“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?555 \u00a0 HULL POTTERY COMPANY, RESPONDENT AND R. T. VANDERBILT COMPANY, INTERVENOR \u00a0 \u00a0 \u00a0 \u00a0 March 31, 1982DECISIONBefore ROWLAND, Chairman; CLEARY, Commissioner.*BY THE COMMISSION:The Secretary of Labor alleges that Hull PotteryCompany (?Hull?) committed nonserious violations of various provisions of theOSHA asbestos standard at 29 C.F.R. ? 1910.1001. The Secretary contends thatCeramitalc HDT, an industrial talc produced by the Intervenor, R. T. VanderbiltCompany, and used by Hull contains asbestos fibers, and that Hull violatedsection 1910.1001 by sweeping spilled Ceramitalc HDT without first wetting downthe material and by failing to affix caution labels to containers of CeramitalcHDT. Administrative Law Judge George O. Taylor, Jr. found that Ceramitalc HDTdoes contain asbestos fibers, but he vacated the citation because he concludedthat Hull did not and could not, with reasonable diligence, know of thepresence of asbestos fibers in the talc.??????????? Theissues before us for review[1] include whether thejudge?s finding that Ceramitalc HDT contains asbestos fibers is correct and, ifso whether the judge properly concluded that Hull did not and could not, withreasonable diligence, have known that the talc contained asbestos fibers. Weconclude that the judge properly evaluated the evidence on these issues andthat his determinations are correct.[2]??????????? Reviewwas also directed on whether employer knowledge is relevant to an allegednonserious violation. The Commission has held that employer knowledge isrelevant to alleged nonserious violations and that the burden rests with theSecretary to prove that an employer either did know or could have, withreasonable diligence, known of the existence of a violation in order to showthat the employer violated a standard. PrestressedSystems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ?25,358 (No.16147, 1981); General Electric Co.,81 OSAHRC 42\/A2, 9 BNA OSHC 1722, 1981 CCH OSHD ?25,345 (No. 13732, 1981).Accordingly, having found that the Secretary failed to prove that Hull eitherknew or, with reasonable diligence, could have known that Ceramitalc HDTcontains asbestos fibers, Judge Taylor properly vacated the citation. Becausewe conclude that the judge correctly disposed of the case on the knowledgequestion, we do not reach whether the judge properly interpreted the standardsHull was charged with violating.??????????? Accordingly,the judge?s decision to vacate the citation is affirmed.[3] SO ORDERED.FOR THE COMMISSION:RAY H. DARLING, JR.EXECUTIVE SECRTARYDated: March 31, 1982\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-414 OSHRC DOCKET NO. 78-555 OSHRC DOCKET NO. 78-741 \u00a0 MILLER CERAMICS, INC., RESPONDENT R. T. VANDERBILT COMPANY, INC., INTERVENOR \u00a0 HULL POTTERY COMPANY, RESPONDENT R. T. VANDERBILT COMPANY, INC., INTERVENOR \u00a0 BALDWIN INDUSTRIES, INC., RESPONDENT R. T. VANDERBILT COMPANY, INC., INTERVENOR \u00a0 \u00a0 \u00a0 May 29, 1979APPEARANCES\u00a0Bruce C. Heslop,Esq., and Allen J. Rapoport, Esq., for the complainant.\u00a0Guy F. Driver,Esq., for the respondents.\u00a0Francis C. Clark,Esq., for the intervenor.?DECISIONAND ORDERTaylor, Judge:Background??????????? The above-captioned cases were consolidated by an orderof former Chief Judge David H. Harris, dated May 30, 1978. Hearings wereconducted at Columbus, Ohio on June 19?22, 1978, and at Washington, D.C. onSeptember 11?13, 1978.??????????? The Complainant?s Case Against Miller??????????? Following an inspection of Miller?s ceramic manufacturingbusiness in Weedsport, New York, on September 28, 1977, Miller was issued acitation for a nonserious violation of 29 C.F.R. ? 1910.1001(j)(3).[4] The citation alleges thatMiller did not provide, or make available, comprehensive annual medicalexaminations to employees who were exposed to airborne levels of asbestos onthe[m]ain floor, wetclay packing area, slip mixing tanks loading platform and elsewhere throughoutthe plant where talc is unloaded out of bags, handled or is airborne.???????????? During the inspection, Peter Brown, an industrialhygienist employed by the Occupational Safety and Health Administration (OSHA),observed two of Miller?s employees mixing and packing wet clay in Miller?s ?wetclay area.? (Tr. 2:153, 163?164.) The employees, (names redacted), were using talc from 50-pound bags of Nytal 100HRbearing 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.) Brownobserved dust as the bags were poured into the mixing tank. (Tr. 2:164.)Thereafter, Brown obtained six air filter samples from the breathing zones ofeach 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) toldBrown that they had not received any medical examinations while working formiller. (Tr. 2:189?190.) (name redacted)told (name redacted) that he had beenworking for Miller for 2?1\/2 years, and(nameredacted),? told him that he had beenemployed 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: bulksample, A?6393; (name redacted) airfilter samples, A?6395 through A?6400; (nameredacted) air filter samples, A?6402 through A?6437. (Tr. 2:182; Exh. C?9.)??????????? Using phase contrast microscopy, dispersion staining, andrelated petrographic techniques to analyze a portion of bulk sample A?6393,Willard Dixon, an industrial hygienist employed by OSHA?s Salt Lake Citylaboratory, concluded that two anthophyllite fibers,[5] four tremolite fibers, and10 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 analysisto Ian Stewart, the manager of the electron optics group of Walter C. McCroneAssociates, Incorporated. (Tr. 2:317, 4:699?700; Exh. C?22.) Using transmissionelectron microscopy and related techniques, Stewart ascertained that more thantwo fibers of anthophyllite were present in the portion of the sample that heanalyzed. (Tr. 5:52?53, 121?122.)??????????? Daryl Peterson, a physical science technician at OSHA?sSalt 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 asbestosfibers. (Tr. 4:747, 750; Exh. C?23.) On examining a portion of A?6396 usingdispersion staining, Peterson observed 11 tremolite-actinolite fibers and oneanthophyllite fiber. (Tr. 4:748; Exh. C?23.) Using the same procedure on a partof A?6397, he ascertained that 11 tremolite-actinolite and six anthophyllite fiberswere present. (Tr. 4:749; Exh. C?23.) With dispersion staining, he found seventremolite fibers and three anthophyllite fibers in the portion of A?6405 thatwas analyzed. (Tr. 4:753; Exh. C?23.) He did ?just routine phase contrastcounting for total number of fibers present? on specimens from the remainingsamples. (Tr. 4:750; Exh. C?23.)