by Stewart in analyzing various samples. (Tr. 5:81, 83–84, 94, 95; 7:35–45.) Having made a visual observation of Exhibits C–31A-F and having made various measurements on them, Ross concluded that Stewart had used a poor anthophyllite standard. (Tr. 7:26–32.) However, Ross also indicated that his opinion might be influenced by deviations resulting from the photographic process and that he would like to see the negatives. (Tr. 7:32–33.)

Ross stated that Stewart’s failure to count the angstrom spacings between the layer lines on the diffraction patterns was generally unacceptable. (Tr. 7:36.) In Ross’s opinion, Exhibit C–27P (fiber bundle, Baldwin, A–7016) and the diffraction patterns shown in the following exhibits were of little or no value for identifying asbestos fibers: C–26Q (Miller, A–6405); C–27N (fiber 1, Baldwin, A–7016); C–27O (fiber 2, Baldwin, A–7016); C–27Q (fiber bundle, Baldwin, A–7016); C–28E (fiber 2, Hull, A–6239); C–28G (fiber 3, Hull, A–6239); C–28K (fiber 4, Hull, A–6239). (Tr. 7:35–45.) Ross qualified his opinions as to these exhibits by the reservation ‘that there is a question in the translation . . . from the negative to the print’ because deviations might have been introduced by normal photographic procedures. (Tr. 7:63.) Accordingly, Ross ‘put in a very strong request to see the original data.’ (Tr. 7:65.)

Ross also criticized Stewart’s analyses where no photographs were taken because Stewart ‘merely eyeballed the diffraction pattern and concluded that he had found an amphibole.’ (Tr. 7:45.) Ross further pointed out that in an energy dispersive analysis there is a better chance of getting a pure chemical sample, uncontaminated by surrounding interference particles, by using a selected point method rather than the ‘elongated concept’ used by Stewart. (Tr. 7:48.)

Findings of Facts in the Miller Case

1. On September 28, 1977, at Miller’s plant located in Weedsport, New York, two of Miller’s employees, (names redacted), were exposed to airborne concentrations of at least two asbestos fibers.

2. (names redacted) had worked for Miller for 2-1/2 years and three months, respectively, and no medical examinations had been provided, or made available, to them.

3. The evidence fails to establish how long Miller had been using Nytal 100HR.

4. The evidence fails to establish that Miller possessed actual or constructive knowledge that Nytal 100HR contained asbestos.

Findings of Fact in the Hull Case

1. On or about September 21, 1977, at Hull’s plant located in Crooksville, Ohio, spilled Ceramitalc HDT was dry swept in the vicinity of the raw material storage area, asbestos caution labels were not affixed to the bags of Ceramitalc HDT or the pallets on which they were stored, and empty Ceramitalc HDT bags were not collected or disposed of in sealed, impermeable bags or other closed, impermeable containers.

2. The evidence fails to establish that it was reasonably foreseeable that the failure to collect and dispose of the empty Ceramitalc HDT bags in impermeable bags or impermeable containers could have resulted in the exposure of Hull’s employees to airborne concentrations of asbestos fibers in excess of those specified in 29 C.F.R. § 1910.1001(b)(2) or (3).[16] Similarly, there is no evidence that the dry sweeping of spilled Ceramitalc HDT would exceed the limits provided in § 1910.1001(b)(2) or (3). However, the evidence establishes that some of the Ceramitalc HDT being used by Hull’s employees contained at least two asbestos fibers.

3. The evidence fails to establish that Hull possessed actual or constructive knowledge that Ceramitalc HDT contained asbestos.

Findings of Facts in the Baldwin Case

1. From about June 30, 1977, to October 11, 1977, at Baldwin’s plant in Foley, Alabama, Nytal 200 was used by Baldwin’s employees while mixing paint. However, the evidence fails to establish that Nytal 200 was used by Baldwin for any additional period of time.

2. Baldwin had not performed any initial monitoring for the presence of asbestos and had not provided, or made available, medical examinations for its employees.

3. Asbestos caution labels were not affixed to the bags of Nytal 200 used by Baldwin’s employees.

4. The evidence fails to establish that any employee who worked with Nytal 200 had been employed by Baldwin for as long as one year. It does establish, however, that two such employees, paint mixers, had been employed by Baldwin for more than 30 days.

