Petition — Brown Insulating Systems, Inc. v. Donovan

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| Supreme Court, U.S, Be

Ia. FILED

80-765 ‘| NOV 6 1980

MICHAEL RODAK, JR. CLERK

Supreme Court of the United States

October Term, 1980

BROWN INSULATING SYSTEMS, INC.,

Petitioner,

VS.

SECRETARY OF LABOR

and

OCCUPATIONAL, SAFETY AND HEALTH

REVIEW COMMISSION,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

HARLEY J. McNEAI.

Counsel of Record

McNEAL, ScHICK & ARCHIBALD

520 Williamson Building

Cleveland, Ohio 44114

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED FOR REVIEW

Are claimed violations of 29 C.F.R. 1910.1001 (b) (2)

proved by testimony of OSHA Laboratory technician using

only one of twenty-one ambient air samples as “criteria”,

without proof of the relation of said air sample to a specific

area and plant air conditions existing at the time the spe-

cific sample was secured?

Is not 29 C.F.R. 1910.1001(b) (2) constitutionally

vague, indefinite and discriminatory by failing to define

“exposure” as exposure to quality of air breathed by em-

ployees inside respirators, rather than leaving the regula-

tion of exposure to claimed contaminated air to choice of

Secretary of Labor based upon one air sample secured in

the ambient air in the Petitioner’s plant?

Is a claimed 29 C.F.R. 1910.1001(c)1(i) violation

proved by evidence and testimony which related to “pos-

sible” methods of engineering control which were ad-

mittedly not known to be commercially feasible and ef-

fective, nor capable of performing the service required?

Based upon statements in the Federalist papers, man-

dates of the Ratifying Conventions and Rule of Law per-

taining to the Commerce clause, is not Congress limited

legislatively to enforcing prohibitions against States levy-

ing taxes on interstate commerce, thereby making all other

legislation enacted by Congress regulating private and free

enterprise within States null and void, as well as all legis-

lation creating and implementing OSHA, stemming from

an erroneous assumption of the existence of a general

welfare clause; resulting in denying the Petitioner, its in-

dividual rights guaranteed by the First, Fourth and Four-

teenth Amendments of the Federal Constitution and Bill

of Rights by reason of the Order of the United States Court

of Appeals for the Sixth Circuit affirming the decision and

order of the OSHRC?

LIST OF ALL PARTIES

The Petitioner is Brown Insulating Systems, Inc., the

manufacturer of asbestos sleeves, which fit inside molds for

steel and iron castings, to insure the insulation of metal

risers, which are necessary to the production of nonporous

castings by the foundry industry, together with other in-

sulation products.

The Respondents are the Secretary of Labor and Oc-

cupational Safety and Health Review Commission.

TABLE OF CONTENTS

Questions Presented for Review o..........cccccececcececeseseseeseseeee I

OE FO RIE SEIS scséssscccoestesctsesanehecalinioetebiepicesette anita II

RIN SII WP sitibicetacasassccnsecteavesicnmddlasdedatacmunii tice 1

TE LO ONC TT ee MONON AOE 1

Constitutional and Statutory Provisions Involved ........ 2

Statement of the Case ..............c.cescsesoscccsseccscscsesesesesceessese 2

Reasons Relied Upon for the Allowance of the Writ .... 12

RII. sisdtisitcdiiecitierdaciedidiceeielaiate aie ase 23

Appendix:

Opinion and Order of the United States Court of

Appeals for the Sixth Circuit, dated June 16,

TT. ile tacihdipislaaibeniaitmeencnlacccidanthiaeduslaalataandiubiaaiien Al

Decision and Order of Administrative Law Judge,

CE RS I, TN eihdcissttdiicceccssieitedions A3

Order Granting Extension of Time Within Which to

Petition for Writ of Certiorari, dated September

Dy. SE picernsssninieniei nacciantenanbaaicale ne A27

Constitution of the United States, Amendment I .... A28

Constitution of the United States, Amendment IV .... A28

Constitution of tite United States, Amendment

SDT. sinsssssiiicinsssdilidauspuiiedeilinbdapnilceumeidmiees ocak ia tometer ae A28

29 Code of Federal Regulations 1910.1001(b) (2) .... A29

29 Code of Federal Regulations 1910.1001(c) (1)

{OT a SMN Koa ee, tn Mees A29

TABLE OF AUTHORITIES

Cases

Industrial Union Dep’t v. Hodgson, 499 F.2d 467 (D.C.

Re ITI scl O cc cecksseiecclanceccubiete Mouseacncanaiomstabs aaah aededdadianienesd 15

Industrial Union Department, AFL-CIO v. American

Petroleum Institute, (S.Ct.) No. 78-911, July 2, 1980,

Uc cata. ‘pesca nsclipi csi einai 21

International Harvester Co., June 18, 1979, OSHRC

Docket No. 76-4388, Sidney J. Goldstein, Judge, 1979

RISE AR ik ec ee rs 19

Secretary of Labor v. Reynolds Metals Company, 2

OSHC 3107 (OSAHRC Docket No. 3827), Aug. 14,

STII eodeesiciesccesslepchitii apenas asninstadbeniegueacinsconsaanshcdaadaiadtnliediannnnieies 14

Thrall Manufacturing Company, OSHRC Docket No.

76-3816, Louis G. LaVecchio, Judge, 1979 OSHD,

SI NIN tase eicnhdsciidainalerenibtovediaabinion 14

Constitutional and Statutory Provisions

Pe a Si ii san pea cacanadedeninbuaneeseel 2,5, 12

Pr UI MII I cic scsicccesbesenesevunidaalacoonnl 2, 5, 12, 17

Re Pd MIS IEW cnctescsinicssccaanshatnoninnsensesstionses 2,5, 12,17

Sr Ms MI CY i csctacs isn dedsnsncduotetelotees 2, 4, 12

Se Ms MPIC P TB CE) vcccsccecsciescnosssissnsntcntioennnnes 2,4, 12

Occupational Safety and Health Act:

STINE. © vacalticpiaephlichincccbineaibcueatasichonedscieietieapiuiaicibcilidedalassinisian 2

SEARS AOE ee eee Pane DOT na En TTT 2

PRE sericea alec neha ia 2

Text

Occupational Safety and Health—Law and Practice,

Baruch A. Fellner and Donald W. Savelson, A1-238,

Practicing Law Institute, New York City, pp. 163-

NE IN ITE srsechatinseecciesscciibensciiaananlniedahonaeiarainincalananiac 17, 18

I en a Ee oes

Supreme Court of the United States

October Term, 1980

BROWN INSULATING SYSTEMS, INC.,

Petitioner,

VS.

SECRETARY OF LABOR

and

OCCUPATIONAL, SAFETY AND HEALTH

REVIEW COMMISSION,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

OPINIONS BELOW

The Opinion and Order of the United States Court of

Appeals for the Sixth Circuit, dated June 16, 1980, is

reproduced in the Appendix at page Al. The Decision

and Order of the Administrative Law Judge, dated April 20,

1978, is reproduced in the Appendix at page A3.

JURISDICTION

The jurisdiction of the Court is invoked on the grounds

of the Opinion and Order of the United States Court of

Appeals for the Sixth Circuit, dated June 16, 1980, pursuant

to Title 29 U.S.C., Section 660(a) and Title 28 U.S.C., Sec-

tion 1254. The Order granting an extension of time within

which to petition for a Writ of Certiorari, dated September

9, 1980, is reproduced in the Appendix at page A27.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the First, Fourth and Fourteenth

Amendments to the United States Constitution, see Ap-

pendix, p. A28; and, 29 Code of Federal Regulations

1910.1001(b) (2) and (c)(1) (i) of the Asbestos Standard,

see Appendix, p. A29.

STATEMENT OF THE CASE

Petitioner (hereinafter Brown) maintains a manu-

facturing facility at North Royalton, Ohio where it is en-

gaged in the manufacturing of asbestos insulating sleeves

for risers used in the foundry industry.

As a result of an inspection of Brown manufacturing

facility on January 27, 1977, the Secretary of Labor al-

leged Brown violated Section 5(a) (2) of the Occupational

Safety and Health Act by failing to comply with specific oc-

cupational safety and health standards referable to the

limits of exposure of employees to asbestos fibers related

to products manufactured by Brown.

A Complaint was initiated by the Secretary of Labor,

directed to Brown, pursuant to Section 10 of the Occupa-

tional Safety and Health Act of 1970 (hereinafter referred

to as Act).

The case was assigned to Hon. Paul L. Brady, J.,

OSHRC for a hearing pursuant to Section 10(c) of the Act.

Hearings were held on July 20-22, 1977 and November 14-

15, 1977.*

On April 20, 1978, Hon. Paul L. Brady, J., issued a

Decision and Order wherein he found Brown was in vio-

lation of the following standards of the Safety and Health

Regulations:

On January 27, 1977, petitioner was in serious willful

violation of the standards at 29 C.F.R. 1910.1001 (b) (2)

and (c) (1) (i), and had failed to correct previous vio-

lations of the same standards within the time specified.

As part of his Decision, Hon. Paul L. Brady, J., en-

tered the following Orders:

The citations alleging serious and willful violations

of the standards at 29 C.F.R. 1910.1001(b) (2) and

(c)(1) (i) are hereby affirmed and a penalty in the

amount of $1,500.00 is assessed.

The notification of failure to correct violations of

the standards at 29 C.F.R. 1910.1001(b)(2) and (c)

(1) (i) are hereby affirmed and a penalty in the amount

of $1,500.00 is assessed.