??????????? Stewart performed transmission electron microscopy onsamples A?6404 and A?6405. (Tr. 5:118.) His analysis of A?6404 reflected noasbestos fibers greater than five micrometers long. (Tr. 5:118.) On analyzingA?6405, Stewart identified 20 to 30 anthophyllite fibers. (Tr. 5:121.)??????????? The Complainant?s Case Against Hull??????????? Hull, a manufacturer of pottery tableware, was inspectedby Donald Cagle, an industrial hygienist employed by OSHA, during the periodSeptember 20?21, 1977. (Tr. 2:209, 211.) As a result of the inspection, Hullwas issued a citation for three nonserious violations. Item 1 of the citationalleges that Hull violated 29 C.F.R. ? 1910.1001(c)(2)(i)[6] in that spilled CeramitalcHDT was dry swept in Hull?s raw material storage area. Item 2 avers that Hullviolated 29 C.F.R. ?\u00a01910.1001(g)(2)(i)[7] by not having cautionlabels affixed ?[o]n the pallets and\/or bags of Ceramitalc HDT prior to dumpingin 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 impermeablecontainers.??????????? During his inspection, Cagle observed the activities ofone of Hull?s clay mixers and his helper. (Tr. 2:216.) He saw the clay mixercutting 50-pound bags of Ceramitalc HDT, dumping them into a mixing machinehopper, 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 ofthe material to the mixing machine. (Tr. 2:217.) Cagle testified that from whathe recalled the bags indicated that the talc was manufactured by the AmericanTalc Company. (Tr. 2:234.) Apparently, Cagle was mistaken and the talc wasmanufactured by the International Talc Company, a subsidiary of the R. T.Vanderbilt Company.[9] (Tr. 2:265?268.) Cagleobserved the helper cutting clay that extruded from the mixing machine andstacking the extruded clay on a cart. (Tr. 2:217?218.)??????????? Neither the bags of Ceramitalc HDT nor the pallets onwhich they were stored had any caution labels on them. (Tr. 2:234.) When thebags of Ceramitalc HDT were emptied, they were not disposed of in impermeablecontainers, rather the clay mixer simply threw them behind him and they werelater placed in an open trash receptacle. (Tr. 2:234?235.) Cagle observed broommarks where dry material was on the floor in the area where the Ceramitalc HDTwas stored. Hull?s management officer told Cagle that a broom was used forsweeping and that they ?couldn?t wet the material . . . because it would beslippery.? (Tr. 2:233.)Cagle obtained three airfilter samples from the breathing zone of the clay mixer and two from thebreathing zone of his helper. (Tr. 2:222?223.) Cagle also took six bulksamples. (Tr. 2:226.) Cagle forwarded all of the samples to OSHA?s Salt LakeCity laboratory where they were assigned laboratory numbers and analyzed. (Tr.2:227, 229, 232.) The samples from the clay mixer were assigned laboratorynumbers A?6236, A?6238, and A?6244. (Exh. C?11.) The ones from the helper weregiven laboratory numbers A?6237, and A?6245. (Exh. C?11.) Cagle took one of thebulk samples, laboratory number A?6239, from a bag of Ceramitalc HDT that hadjust been opened by the clay mixer. (Tr. 2:226, 230; Exh. C?11.) He took fourof the bulk samples, laboratory numbers A?6240 through A?6243, from dust thathad settled on the floor. (Tr. 2:227, 231; Exh. C?11.) A?6240 was taken at thebase of some steps, about 15 feet from the helper?s location at the mixingmachine. 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 ofwhere 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, about30 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 tookthe 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?splant. (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 SaltLake City laboratory, analyzed the samples obtained by Cagle. (Tr. 2:333,3:535.) Using phase contrast microscopy and related techniques, Crane found anumber 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 notanalyze these samples by dispersion staining to ascertain the mineralogicalcontent of these fibers. (Tr. 3:587, 597, 613?614; Exh. C?18.) Crane?s analysesby dispersion staining of three slides prepared from A?6238 revealed thepresence of six tremolite or anthophyllite fibers. (Tr. 3:597; Exh. C?18.)Using dispersion staining on eight slides prepared from bulk sample A?6239 andfour 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 79fibers that were tremolite or anthophyllite, the A?6241 specimens contained 10tremolite and two anthophyllite fibers, the A?6242 specimens contained sevenfibers that were tremolite or anthophyllite, and the A?6243 specimens contained34 asbestos fibers. (Tr. 3:537?548, 551?554, 558; Exh. C?18.) Crane?s analysisof 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 stainingon bulk samples A?6239, A?6242, and A?6243 and found about 2 to 3 percentfibrous tremolite-actinolite present in A?6239 and A?6243 and ?probably lessthan about 1\/4 per cent in A?6242.? (Tr. 5:47, 49.) He also analyzed thesesamples using transmission electron microscopy. As a result, he identified fouranthophyllite 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 electronmicroscopic examination of A?6243, Stewart found that A?6243 was substantiallysimilar 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 DavidBarnhill, an OSHA industrial hygienist, during the period June 28?30, 1977, andby 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 isdesignated as Citation Number 2.[10] Item I of the citationalleges that Baldwin?s paint mixing area had not been monitored to determinewhether the paint mixers were exposed to excessive levels of asbestos fibers asrequired by 29 C.F.R. ? 1910.1001(f)(1).[11] Item 2 avers that Baldwinviolated 29 C.F.R. ? 1910.1001(g)(2)(i)[12] in that raw materialsbeing used in the paint mixing area did not contain caution labels. Items 3 and4 allege that Baldwin violated 29 C.F.R. ?\u00a01910.1001(j)(2)[13] and (3),[14] respectively, by notproviding employees working in the paint mixing area with preplacement andannual 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.) Carnealtold Barnhill by Baldwin did not contain asbestos and showed Barnhill someletters from Vanderbilt indicating that the talcs did not contain asbestos.(Tr. 3:628.) Carneal also told Barnhill that Baldwin?s employees had not beengiven 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.) Barnhillobtained a bulk sample from a 50-pound bag of Nytal 200 that was being used inBaldwin?s plant. (Tr. 3:626, 629, 634.) Barnhill saw no asbestos caution labelson the bags of Nytal 200 that he observed. (Tr. 3:629.) He also testified thathe 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 LakeCity laboratory, where it was assigned laboratory number A?4976 and analyzed byWillard Dixon. (Tr. 3:631, 4:668; Exh. C?15.) Initially, in August 1977, Dixonanalyzed A?4976 by using dispersion staining and related techniques. (Tr.4:668.) By scanning slides prepared from A?4976, he concluded ?that asbestosfibers 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?4976using the same petrographic techniques, but taking an actual fiber count onthat occasion. (Tr. 4:679, 681; Exh. C?20.) This analysis indicated thepresence of five anthophyllite fibers, 17 tremolite fibers, and 19 fibers thatwere either anthophyllite or tremolite fibers. (Tr. 4:688?691.)