5. The evidence establishes that the two paint mixers were exposed to airborne concentrations of at least two asbestos fibers each and that these fibers were released by the Nytal 200 that they were using.

6. The evidence fails to establish that Baldwin possessed actual or constructive knowledge that Nytal 200 contained asbestos.

Discussion

Prior to trial, the respondents filed a motion to dismiss all citations because the asbestos standards were improperly promulgated and unenforceably vague. The motion also asserts ‘that Complainant’s continued enforcement of an unconstitutional and unenforceably vague standard is arbitrary, capricious and constitutes an abuse of direction.’ The respondent’s motion was considered and denied at trial. (Tr. 1:28–37, 42–52.) In a joint post-trial brief, the respondents and the intervenor ask that I reconsider my denial of the motion. I adhere to my ruling for the reasons stated at trial. In addition, see the discussion of the dichotomy pertaining to the ‘asbestiform’ and so-called ‘nonasbestiform’ of minerals, infra. Also see National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048, 1052–53 (8th Cir. 1978.)

Since I found at trial that the asbestos standards were not improperly promulgated or unenforceably vague, it was unnecessary for me to address the assertion that the complainant’s enforcement of the standards was arbitrary, capricious, and an abuse of discretion. The joint post-trial brief asserts, however, that ‘the asbestos standard . . . is arbitrary and capricious.’ This assertion relates to the wisdom of the asbestos standards. The Commission has held that it is not its function to address the wisdom of the standard. Borg-Warner Corporation, 78 OSAHRC 18/A2 n. 11 (No. 10757, 1978.) Nevertheless, to alleviate possible appellate problems that could result from the absence of a ruling, I conclude that the evidence does not show that the asbestos standards are arbitrary and capricious.

Annual medical examinations are required under 29 C.F.R. § 1910.1001(j)(3) when employees are exposed to airborne concentrations of asbestos, regardless of the levels of exposure. GAF Corp. 75 OSAHRC 3/A2 (No. 3203, 1975), aff’d, 561 F.2d 913 (D.C. Cir. 1977.) However, since § 1910.1001(j)(3) applies to employees engaged in occupations exposed to airborne concentrations of asbestos ‘fibers,’ I conclude that the standard applies to situations where employees are exposed to airborne concentrations of at least two asbestos fibers, or will be in the future. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9 (No. ,504, 1976.) In these respects, I interpret the requirements for preplacement medical examinations in 29 C.F.R. § 1910.1001(j)(2) to be the same as those in § 1910.1001(j)(3) because the significant language in both standards is identical.[17]

The evidence establishes that two of Miller’s employees, (names redacted), were exposed to airborne concentrations of at least two asbestos fibers. Dust was observed in the air when bags were poured into the mixing tank. Dixon’s analysis of the bulk sample (A–6393) revealed the presence of two anthophyllite fibers, four tremolite fibers, and 10 fibers of either tremolite or anthophyllite. The presence of asbestos fibers in this sample was verified by Stewart whose analysis indicated that more than two anthophyllite fibers were present.[18] Peterson’s analysis of A–6405, an air filter sample taken on, showed that s(name redacted),even tremolite and three anthophyllite fibers were present. The presence of asbestos fibers in this sample was also verified by Stewart who observed 20 to 30 anthophyllite fibers in a portion of the sample.

Irrespective of the exposure of (names redacted) to asbestos fibers, the evidence is insufficient to establish that Miller violated 29 C.F.R. § 1910.1001(j)(3). (name redacted)had worked for Miller for only three months. More important, there is no evidence as to how long Miller had been using Nytal 100HR. Thus, it cannot be said that Miller had failed to provide (names redacted),with the annual medical examinations required by § 1910.1001(j)(3). Similarly, the failure to establish how long Miller had been using Nytal 100HR precludes amending the citation and finding a violation of 29 C.F.R. § 1910.1001(j)(2), for a failure to provide preplacement medical examinations.