There being no review of the Decision and Order of

Hon. Paul L. Brady, J., by the Occupational Safety and

Health Review Commission; Brown, on July 20, 1978, filed

a Petition for Review and to Set Aside the Final Order

of the Occupational Safety and Health Review Commission

in the United States Court of Appeals for the Sixth Circuit,

Cincinnati, Ohio.

Brown based its appeal upon the following key issues:

1. Findings of fact that employees were exposed to ex-

cessive concentrations of airborne asbestos fibers,

*For purposes of transcript reference, the transcript of the

July proceedings will be referred to as “TrA” and the November

proceedings will be referred to as “TrB”.

in violation of the standard, are not supported on the

record. Only one (1) out of twenty-four (24) air

samples sent to the OSHA Laboratory in Salt Lake

City was used by the OSHA science technician to

prove the excess of asbestos fibers allowable. The

OSHA science technician testified he only did dis-

persion staining on one sample of the twenty-four

samples “for the court case” as his “criteria for

what had occurred in the plant.” He further tes-

tified he did not know whether the figure (80%) he

used to indicate excess of asbestos fibers applied to

any particular area in the plant; and, did not know

from where the sample was obtained; and said

“maybe (the 80% figure) does not apply”. (TrB

56-74)

. Limited testing was made of plant air outside res-

pirators used by employees ir. ‘wo areas (mixing

and wet cutting) of the plant. che use of only one

ambient air sample, which had been dispersion

stained, out of twenty-one ambient air sai_.ples to

determine “violations” did not fairly constitute a

reliable testing of “exposure” to prove violations of

29 Code of Federal Regulations 1910.1001(b) (2).

. The words “exposed” and “exposure”, as used in

29 C.F.R. 1910.1001(b) (2) and (c) (1) (i), should be

interpreted to relate to the quality of air actually

being breathed by the Brown employees, who were

using respirators, while working in the mixing and

wet saw cutting areas of the plant, rather than

testing the ambient air in such areas as the basis

for determining an employee’s “exposure”; and,

whether an employee was “exposed” to an excessive

concentration of asbestos fibers.

)

4. The testimony and evidence introduced by the Sec-

retary failed to prove an adequate dust collection

system was presently available for installation in

the Brown plant to control airborne asbestos fibers

which was economically and technically feasible.

5. The testimony relative to the testing methods to de-

termine “exposure” and being “exposed” to exces-

sive concentrations of airborne asbestos fibers, in-

cluding the testimony and evidence introduced to

substantiate such “exposure”, as well as the proof

offered pertaining to the availability of a dust col-

lection system which was economically and tech-

nically feasible, which formed the basis for the De-

cision and Order of the Administrative Law J udge;

and the Opinion and Order of the United States

Court of Appeals for the Sixth Circuit affirming

said Decision and Order, was legally insufficient

and deprives Brown of its constitutional rights

guaranteed by the First, Fourth and Fourteenth

Amendments to the Federal Constitution.

The facts which are believed to be material to a con-

sideration of the questions presented are herewith sum-

marized.

On January 27, 1977, Mr. Gregory, an OSHA Industrial

Hygienist, conducted ambient air sampling tests of two

employees in the area of the mixing operation and wet saw

cutting operation in the Brown plant (TrA 81-96). At the

time the ambient air samples were taken, the mix man was

wearing a respirator; and, the wet saw employee was

wearing a respirator (TrA 94).

The ambient air around where the employees were

working was not tested for an eight (8) hour period, nor

were area ambient air samples taken over an eight (8)

hour period.

No tests of the air the employees “sampled” actually

were breathing were made, since Mr. Gregory was not

equipped to do such testing (TrA 147). Mr. Gregory

could not say whether the air the employees were actually

breathing contained asbestos fibers or any other foreign

material (TrA 147-148 and TrB 189-190).

A more accurate reading of the quality of the air an

individual would actually be breathing would be obtained

by taking samplings of the air between the respirator and

mouth and nose of the individual (TrA 149-150). There

would be variations in the exposure level due to changes

of temperature, atmosphere, people moving about, activity

and the amount of work being done. Variations in ex-

posure level would be different from day to day and month

to month (TrA 151).

Mr. Daryl] Peterson, a science technician for the OSHA

Laboratory in Salt Lake City, received asbestos air sam-

ples from the hygienist in Cleveland, Ohio, which were

obtained from an inspection of Brown Insulating Systems,

Inc., with a request to analyze said asbestos air samples

(TrB 8-9).

Mr. Peterson stated the only definite way Amosite

fibers could be identified would be with dispersion stain-

ing. Prior to doing the dispersion staining, he made an

estimate of how many Amosite fibers were in each sam-

ple, assuming the fibers were all Amosite (TrB 53).

Mr. Peterson admitted he could have made some mis-

takes in connection with his assumption as to the fibers all

being Amosite (TrB 53).

When he learned this would be a court case, he found

the samples and did other tests. He stated “I better check

and see if all of these are Amosite.” He used the dis-

persion staining technique on one sample, but did not do

the dispersion staining on any of the others for the court

case (Tr.B 48-49 and 58).

He testified that from that sample which approximated

80% Amosite fibers, he used that figure as his testimony

in this case (TrB 57-58). He used the results obtained

from only one (1) sample as his “criteria” for what oc-

curred in the Brown plant. He received a total of twenty- . -

one (21) samples, but he used only one (1) sample for

his testimony in this case (TrB 59-60). Mr. Peterson

stated he did not know whether the figure of 80% Amosite

fibers applied to any particular area of the plant, since he

was not sure of the conditions in the plant. He did not

know from what area in the plant the one (1) sample he

used as the basis for his testimony was obtained (TrB

73-74).

Mr. Peterson said to be absolutely correct as to what

he found in testing the one (1) sample, he would have to

relate the sample to the area and the conditions that

existed at that particular time. He could not assume the

conditions occurred at all times in the Brown plant (TrB

79).

He did not do a percentage count on any of the other

samples which he examined (TrB 79).

Brown’s witness, David Winik, testified, in May of

1977, he was employed by Mogul Corporation as an en-

vironmental chemist. He did water analysis, air testing

and air monitoring when he was working for Mogul. He

monitored air for asbestos fibers at Brown Insulating Com-

pany. He followed the OSHA recommended testing pro-

cedures, the standard procedure for air monitoring (TrB

125-126). Mr. Winik described the procedures he under-

took; and, how he arrived at the figures which are repre-

sented on Exhibit R-6c. A plastic cassette was mounted in

the mask. There are three pieces fitting one inside the

other; and, a filter is put in between. The purpose of

the cassette is to hold the filter and an inlet and outlet for

drawing air through the filter. Anything in the air will

get trapped on the filter. The filters are analyzed for

fibers according to OSHA methods. The analysis was made

at Mogul Laboratories (TrB 128-129).

Three men were tested, on April 20, 1977. One person

was at the dry saw, another in the mix area and one

person running the dielectric oven, drying off the product

(TrB 131). The testing results indicated the employee

working at the dry saw was breathing air containing .27

and .34 asbestos fibers. The employee working in the

mix area was breathing air containing .22 and .13 asbestos

fibers. The employee working at the dielectric oven was

breathing air which contained .05 asbestos fibers. There-

fore, the employees, referred to, were breathing air which

contained less than two asbestos fibers per cubic centi-

meter, as set forth in the OSHA regulations (TrB 132).

This was the only time he performed a test of the air

behind the masks. His data was reported out as indicated

on the typed sheet. In doing the work, he followed the

OSHA regulations (TrB 132-133). The test results show

what the results were, there was no approximation. Those

were the numbers he tested and obtained; and, they are

a good indication of what was on the filter, which was the

air inside the mask (TrB 138-139).

Another Brown witness, Terry Gene Check, testified

he is employed by Diversified Environmental Consultants.

Prior to being so employed, he was a consulting engineer

with Frank Thomas and Associates, doing industrial

hygiene, air pollution control and some waste water treat-

ment design. He graduated from Case Western Reserve

University; and, took evening courses for his Masters at

Cleveland State University. His work involved the as-

sembling of testing equipment used at Brown Insulating

Company for a collection of a representative air sample

from within the breathing zone of two of their employees

(TrB 151-152). He tested two employees on June 2, 1977.

One employee was working at the dry band saw which cut

dry asbestos; and, the other employee (mix maker) was

working at the mix (TrB 153-154). He collected the

fibers onto a filter media which was encased in the open

face filter holder. The men went about their regular tasks

during the testing period (TrB 154-155). From the in-

formation he recited, he could calculate the asbestos con-

centration in terms of fibers per cubic centimeter. For

employee one (saw man), the concentration was 1.15 fibers

per cubic centimeter. For employee two (mix maker), the

concentration was 0.8 fibers per cubic centimeter (TrB

158).

Mr. Gregory’s testimony with reference to there being

economically feasible systems of controls to remove asbestos

dust from the air revealed he attended a one-week training

course at Michigan State University, which involved the

design of various ventilation systems for controlling in-

dustrial air contaminants; and, was told to design a system

which would control such contaminants (TrA 47-48). Mr.

Gregory had a ten-week course at the University of Cin-

cinnati in ventilation dust control. The course involved

the designing of different ventilating systems depending on

the types of contaminants to be controlled. Mr. Gregory

never performed any ventilation problems involving as-

bestos dust (TrB 98-100). Mr. Gregory prepared draw-

ings which indicated suggested approaches which would

have to have some adaptation to the particular circum-

stances in the Brown plant (TrB 106). Mr. Gregory stated

the diagrams identified as Exhibits C-33-A, C-33-B and C-34

were made after his inspection of January, 1977. The

drawings were never shown to anyone at Brown (TrB 201).

The drawings and designs were taken from the Industrial

Ventilation Manual. He stated he would not guarantee his

drawings could be made up into a commercially feasible

operation which would comply with OSHA regulations,

since his drawings indicated only “possible” methods.

