1

Exposure to talc can lead inter alia to pneumoconiosis, a

disabling and potentially fatal occupational lung disease. 

 2In this opinion, the terms "OSHA," and "the Secretary"

(referring to the Secretary of Labor who overseas OSHA) are used

interchangeably. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-6854.

NIEMAND INDUSTRIES, INC., Petitioner,

v.

Robert B. REICH, Secretary of Labor, United States Department of

Labor, and Occupational Safety and Health Review Commission,

Respondents.

Jan. 29, 1996.

Petition for Review of an Order of the Occupational Safety and

Health Review Commission (Alabama Case)

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Petitioner Niemand Industries, Inc., ("Niemand") seeks review

of a final decision of the Occupational Safety and Health Review

Commission affirming an administrative ruling finding Niemand in

violation of 29 C.F.R. § 1910.1000(c) for exposing its employees to

excessive levels of talc. Because there is no substantial record

evidence to support the finding of a violation, we reverse the

Commission's decision.

Niemand operates a manufacturing plant in Marion, Alabama

where it produces containers and other products for shipment in

interstate commerce. Following a complaint that Niemand's

employees were being exposed to excessive levels of talc,1 the

Occupational Safety and Health Administration ("OSHA")2 sent an
industrial hygienist to inspect Niemand's facility. As a result of

the inspection, Niemand was charged with violating 29 C.F.R. §

1910.1000.

29 C.F.R. § 1910.1000 provides, in part:

C.F.R. § 1910.1000 Air Contaminants

An employee's exposure to any substance listed in Tables Z-1,

Z-2 or Z-3 of this section shall be limited in accordance with

the requirements of the following paragraphs of this section.

....

(c) Table Z-3. An employee's exposure to any substance listed

in Table Z-3, in any 8-hour work shift of a 40-hour work week,

shall not exceed the 8-hour time weighted average limit given

for that substance in the table.

Table Z-3 limits permissible exposure to respiratory talc dust to

20 million particles per cubic foot of air ("mppcf") based on an

eight-hour time weighted average.

 The threshold question in this case is whether the

Secretary's evidence supports a conclusion that an employee engaged

in Niemand's talc operation was exposed to talc in excess of the

permissible exposure limit ("PEL"), the maximum amount of an air

contaminant to which an employee may be exposed over a specified

period of time. Table Z-3 expresses the permissible exposure level

to talc in terms of "millions of particles per cubic foot of air"

to be measured "based on impinger samples counted by light-field

techniques," and sets the limit at 20 mppcf. Instead of using this

method of analysis, Valentin Ille, Jr., the OSHA industrial

hygenist who analyzed the levels of talc at Niemand's facility,

used a gravimetric air sampling test in which the sample collected

is weighed and the exposure level calculated by weight in units of

"milligrams of substance per cubic meters of air" (mg/m3

). Niemand
contends that because measuring talc in mg/m3

 does not comport with

the method prescribed in Table Z-3 for determining an overexposure

to talc, such measurements may not form the basis of the alleged

violation.

In his testimony, Ille explained that the light-field

technique was growing obsolete and that the OSHA manuals in his

office recommended the gravimetric method. Because use of the

gravimetric method would render a result in units different from

those provided in Table Z-3, Ille telephoned OSHA's Utah laboratory

to confirm the maximum PEL. An unidentified chemist instructed

Ille to use a maximum PEL of 3mg/m3

. Ille's measurements, which

form the basis of the OSHA charges against Niemand, were that one

employee was exposed to 7.05 mg/m3 and that another was exposed to

4.89 mg/m3.

Niemand argues that Table Z-3 expressly requires the Secretary

to apply a particle count method in its assessment of talc exposure

as this is the only method reflected in the table for talc.

Niemand contends that because the table reflects no conversion

between the two methods for talc, and as Ille testified, no such

conversion exists, the Secretary used the wrong method for testing

talc at its facility and has failed to adequately establish an

overexposure to talc. OSHA responds that 20 mppcf and 3mg/m 3

 are

comparable expressions of the same amount and that notwithstanding

the absence of an acceptable conversion to gravimetric units in the

regulations, its reliance on measurements obtained via gravimetric

testing should be deemed acceptable. We disagree.

 The Commission's factual findings are conclusive if supported
by substantial record evidence. 29 U.S.C. § 660(a); D & S Grading

Co. v. Secretary of Labor, 899 F.2d 1145, 1147 (11th Cir.1990).

The record before us contains no evidence sufficient to support

OSHA's assertion that 20 mppcf and 3mg/m3 are equivalent. The

Commission accepted for purposes of its decision the Secretary's

statement in a notice of proposed rulemaking, see 53 Fed.Reg. 20960

(1988), that 3 mg/m3 is "roughly equivalent" to 20 mppcf, despite

the fact that the final rule had been vacated. See AFL-CIO v.

OSHA, 965 F.2d 962 (11th Cir.1992). Finding the 4.89 mg/m 3

measurement to be sufficiently above 3 mg/m3, the Commission

asserted that it could "comfortably conclude that there was

overexposure." We do not find the vacated rules to sufficiently

establish the necessary equivalence and, apart from Ille's

testimony, OSHA has proffered no corroborating evidence. Nor do we

find Ille's telephone conversation to an anonymous chemist at

OSHA's Utah laboratory sufficient to establish a reliable mg/m3

standard.

If, as OSHA contends, the light-field technique is no longer

viable, OSHA can, pursuant to its rulemaking authority, modify the

regulations. If a measurement may be equivalently expressed in

other terms, then OSHA has the obligation to present evidence to

that effect. Absent substantial evidence that the results obtained

exceed the OSHA standard of 20 mppcf, OSHA may not prosecute a

violation on the basis of a measurement technique not provided for

in Table Z-3. For these reasons, we REVERSE the final decision of

the Commission.

REVERSED and REMANDED.