DEC-TAM Corporation (Commission decision, January 19, 1993)

Read the official release (oshrc.gov)

Plain-English summary

OSHA inspected DEC-TAM Corporation's asbestos-removal work aboard a ferry in Newport, Rhode Island. The Commission reviewed findings involving delayed production of exposure records, exposure monitoring, asbestos overexposure, respirators, housekeeping, and work-practice controls. It held that DEC-TAM's delayed production of requested monitoring records was serious, not willful, because the company initially produced most requested materials, explained that the rest were held by its consultant, and showed neglect rather than conscious refusal. The Commission modified the classification of the asbestos permissible-exposure-limit violation to other-than-serious. It affirmed the serious full-shift monitoring and respirator-selection items, and raised the additional-monitoring item from other-than-serious to serious. It retained the housekeeping and work-practice-control findings and assessed a combined $200 penalty for those two items. The other assessed amounts included $1,000 for the delayed-records violation, $1,000 combined for two monitoring violations, $500 for the overexposure violation, and $50 for respirator selection. Commissioner Montoya dissented from reducing the delayed-records item from willful to serious.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.20(e)(3)(i), 1910.1001(c), 1910.1001(d)(1)(ii), 1910.1001(d)(5), 1910.1001(f)(1)(i), 1910.1001(g)(2)(i), 1910.1001(k)(1), and 1910.1001(m)(5)(ii).
• Outcome: Multiple asbestos citation classifications and penalties were modified; the delayed-records item was reduced from willful to serious, and other affirmed items received individual or combined penalties.
• Key point: Delay and poor follow-through in producing exposure records can be serious without being willful when the evidence shows attempted compliance rather than conscious refusal.

Full text (OSHRC public release)

UNITED STATESOF AMERICA
OCCUPATfONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET NW.
4TH FLOOR
WASHINGTON D.C. 20006-1246 ’

FAX: c&~~2)6&-4008

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SECRETARY OF LABOR,
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Complainant,
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v. OSHRC Docket No. 88423
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DEC-TAM CORPORATION,
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Respondent.
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DECISION
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BEFORE: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:
1. Introduction
In July and August of 1987, the Occupational Safety and Health Administration (“OSHA”)
. conducted an inspection of a worksite the Dee-Tam Corporation (“Dec-Tam”) maintained on a ferry boat docked at Newport, Rhode Island. Following the inspection, OSHA issued citations alleging violations of the Occupational Safety and Health Act of 1970, a 29 U.S.C. 80 651-678 (the “Act”), for failure to comply with provisions of the asbestos standard at 29 C.F.R. 0 1910.1001. The facts are largely undisputed. Administrative Law Judge Foster Furcolo affirmed several citation items and both parties petitioned for review. Review was granted on the issues specified below. We affirm the judge’s decision as modified below.
II, Wbs Dec-Tam’s Failure lo Timely ProvideRequested Records Will&l?
.
A. Background
Item 2 of Willful Citation So. 2 alleges that Dee-Tam failed to comply with 29 C.F.R.
2 5 ~9~~.loOl(m)(S)(ii) and 29 C.F.R. 8 1910.20(e)(3)(i)’ by not immediately providing OSHA upOn its request with records of all environmental
and personal air samples taken by Dec- Tam during its asbestos removal project aboard the ferry. A penalty of $S,ooOwas proposed by the Secretary.
The Review Commission’s Administrative Law Judge found that these standards require an employer to make available to OSHA, upon request, certain employee exposure and/or medical records. While finding that Dec-Tam had partially complied with the request for materials from OSHA by submitting “some of the requested material,” the judge found that Dee-Tam had delayed in submitting other materials. Because certain of the requested information “was not provided within a reasonable time,” the judge affirmed a violation of the aforementioned standards. The judge further held that this delay “was the result of an ‘obstructionist’ attitude, culminating in a knowing, intentional violation of, or inMere’nce to,

1 Certain of the provisions of the asbestos standard at section 1910.1001 have been moMed sik the Secretary of Labor inspected Dee-Tam in 1987. All quoted versions of the standards involved in the Secretary’scitationsare those in effect at the timeof the inspection. Section 19lO.lOOl(m)(S)(ii) provided:

9 1910.1001 Asbestos, tremolite, anthophyllite, and actinolite.

;m)Recordkceping.--

$ The employer,upon request shall makeany exposure records required by paragraph (m)(l) of this section available for examination and copying to affected employees, former employees, designated representatives and the Assistant Secretary, in accordance with 29 CFR 1910.20 (a)-(e) and (g)-(i).