Whether or not the controls would be workable or not,

if modified, Mr. Gregory would not be able to say (TrB

204-205). As far as getting a price which he “could stick

to” as to cost, he would not be able to do that (TrB 205).

Mr. Weed, a manufacturer’s agent, represents Haufman

Air and Filtration Division of Clarkson Industries in North-

ern Ohio. Haufman manufactures dust collecting systems

capable of generating capture velocity in the neighborhood

of 3,000 cubic feet per minute (TrB 175). On cross-ex-

amination, Mr. Weed testified the only equipment he ever

installed to deal with an asbestos dust problem was a

portable vacuum cleaner with a special nozzle in a plant

where band saw insulation asbestos sleeves were being

cut to fit steam pipes (TrB 181-182).

Mr. Weed does not know anything about the Brown

plant or its operation. He would agree he would want to

see the operation before he could come to any conclusion

as to whether or not any of the systems he had to sell would

be effective. He said he would not even attempt an

equipment “sizing” without seeing the Brown plant; and,

he would not guarantee the equipment would perform the

service required of it, until he had made an inspection

(TrB 185-186).

John Wesley Brown III has been employed with Brown

since 1970 (TrA 286). He went out for bids on dust-collect-

ing equipment back in 1975. Finally, the bids were nar-

rowed down to two companies (TrA 290). The dust collec-

tor people would guarantee they would not emit any fibers

larger than one micron from their dust collectors. There

was no guarantee they would pick the fibers up. The

fibers had to be delivered to their dust collectors. The

air that would be delivered to the dust collector is the

problem of the duct man (TrA 291). Bids were sought on

the ducts. Each dust collector system had their own dust-

ing man. Various pickups were designed. OSHA veloc-

ities and engineering standards were used, but none of the

duct people would guarantee their ducts would pick up

the amount of dust in the air that would he carried

(TrA 291). The lowest quote Brown looked at was

around $40,000; and, the highest bid was $112,000 or $120,-

000. The duct people would not guarantee they would

collect all of the dust laden air, because they wouldn’t

have control over the individual using the equipment (TrA

292). The systems were not accepted because OSHA was

changing the requirements; and, the dust collecting com-

panies would not guarantee the equipment in 1975 or 1976

would meet the then OSHA standards; and, the equipment

would be obsolete by the new standards (TrA 316-318).

Dr. Sprinkle has been employed with Brown for three

and three-quarter years. He graduated from Massachusetts

Institute of Technology with his Masters in 1952. He ob-

tained his Doctorate in 1955.

Dr. Sprinkle was involved with Tad Brown in searching

for either dust collectors or those who were in duct or

ventilating fields in order to see if there were products

which could be combined which would meet OSHA stan-

dards, insofar as airborne asbestos fibers were concerned

(TrA 326). Sly and Torit were the only ones who finally

indicated they were interested. Neither Sly nor Torit in-

dicated to Dr. Sprinkle such equipment could be built (TrA

328). While the dust collection might collect dust, there

was no guarantee it would collect all of the asbestos fibers

in excess of the allowable limit of two asbestos fibers per

cubic centimeter in all of the air in the plant (TrA 329).

Based upon all of the facts set out above, the Petitioner,

Brown Insulating System, Inc., respectfully submits it

has been deprived of its individual rights and equal pro-

tection of the laws of the United States guaranteed ito it

by the Federal Constitution.

REASONS RELIED ON FOR ALLOWANCE

OF WRIT

The Circuit Court concluded (1) the statute and reg-

ulation involved were constitutional; and, (2) the regula-

tion 29 C.F.R. 1910.1001(b) (2) was correctly construed to

mean the setting of standards for ambient air in the plant,

rather than the air actually being breathed by employees

using respirators with filters; and, (3) the ambient air in

the plant violated the above regulations; and, (4) there was

substantial evidence that it was economically feasible, and

with available equipment, to bring the ambient air in the

plant into compliance with said regulation.

The Petitioner respectfully contends it is afforded

equal protection under and by virtue of the First, Fourth

and Fourteenth Amendments of the Constitution of the

United States; and, that such rights have been violated;

and, the Order of the Circuit Court of Appeals disregarded

the rights of the Petitioner; and, in affirming the provisions

of Title 29, Code of Federal Regualtions, 1910.1001(b) (2)

and (e)(1)(i), has, judicially, put the Petitioner out of

business.

A violation of the asbestos standard should be based

on the quality of air breathed by employees using respira-

tors, rather than on the degree of contamination in the

ambient air.

If a violation of the standard is based upon the quality

of the ambient air, it is arbitrary and capricious and, there-

fore, invalid. The standard, as worded, is confusing and

lacks clarity, making it impossible for employers using as-

bestos, to comply with the standard, as interpreted by

the Circuit Court.

This is the first case which has tested the asbestos

standard, bu arguing a violation thereof should be based on

the quality of air breathed by employees using respirators,

rather than on the degree of contamination in the ambient

air.

The Secretary of Labor has secured an Order ordering

the reissuance of the Order of the Circuit Court as an

opinion, appropriate for publication, “since the case decides

an important question of first impression for this (asbestos)

standard”, as stated by the Secretary of Labor.

It is submitted the word “exposed” as used in the regu-

lation has to be interpreted to mean “breathing air into the

lungs which contains an excess of two (2) asbestos fibers

five (5) micrometers in length per cubic centimeter of

air”, since the exposure sought to be eliminated deals only

with carcinogenic infections of the lungs. The asbestos

fibers must infiltrate the lungs before the claimed asbestos

dust related mesotheliomas and pulmonary carcinomas can

develop. Workmen could be “exposed” by the interpreta-

tion made by the choice of the Secretary of Labor and the

Circuit Court by merely walking through an area, com-

pletely insulated from breathing asbestos fibers into their

lungs; and yet violations of the regulation could be proved

and sustained.

The use of the words “exposure” and “exposed”, as

used in the regulations in issue, without definitive explana-

tions, places an unreasonable and unfair burden upon an

employer.

In the case of Thrall Manufacturing Company, OSHRC

Docket No. 76-3816, Louis G. LaVecchio, Judge, 1979 OSHD,

{] 23932, 10-23-79, the Judge held:

“Charges of exposing welders to excess fluorides, iron

oxides and respirable dust and failing to install en-

gineering controls, in nonserious violation of § 1910.-

1000, were vacated for lack of proof of exposure and

feasibility of controls. Air samples collected by cas-

settes placed on worker clothing rather than inside

the welcing hood were not representative of breathing

zone air. Only 11 of 40 samples showed excessive

amounts. The proposed abatement methods were in-

feasible? $100 hair dryer-size individual fans would

only redistribute the contaminants among the 400 weld-

ing process workers and would need to be supple-

mented by large air filters at a cost of $132,000.”

In the case of Secretary of Labor v, Reynolds Metals

Company, 2 OSHC 3107 (OSAHRC Docket No. 3827) Au-

gust 14, 1974, Review Commissioner Judge David G. Orin-

ger held, under the facts stated:

[Digest] The employer, engaged in the manufac-

ture of aluminum cans in Woodridge, N.J., was cited

for an alleged nonserious violation of 29 C.F.R. 1910.95

(b)(1) for exposing its employees to excessive noise

at the D & I operation, the base coating operation, and

the printing operation. No penalty was proposed for

the violation.

The Secretary, using a general radial sound level

meter, monitored the employer on three separate oc-

casions. On each occasion, three or four employees

were monitored for a period not exceeding four hours.

A presumption of a violation was created because the

noise levels monitored on three of the four employees

exceeded the permissible unity level during the time

monitored.

“However, in order to present a prima facie case

and to sustain a violation the Secretary must demon-

strate that the monitored employees worked a com-

plete workday and that the sound levels that were

monitored were representative of the sound levels at

the plant throughout the workday.

There was no evidence in the record about the

length of the employees’ workday or about the level

of noise that existed in the plant throughout the whole

workday. Therefore, the citation for nonserious viola-

tion was vacated.”

The Occupational Safety and Health Act of 1970 is

a Congressional statute that designates the stringent “sub-

stantial evidence” test for judicial review of notice-and-

comment rulemaking.

In Industrial Union Dep’t v. Hodgson, 499 F.2d 467

(D.C. Cir. 1974), the court construed the substantial evi-

dence review in terms of the demands to be made by the

reviewing court:

“What we are entitled to at all events is a careful

identification by the Secretary, when his proposed

standards are challenged, of the reasons why he chooses

to follow one course rather than another. Where that

choice purports to be based on the existence of cer-

tain determinable facts, the Secretary must, in form

as well as substance, find those facts from evidence in

the record. By the same token, when the Secretary is

obliged to make policy judgments where no factual

certainties exist or where facts alone do not provide

the answer, he should so state and go on to identify

the considerations he found persuasive.” 499 F.2d at

475-76.

With reference to the claimed failure to undertake the

installation of engineering controls to remove asbestos dust

from the air in the plant, the testimony of John W. Brown

Jr. is significant.

Mr. Brown, President of Brown Insulating Systems,

Inc., attended Harvard University and Harvard Business

School, where, among other courses, 1e studied engineering

and metallurgy.

Mr. Brown testified a system tha: would eliminate as-

bestos from the air or dust could be designed, but the cost

is astronomical. There would have to literally be a turn-

over of all of the air in the plant once every four minutes.

That kind of equipment would require a plant half the

size of the present Brown plant (TrA 397). One of the

problems involves changes in the static conditions of the

plant when the air conditioning was engineered and de-

signed in accordance with the static conditions then ex-

isting. This is true of all exhaust systems. If the plant

exhaust system is designed for winter, it is absolutely

wrong for summer. If it is not personnel changes or

variables, it is air current changes within the rooms.

