August 16, 2007

The Honorable Patty Murray
Eastern Washington Office
601 W. Main, Suite 1213
Spokane, WA 99201

Dear Senator Murray:

Thank you for your facsimile inquiry of June 27, 2007, to the Department of Labor's (DOL's) Office of Congressional and Intergovernmental Affairs. Your letter was transferred to the Occupational Safety and Heath Administration (OSHA) for response. You requested OSHA's assistance in responding to an inquiry from one of your constituents, Mrs. Mable Rutt, of Richland, WA, in her letter to you dated June 17, 2007, which you attached to your facsimile.

As background to Mrs. Rutt's inquiry, she stated that her late husband, Frederick Rutt, Jr., was exposed to asbestos in 1944 as a laborer working one summer at the Hanford Engineer Works (HEW), Richland, WA, a government-owned nuclear weapons production site. Mrs. Rutt also stated that her husband's autopsy listed asbestosis as one of his diagnoses and that she is reporting this finding with the Department of Energy (DOE) "program." The program that we assume Mrs. Rutt is referring to is that established by Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), which is administered by the DOL. This program provides eligible survivors with federal compensation if an employee's death was caused or contributed to by an occupational illness from exposure to toxic substances at a DOE facility.

If Mrs. Rutt would like information on this program and submission of claims, she may contact the DOL's Division of Energy Employees Occupational Illness Compensation (DEEOIC), Western District Office at the following location:

U.S. Department of Labor, DEEOIC
719 2^nd Avenue, 6^th Floor, Suite 601
Seattle, WA 98104
Regional Director: Sharon Tyler
(888) 805-3401

Mrs. Rutt should be informed that as the DOL investigates such claims with the DOE and associated contractors, all information will be made available to the claimant. Mrs. Rutt also asked you several general questions regarding her late husband's exposure to asbestos, and you, in turn, asked us to respond to her questions. Specifically, Mrs. Rutt asked if there were any standards, policies, or procedures for occupational exposure to asbestos in 1944 and whether employees during that period used any safety precautions, such as wearing personal protective equipment (PPE), and whether employees were tracked. She also asked if you had any information on who may have supplied the asbestos-containing insulation that was used during the construction of the B Reactor and the Chemical Separation Buildings (canyon buildings), and who may have been subcontractors for the DuPont Chemical Company — the prime contractor for construction of the HEW.

OSHA, which was established by the Occupational Safety and Health Act of 1970, does not have any information concerning: who may have supplied asbestos-containing insulation or subcontracted to DuPont during construction of the HEW; whether employees were required to wear or were even provided with respiratory protection; or whether employee exposures were ever tracked. However, as mentioned above, DOL's DEEOIC should provide any information that may be found in the course of its investigation of a specific claim.

As far as standards, policies, or procedures for occupational exposure to asbestos in 1944, there were no federal standards at that time specifically addressing occupational exposure to asbestos. However, one federal regulation that may be pertinent concerned all federal contracts exceeding $10,000, wherein such work was required to comply with whatever health and safety laws existed in the state where the federal work was being performed (see the discussion below concerning the Walsh-Healey Act of 1936).

Historically, asbestosis was being reported in the U.S. by 1930, and evidence of the carcinogenicity of asbestos was increasingly being reported in the 1950's, 60's, and 70's.¹ Consumption of asbestos fiber in the U.S. peaked in 1973.² OSHA first issued a permissible exposure limit (PEL) for asbestos with the initial promulgation of OSHA standards on May 29, 1971. Soon after, OSHA issued an Emergency Temporary Standard (ETS) on asbestos on December 7, 1971. Several subsequent rulemakings by OSHA on asbestos have occurred since then to lower the PEL.

In 1936, the Walsh-Healey Act was legislated, enacting U.S. Code Sections 35 to 45 of Title 41, Public Contracts. The following excerpt from Section 35 provided a general standard for the health and safety of government contractor employees:

Sec. 35. Contracts for materials, etc., exceeding $10,000; representations and stipulations. In any contract made and entered into by any executive department, independent establishment, or other agency, instrumentality of the United States. . .for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000, there shall be included the following representations and stipulations:. . .(e) That no part of such contract will be performed. . .under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima-facie evidence of compliance with this subsection.

Additionally, in 1938 the U.S. Public Health Service issued a report on a survey they conducted at three asbestos textile plants to evaluate reported cases of asbestosis. Their report recommended a tentative level of "dustiness" as a guideline for the asbestos industry to reduce the incidence of asbestosis.³ While the U.S. Public Health Service had no enforcement authority, some states may have adopted its recommended limit for asbestos-containing dust in workplace air. You may wish to investigate further whether the State of Washington had established such a limit that may have been enforceable in 1944 under the Walsh-Healey Act for the federal contract work by DuPont at the HEW.

We hope that this reply provides you with information that is responsive to the needs of your constituent. Please feel free to contact Mr. Thomas Stohler in the Department's Office of Congressional and Intergovernmental Affairs at 202-693-4600 if we can be of further assistance.

Sincerely,



Edwin G. Foulke, Jr.

¹ Federal Register, "Occupational Exposure to Asbestos, Notice of Proposed Rulemaking," 40 FR 47652-47665, October 9, 1975. [ back to text ]

² U.S. Geological Survey, 2006, "Asbestos Statistics, in the United States," Kelly, T.D., and Matos, G.R., comps., Historical statistics for mineral and material commodities in the United States: U.S. Geological Survey Data Series 140, available online at http://pubs.usgs.gov/ds/2005/140/. (Accessed July 10, 2007) [ back to text ]

³ Public Health Bulletin No. 241, "A Study of Asbestosis in the Asbestos Textile Industry," Dreessen, W.C., et al., Washington, DC: U.S. Public Health Service, 1938. [ back to text ]