The evidence establishes that Baldwin’s paint mixers were exposed to airborne concentrations of at least two asbestos fibers. This is established by Crane’s and Stewart’s analyses of air filter sample A–7016. Additionally, Dixon’s and Stewart’s analyses of the bulk sample obtained by Barnhill (A–4976) show that asbestos fibers were present in that sample. However, as in the Miller case, a violation of 29 C.F.R. § 1910.1001(j)(3) has not been established as the evidence fails to show that either of the paint mixers had been working for Baldwin for a year[19] or that they had been using Nytal 200 for a year in their work.

Barber’s testimony establishes that both paint mixers had worked for Baldwin for more than 30 days. Her testimony coupled with that of Barnhill shows that Baldwin had been using Nytal 200 for slightly more than three months between June 1977 and October 1977,[20] well over the 30 calendar days specified in the preplacement medical examination standard, 29 C.F.R. § 1910.1001(j)(2).

Asbestos caution labels must be affixed to products containing asbestos ‘fibers.’ 29 C.F.R. § 1910.1001(g)(2)(i). As with the medical examination standards, I conclude that caution labels are required when a product contains at least two asbestos fibers.[21] As previously indicated, the presence of at least two asbestos fibers in the Nytal 200 used by Baldwin is established by Crane’s, Dixon’s, and Stewart’s analyses of A–7016 and A–4976. Barber’s testimony shows that the bags of Nytal 200 that she observed at the respondent’s plant did not have asbestos caution labels.

Cagle’s testimony establishes that neither the bags of Ceramitalc HDT used by Hull nor the pallets on which they were stored had asbestos caution labels. The presence of at least two asbestos fibers in the Ceramitalc HDT used by Hull is established by Crane’s and Stewart’s analyses of bulk sample A–6239 taken from a bag of Ceramitalc HDT and of bulk sample A–6243 taken from the floor in the area where the Ceramitalc HDT was stored.[22]

Under 29 C.F.R. § 1910.1001(c)(2)(i) asbestos must be handled or worked in a wet state sufficient to prevent the emission of airborne fibers in excess of the exposure limits specified in 29 C.F.R. § 1910.1001(b)(2) and (3). Obviously, this presupposes that when handled or worked in the dry state there would be an emission of airborne asbestos fibers in excess of the § 1910.1001(b)(2) and (3) limits. There is no evidence that the dry sweeping of spilled Ceramitalc HDT would exceed these limits in Hull’s plant.

Hull’s empty Ceramitalc HDT bags should have been collected and disposed of in impermeable containers if it was ‘reasonably foreseeable’ that their future use or processing might produce airborne concentrations of asbestos fibers in excess of the limits prescribed in § 1910.1001(b)(2) and (3). There is no evidence to establish that it was reasonably foreseeable from Hull’s use or other processing of these empty bags that these limits might be exceeded.

The asbestos monitoring standard, 29 C.F.R. § 1910.1001(f)(1) requires monitoring, ‘[w]ithin 6 months of the publication of this section,’ of places of employment when asbestos ‘fibers’ are released. Therefore, to establish a violation of this standard, it must be shown that at least two asbestos fibers were actually released from the Nytal 200 being used at Baldwin’s plant. See Goodyear Tire & Rubber Company, 77 OSAHRC 82/A2 (No. 13442, 1977.) This is established by Crane’s and Stewart’s analyses of air filter sample A–7016. The fact that Baldwin had done no initial monitoring for asbestos is established by Carneal’s admission to Barber that none had been done.

In my opinion, if an employer should have monitored for asbestos within six months of the publication of 29 C.F.R. § 1910.93(a),[23] his duty to monitor continues as long as he continues to use products that release asbestos fibers. See Yelvington Welding Services, 78 OSAHRC 84/D6 (No. 15958, 1978). Also, I interpret the standard to require initial asbestos monitoring within a reasonable time after an employer knows or, by the exercise of reasonable diligence, could have known that a product used by him was causing the release of asbestos fibers in his place of employment, even though he was not using this product during the initial six-month period.[24] As previously indicated, the evidence establishes that Baldwin had been using Nytal 200 from the time of the first inspection to the time of the second one, a period of slightly more than three months, but does not establish when Baldwin first started to use Nytal 200. If Baldwin knew at the time of the first inspection or, by the exercise of reasonable diligence, could have known at that time that Nytal 200 contained asbestos fibers, then the time interval between the two inspections would constitute more than a reasonable period for the accomplishment of the required monitoring.