Thus, to attempt to buy an exhaust system which would

be adaptable and sensitive enough to make necessary

changes to compensate for all of the conditions in which

the plant is operated to meet and comply with the fixed

OSHA standards is not possible. The expenditure for

such a complete air conditioning system, even if possible

to manufacture, would put Brown out of business (TrA

398-399). If the OSHA limit would be reduced from two

fibers, the air conditioning equipment would have to be

scrapped because the volume of air necessary to be trans-

ferred by the blower system would require a baghouse

which would have to be an entirely different size.

To force or order Brown to install dust collecting equip-

ment; and, a duct system to deliver airborne asbestos fibers

to the dust collecting system, at a financial cost beyond

the financial capabilities of Brown, without a guarantee

the number of airborne asbestos fibers would be reduced

to comply with OSHA standards, would violate the equal

rights of the Petitioner guaranteed by the Fourth and

Fourteenth Amendments of the Federal Constitution.

See also the proposals submitted by W. W. Sly Co.,

Torit Division of Donaldson Company, Inc.; and Gundlach

Sheet Metal Works, Inc. (TrA 316).

In Occupational Safety and Health—Law and Practice,

written by Baruch A. Fellner and Donald W. Savelson,

A1-238, Practicing Law Institute, New York City, at pages

163-164, the problems involving “Feasibility” are dis-

cussed:

“PROHIBITIVELY EXPENSIVE

Given the statutory and regulatory command to

implement feasible engineering controls, the questions

are: Who has the initial burden of proving feasibil-

ity? What are the factual and legal parameters of

that burden? How is it discharged?

The starting point for the inquiry is a landrnark

Court of Appeals decision, which deals only tangen-

tially with the issue of feasibility in an enforcement

context. In Industrial Union Dep’t v. Hodgson* the

petitioner challenged the Secretary’s asbestos stan-

dard. Of the many issues presented in that case,

we are only concerned here with whether, in promul-

62. 499 F.2d 467 (D.C. Cir. 1974).

63. 29 C.F.R. Section 1910.93a (renumbered Section

1910.1001).

gating the asbestos standard, the Secretary properly

considered economic factors in weighing feasibility.

The court took a common sense view of feasibility,

concluding that Congress could not have intended “to

require immediate implementation of all protective

measures technologically achievable without regard for

their economic impact. To the contrary, it would com-

port with common usage to say that a standard that

is prohibitively expensive is not ‘feasible.’’** The

Court concluded: ‘Congress does not appear to have

intended to protect employees by putting their em-

ployers out of business—either by requiring protective

devices unavailable under existing technology or by

making financial viability generally impossible.” Sen-

ator Javits voiced a similar opinion when he intro-

duced the amendment requiring the Secretary to con-

sider feasibility in promulgating standards.

64. 499 F.2d at 477 (footnote omitted).

65. S. Rep. No. 91-1282, 91st Cong., 2d Sess., at 58.

In Occupational Safety and Health—Law and Practice,

at page 171:

“IMPOSSIBILITY

Infeasibility is part of the larger affirmative de-

fense of impossibility of performance, for the former

defense amounts to no more than an assertion that it

is impossible to comply with the standard for tech-

nological or economic reasons. However, whereas

feasibility is an element of the Secretary’s burden of

proof in the context of feasibility standards, impos-

sibility is an affirmative defense, which can be raised

in the context of any standard, or of 5(a) (1).

The defense of impossibility has repeatedly been

recognized by the Commission and its judges: ‘Non-

compliance with the requirements of a safety standard

is justified when necessary to permit the accomplish-

ment of required work.’ ’’*

84. Secretary v. W. B. Meredith, II, Inc.,. OSHRC Docket

No. 810, 1 OSHC 1782 (Rev. Comm’n, June 7, 1974); Sec-

retary v. Masonry, Inc., OSHRC Docket No. 2693, 1 OSHC

3235 (ALJ, December 6, 1973); Secretary v. LaSala Con-

tracting Company, Inc., OSHRC Docket No. 1207, 1 OSHC

3027 (ALJ, March 28, 1973); Secretary v. Deluca Construc-

tion Corporation, OSHRC Docket No. 1225, 1 OSHC 3029

(ALJ, February 9, 1973); Secretary of Labor v. Consolidated

Engineering Co., Inc. and Otis Elevator Co., OSHRC Docket

Nos. 394, 471, 2 OSHC 1253, 1254 (Rev. Comm’n, October 17,

1974).

In the case of International Harvester Co., June 18,

1979, OSHRC Docket No. 76-4388, Sidney J. Goldstein,

Judge, 1979 OSHD {23,740, there appears the following:

“A charge of violation of § 1910.1000 by permitting ex-

cessive exposure to lead and chromate in spray paint-

ing booths was vacated because OSHA could not say

how much the recommended controls would reduce

exposure. An OSHA expert testified that exposure to

the contaminants could be reduced in one area by

cleaning the ventilation system and adding distribution

ductwork and baffles, at a cost of $27,000. Although

the expert predicted the controls would reduce ex-

posure, he could not say by how much.”

John W. Brown Jr., President of Brown Insulating

Systems, Inc., died on October 23, 1980. Mr. Brown sin-

cerely believed, and desired his counsel to put on the

record in this case, that Brown Insulating Systems, Inc.

has been deprived of its rights to maintain and operate

its business, as well as having been denied equal protec-

tion of the laws of the United States, as guaranteed by

the Federal Constitution.

Mr. Brown, prior to his death, stated, in keeping with

the testimony and evidence in this case, the Commerce

Clause of the Federal Constitution has been illegally

broadened by Congress enacting legislation which regulates

and restricts private business and enterprise within a State;

and, thereby has unlawfully interfered with Brown’s rights

to carry on its business within Ohio.

The writers of the Federalist papers, such as Hamilton

and Madison, clearly urged that the purpose of the Com-

merce Clause was only to create a common market and

to prohibit state legislatures from levying taxes on goods

passing in or out of the borders of the states. Therefore,

the acts of Congress establishing regulatory authority over

private enterprise activities within a state (Ohio) are un-

constitutional and void, since such regulatory acts con-

travene the narrow limits of the Commerce Clause.

Further, it was not the intent of the ratifying conven-

tions to expand the authority of Congress to interfere with

the individual rights of citizens of the various states to

conduct lawful private enterprises within such states.

It is the agreements and understandings of the ra-

tifiers of the Constitution which forms and establishes

the basic premise from which Congressional powers to

legislate originates.

Courts, applying the Rule of Law to the fundamental

understandings and agreements made when the Constitu-

tion was ratified, must, in accordance with the law, de-

clare all regulatory acts, such as OSHA, illegal and void,

because of the restrictions placed upon interference with

the lawful conduct of private enterprises within the re-

spective states.

The unconstitutional interference with the rights

of Brown to carry on its private enterprise business

in Ohio by the imposition of penalties for alleged violations

of standards established by the Secretary of Labor acting

under the authority of Congress, deprives Brown of its

constitutional rights guaranteed by the First, Fourth and

Fourteenth Amendments of the Federal Constitution.

In some support for Mr. Brown’s thoughts, the recently

decided case of Industrial Union Department, AFL-CIO v.

American Petroleum Institute, (S. Ct.) No. 78-911, July

2, 1980, 448 USS. ........ , provides some pertinent statements

and opinions, which are set forth in the Concurring Opin-

ions of Mr. Justice Powell and Mr. Justice Rehnquist.

Mr. Justice Powell wrote, as follows:

“OSHA contends that §6(b) (5) not only permits

but actually requires it to promulgate standards that

reduce health risks without regard to economic ef-

fects, unless those effects would cause widespread dis-

location throughout an entire industry. Under the

threshold test adopted by the plurality today, this au-

thority will exist only with respect to ‘significant’ risks.

But the plurality does not reject OSHA’s claim that

it must reduce such risks without considering eco-

nomic consequences less serious than massive disloca-

tion. In my view, that claim is untenable.

Although one might wish that Congress had spoken

with greater clarity, the legislative history and pur-

poses of the statute do not support OSHA’s interpre-

tation of the Act. It is simply unreasonable to believe

that Congress intended OSHA to pursue the desirable

goal of risk-free workplaces to the extent that the

economic viability of particular industries—or sig-

nificant segments thereof—is threatened. As the

plurality observes, OSHA itself has not chosen to carry

out such a self-defeating policy in all instances. Ante,

at 39. If it did, OSHA regulations would impair the

ability of American industries to compete effectively

with foreign businesses and to provide employment

for American workers.”

Mr. Justice Rehnquist, in his Concurring Opinion, re-

ferred to the writings of John Locke, set out in his Second

Treatise of Civil Government, as quoted herein:

“In his Second Treatise of Civil Government, pub-

lished in 1690, John Locke wrote that ‘The power of

the legislature, being derived from the people by a

positive voluntary grant and institution, can be no other

than what that positive grant conveyed, which being

only to make laws, and not to make legislators, the

legislative can have no power to transfer their au-

thority of making laws and place it in other hands.”

Two hundred years later, this Court expressly recog-

nized the existence of and the necessity for limits on

Congress’s ability to delegate its authority to repre-

sentatives of the Executive Branch: ‘That Congress

cannot delegate legislative power to the President is

a principle universally recognized as vital to the in-

tegrity and maintenance of the system of government

ordained by the Constitution.’ Field v. Clark, 143 U.S.

649, 692 (1892).