??????????? Ian Stewart subsequently analyzed A?4976 using dispersionstaining and found 3 to 5 per cent by weight of fibrous tremolite-actinolite.(Tr. 5:47?49.) His electron microscopic examination of that sample indicatedthe presence of anthophyllite fibers. (Tr. 5:116.)??????????? During her inspection, Barber observed two of therespondent?s paint mixers pouring talc and other dry materials into a paintmixing vat. (Tr. 2:280?281.) The talc was in 50-pound bags of Nytal 200manufactured by R. T. Vanderbilt. (Tr. 2:281, 3:453?454.) The bags had nocaution labels on them to indicate that they contained asbestos material. (Tr.2:300.) Carneal told Barber that Baldwin had not performed any initialmonitoring for the presence of asbestos and that Baldwin?s employees had notbeen given any physical examinations. (Tr. 2:300?301.) Barber did not know howlong 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 forBaldwin for one year. The other employee told her that he had worked forBaldwin for three months. (Tr. 3:457.) Barber obtained five air filter samplesfrom 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 wereassigned 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 anumber of fibers in his analysis of all the samples except A?7021, which wasunacceptable for analysis. (Tr. 3:465, 512?515, 591; Exhs. C?14, C?17.) Inaddition, he performed dispersion staining on a part of A?7016 and ascertainedthat 10 asbestos fibers, either tremolite or anthophyllite, were present. (Tr.3:518, 529?531; Exh. C.?17.) Subsequently, by electron microscopic analysis ofa portion of A?7016, Stewart identified two anthophyllite fibers and a largebundle of fibers that were comprised of anthophyllite fibers and what hebelieved to be chrysotile fibers. (Tr. 5:110?112 115?116.)??????????? The Case for the Respondents??????????? Dr. Ann Wylie testified for the respondents as an expertwitness on mineralogy and light microscopy. (Tr. 6:51.) Randall Ross testifiedfor the respondents as an expert witness on electron microscopy, electrondiffraction, and energy dispersion analysis. (Tr. 6:148?149, 7:4.) The gist oftheir testimony is that the analytical techniques used by the Salt Lake Citylaboratory technicians and by Ian Stewart were inadequate to establish thepresence of asbestos fibers.??????????? Wylie testified that the Salt Lake City laboratorypersonnel did not perform all of the steps she would have used in analyzing thesamples. (Tr. 6:131.) She would have used the ten step procedure described inExhibit R?30 if she received a sample for analysis that she did not knowanything about. (Tr. 6:52?54, 59.) When asked if she would follow all of thesesteps if she were asked to analyze a sample for the six asbestos mineralsenumerated in 29 C.F.R. ?\u00a01910.1001(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 mineralswere there to start with, or if I had some previous knowledge about the samplethat I could eliminate a large group of minerals for some reason.?Then perhaps maybeit wouldn?t be necessary to go through them all. But without a lot ofknowledge, previous knowledge, I wouldn?t, I couldn?t identify without goingthrough those steps, no. (Tr. 6:62?63.)???????????? In her opinion, the Salt Lake City analyses wereinadequate to identify the minerals in the samples unless there was priorknowledge of the mineral content of the samples. She would have run an x-raydiffraction 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 bedistinguished from tremolite optically. (Tr. 6:68?69.) However, tremolite canbe distinguished from pectolite and wollastonite by dispersion staining if careis used. (Tr. 6:70?71.)??????????? Relying on various publications, Wylie testified thattremolite, anthophyllite, and actinolite exist in both asbestiform andnonasbestiform. (Tr. 6:79?87; Exhs. R?25, R?33.) She explained that from amineralogical viewpoint a true asbestos fiber is one that grows as a fiber innature, whereas a cleavage fragment is a fragment that is broken from a largerparticle. (Tr. 6:89, 127.) Using Exhibit R?32, she pointed out illustrations offibers and cleavage fragments. (Tr. 6:90?94.) Although she had not heard that acleavage fragment presents a health hazard, such a fragment would be classifiedas an asbestos fiber under the OSHA definition if it contained one of the sixminerals enumerated in 29 C.F.R. ? 1910.1001(a)(1), was longer than fivemicrometers, 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 itdidn?t ?grow as asbestos.? (Tr. 6:127.) In Wylie?s opinion, ?[a] particle threetimes 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 thatfor particleslonger than five micrometers, about 99 percent of all asbestos fibers have anaspect ratio of about ten to one, and more than half have an aspect ratio inexcess of 50 to one. (Tr. 6:96.)?In analyzing amassive variety of tremolite that was crushed, she found that only five percentof the particles had aspect ratios in excess of the to one and none were inexcess of 50 to 1. (Tr. 6:96?97.)\u00a0Ross testified as to theimportance of having appropriate internal standards in analyzing material byelectron microscopic techniques. (Tr. 7: 4?6, 17?18.) He also testified as tothe 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 ofsix photographs of the anthophyllite standards that were used by Stewart inperforming 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 inanalyzing various samples. (Tr. 5:81, 83?84, 94, 95; 7:35?45.) Having made avisual observation of Exhibits C?31A-F and having made various measurements onthem, Ross concluded that Stewart had used a poor anthophyllite standard. (Tr.7:26?32.) However, Ross also indicated that his opinion might be influenced bydeviations resulting from the photographic process and that he would like tosee the negatives. (Tr. 7:32?33.)