In my opinion, there is no validity to the respondent’s attempt, through the testimony of Wylie and Ross, to impeach the analyses of the samples by Stewart and OSHA’s Salt Lake City laboratory. Wylie testified that the Salt Lake City analyses were inadequate unless there was prior knowledge of the mineral content of the samples. However, the Salt Lake City laboratory had such knowledge because the analysts could readily identify a Vanderbilt product under a microscope and had prior knowledge of the mineralogical content of Vanderbilt products. (Tr. 4: 713–714, 717–718, 722.) Also see Borg-Warner Corp., 78 OSAHRC 18/A2 (No. 10757, 1978); Wenczel Tile Company of Florida, Inc., OSAHRC Docket No. 77–2039 (August 14, 1978) (Brady, J.), Commission review ordered, September 13, 1978. Moreover, Stewart’s verification of several of the Salt Lake City analyses negates Wylie’s reservations as to the mineral content of those samples.[25]

Ross’ criticisms of Stewart’s analyses were based on photographic exhibits that were introduced by the complainant merely to illustrate the techniques used by Stewart. Ross admitted that his criticisms could be invalid because of possible deviations in the photographs and requested an opportunity to see the original data. At the trial, I ruled that the respondents’ experts would be afforded an opportunity to examine this data and that following the examination I would grant a motion to reopen the hearing to present evidence as to what the examination revealed. (Tr. 6: 33–34; 7: 80.) The respondents’ counsel agreed that he would subsequently advise me as to whether the respondents would avail themselves of the opportunity to have their experts examine the data. (Tr. 7: 77–80.) Thereafter, by a letter dated September 26, 1978, the opportunity was declined. Accordingly, I find that Ross’s criticisms are entitled to no significant weight.

The conclusions of the complainant’s analysts concerning the mineralogical composition of the fibers they analyzed are supported by Mineral Product Safety Data Sheets prepared by Vanderbilt on May 1, 1975, and January 15, 1978. (Exhs. C–32, C–33.) Those data sheets show that 50 to 70 percent of Ceramitalc HDT and Nytal 100HR and 40 to 60 percent of Nytal 200 is ‘tremolite and/or anthophyllite,’ albeit ‘non-asbestiform.’

The Commission has held that the so-called ‘nonasbestiform’ of the minerals regulated by the complainant’s asbestos standards fall within the purview of the standards. Borg-Warner Corp., supra. I find nothing in the instant cases that detracts from that holding. Wylie’s testimony represents a mineralogical viewpoint as contrasted with the health considerations inherent in the asbestos standards.[26] Whether the inhalation of tremolite, anthophyllite, and actinolite cleavage fragments[27] that are longer than five micrometers with an aspect ratio of at least three to one[28] is injurious to an employee’s health is unclear from the record in these cases. However, there was no evidence introduced during the trial that tends to show that it is not just as injurious to an employee’s health to inhale these particles as it is to inhale particles that differ from them only in that they grow naturally as asbestos fibers.[29] The resolution of this matter is not essential in these cases because a comparison of photographs of tremolite, anthophyllite, and actinolite cleavage fragments and asbestiform fibers (figures 3, 4, and 5, pages 7, 8, and 9, Exh. R–32) with the illustrative photographs of Stewart’s analyses of samples A–6405 (Exh. C–26P), A–7016 (Exhs. C–27M and P), and A–6239 (Exhs. C–28A, C, D, F, H, and J) clearly establishes that the particles analyzed by Stewart were of the asbestiform variety as used in mineralogical parlance. (Tr. 6: 97–99.) More important, the respondents and the intervenor concede at page 26 of their joint post-trial brief that the complainant’s photographs ‘apparently depict mineralogical fibers’ and that ‘[t]he fibrous morphology of the suspect particles is not debated.’[30]

To establish any violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678, the complainant must prove that the respondent possessed actual or constructive knowledge of the alleged violative conditions. Wally Taylor Construction Co., 76 OSAHRC 142/F6 (No. 9413, 1976), and the cases cited therein; Scheel Construction, Inc., 76 OSAHRC 138/B6 (No. 8687, 1976). In the instant cases, that equates to a requirement that the complainant prove that the respondents knew or, by the exercise of reasonable diligence, could have known that they were using talcs that contained asbestos fibers. I conclude that the complainant failed to prove that any of the respondents possessed such knowledge.