1. J. Locke, Second Treatise of Civil Government % 141

(1690). In the same treatise, Locke also wrote that ‘The

legislative cannot transfer the power of making laws to any

other hands; for it being but a delegated power from the

people, they who have it cannot pass it over to others.’ Ibid.”

CONCLUSION

As has been stated, this is the first case which has

tested the asbestos standard, by arguing a violation thereof

should be based on the quality of air breathed by em-

ployees using respirators, rather than on the degree of

asbestos contamination in the ambient air in a plant.

The Secretary of Labor has said, in a Motion to Publish

Decision, filed July 24, 1980:

“9. A decision, such as this one, sustaining the

agency’s choice of how to regulate a particular sub-

stance is of great benefit to effective enforcement of

the Act and the Secretary’s health standards. No other

court of appeals has tested the asbestos regulation

against an attack such as petitioner mounted here.

The Court’s disposition of this case decides an im-

portant question of first impression for this standard,

and to avoid unnecessary relitigation in this forum and

possibly others, the decision should be permitted to

attain the status of a precedent.”

Just as the Secretary of Labor believes the case repre-

sents an important decision, the Petitioner is anxious and

hopeful the Court will consider hearing this case.

The case presents a definite issue concerning depriva-

tion of guaranteed constitutional rights, as well as an issue

recognized by the Secretary as an important “keystone”

which the Court should decide as to whether or not the

Secretary’s choice to regulate the ambient air for asbestos

content, rather than to determine whether there is a vio-

lation based upon the quality of air actually being breathed

by workmen, is a judicious, fair and equitable choice,

which does not prejudice the rights of the Petitioner to a

fair trial, based upon the testimony and evidence; and

the weight and value thereof, in accordance with law.

Therefore, it is respectfully requested a Writ of Cer-

tiorari be allowed; and, that this Court review the Opinion

and Order of the United States Court of Appeals for the

Sixth Circuit and reverse the same.

Respectfully submitted,

HArRLEy J. McNEAL

McNEAL, Scuick & ARCHIBALD

520 Williamson Building

Cleveland, Ohio 44114

Counsel for Petitioner

November 11, 1980

APPENDIX

OPINION AND ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

(Filed June 16, 1980)

No. 78-3386

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BROWN INSULATING SYSTEMS, INC.,

Petitioner-Appellant,

SECRETARY OF LABOR and OCCUPATIONAL SAFETY

AND HEALTH REVIEW COMMISSION,

Respondents-Appellees.

ORDER

Before: WEICK, KEITH and Brown, Circuit Judges.

Appellant, Brown Insulating Systems, Inc., seeks a re-

view of a decision by the Occupational Safety & Health

Review Commission (OSHRC) finding serious and willful

violations by appellant of the standards regulating ex-

posure of its employees to asbestos fibers in the ambient

air in appellant’s plant.

Appellant contends that the decision by the ALJ to

such effect is erroneous because (1) the statute and regu-

lations involved here are unconstitutional since the national

government has no power under the Constitution to regu-

late such matters; (2) that if the regulation is construed

to set standards for the ambient air in appellant’s plant

rather than the air actually breathed by the employees

while using respirators with filters, it is unconstitutional as

being arbitrary and capricious; (3) that the regulation,

properly construed, does not set standards for the ambient

air in the plant but rather regulates only the quality of

the air actually breathed by the employees; (4) that there

was not substantial evidence that the ambient air in the

plant actually failed to meet the standard contained in

the regulation; and (5) that there was not substantial evi-

dence that it was economically feasible and with available

equipment to cure any violation of the standard with re-

spect to the air in the plant.

The court concludes that the statute and regulation,

as construed, are constitutional and that the regulation was

correctly construed. We further conclude that there was

substantial evidence that the ambient air in the plant

violated the regulation, especially in the light of the tes-

timony of appellant’s president on this subject. We still

further conclude that there was substantial evidence that

it was economically feasible and with available equipment

to bring the ambient air in the plant into compliance with

the regulation.

It is therefore Ordered that the petition to review the

decision and order of OSHRC be and the same is denied

and the decision and order are affirmed and enforced.

Entered by Order of the Court

/s/ JOHN P. HEHMAN

Clerk

DECISION AND ORDER OF THE ADMINiSTRATIVE

LAW JUDGE

(Filed April 20, 1978)

OSHRC Docket No. 77-787

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

1365 Peachtree Street, N.E., Suite 400

Atlanta, Georgia 30309

SECRETARY OF LABOR,

Complainant,

SECRETARY V. BROWN INSULATING SYSTEMS, INC.

Respondent.

NOTICE OF DECISION

1. Enclosed herewith is my decision in the above-entitled

case. It will be filed on April 20, 1978, and will become

the final order of the Commission pursuant to 29 U.S.C.

§ 661(i) on May 22, 1978, unless a member of the Com-

‘ mission directs that it be reviewed. Parties will not

receive any further communication from the Commis-

sion unless it is directed for review (see Paragraph 4

below).

2. You may petition for review of this decision by the

Commission. An original and six copies of such a peti-

tion must be submitted in accordance with 29 C.F.R.

§ 2200.91(a). In order to assure careful consideration

thereof it should be sent to me so that it can be incor-

porated with my decision and filed with it on April 20,

1978. Petitions will be accepted after that filing date,

but there is no guarantee that there will be sufficient

time to fully consider them. The final order date is

statutory and cannot be extended under any circum-

stances.

. Petitions for review submitted prior to the above-noted

filing date should be sent to me at the address above.

Those submitted after the filing date should be mailed

to:

Richard Schiffmann, Chief Review Counsel

Occupational Safety & Health Review Commission

1825 K Street, N. W.

Washington, D. C. 20006

. Should review be granted by a member of the Com-

mission, each party to this case will be notified and

each will be given an opportunity to submit a brief to

the members prior to their final disposition of the case.

. It would be appreciated if you would execute the en-

closed postcard and mail it at once so that your present

intention on seeking review of this decision may be

known. It does not bind you in any way, but is used

only to project future workload.

/s/ Pauw L. Brapy

Judge

DECISION AND ORDER

APPEARANCES: Bruce C. Heslop, Esquire

Office of the Solicitor

U.S. Department of Labor

881 Federal Office Building

1240 East Ninth Street

Cleveland, Ohio 44199

on behalf of the Complainant

Harley J. McNeal, Esquire

McNeal, Schick & Archibald

520 Williamson Building

Cleveland, Ohio 44114

on behalf of the Respondent

Brapby, Judge: This proceeding is brought pursuant

to section 10 of the Occupational Safety and Health Act of

1970 (Act) to contest two citations and a notification of

failure to correct violation issued February 25, 1977. It is

alleged that as a result of an inspection of respondent’s

workplace located at 11941 Abbey Road, North Royalton,

Ohio, respondent violated section 5(a)(2) of the Act by

failing to comply with specific occupational safety and

health standards promulgated by the Secretary, pursuant to

section 6 thereof.

The basic facts, which are not in dispute, reveal that

the respondent maintains a manufacturing facility at North

Royalton, Ohio, where it is engaged in the manufacture of

insulating sleeves for risers used in the foundry industry.

On January 27, 1977, an industrial hygienist for the Oc-

cupational Safety and Health Administration (OSHA) con-

ducted an inspection of respondent’s facility as a follow-up

of a previous inspection on February 25, 1976. Personal

air samples were taken to determine the levels of employee

exposure to airborne concentrations of asbestos fibers. Em-

ployees were tested while performing their duties in the

wet-cutting and mixing operations.

The mixing operation consists of three mixing tanks in

which asbestos, silica sand, silica flour, resin and water are

mixed to form a slurry. Employees pour the material

from bags into the mix tanks while standing on a platform

adjacent thereto.

The wet-cutting operation is performed with the use

of a band saw which wet cuts insulating sleeves into

various lengths.

The evidence shows that air samples were taken with

a Bendix personal sampling pump and three-stage poly-

styrene sampling cassettes. The cassettes held “AA” filters

with a pore size of .8 microns. Prior to and after the

inspection the hygienist calibrated both pumps to determine

that they were properly drawing air through the filters at

a flow rate of 2 liters per minute. The pumps were iden-

tified, and the procedure for conducting the sampling, in

addition to the manner in which the samples were handled

prior to the analysis was fully explained by the industrial

hygienist (Tr. I, 58-61, 99, 103-106, 110, 120-121, 125-134,

Exhs. C-15-19). The procedure followed upon receipt of

the samples at the laboratory, was described by the

analyst (Tr. II, 6-11, 15-25, 81-89).

ALLEGED VIOLATION OF 29 C.F.R. 1910.1001 (b) (2)

The Secretary alleges a serious violation of the stan-

dard in Item 2a of Citation 1, and a willful violation of

the standard in Item la of Citation 2. The standard, which

pertains to permissible exposure to airborne concentrations

of asbestos fibers, provides as follows:

The 8-hour time-weighted average airborne concen-

trations 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.

Paragraph (e), which designates the method of mea-

surement, states:

All determinations of airborne concentrations of as-

bestos fibers shall be made by the membrane filter

method at 400-450 X (magnification) (4 millimeter ob-

jective) with phase contrast illumination.

The alleged serious violation is described in Citation

1 as follows:

Employee(s) were exposed to an 8-hour time weighted

average airborne concentration of asbestos fibers in

excess of 2 fibers longer than 4 micrometers, per cubic

centimeter of air:

The employee performing the wet cutting opera-

tion at the south end of the mold room was exposed to

4.73 asbestos fibers longer that 5 micrometers, per cubic

centimeter of air for an 8 hour time weighted average

airborne concentration.