??????????? Ross stated that Stewart?s failure to count the angstromspacings between the layer lines on the diffraction patterns was generallyunacceptable. (Tr. 7:36.) In Ross?s opinion, Exhibit C?27P (fiber bundle,Baldwin, A?7016) and the diffraction patterns shown in the following exhibitswere 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.) Rossqualified his opinions as to these exhibits by the reservation ?that there is aquestion in the translation . . . from the negative to the print? becausedeviations might have been introduced by normal photographic procedures. (Tr.7:63.) Accordingly, Ross ?put in a very strong request to see the originaldata.? (Tr. 7:65.)??????????? Ross also criticized Stewart?s analyses where nophotographs were taken because Stewart ?merely eyeballed the diffractionpattern and concluded that he had found an amphibole.? (Tr. 7:45.) Ross furtherpointed out that in an energy dispersive analysis there is a better chance ofgetting a pure chemical sample, uncontaminated by surrounding interferenceparticles, by using a selected point method rather than the ?elongated concept?used by Stewart. (Tr. 7:48.)Findingsof Facts in the Miller Case??????????? 1. On September 28, 1977, at Miller?s plant located inWeedsport, New York, two of Miller?s employees, (names redacted), were exposed to airborne concentrations of atleast two asbestos fibers.??????????? 2. (names redacted)had worked for Miller for 2-1\/2 years and three months, respectively, andno medical examinations had been provided, or made available, to them.??????????? 3. The evidence fails to establish how long Miller hadbeen using Nytal 100HR.??????????? 4. The evidence fails to establish that Miller possessedactual or constructive knowledge that Nytal 100HR contained asbestos.Findingsof Fact in the Hull Case??????????? 1. On or about September 21, 1977, at Hull?s plantlocated in Crooksville, Ohio, spilled Ceramitalc HDT was dry swept in thevicinity of the raw material storage area, asbestos caution labels were notaffixed 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 reasonablyforeseeable that the failure to collect and dispose of the empty Ceramitalc HDTbags in impermeable bags or impermeable containers could have resulted in theexposure of Hull?s employees to airborne concentrations of asbestos fibers inexcess of those specified in 29 C.F.R. ? 1910.1001(b)(2) or (3).[16] Similarly, there is noevidence that the dry sweeping of spilled Ceramitalc HDT would exceed thelimits provided in ? 1910.1001(b)(2) or (3). However, the evidence establishesthat some of the Ceramitalc HDT being used by Hull?s employees contained atleast two asbestos fibers.??????????? 3. The evidence fails to establish that Hull possessedactual or constructive knowledge that Ceramitalc HDT contained asbestos.Findingsof Facts in the Baldwin Case??????????? 1. From about June 30, 1977, to October 11, 1977, atBaldwin?s plant in Foley, Alabama, Nytal 200 was used by Baldwin?s employeeswhile mixing paint. However, the evidence fails to establish that Nytal 200 wasused by Baldwin for any additional period of time.??????????? 2. Baldwin had not performed any initial monitoring forthe presence of asbestos and had not provided, or made available, medicalexaminations for its employees.??????????? 3. Asbestos caution labels were not affixed to the bagsof Nytal 200 used by Baldwin?s employees.??????????? 4. The evidence fails to establish that any employee whoworked with Nytal 200 had been employed by Baldwin for as long as one year. Itdoes establish, however, that two such employees, paint mixers, had beenemployed by Baldwin for more than 30 days.??????????? 5. The evidence establishes that the two paint mixerswere exposed to airborne concentrations of at least two asbestos fibers eachand that these fibers were released by the Nytal 200 that they were using.??????????? 6. The evidence fails to establish that Baldwin possessedactual or constructive knowledge that Nytal 200 contained asbestos.Discussion??????????? Prior to trial, the respondents filed a motion to dismissall citations because the asbestos standards were improperly promulgated andunenforceably vague. The motion also asserts ?that Complainant?s continuedenforcement of an unconstitutional and unenforceably vague standard isarbitrary, capricious and constitutes an abuse of direction.? The respondent?smotion was considered and denied at trial. (Tr. 1:28?37, 42?52.) In a jointpost-trial brief, the respondents and the intervenor ask that I reconsider mydenial of the motion. I adhere to my ruling for the reasons stated at trial. Inaddition, see the discussion of the dichotomy pertaining to the ?asbestiform?and so-called ?nonasbestiform? of minerals, infra.Also see National IndustrialConstructors, Inc. v. OSHRC, 583 F.2d 1048, 1052?53 (8th Cir. 1978.)??????????? Since I found at trial that the asbestos standards werenot improperly promulgated or unenforceably vague, it was unnecessary for me toaddress the assertion that the complainant?s enforcement of the standards wasarbitrary, capricious, and an abuse of discretion. The joint post-trial briefasserts, however, that ?the asbestos standard . . . is arbitrary andcapricious.? This assertion relates to the wisdom of the asbestos standards.The Commission has held that it is not its function to address the wisdom ofthe standard. Borg-Warner Corporation,78 OSAHRC 18\/A2 n. 11 (No. 10757, 1978.) Nevertheless, to alleviate possibleappellate problems that could result from the absence of a ruling, I concludethat the evidence does not show that the asbestos standards are arbitrary andcapricious.??????????? Annual medical examinations are required under 29 C.F.R.? 1910.1001(j)(3) when employees are exposed to airborne concentrations ofasbestos, 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 airborneconcentrations of asbestos ?fibers,? I conclude that the standard applies tosituations where employees are exposed to airborne concentrations of at leasttwo 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 medicalexaminations in 29 C.F.R. ?\u00a01910.1001(j)(2) to be the same as those in ?1910.1001(j)(3) because the significant language in both standards isidentical.[17]??????????? The evidence establishes that two of Miller?s employees, (names redacted), were exposed toairborne concentrations of at least two asbestos fibers. Dust was observed inthe air when bags were poured into the mixing tank. Dixon?s analysis of thebulk sample (A?6393) revealed the presence of two anthophyllite fibers, fourtremolite fibers, and 10 fibers of either tremolite or anthophyllite. Thepresence of asbestos fibers in this sample was verified by Stewart whoseanalysis indicated that more than two anthophyllite fibers were present.[18] Peterson?s analysis ofA?6405, an air filter sample taken on, showed that s(name redacted),even tremolite and three anthophyllite fibers werepresent. The presence of asbestos fibers in this sample was also verified byStewart 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 insufficientto establish that Miller violated 29 C.F.R. ? 