The complainant attempted to prove that the respondents possessed the requisite knowledge through the testimony of Allen Harvey, the manager for technical development for the R. T. Vanderbilt Company. (Tr. 7:81.) Harvey identified an unsigned letter (Exh. C–34) bearing the letterhead of the R. T. Vanderbilt Co., dated January 25, 1977, addressed ‘To Our Talc Customers,’ which is entitled ‘Talc Certification.’ (Tr. 7: 87.) The body of the letter states the following:

In a letter from the U. S. Department of Labor, dated October 9, 1974, we were authorized to certify that our talc products do not contain asbestos. This reasonable move was followed by OSHA Field Memorandum #74–92, which attempted to clarify the differences between asbestiform and non-asbestiform minerals.

Dr. Morton Corn, the most recent Assistant Secretary of Labor and head of OSHA, informed us in a letter received January 24, 1977, that this authorization has now been rescinded and the Field Memorandum has been cancelled. These most recent rulings were made just prior to Dr. Corn’s resignation and mean we are no longer in a position to certify that our talc products do not contain asbestos even though they are composed of the same non-asbestiform minerals processed the same as always.

We are unable to explain this unwarranted reversal of policy by OSHA, but you can be assured we will actively oppose this injustice with all the technical and legal means available to us. Our talcs have been the subject of two OSHA cases during the past year which have gone to litigation. One case remains unresolved and in the other one the Government backed down from their asbestos contention and accepted a settlement which was not even under the Asbestos Standard.

We thank you for your continued consideration and support.

Although Harvey participated in the preparation of the letter, he was not sure that it had been sent to Vanderbilt’s talc customers. (Tr. 7: 88–89.) Even if there was evidence that the letter had been mailed to each of the respondents, I would not infer that it had been received by them. There is, however, some evidence from which it can be inferred that Baldwin received the letter. Based on letters received from Vanderbilt, Carneal told Barnhill that the Vanderbilt talcs being used by Baldwin ‘don’t have any asbestos in them.’ (Tr. 3: 628.) Subsequently, Carneal gave Barber a letter from Vanderbilt, dated January 25, 1977, addressed to its talc users, and entitled ‘Talc Certification.’ (Tr. 3:455.)

Vanderbilt’s letter of January 25, 1977, shows that Vanderbilt, under an authorization granted by the complainant, had certified to its talc users that Vanderbilt’s talcs did not contain asbestos. Although the letter states that the complainant had withdrawn the previously granted certification authority, it continues to tell Vanderbilt talc users that Vanderbilt’s talc products do not contain asbestos. In my opinion, it was reasonable for users of Vanderbilt talcs, including those who received the January 25, 1977, letter to rely on Vanderbilt’s assertions that its talcs were free of asbestos.[31] It is clear that Baldwin believed the assertions, and it is reasonably expectable that other users also believed them. It would most certainly be unreasonable to expect every user of Vanderbilt talcs throughout the nation to individually have these talcs analyzed for asbestos after having been told by the producers that the talcs did not contain asbestos.[32] The difficulties of obtaining such analyses are well demonstrated by the record in the instant cases. Thus, I conclude that reasonable diligence did not require the respondents to obtain them.

Conclusion of Law

1. The Commission has jurisdiction over the cases, the respondents having admitted jurisdiction in their answers to the complaints. (Tr. 1: 9.)

2. The evidence fails to establish that the respondents violated any of the occupational health standards in issue in these cases.

ORDER

The three citations in issue in these cases are vacated in their entirety.

GEORGE O. TAYLOR, JR.

Judge, OSHRC

Dated: May 29, 1979

Hyattsville, Maryland

* Commissioner Cottine took no part in the consideration or decision of this case.