The alleged willful violation is described in Citation 2

as follows:

Employee(s) were exposed to an 8-hour time weighted

average airborne concentration of asbestos fibers in ex-

cess of 2 fibers longer than 5 micrometers, per cubic

centimeter of air:

The employee performing the Mixing Operation

(Mix Man) on the Die Tank, Ductile Tank and Steel

Tank in the Mold room or Mixing room was exposed

to asbestos fibers at a concentration of 19.70 fibers

longer than 5 micrometers, per cubic centimeter of air

for an 8 hour time weighted average airborne concen-

tration.

Mr. Daryl Peterson testified that he conducted the

analysis of the air samples. He stated that they were re-

ceived at the OSHA analytical laboratory on February 7,

1977. Immediately thereafter they were assigned labora-

tory numbers and he proceeded to determine that the

seals were intact and the samples properly mounted (Tr.

II, 6-11, Exh. C-18, 19, 24). Each sample was analyzed

to ascertain the type and number and fibers longer than

five micrometers per centimeter. The instrument used was

a Zeiss Binocular Phase Contrast Microscope with polarized

light at a magnification of 400 X, with a Patterson globe

and circle reticle in the eyepiece. Mr. Peterson determined

the presence of amosite asbestos in three or four samples

using the dispersion staining technique (Tr. II, 16-25, 62-67,

Exhs. C-27a and b).

Mr. Earl Gregory, Industrial Hygienist, testified that

based upon the analysis of ten samples taken from Mr.

Stapleton, the mixing Operator, he calculated that Stapleton

was exposed to an 8-hour time-weighted average of 19.7

fibers longer than 5 micrometers per cubic centimeter of

air. An analysis of four samples from Mr. Arbogast, the

wet-cutting operator, revealed he was exposed to an 8-hour

time-weighted average of 4.73 fibers longer than 5 micro-

meters per cubic centimeter of air. The total duration of

sampling of Stapleton was 451.5 minutes and Abrogast

456.5 minutes. The time-weighted average was calculated

by multiplying the fibers per cubic centimeter times the

duration of each sampling and dividing the results by 481

minutes (8 hours) (Tr. II, 81-88, Exhs. C-15-17 and 25, 26,

31).

The exposure calculations indicated that Stapleton was

exposed to nine times the allowable limit, while Arbogast’s

exposure was over twice the limit.

In defense, respondent attacks the analytical results of

the sampling, and maintains that dispersion staining pro-

cedures were not conducted on all of the samples, therefore

it could not be accurately determined that amosite asbestos

was present in the concentrations found by complainant.

Respondent also contends that it had not violated the stan-

dard because there was no evidence presented which

showed the presence of asbestos inside the respirators which

were worn by the employees.

Thus, it is argued that “exposed” as used in the

standard refers to the air actually being respired by em-

ployees, which in this case would be the air in the em-

ployees’ breathing zone inside the mask.

The record reflects that the dispersion staining tech-

nique is a specific test to determine amosite fibers. It was

testified by Mr. Peterson that using a dispersion medium

with a known refractive index of 1.67, the amosite asbestos

fibers exhibited a specific color change from yellow to a

purplish color. The record reflects that this technique is

separate from the one employed to determine the number

of fibers per cubic centimeter.

Mr. Peterson testified that on the basis of his ex-

perience in analyzing approximately 2,500 asbestos samples,

he counted and recorded the length, aspect ratio, and am-

phibole structure of amosite asbestos. The number of

fibers within the reticle field which exceeded five micro-

meters in length was determined by reference to a cali-

brated visual circle on the reticle.

Respondent provided no evidence to refute the ac-

curacy of the count or the presence of amosite asbestos.

In fact, respondent’s President stated that amosite asbestos

is used in the manufacturing process at the plant, and

admittedly asbestos fibers are present in excess of the

Al0

allowable limits in the mixing and wet saw areas (Tr. I,

387, 392, 407, 418).

There is no dispute that respondent’s employees were

wearing air-purifying respirator masks at the time of the

sampling. Also, Mr. Gregory did not sample the air within

the mask, but the sampling was performed with filter

cassettes attached as close as possible to the employees’

breathing zones.

In support of its contention that the air inside the

masks contained concentrations of asbestos below the

limits of the standard, respondent presented the testimony

of two consultants who conducted air sampling under the

mask of the mixing operator on April 20, 1977, and June

2, 1977. Based upon the sampling, both witnesses testified

that the concentrations of asbestos were less than 2 fibers

per cubic centimeter.

Complainant points out various defects in the methods

used by consultants in addition to the fact that the tests

were conducted on a date subsequent to the inspection. It

is argued that the sampling pumps were not properly cali-

brated to insure accurate flow rate, and therefore it was

impossible to determine whether the pumps were drawing

air through the filters at the set flow rate contended by

respondent.

The view of the respondent as to the application of the

standard is not supported by the record. It is implicit

within the clear meaning of the standard that use of

materials containing asbestos fibers under the conditions

present in this case is the hazard to be protected against.

The complainant correctly points out that whether the

limits of the standard have been exceeded is determined

by the level of “airborne concentration of asbestos fibers”

in the employees’ working environment, and not the con-

All

centration of fibers inside a respiratory protection device

worn by the employee. This conclusion is supported by

the language in 29 C.F.R. 1910.1001(d) (1) which states that

compliance with the exposure limits of 1910.1001(b) may

not be achieved by the use of respirators except under cer-

tain enumerated circumstances, none of which apply to

this case. Thus, it is clear that the proper criteria is the

airborne concentrations of asbestos fibers in the air com-

prising the working environment of the employee, and not

concentrations found to exist after filtering with a respira-

tory protection device.

Therefore, it is held that employees engaged in mixing

and wet cutting were, on the day of the inspection, ex-

posed to excessive concentrations of airborne asbestos

fibers in violation of the standard.

ALLEGED VIOLATION OF 29 C.F.R. 1910.1001(¢) (1) (i)

This standard, which pertains to methods of compli-

ance with the exposure limits described in 29 C.F.R.

1910.1001 (b) (2), provides as follows:

methods. (i) Engineering controls. Engineering con-

trols, such as, but not limited to, isolation, enclosure,

exhaust ventilation, and dust collection, shall be used

to meet the exposure limits prescribed in paragraph

(b) of this section.

The violation is described in Citation 1 as follows:

Engineering controls were not used to reduce employee

exposure to asbestos fibers to the exposure limits

prescribed in paragraph (b) of this section:

The employee performing the wet cutting opera-

tion at the south end of the mold room was exposed to

4.73 asbestos fibers longer than 5 micrometers, per

Al2

cubic centimeter of air for an 8 hour time weighted

average airborne concentration.

The alleged violation is described in Citation 2 as fol-

lows:

Engineering controls were not used to reduce employee

exposure to asbestos fibers to the exposure limits

prescribed in paragraph (b) of this section:

The employee performing the Mixing Operation

(Mix Man) on the Die Tank, Ductile Tank, and Steel

Tank in the mold room or mixing room was exposed

to asbestos fibers at a concentration of 19.70 fibers

longer than 5 micrometers, per cubic centimeter of air

for an 8 hour time weighted average airborne concen-

tration.

Complainant’s evidence showed that bags of asbestos

silica and other ingredients are poured directly into the

mix tanks, thus generating airborne dust. The inspecting

officer found that the only engineering control present was

a shop-type vacuum cleaner with a four-inch diameter hose

at the side of each mix tank (Tr. II, 90-92). This was

the same and only type of dust control found in use during

the previous inspection on February 25, 1976 (Tr. IT, 96).

A testing of the “capture velocity” of the vacuum sys-

tem, revealed velocities from 0 feet per minute to 75 feet

per minute (FPM) at various locations adjacent to the

mix tanks. The lowest velocity was found at the point

where asbestos is poured into the tank. Mr. Gregory de-

termined on the basis of his velometer testing that the

controls in use by the respondent were inadequate (Tr.

II, 92-95, Exh. C-32).

Mr. Gregory, who was shown to have an extensive

background in the use of ventilation systems, and recom-

mended a capture velocity of 100 to 200 FPM at the point

Al3

where dust is generated. He described two engineering

approaches to control the airborne asbestos produced as

part of the mixing operation (Tr. I, 45-48, Tr. II, 98-106,

Exhs. C-33a and b).

The first methed as shown in Exhibit C-33a involved

covering the top of the mix tank except for an opening

of sufficient size to allow for the pouring and mixing of

the ingredients in the tank. Near the center of the iank

a ventilation duct would be installed to provide a vacuum

to remove dust. The vacuum would create a negative pres-

sure within the tank so that air would be pulled inside

through the opening, thus drawing dust from the air around

the operator. The system would have a capture velocity

of 100 to 150 FPM and a deck velocity of 3,000 FPM (Tr.

II, 101-104).

His second suggestion as illustrated by Exhibit C-33b

involves a partial closing of the opening near the em-

ployees’ position, with utilization of a small hood through

which the materials could be poured into the tank. In all

other respects, this method is identical to the first ap-

proach (Tr. II, 104-106).

Mr. Charles Weed, a representative of a dust collection

equipment manufacturer, and directly involved with the

design and engineering aspects of industrial dust collection

systems, testified that ventilation systems are available to

collect the dust in accordance with the methods of control

suggested by Mr. Gregory (Tr. II, 175-179).

Mr. Gregory testified that in the wet-cutting opera-

tion the only means of dust control in use on the date of

inspection was the wetting of the sleeves prior to cutting

(Tr. II, 108). He indicated that the sources of airborne

asbestos dust were fibers and residue which stick to various

parts of the saw such as the blade, drive pulley and con-

Al4

veyor. The fibers and residue become airborne after

they dry and disperse during the saw operation.