1910.1001(j)(3). (name redacted)had worked for Miller foronly three months. More important, there is no evidence as to how long Millerhad been using Nytal 100HR. Thus, it cannot be said that Miller had failed toprovide (names redacted),with theannual medical examinations required by ? 1910.1001(j)(3). Similarly, thefailure to establish how long Miller had been using Nytal 100HR precludesamending 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 wereexposed to airborne concentrations of at least two asbestos fibers. This isestablished 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 byBarnhill (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) hasnot been established as the evidence fails to show that either of the paintmixers had been working for Baldwin for a year[19] or that they had beenusing Nytal 200 for a year in their work.??????????? Barber?s testimony establishes that both paint mixers hadworked for Baldwin for more than 30 days. Her testimony coupled with that ofBarnhill shows that Baldwin had been using Nytal 200 for slightly more thanthree months between June 1977 and October 1977,[20] well over the 30 calendardays specified in the preplacement medical examination standard, 29 C.F.R. ?\u00a01910.1001(j)(2).??????????? Asbestos caution labels must be affixed to productscontaining asbestos ?fibers.? 29 C.F.R. ? 1910.1001(g)(2)(i). As with themedical examination standards, I conclude that caution labels are required whena 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 isestablished 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 therespondent?s plant did not have asbestos caution labels.??????????? Cagle?s testimony establishes that neither the bags ofCeramitalc HDT used by Hull nor the pallets on which they were stored hadasbestos caution labels. The presence of at least two asbestos fibers in theCeramitalc HDT used by Hull is established by Crane?s and Stewart?s analyses ofbulk sample A?6239 taken from a bag of Ceramitalc HDT and of bulk sample A?6243taken 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 behandled or worked in a wet state sufficient to prevent the emission of airbornefibers in excess of the exposure limits specified in 29 C.F.R. ?1910.1001(b)(2) and (3). Obviously, this presupposes that when handled orworked in the dry state there would be an emission of airborne asbestos fibersin excess of the ?\u00a01910.1001(b)(2) and (3) limits. There is no evidencethat the dry sweeping of spilled Ceramitalc HDT would exceed these limits inHull?s plant.??????????? Hull?s empty Ceramitalc HDT bags should have beencollected and disposed of in impermeable containers if it was ?reasonablyforeseeable? that their future use or processing might produce airborneconcentrations of asbestos fibers in excess of the limits prescribed in ?\u00a01910.1001(b)(2)and (3). There is no evidence to establish that it was reasonably foreseeablefrom Hull?s use or other processing of these empty bags that these limits mightbe exceeded.??????????? The asbestos monitoring standard, 29 C.F.R. ?1910.1001(f)(1) requires monitoring, ?[w]ithin 6 months of the publication ofthis section,? of places of employment when asbestos ?fibers? are released.Therefore, to establish a violation of this standard, it must be shown that atleast two asbestos fibers were actually released from the Nytal 200 being usedat Baldwin?s plant. See Goodyear Tire& Rubber Company, 77 OSAHRC 82\/A2 (No. 13442, 1977.) This isestablished by Crane?s and Stewart?s analyses of air filter sample A?7016. Thefact that Baldwin had done no initial monitoring for asbestos is established byCarneal?s admission to Barber that none had been done.??????????? In my opinion, if an employer should have monitored forasbestos within six months of the publication of 29 C.F.R. ? 1910.93(a),[23] his duty to monitorcontinues as long as he continues to use products that release asbestos fibers.See Yelvington Welding Services, 78OSAHRC 84\/D6 (No. 15958, 1978). Also, I interpret the standard to requireinitial asbestos monitoring within a reasonable time after an employer knowsor, by the exercise of reasonable diligence, could have known that a productused by him was causing the release of asbestos fibers in his place ofemployment, even though he was not using this product during the initialsix-month period.[24] As previously indicated,the evidence establishes that Baldwin had been using Nytal 200 from the time ofthe first inspection to the time of the second one, a period of slightly morethan three months, but does not establish when Baldwin first started to useNytal 200. If Baldwin knew at the time of the first inspection or, by theexercise of reasonable diligence, could have known at that time that Nytal 200contained asbestos fibers, then the time interval between the two inspectionswould constitute more than a reasonable period for the accomplishment of therequired monitoring.??????????? In my opinion, there is no validity to the respondent?sattempt, through the testimony of Wylie and Ross, to impeach the analyses ofthe samples by Stewart and OSHA?s Salt Lake City laboratory. Wylie testifiedthat the Salt Lake City analyses were inadequate unless there was prior knowledgeof the mineral content of the samples. However, the Salt Lake City laboratoryhad such knowledge because the analysts could readily identify a Vanderbiltproduct under a microscope and had prior knowledge of the mineralogical contentof 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?sverification of several of the Salt Lake City analyses negates Wylie?sreservations as to the mineral content of those samples.[25]??????????? Ross? criticisms of Stewart?s analyses were based onphotographic exhibits that were introduced by the complainant merely toillustrate the techniques used by Stewart. Ross admitted that his criticismscould be invalid because of possible deviations in the photographs andrequested an opportunity to see the original data. At the trial, I ruled thatthe respondents? experts would be afforded an opportunity to examine this dataand that following the examination I would grant a motion to reopen the hearingto 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 towhether the respondents would avail themselves of the opportunity to have theirexperts examine the data. (Tr. 7: 77?80.) Thereafter, by a letter datedSeptember 26, 1978, the opportunity was declined. Accordingly, I find thatRoss?s criticisms are entitled to no significant weight.??????????? The conclusions of the complainant?s analysts concerningthe mineralogical composition of the fibers they analyzed are supported byMineral Product Safety Data Sheets prepared by Vanderbilt on May 1, 1975, andJanuary 15, 1978. (Exhs. C?32, C?33.) Those data sheets show that 50 to 70percent 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 asbestosstandards fall within the purview of the standards. Borg-Warner Corp., supra. I find nothing in the instant cases thatdetracts from that holding. Wylie?s testimony represents a mineralogicalviewpoint as contrasted with the health considerations inherent in the asbestosstandards.