OSHA: The Final Standards Defining Asbestos Appealed

Read about the appeal of OSHA’s final standard to define asbestos materials: Following issuance of the standards, a number of parties filed petitions in the Second, Fifth, and District of Columbia Circuit Courts of Appeals for review of the standards under section 6(f) of the OSH Act based on broad challenges to the standard's validity.

On June 20, 1986, the R.T. Vanderbilt Company requested an administrative stay of the standard pending judicial review based on its claim that OSHA improperly included non-asbestiform minerals.

This request was denied on July 9, 1986 in a letter from OSHA Assistant Secretary John Pendergrass. Vanderbilt also filed a stay motion in the United States Court of Appeals for the Second Circuit.

The National Stone Association (NSA) and Vulcan Materials Company, nonparticipants in the rule making, also requested a stay of the standards on July 11, 1986 insofar as they applied to tremolite and actinolite exposure from the use of crushed stone in construction.

In their request for a stay, the NSA claimed that the technological and economic impacts of the new standard, on users of crushed stone in the construction industry, was never considered in the rule making. It alleged severe adverse impacts on the industry and the public as the result of applying the new standard to crushed stone.

Vanderbilt requested OSHA to reconsider its denial of an administrative stay on July 24, 1986 (Ex. 416). Court papers filed by Vanderbilt brought to OSHA's attention internal memoranda from three NIOSH scientists that disputed OSHA's regulatory treatment of non-asbestiform tremolite, anthophyllite and actinolite.

Dr. Donald Millar, the Director of NIOSH, wrote to OSHA on July 17, 1986 to reaffirm NIOSH's support for OSHA's positions in the final standards (Ex. 408). On July 18, 1986, OSHA granted a temporary stay insofar as the standards applied to non-asbestiform tremolite, anthophyllite, and actinolite.

OSHA said it was granting the stay in part to enable the agency to review Dr. Millar's letter, the NIOSH memoranda, the submissions of Vanderbilt and various trade associations, and to conduct supplemental rule making on whether non-asbestiform tremolite, anthophyllite and actinolite should be regulated in the same manner as asbestos and the feasibility of regulating the affected industries.

The stay was extended to July 21, 1988 and thereafter and in order to complete rule making. The current stay expires May 30, 1992.

Pursuant to the stay and its extension, the standard, covering tremolite, anthophyllite, and actinolite were to remain in effect as they had applied to minerals under the previous standard. The 1972 standard was republished.

Courtesy of http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=PREAMBLES&p_id=784

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