Mr. Gregory suggested the use of a full or partial en-

closure to cover the saw and conveyor in controlling the

asbestos dust. The enclosure would be equipped with

doors on each side of the conveyor to permit insertion of

the sleeves for cutting, and would be ventilated by a

vacuum system having a capture velocity of 100 to 150 FPM

with a duct velocity of 3,000 FPM. The use of doors

would not adversely affect the efficiency of the system

because negative pressure inside the enclosure would pull

the air inside when the doors are open, and it would not

circulate into the work area. The same ventilation fan

system could be used for this operation (Tr. II, 107-111,

Exh. C-34).

There is no dispute that the respondent undertook

various housekeeping methods including frequent vacuum-

ing to abate the violative conditions. The evidence also

shows that respondent received bids from two contractors

to provide a dust control system in the mixing area. The

testimony by respondent’s witnesses indicate that further

action in this regard was not taken because the contrac-

tors would not guarantee the equipment would reduce

airborne asbestos fibers to within the limits of the stan-

dard.

Respondent’s President testified that air currents

within the plant would adversely affect the efficiency of

the type system recommended by complainant and would

require costly air conditioning of the plant facility. Mr.

Weed, however, stated that air currents in the plant would

not be of sufficient strength to overcome a capture velocity

of 100 to 150 FPM, and alter the air pattern of the dust

collection system suggested by Mr. Gregory (Tr. II, 180,

181).

Al5

Respondent’s evidence with reference to the work it

sought to have guaranteed related to the installation of a

dust collection receptacle, and not installation of ventila-

tion and ducting systems to remove dust from the air and

carry it to the receptacle, as suggested by Mr. Gregory.

It was not shown that the proposed systems of control

could not be adapted for use by respondent.

The evidence clearly shows that the elements of an

adequate dust collection system are available for use

which is a technically feasible engineering control to col-

lect and remove dust from the mixing and wet-cutting

areas.

The standard alleged to have been violated specifies

the methods of compliance which “shall be used to meet

the exposure limits. . .”. Thus respondent cannot rely

upon the proposition that before installing a dust collection

system it must be guaranteed such equipment is capable

of reducing the asbestos dust to the limits prescribed.

Respondent likewise cannot rely on use of personal

protective equipment, which does not constitute engineering

controls within the meaning of the standard. The standard

at 29 C.F.R. 1910.1001(d) (1) specifically prohibits the use

of respirators to achieve compliance with the cited stan-

dard except where engineering methods of control are not

technically feasible, or are feasible to an extent insufficient

to reduce airborne concentrations of asbestos to within the

specified limits.

The evidence in this case shows that technically fea-

sible means of dust control are available and adaptable for

respondent’s use and such engineering controls have not

been used within the meaning of, and in compliance with

the cited standard.

Al6

ALLEGED VIOLATIONS OF THE STANDARDS

UNDER 29 C.F.R. 1910.134

The standard at 29 C.F.R. 1910.134(b) (1), which per-

tains to use of respirators, states as follows:

(b) Requirements for a minimal acceptance pro-

gram. (1) Written standard operating procedures

governing the selection and use of respirators shall be

established.

The alleged violation is described as a failure to es-

tablish written standard operating procedures governing

the selection and use of respirators in the wet-cutting and

mixing operation.

This section sets forth the requirements for an em-

ployer in the establishment and maintenance of a respira-

tory protective program when effective engineering con-

trols are not feasible or while they are being installed.

The evidence shows that the respirators in use by

respondent’s employees were selected as a result of con-

sultation with OSHA (Tr. I, 269). Also, respondent’s

foreman, Mr. Brosky indicated that there are written rules

with reference to the use of respirators for employees en-

gaged in mixing and cutting, in the list of safety rules

posted at the plant (Tr. I, 216). An employee testified

that he had been instructed in the use of respirators (Tr. I,

253). Another employee testified that he instructs in the

use of the mask, and that written instructions are posted

(Tr. I, 273).

Complainant shows that an employee who purchased a

respirator from respondent’s maintenance department was

not provided with written instructions regarding its use

(Tr. I, 9). It is also asserted that the only written pro-

cedures for respirator use are instructions printed on the

cartons which contain the respirators (Tr. I, 273).

Al7

The manner in which compliance with the standard

shall be accomplished is not clear. In this case respirators

were selected through consultation with OSHA officials,

and such procedure for selecting the respirators therefore

hardly justifies attack. Also, it is not shown what pro-

cedures governing use of the respirators are insufficient

in meeting the requirements of this standard.

Under the circumstances of this case, it cannot be

fairly held that respondent was in violation of the stan-

dard as alleged in the citation.

The standard at 29 C.F.R. 1910.134(b) (3) states:

(3) The user shall be instructed and trained in

the proper use of respirators and their limitations.

The violation is described in the citation as respon-

dent’s failure to instruct and train employees working in

the wet-cutting and mixing operations, in the proper use

of respirators and their limitations.

In support of the allegations complainant offers the tes-

timony of an employee that he received no training in

use of the respirator (Tr. I, 9).

The record shows that a safety consultant has perio-

dically visited the plant in the past several months to in-

struct employees in the wearing and cleaning of the masks

(Tr. I, 255-256). Further, there is evidence that an em-

ployee in the maintenance department has advised some

employees in the proper use of respirators at the time

they are purchased. It is indicated that such action is

on a personal basis, and not as a representative of the

employer (Tr. I, 278-279).

The record in this case clearly shows that the respon-

dent has failed to meet the mandatory requirements of the

standard as alleged. The procedure for instructing and

Al18

training employees in the proper use of respirators at the

time of inspection did not adequately fulfill the employer’s

responsibility as contemplated by this standard.

The standard at 29 C.F.R. 1910.134(b) (5) states as

follows:

(5) Respirators should be regularly cleaned and

disinfected. Those issued for the exclusive use of one

worker should be cleaned after each day’s use, or more

often if necessary. Those used by more than one

worker shall be thoroughly cleaned and disinfected

after each use.

The alleged violation is described in the citation as

respondent’s failure to require respirators to be regularly

cleaned and disinfected while being used in the wet-cutting

and mixing operations.

The evidence which relates to this violation consists of

Mr. Stapleton’s testimony that at the time he purchased his

respirator he was told that it should be cleaned at least

once a week with soap and water (Tr. I, 11-12). There

was testimony from another employee that at the time he

purchased his respirator he was told that it should be

cleaned’‘with soap and water everyday, with a change of

filters. He was also advised that there was a disinfectant

spray that could be used for cleaning (Tr. I, 254).

The standards under this subsection relate to the em-

ployer’s responsibility in establishing and maintaining a

respiratory protective program. The evidence of record does

not reflect that the employer fulfilled his responsibility in

a manner consistent with the specific provisions of the

standard, as it is clear that there was no definite program

with reference to the cleaning of respirators.

The standard at 29 C.F.R. 1910.134(b)(9) requires

regular inspection and evaluation to determine the con-

tinued effectiveness of the respirator program.

Al9g

The alleged violation is described in the citation as

indicating no regular inspections and evaluations were con-

ducted to determine the continued effectiveness of the

respirator program in the wet-cutting operation at the

south end of the mold room.

The testimony of Mr. Stapleton indicated that the

employer has never undertaken to inspect his respirator or

to inquire as to its effectiveness (Tr. I, 12). It was also

shown that Mr. Baltzell personally discussed respirators

wtih some employees, which was in no way part of a con-

certed program conducted by respondent (Tr. I, 280-81).

The record is void of evidence that respondent con-

ducted regular inspections or evaluations to determine the

continued effectiveness of its respirator program.

The subsection at 29 C.F.R. 1910.134(b) (10) states as

follows:

(10) Persons should not be assigned to tasks re-

quiring use of respirators unless it has been deter-

mined that they are physically able to perform the

work and use the equipment. The local physician

shall determine what health and physical conditions

are pertinent. The respirator user’s medical status

should be reviewed periodically (for instance, an-

nually).

It is the contention of the complainant that the stan-

dard was violated in the wet-cutting and mixing operations.

Mr. Stapleton testified that he received a physical examina-

tion four months after he commenced his duties which re-

quired the use of a respirator (Tr. I, 10). An employee,

Mr. Furry, and the plant manager, Dr. Sprinkle, testified

that physical examinations were given to employees only

after 30 days on the job because of the high rate of em-

ployee turnover (Tr. I, 230, 346-347).

A20

The wording of the standard indicates that it is of an

advisory nature except for a physician’s determination of

what health and physical conditions are pertinent. There

is no specific date set forth as to when physical examina-

tions shall be required upon entering into employment

under circumstances requiring the use of respirators. On

the basis of the evidence, it cannot be held that respondent

has violated the standard as alleged.

ALLEGED FAILURE TO CORRECT VIOLATION

The record reflects that respondent was issued a cita-

tion March 26, 1976, for violation of the standards at 29

C.F.R. 1910.1001(b) (3) and (c) (1) (Tr. I, 63-65, Exh. C-4).

The citation set forth a date by which the violations

were to be corrected. The citation was affirmed as a final

order of the Commission pursuant to section 10(a) of the

Act, as it was not contested by the respondent.

Mr. Gregory testified that the results of analysis pro-

vided by the OSHA analytical laboratory revealed the ceil-

ing limit of 10 fibers longer than 5 micrometers per

centimeter as set forth in 29 C.F.R. 1910.1001(b) (3) was

exceeded (Tr. II, 82-86, Exh. C-25). The levels of ex-

posure as shown by the exhibits in the record reveal that

on January 27, 1977, Mr. Stapleton’s exposure exceeded

the limits of the standard in the same manner for which

respondent was cited as a result of Mr. Gregory’s inspection

of February 25, 1976. It was previously noted in this de-

cision that feasible engineering controls were available to

control the dust generated by the mixing operation, but

such controls were not utilized by the respondent. There-

fore, it is clear that respondent failed to correct the viola-

tion set forth in Item 1 of the citation issued March 26,

1976, by the date specified May 28, 1976.