[26]Whether the inhalation of tremolite, anthophyllite, and actinolite cleavagefragments[27]that are longer than five micrometers with an aspect ratio of at least three toone[28] is injurious to anemployee?s health is unclear from the record in these cases. However, there wasno evidence introduced during the trial that tends to show that it is not justas injurious to an employee?s health to inhale these particles as it is toinhale particles that differ from them only in that they grow naturally asasbestos fibers.[29]The resolution of this matter is not essential in these cases because acomparison of photographs of tremolite, anthophyllite, and actinolite cleavagefragments 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 theasbestiform variety as used in mineralogical parlance. (Tr. 6: 97?99.) Moreimportant, the respondents and the intervenor concede at page 26 of their jointpost-trial brief that the complainant?s photographs ?apparently depictmineralogical fibers? and that ?[t]he fibrous morphology of the suspectparticles is not debated.?[30]??????????? To establish any violation of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651?678, the complainant must prove that therespondent possessed actual or constructive knowledge of the alleged violativeconditions. Wally Taylor Construction Co.,76 OSAHRC 142\/F6 (No. 9413, 1976), and the cases cited therein; Scheel Construction, Inc., 76 OSAHRC138\/B6 (No. 8687, 1976). In the instant cases, that equates to a requirementthat the complainant prove that the respondents knew or, by the exercise of reasonablediligence, could have known that they were using talcs that contained asbestosfibers. I conclude that the complainant failed to prove that any of therespondents possessed such knowledge.??????????? The complainant attempted to prove that the respondentspossessed the requisite knowledge through the testimony of Allen Harvey, themanager for technical development for the R. T. Vanderbilt Company. (Tr. 7:81.)Harvey identified an unsigned letter (Exh. C?34) bearing the letterhead of theR. T. Vanderbilt Co., dated January 25, 1977, addressed ?To Our TalcCustomers,? which is entitled ?Talc Certification.? (Tr. 7: 87.) The body ofthe letter states the following:In a letter fromthe U. S. Department of Labor, dated October 9, 1974, we were authorized to certifythat our talc products do not contain asbestos. This reasonable move wasfollowed by OSHA Field Memorandum #74?92, which attempted to clarify thedifferences between asbestiform and non-asbestiform minerals.?Dr. Morton Corn,the most recent Assistant Secretary of Labor and head of OSHA, informed us in aletter received January 24, 1977, that this authorization has now beenrescinded and the Field Memorandum has been cancelled. These most recentrulings were made just prior to Dr. Corn?s resignation and mean we are nolonger in a position to certify that our talc products do not contain asbestoseven though they are composed of the same non-asbestiform minerals processedthe same as always.??????????? We are unable to explain thisunwarranted reversal of policy by OSHA, but you can be assured we will activelyoppose 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 whichhave gone to litigation. One case remains unresolved and in the other one theGovernment backed down from their asbestos contention and accepted a settlementwhich was not even under the Asbestos Standard.?We thank you foryour continued consideration and support.???????????? Although Harvey participated in the preparation of theletter, 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 toeach of the respondents, I would not infer that it had been received by them. Thereis, however, some evidence from which it can be inferred that Baldwin receivedthe letter. Based on letters received from Vanderbilt, Carneal told Barnhillthat the Vanderbilt talcs being used by Baldwin ?don?t have any asbestos inthem.? (Tr. 3: 628.) Subsequently, Carneal gave Barber a letter fromVanderbilt, dated January 25, 1977, addressed to its talc users, and entitled?Talc Certification.? (Tr. 3:455.)??????????? Vanderbilt?s letter of January 25, 1977, shows thatVanderbilt, under an authorization granted by the complainant, had certified toits talc users that Vanderbilt?s talcs did not contain asbestos. Although theletter states that the complainant had withdrawn the previously grantedcertification authority, it continues to tell Vanderbilt talc users thatVanderbilt?s talc products do not contain asbestos. In my opinion, it wasreasonable for users of Vanderbilt talcs, including those who received theJanuary 25, 1977, letter to rely on Vanderbilt?s assertions that its talcs werefree of asbestos.[31] It is clear that Baldwinbelieved the assertions, and it is reasonably expectable that other users alsobelieved them. It would most certainly be unreasonable to expect every user ofVanderbilt talcs throughout the nation to individually have these talcs analyzedfor asbestos after having been told by the producers that the talcs did notcontain asbestos.[32] The difficulties ofobtaining such analyses are well demonstrated by the record in the instantcases. Thus, I conclude that reasonable diligence did not require therespondents to obtain them.Conclusionof Law??????????? 1. The Commission has jurisdiction over the cases, therespondents having admitted jurisdiction in their answers to the complaints.(Tr. 1: 9.)??????????? 2. The evidence fails to establish that the respondentsviolated any of the occupational health standards in issue in these cases.ORDER??????????? The three citations in issue in these cases are vacatedin their entirety.?GEORGE O. TAYLOR, JR.Judge, OSHRCDated: May 29, 1979?Hyattsville, Maryland* CommissionerCottine took no part in the consideration or decision of this case.[1] This case waspreviously consolidated with BaldwinIndustries, Inc., OSHRC Docket No. 78?741. The cases are hereby severed fordecisional purposes. Commission Rule 10, 29 C.F.R. ?\u00a02200.10.