[1] This case was previously consolidated with Baldwin Industries, Inc., OSHRC Docket No. 78–741. The cases are hereby severed for decisional purposes. Commission Rule 10, 29 C.F.R. § 2200.10.

[2] Commissioner Cleary notes that the R. T. Vanderbilt Company had been authorized by OSHA to certify that its industrial talcs do not contain asbestos if it had evidence that this was true. Pursuant to this authorization, Vanderbilt represented to users of Ceramitalc HDT that the minerals contained in the talc were ‘nonasbestiform.’ Prior to the time of the alleged violations in this case, OSHA rescinded Vanderbilt’s authorization to certify that its talcs do not contain asbestos, and Vanderbilt sent a letter to some of its talc customers informing them of this. In Commissioner Cleary’s view, any user of Vanderbilt talcs who received this letter would be on notice of OSHA’s position that Vanderbilt talcs contain asbestos and could not be found to lack actual or constructive knowledge of this fact. Baldwin Industries, Inc., OSHRC Docket No. 78–741 (March 1982). However, there is no evidence that Hull received the Vanderbilt letter. Accordingly, Hull was entitled to rely on Vanderbilt’s earlier representation that the minerals in Ceramitalc HDT were nonasbestiform, and Commissioner Cleary agrees that the judge correctly found Hull lacked actual or constructive knowledge that Ceramitalc HDT contains asbestos.

[3] Because Hull is not aggrieved by our disposition of the case, we deny its motion to reopen the record without deciding whether reopening of the record would otherwise be appropriate under the circumstances of this case.

[4] This health standard provides that:

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 . . ., a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity . . . and forced expiratory volume at 1 second. . . .

[5] As used in this decision, the term ‘fiber’ means a particle that is longer than five micrometers (29 C.F.R. § 1910.1001(a)(2)), and that has an aspect ratio of at least three to one, that is, a particle whose length is at least three times greater than its width. (Para. 1.3, Exh. R–8.) See Borg-Warner Corp., 78 OSAHRC 18/A2 (No. 10757, 1978).

[6] Section 1910.1001(c)(2)(i) provides that:

Insofar as practicable, asbestos shall be handled, mixed, applied, removed, cut, scored, or otherwise worked in a wet state sufficient to prevent the emission of airborne fibers in excess of the exposure limits prescribed in paragraph (b) of this section, unless the usefulness of the product would be diminished thereby.

See footnote 4, infra, for the pertinent contents of § 1910.1001(b).

[7] Section 1910.1001(g)(2)(i) provides that:

Caution labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing asbestos fibers, or to their containers, except that no label is required where asbestos fibers have been modified by a bonding agent, coating, binder, or other material so that during any reasonably foreseeable use handling, storage, disposal, processing, or transportation, no airborne concentrations of asbestos fibers in excess of the exposure limits prescribed in paragraph (b) of this section will be released.

Paragraph (b) of § 1910.1001 contains the following pertinent requirements:

(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. . . .

(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. .

[8] Section 1910.1001(h)(2) provides that:

Asbestos waste, scrap, debris, bags, containers, equipment, and asbestos-contaminated clothing, consigned for disposal, which may produce in any reasonably foreseeable use, handling, storage, processing, disposal, or transportation airborne concentrations of asbestos fibers in excess of the exposure limits prescribed in paragraph (b) of this section shall be collected and disposed of in sealed impermeable bags, or other closed, impermeable containers.

See footnote 4, supra, for the pertinent contents of § 1910.1001(b).

[9] Ceramitalc HDT is a trade name that is registered by the R. T. Vanderbilt Company. (Tr. 2:267.)

[10] The file in the Baldwin case also contains a citation for a nonserious violation of 29 C.F.R. § was not contested by Baldwin and has become a final order of the Commission by operation of law. (Tr. 1:7.) See 29 U.S.C. § 659(a).

[11] This health standard provides, in pertinent part, that:

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.

[12] See footnote 4, supra, for the text of this standard.

[13] Section 1910.1001(j)(2) provides the following as to preplacement medical examinations:

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 . . ., symptomatology of symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity . . . and forced expiratory volume at 1 second. . . .

[14] See footnote 1, supra, for text of 29 C.F.R. § 1910.1001(j)(3), the annual medical examination standard.