A21

ALLEGED SERIOUS AND WILLFUL VIOLATIONS

The record in this case, supported by the supplements

to respondent’s brief, indicate that there is a substantial

probability that death or serious physical harm could re-

sult from respondent’s employees respiring airborne con-

centrations of asbestos fibers present at the workplace.

Therefore, the conditions found to exist in violation of the

standards at 29 C.F.R. 1910.1001(b) (2) and 1910.1001(c)

(1) (i) are of a serious nature within the meaning of section

17(k) of the Act. The violations found to exist in section

29 C.F.R. 1910.134, however, under the circumstances of

this case are not deemed serious.

It should be noted in discussing the alleged willful vio-

lations that the record establishes respondent is in serious

violation of the standards as alleged, and has failed to cor-

rect previous violations of the same standards. It is also

clear from the evidence that respondent is fully knowl-

edgeable of the hazard involved with employee exposure

to concentrations of asbestos fibers, and has known for a

period of time that airborne concentrations in its plant ex-

ceed the limits set by the standard.

In spite of some minimal effort in the direction of

achieving compliance, this employer continues to fall woe-

fully short of his responsibility to meet the specific require-

ments of the standards. Respondent chose not to take fur-

ther steps to control the dust during the mixing operation

after failing to secure an absolute guarantee from two con-

tractors to meet the known requirements of the standard.

Respondent further asserts that after advising employees

of the dangers associated with working under the con-

ditions which exist at the plant, and providing air-purifying

respirator masks, it has sufficiently discharged its respon-

sibility, in defense of the violations.

A22

The question therefore is whether this employer has

willfully violated section 5(a) of the Act and the standards

at 29 C.F.R. 1910.1001(b) (2) and 1910.1001(c) (1) (i) by

continuing to expose its mixing operators to excessive con-

centrations of airborne asbestos fibers. Commission pre-

cedent, under the circumstances of this case, requires the

question to be answered in the affirmative.

It must necessarily be concluded that respondent, with

full knowledge of the presence of excessive concentrations

of airborne asbestos fibers, consciously and intentionally

failed to initiate engineering controls in violation of the

standard, and adopted a policy in deliberate disregard of

the Act and applicable standards. The foregoing shows that

the test of willfulness under the Act has been met as re-

spondent’s course of action was taken in a conscious, inten-

tional, deliberate and voluntary manner. F. X. Messina

Construction Corp. v. O.S.H.R.C., 505 F.2d 701 (1st Cir.,

1974) ; Intercounty Construction Co. v. O.S.H.R.C., 522 F.2d

777 (4th Cir., 1975); Fanning & Dorrley Construction Co.,

Inc., 1977-78 OSHD {22,106 (Rev. Comm., 1977). In

Intercounty Construction Co. v. O.S.H.R.C. (supra) the 4th

Circuit held:

We agree wtih the position adopted by the Commission

in interpreting the statute that “willful” means action

taken knowledgeably by one subject to the statutory

provisions in disregard to the action’s legality. No

showing of malicious intent is necessary. A conscious,

intentional, deliberate, voluntary decision properly is

described as willful, “regardless of venial motive”.

522 Fd. at 779-80.

Following this test, the Commission has held that a willful

violation is established when the evidence shows that an

employer was aware of the requirements of the Act, yet

made a conscious and deliberate decision not to comply.

A23

Kent Nowlin Construction, Inc., No. 9483, February 15,

1977, 5 BNA OSHC 1051, CCH OSHD 121,550.

The record evidence indisputably establishes that this

respondent’s actions constituted a willful violation of the

standards as alleged.

PENALTIES

The record reflects a lengthy history of violations by

the respondent as to the exposure of its employees to

excessive concentrations of asbestos. Despite the issuance

of citations and notifications of failure to correct violations

over a two-year period, respondent has done very little

to reduce such exposure.

In determining the appropriate penalties, under the

circumstances of this case, the Commission is bound by

section 17(j) of the Act to give “due consideration” to

the size of the employer’s business, gravity of the violation,

good faith of the employer, and his history of previous vio-

lations. In Secretary v. Nacirema Operating Company,

Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH

OSHD 115,032 (1972), the Commission pointed out that

the aforementioned criteria provided under section 17( j)

cannot always be given equal weight; however, it was

indicated that the principal factor to be considered is the

gravity of the offense. The Commission stated in Secre-

tary v. National Realty and Construction Company, Inc.,

72 OSAHRC 9/A2 1 BNA OSHC 1049, 1971-73 CCH OSHD

715,028 (1972), rev’d on other grounds, 489 F.2d 1257 (D.C,

Cir. 1973), that the elements to be considered in determin-

ing the gravity of the violation are: (1) the number of

employees exposed to the risk of injury; (2) the duration

of the exposure; (3) the precautions taken against injury,

if any; and (4) the degree of probability of occurrence of

injury.

A24

Weighing all of the foregoing factors in light of the

circumstances, it is concluded that the following penalties

are deemed reasonable and appropriate for the violations

indicated:

29 C.F.R. 1910.134(b) (3) $ 50.00

29 C.F.R. 1910.134(b) (5) 50.00

29 C.F.R. 1910.135(b) (9) 50.00

29 C.F.R. 1910.1001(b) (2)

29 C.F.R. 1910.1001 (c) (1) (i)

Failure to Abate Violation 1,500.00

Willful Violation 1,500.00

FINDINGS OF FACT

1. Brown Insulating Systems, Inc., maintains a place

of employment at North Royalton, Ohio, where it is engaged

in the manufacture of insulating sleeves for risers for use

in the foundry industry.

2. Acceptable procedures were established for the

selection and use of respirators by respondent.

3. Respondent’s employees were not instructed and

trained in the proper use of respirators and their limitations,

4. Respondent did not require respirators to be regu-

larly cleaned and disinfected by the users thereof.

5. Regular inspections or evaluations were not con-

ducted to determine the effectiveness of the use of respira-

tors,

6. Respondent’s employees were physically able to

perform their assigned tasks with the use of respirators.

7. As the result of an inspection on January 28, 1975,

respondent’s employees were exposed to airborne concen-

trations of asbestos in serious violation of the applicable

A295

standards. On February 25, 1976, the same violative con-

ditions continued without abatement.

8. On January 27, 1977, previous violative conditions

were not abated and respondent had adopted a policy of

conscious disregard of the Act and applicable standards.

CONCLUSIONS OF LAW

1. Brown Insulating Systems, Inc., at all times per-

tinent hereto, was an employer engaged in a business affect-

ing commerce within the meaning of section 3(5) of the

Occupational Safety and Health Act of 1970, and the Com-

mission has jurisdiction of the parties and the subject mat-

ter herein, pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto,

required to comply with Safety and Health regulations

promulgated by the Secretary pursuant to section 6(a) of

the Act.

3. On January 27, 1977, respondent was not in viola-

tion of the standards at 29 C.F.R. 1910.134(b) (1) and (b)

(10).

4. On January 27, 1977, respondent was in violation

of the standards at 29 C.F.R. 1910.134(b) (3), (b) (5) and

(b) (9). The violations were not of a serious nature within

the meaning of section 17(k) of the Act.

5. On January 27, 1977, respondent was in serious

willful violation of the standards at 29 C.F.R. 1910.1001 (b)

(2) and (c) (1) (i), and had failed to correct previous vio-

lations of the same standards within the time specified.

A26

Upon the basis of the foregoing findings of fact and

conclusions of law and entire record, it is

ORDERED

1. That part of Citation No. 1 alleging violations of the

standards at 29 C.F.R. 1910.134(b)(1) and (b)(10) is

hereby vacated.

2. That part of Citation No. 1 alleging violations of the

standards at 29 C.F.R. 1910.134(b) (3), (b) (5) and (b) (9)

is hereby affirmed and a penalty in the amount of $150.00 is

assessed.

3. The citations alleging serious and willful violations

of the standards at 29 C.F.R. 1910.1001(b) (2) and (c) (1) (i)

are hereby affirmed and a penalty in the amount of $1,-

500.00 is assessed.

4. The notification of failure to correct violations of

the standards at 29 C.F.R. 1910.1001(b) (2) and (c) (1) (i)

is hereby affirmed, and a penalty in the amount of $1,-

500.00 is assessed.

Dated this 20th day of April, 1978.

/s/ Paut L. Brapy

Judge

A27

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

(Dated September 9, 1980)

No. A-222

Supreme Court of the United States

BROWN INSULATING SYSTEMS, INC.,

Petitioner,

SECRETARY OF LABOR, et al.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner.

It Is Ordered that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including November 13, 1980.

/S/ PoTTER STEWART

Associate Justice of the

Supreme Court of the

United States

Dated this 9th day of September, 1980.

A28

CONSTITUTION OF THE UNITED STATES

AMENDMENT I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

AMENDMENT IV

The r.ght of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citi-

zens of the United States; or shall any State deprive any

_ son of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

* * * * *

A29

CODE OF FEDERAL REGULATIONS

29 C.F.R. 1910.1001(b) (2)

(b) Permissible exposure to airborne concentrations

of asbestos fibers—(1) Standard effective July 7, 1972.

* * * * *

(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 para-

graph (e) of this section.

29 C.F.R. 1910.1001(c) (1) (i)

ods. (i) Engineering controls. Engineering controls, such

as, but not limited to, isolation, enclosure, exhaust ven-

tilation, and dust collection, shall be used to meet the

exposure limits prescribed in paragraph (b) of this section.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.