[2] CommissionerCleary notes that the R. T. Vanderbilt Company had been authorized by OSHA tocertify that its industrial talcs do not contain asbestos if it had evidencethat this was true. Pursuant to this authorization, Vanderbilt represented tousers 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 notcontain asbestos, and Vanderbilt sent a letter to some of its talc customersinforming them of this. In Commissioner Cleary?s view, any user of Vanderbilttalcs who received this letter would be on notice of OSHA?s position thatVanderbilt talcs contain asbestos and could not be found to lack actual orconstructive knowledge of this fact. Baldwin Industries, Inc., OSHRC Docket No.78?741 (March 1982). However, there is no evidence that Hull received theVanderbilt letter. Accordingly, Hull was entitled to rely on Vanderbilt?s earlierrepresentation that the minerals in Ceramitalc HDT were nonasbestiform, andCommissioner Cleary agrees that the judge correctly found Hull lacked actual orconstructive knowledge that Ceramitalc HDT contains asbestos.[3] Because Hull isnot aggrieved by our disposition of the case, we deny its motion to reopen therecord without deciding whether reopening of the record would otherwise beappropriate under the circumstances of this case.[4] This healthstandard provides that:On or before January 31, 1973, andat least annually thereafter, every employer shall provide, or make available,comprehensive medical examinations to each of his employees engaged inoccupations exposed to airborne concentrations of asbestos fibers. Such annualexamination shall include, as a minimum, a chest roentgenogram . . ., a historyto elicit symptomatology of respiratory disease, and pulmonary function teststo include forced vital capacity . . . and forced expiratory volume at 1second. . . .[5] As used in thisdecision, the term ?fiber? means a particle that is longer than fivemicrometers (29 C.F.R. ? 1910.1001(a)(2)), and that has an aspect ratio of atleast three to one, that is, a particle whose length is at least three timesgreater than its width. (Para. 1.3, Exh. R?8.) See Borg-Warner Corp., 78 OSAHRC 18\/A2 (No. 10757, 1978).[6] Section1910.1001(c)(2)(i) provides that:Insofar as practicable, asbestosshall be handled, mixed, applied, removed, cut, scored, or otherwise worked ina wet state sufficient to prevent the emission of airborne fibers in excess ofthe exposure limits prescribed in paragraph (b) of this section, unless theusefulness of the product would be diminished thereby.Seefootnote 4, infra, for the pertinentcontents of ? 1910.1001(b).[7] Section1910.1001(g)(2)(i) provides that:Caution labels shall be affixed toall raw materials, mixtures, scrap, waste, debris, and other productscontaining asbestos fibers, or to their containers, except that no label isrequired where asbestos fibers have been modified by a bonding agent, coating,binder, or other material so that during any reasonably foreseeable usehandling, storage, disposal, processing, or transportation, no airborneconcentrations of asbestos fibers in excess of the exposure limits prescribedin 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 asbestosfibers to which any employee may be exposed shall not exceed two fibers, longerthan 5 micrometers, per cubic centimeter of air. . . .(3)Ceiling concentration. No employee shall be exposed at any time to airborneconcentrations of asbestos fibers in excess of 10 fibers, longer than 5micrometers, per cubic centimeter of air. .[8] Section1910.1001(h)(2) provides that:Asbestos waste, scrap, debris,bags, containers, equipment, and asbestos-contaminated clothing, consigned fordisposal, which may produce in any reasonably foreseeable use, handling,storage, processing, disposal, or transportation airborne concentrations ofasbestos fibers in excess of the exposure limits prescribed in paragraph (b) ofthis section shall be collected and disposed of in sealed impermeable bags, orother closed, impermeable containers.Seefootnote 4, supra, for the pertinentcontents of ? 1910.1001(b).[9] Ceramitalc HDT isa trade name that is registered by the R. T. Vanderbilt Company. (Tr. 2:267.)[10] The file in theBaldwin case also contains a citation for a nonserious violation of 29 C.F.R. ?\u00a0 was not contested by Baldwin and has become a final order of theCommission by operation of law. (Tr. 1:7.) See 29 U.S.C. ? 659(a).[11] This healthstandard provides, in pertinent part, that:Within 6 months of the publicationof this section, every employer shall cause every place of employment whereasbestos fibers are released to be monitored in such a way as to determinewhether every employee?s exposure to asbestos fibers is below the limitsprescribed in paragraph (b) of this section.[12] See footnote 4, supra,for the text of this standard.[13] Section1910.1001(j)(2) provides the following as to preplacement medical examinations:The employer shallprovide or make available to each of his employees, within 30 calendar daysfollowing his first employment in an occupation exposed to airborneconcentrations of asbestos fibers, a comprehensive medical examination, whichshall include, as a minimum, a chest roentgenogram . . ., symptomatology ofsymptomatology of respiratory disease, and pulmonary function tests to includeforced 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 jointpost-trial brief, the respondents and the intervenor contend that the medicalexamination standards are unenforceably vague. In support of this contentionthey assert that evidence adduced at trial (Tr. 3: 415?425) shows an?unofficial exclusion level ?policy? in certain OSHA offices? providing ?thatconcentrations of .1 asbestos fibers per cubic centimeter of air or greatermust be found before any citation under the medical examination provisionswould be issued.? In this connection, I am asked to take official notice ofOSHA Program Directive Number 300?16 issued on October 11, 1978, which, ineffect, formally announces this policy. At best, the matters referred to in thejoint post-trial brief merely show that the complainant has changed hisinterpretation of the standards for enforcement purposes. See GAF Corp. v. OSHRC, 561 F.2d 913 (D.C. Cir., 1977). They do notdetract from the specificity of the standards as promulgated by the complainantand as interpreted by the Commission and the United States Court of Appeals forthe District of Columbia Circuit. Furthermore, the implementation orpronouncement of policies by the Secretary of Labor or his representatives haveno binding legal effect on either the Secretary or the Commission when theyhave 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., 76OSAHRC 50\/A2 (No. 4809, 1976); GAF Corp.,77 OSAHRC 207\/E6 (No. 77?616, 1977) (Alfieri, J.). Of course, Policy DirectiveNumber 300?16, is also not binding here because it was not issued until wellafter the issuance of the citations in the instant cases.