[15] See footnote 2, supra.

[16] See footnote 4, supra, for the text of 29 C.F.R. § 1910.1001(b)(2) and (3).

[17] In their joint post-trial brief, the respondents and the intervenor contend that the medical examination standards are unenforceably vague. In support of this contention they assert that evidence adduced at trial (Tr. 3: 415–425) shows an ‘unofficial exclusion level ‘policy’ in certain OSHA offices’ providing ‘that concentrations of .1 asbestos fibers per cubic centimeter of air or greater must be found before any citation under the medical examination provisions would be issued.’ In this connection, I am asked to take official notice of OSHA Program Directive Number 300–16 issued on October 11, 1978, which, in effect, formally announces this policy. At best, the matters referred to in the joint post-trial brief merely show that the complainant has changed his interpretation of the standards for enforcement purposes. See GAF Corp. v. OSHRC, 561 F.2d 913 (D.C. Cir., 1977). They do not detract from the specificity of the standards as promulgated by the complainant and as interpreted by the Commission and the United States Court of Appeals for the District of Columbia Circuit. Furthermore, the implementation or pronouncement of policies by the Secretary of Labor or his representatives have no binding legal effect on either the Secretary or the Commission when they have not been promulgated as rules on regulations. See Bristol-Myers Co., 78 OSAHRC 106/D13 n.1 (No. 77–3854, 1978); Alfred S. Austin Construction Co., 76 OSAHRC 50/A2 (No. 4809, 1976); GAF Corp., 77 OSAHRC 207/E6 (No. 77–616, 1977) (Alfieri, J.). Of course, Policy Directive Number 300–16, is also not binding here because it was not issued until well after the issuance of the citations in the instant cases.

[18] Stewart testified that analysis by transmission electron microscopy and related techniques was necessary to rule out the possibility of erroneously counting talc fibers as asbestos fibers, which could not be accomplished by the analysis techniques used by OSHA’s Salt Lake City laboratory. (Tr. 5: 53.) Accordingly, although I note that Peterson found asbestos fibers in A–6395, A–6396, and A–6397, I do not rely on those analyses in concluding that (names redacted)were exposed to airborne concentrations of at least two asbestos fibers as Peterson’s findings were not verified by Stewart. Also, I do not rely in this decision on other OSHA analyses that have not been verified by Stewart.

[19] Barber testified that one of the employees told her that he had worked for Baldwin for three months. As she ‘recall[ed]’ the other indicated to her that he had worked for Baldwin for one year. (Tr. 3: 457.) I consider this to be a rough approximation that could have fell short of being a full year. Accordingly, I find that Barber’s testimony is not sufficiently definitive to establish that the employee had worked for Baldwin for a year.

[20] No violation can be found on the date of Barnhill’s inspection because the citation was not issued to Baldwin within six months after Barnhill’s inspection. 29 U.S.C. § 658(c). Nevertheless, Barnhill’s testimony can be used in part to establish the existence of violations at the time of Barber’s inspection. For example, Barnhill’s testimony can be used to establish that Baldwin was using Nytal 200 at the time of Barnhill’s inspection. Furthermore, the bulk sample obtained by Barnhill can be used to show that the Nytal 200 in use at the time of Barnhill’s inspection contained asbestos fibers.

[21] To establish a violation of 29 C.F.R. § 1910.1001(g)(2)(i), the complainant is not required to prove ‘that during any reasonably foreseeable use, handling, storage, disposal, processing, or transportation, no airborne concentrations of asbestos fibers in excess of the exposure limits prescribed in [29 C.F.R. § 1910.1001(b)] will be released.’ That requirement pertains only to a situation ‘where asbestos fibers have been modified by a bonding agent, coating, binder, or other material,’ which is not the situation in the Baldwin and Hull cases.

[22] Crane also found asbestos fibers in air filter sample A–6238 and in bulk samples A–6241 and A–6242. Stewart did not analyze A–6238 or A–6241 and could not identify asbestos in A–6242. Therefore, I do not rely on Crane’s analyses of these samples. See footnote 15, supra.