[18] Stewart testifiedthat analysis by transmission electron microscopy and related techniques wasnecessary to rule out the possibility of erroneously counting talc fibers asasbestos fibers, which could not be accomplished by the analysis techniquesused by OSHA?s Salt Lake City laboratory. (Tr. 5: 53.) Accordingly, although Inote that Peterson found asbestos fibers in A?6395, A?6396, and A?6397, I donot rely on those analyses in concluding that (names redacted)were exposed to airborne concentrations of at leasttwo 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 beenverified by Stewart.[19] Barber testifiedthat one of the employees told her that he had worked for Baldwin for threemonths. As she ?recall[ed]? the other indicated to her that he had worked forBaldwin for one year. (Tr. 3: 457.) I consider this to be a rough approximationthat could have fell short of being a full year. Accordingly, I find thatBarber?s testimony is not sufficiently definitive to establish that theemployee had worked for Baldwin for a year.[20] No violation canbe found on the date of Barnhill?s inspection because the citation was notissued 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 theexistence of violations at the time of Barber?s inspection. For example,Barnhill?s testimony can be used to establish that Baldwin was using Nytal 200at the time of Barnhill?s inspection. Furthermore, the bulk sample obtained byBarnhill can be used to show that the Nytal 200 in use at the time ofBarnhill?s inspection contained asbestos fibers.[21] To establish aviolation of 29 C.F.R. ? 1910.1001(g)(2)(i), the complainant is not required toprove ?that during any reasonably foreseeable use, handling, storage, disposal,processing, or transportation, no airborne concentrations of asbestos fibers inexcess of the exposure limits prescribed in [29 C.F.R. ? 1910.1001(b)] will bereleased.? That requirement pertains only to a situation ?where asbestos fibershave 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 foundasbestos fibers in air filter sample A?6238 and in bulk samples A?6241 andA?6242. Stewart did not analyze A?6238 or A?6241 and could not identifyasbestos in A?6242. Therefore, I do not rely on Crane?s analyses of thesesamples. See footnote 15, supra.[23] The asbestosstandards were previously codified at 29 C.F.R. ? 1910.93a and, on May 28, 1975were recodified at 29 C.F.R. ? 1910.1001. 40 Fed. Reg. 23072 (1975).[24] The conclusionsexpressed in this paragraph are supported by 29 C.F.R. ? 1910.1001(f)(3)(ii),which provides that:After the initial determinationsrequired by paragraph (f)(1) of this section, samples shall be of suchfrequency and pattern as to represent with reasonable accuracy the levels ofexposure of the employees. In no case shall sampling be at intervals greaterthan 6 months for employees whose exposures to asbestos may reasonably beforeseen to exceed the exposure limits prescribed in paragraph (b) of thissection.[25] See footnote 15, supra.[26] Thus, the term ?nonasbestiform?appears to be a misnomer from a health standpoint.[27] As a matter ofpractice, OSHA?s Salt Lake City laboratory did not count a particle as a fiberif 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 thethree to one aspect ratio requirement is not contained in the asbestosstandards, it constitutes a subsequent interpretation of the standard by thecomplainant. See Borg-Warner Corp., supra.Since that interpretation increases the complainant?s burden of proof, therespondents cannot be prejuduced by its use. In regard to Wylie?s testimonythat 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 a100 to 1 aspect ratio. (Tr. 5: 96, 194.)[29] After trial,however, the respondents requested me to take official notice of pages 2 and 3of DHEW Publication Number (NIH) 79?1681, entitled ?Asbestos: An InformationResource,? published in May 1978. That publication states that ?recentbiological studies suggest that, in terms of carcinogenic activity, mineralshape may be more important than chemical nature.? However, several studies by theNational Institute for Occupational Safety and Health are more relevant to thehealth hazards associated with the Vanderbilt products involved in the instantcases. These studies show an increased risk of lung cancer among former minersand millers who had worked with tremolitic talcs for the R. T. VanderbiltCompany in upper New York and reveal an elevated prevalence of pleuralthickening is nearly one of every three Vanderbilt tremolitic talc workers withgreater than 15 years of exposure. (Exh. R?9.)[30] DHEW PublicationNumber (NIH) 79?1681 also indicates the following:The identification of asbestos iscomplex because many of the minerals that are chemically almost identical todifferent varieties of asbestos (e.g., grunerite to amosite, serpentine tochrysotile) exhibit perfect prismatic cleavage (the ability to break alongwell-defined crystallographic planes), so that physical degradation often leads to the formation of minutecleavage fragments that are chemically as well as physically indistinguishablefrom asbestos fibers. Recent comprehensive studies at the U. S. Bureau of Mineshave concluded that there is currently no absolute way to distinguish betweenfinely divided asbestos and certainother minerals of similar composition. (Emphasis added.)Becauseof their indefiniteness, these conclusions are of little significance in theinstant cases. Moreover, for the reasons previously discussed in the text, theevidence establishes the presence of asbestos fibers in various samples ofCeramitalc HDT, Nytal 100HR, and Nytal 200 that were analyzed. [31] There is no otherevidence which tends to show that the respondents had any cause to believe thatVanderbilt talcs contained asbestos. To the contrary, the Mineral ProductSafety Data Sheets prepared by Vanderbilt on May 1, 1975, and January 15, 1978,to inform its customers of the ingredients in Vanderbilt talcs, indicate thatno asbestos is contained in Ceramitalc HDT, Nytal 100HR, or Nytal 200, as thetremolite and anthophyllite contained in these talcs are characterized as?non-asbestiform.? (Tr. 7: 82?86; Exhs. C?32, C?33.)[32] In instances suchas this, it would seem that enforcement should be initially directed againstthe producers to require them to affix asbestos labels to their products whereappropriate. If users were so alerted to the presence of asbestos, it shouldobviate the necessity ?to litigate numerous similar cases through theadministrative and appeal procedure provided? under the Act. Continental Can Co., U.S.A. v. Marshall,455 F.Supp. 1015 (S. D. Ill., 1978).”