[23] The asbestos standards were previously codified at 29 C.F.R. § 1910.93a and, on May 28, 1975 were recodified at 29 C.F.R. § 1910.1001. 40 Fed. Reg. 23072 (1975).

[24] The conclusions expressed in this paragraph are supported by 29 C.F.R. § 1910.1001(f)(3)(ii), which provides that:

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 the employees. In no case shall sampling be at intervals greater than 6 months for employees whose exposures to asbestos may reasonably be foreseen to exceed the exposure limits prescribed in paragraph (b) of this section.

[25] See footnote 15, supra.

[26] Thus, the term ‘nonasbestiform’ appears to be a misnomer from a health standpoint.

[27] As a matter of practice, OSHA’s Salt Lake City laboratory did not count a particle as a fiber if its width was greater than five micrometers. (Tr. 3: 506; 4: 717–718, 741.) This tended to eliminate the counting of a cleavage fragment as a fiber. (Tr. 4: 717.)

[28] Although the three to one aspect ratio requirement is not contained in the asbestos standards, it constitutes a subsequent interpretation of the standard by the complainant. See Borg-Warner Corp., supra. Since that interpretation increases the complainant’s burden of proof, the respondents cannot be prejuduced by its use. In regard to Wylie’s testimony that about all asbestos fibers have an aspect ratio greater than three to one, I note that Stewart testified that he found some asbestos fibers with about a 100 to 1 aspect ratio. (Tr. 5: 96, 194.)

[29] After trial, however, the respondents requested me to take official notice of pages 2 and 3 of DHEW Publication Number (NIH) 79–1681, entitled ‘Asbestos: An Information Resource,’ published in May 1978. That publication states that ‘recent biological studies suggest that, in terms of carcinogenic activity, mineral shape may be more important than chemical nature.’ However, several studies by the National Institute for Occupational Safety and Health are more relevant to the health hazards associated with the Vanderbilt products involved in the instant cases. These studies show an increased risk of lung cancer among former miners and millers who had worked with tremolitic talcs for the R. T. Vanderbilt Company in upper New York and reveal an elevated prevalence of pleural thickening is nearly one of every three Vanderbilt tremolitic talc workers with greater than 15 years of exposure. (Exh. R–9.)

[30] DHEW Publication Number (NIH) 79–1681 also indicates the following:

The identification of asbestos is complex because many of the minerals that are chemically almost identical to different varieties of asbestos (e.g., grunerite to amosite, serpentine to chrysotile) exhibit perfect prismatic cleavage (the ability to break along well-defined crystallographic planes), so that physical degradation often leads to the formation of minute cleavage fragments that are chemically as well as physically indistinguishable from asbestos fibers. Recent comprehensive studies at the U. S. Bureau of Mines have concluded that there is currently no absolute way to distinguish between finely divided asbestos and certain other minerals of similar composition. (Emphasis added.)

Because of their indefiniteness, these conclusions are of little significance in the instant cases. Moreover, for the reasons previously discussed in the text, the evidence establishes the presence of asbestos fibers in various samples of Ceramitalc HDT, Nytal 100HR, and Nytal 200 that were analyzed.

[31] There is no other evidence which tends to show that the respondents had any cause to believe that Vanderbilt talcs contained asbestos. To the contrary, the Mineral Product Safety Data Sheets prepared by Vanderbilt on May 1, 1975, and January 15, 1978, to inform its customers of the ingredients in Vanderbilt talcs, indicate that no asbestos is contained in Ceramitalc HDT, Nytal 100HR, or Nytal 200, as the tremolite and anthophyllite contained in these talcs are characterized as ‘non-asbestiform.’ (Tr. 7: 82–86; Exhs. C–32, C–33.)

[32] In instances such as this, it would seem that enforcement should be initially directed against the producers to require them to affix asbestos labels to their products where appropriate. If users were so alerted to the presence of asbestos, it should obviate the necessity ‘to litigate numerous similar cases through the administrative and appeal procedure provided’ under the Act. Continental Can Co., U.S.A. v. Marshall, 455 F.Supp. 1015 (S. D. Ill., 1978).

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–555
HULL POTTERY COMPANY, RESPONDENT AND R. T. VANDERBILT COMPANY, INTERVENOR