Section 1910.20(e)(3)(i) provided:

0 l9lth20 Acass to employee exposure and medical records.
. d’ iM ccess to record+-
;;; &Hi4 access. (i) Each employer shall, upon request, assure the immediateaccessof representatives of the Assistant Secretary of Labor for Occupational Safety and Health to employee exposure and medical records and to analyses using exposure or medical records.
Rules of agency practice and procedure governing OSHA access to employee medical records are contained in 29 CFR 1913.10.
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the Act.” Beyond classifying the conduct of Dee-Tam as obstructionist, no additional rationale was offered by the judge for his findings. The judge affirmed the violation as willful and assessed the maximum penalty permissible under the law, $10,000, which represented an increase in the $8,000 penalty proposed by the Secretary.
Dee-Tam has sought review of the judge’s determination of willfulness. The Commission has directed this issue for review. Accordingly, in the absence of a fully delineated rationale for the judge’s findings, we must independently determine whether the weight of available evidence justifies the judge’s finding that Dec-Tam’s conduct was obstructionist, and if not, whether the Secretary has othefwise met her burden of proof in establishing that this particular violation meets the Commission’s standard for classification as willful.
.
B. 77te Facts
Following inspections of Dec-Tam’s workplace on August 7, August 12,. and August 13, 1987, OSHA compliance officer Henry E. Meleney verbally requested a wide- range of materials from Dec-Tam’s president, JLeeSncklgrass,on August 27,1987. Dec-Tam requested that this verbal request be detailed in writing. OSHA made its request for the information and data by letter dated August 28, 1987.2 On September 14, ‘1987,Dec-Tam forwarded all the materials requested by OSHA except the monitoring results (item 1 of OSHA’s request) and the sampling and analytical methods used in that monitoring process (item 2). With this transmission of most of the items requested by OSHA, Dec-Tam included a letter in which it notified OSHA that the items not enclosed (items 1 and 2) were not in its possession. Dec-Tam informed OSHA that such materials were in the possession

2 The letter requested the following information:

1 Monitoring results taken on the New York Staten Island Ferry, including dkterminations of 8-hour TWA%.
2. Sampling and analytical methods used.
3. Copy of company’s written respirator program which meets 1910.134 sections (b)(d)te) and (Q
4. Written medical opinion for each employee.
5 Documentation of fit testing for each employee which meets requirements of Appendix C, including type of respirator and dates of fittings.
6 Copy of training program established for each asbestos removal employee and dbcumentation of each employee3 training.
7. Name, address and phone number of licensed examining physician, and;
8. The length of employment for each employee.
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of Ene&ciences, Inc., (“EnviroSciences”) an asbestos consulting firm, which as the judge found, had been hired to ensure that all asbestos was removed completely by Dec-Tam, to conduct clearance air sampling to ensure that no asbestos contamination went outside the
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regulated areas, and to analyze air samples and air-monitoring cartridges (upon which the information requested by OSHA in‘items 1 and 2 was based). Since part of the information requested by OSHA was therefore in the possession of EnviroSciences, and not Dec-Tam, the company informed OSHA in this letter that it had contacted Bob Jones of Enyiro- Sciences and requested the information, and that, as soon as it was received it would be forwarded to Meleney. No evidence appears in the record of any protests having been made by OSHA to this proposed course of action contained in Dee-Tam’s letter to OSHA.
From September 1987, the time of Dec-Tam’s delivery of most of the information
requested by OSHA, until approximately the middle of November 1987, compliance officer. Meleney was temporarily assigned from the regional office covering DecoTam’s workplace to OSHA’s California regional office. There is no evidence presented that anyone at OSHA had begun-working with the data submitted by Dec-Tam, that any other OSHA official contacted’ Dec-Tam concerning these materials during this time, or that OSHA’s * investigation or inspection efforts had been materially hindered or delayed in any way. On December 28,1987, having returned from California several weeks earlier, Meleney testified that he telephoned Ajay Pathak, Dec-Tam’s Director of Industrial Hygiene, and informed . him that OSHA had not yet received the remaining requested information. Meleney testified that he asked Pathak to “get the stuff [apparently the originally requested materials] together and send it as soon as possible, but this week.” Meleney testified that Pathak said he would do so.
On January 4,1988, one week after the December 28, 1987 telephone conversation, Meleney testified that he once again called Pathak to inquire about the delinquent materials. During this call, Meleney was informed by another employee of Dec-Tam that Pathak was not in the office, and that in his absence, the message would be sent to company president Snodgrass. When his call was not returned, Meleney testified that he again called Dee-Tam to inquire about the requested materials on January 7, 1988. Meleney testified that “on behalf of Pathak,” Snodgrass did ret urn the call the next day, on January 8, 1988, and that during this conversation, Snodgrass told him that “all correspondence that [he] would receive 5

would be sent by Pathak and that Pathak was the contact person for getting the informa- tion.” On January 12, 1988, Meleney once again telephoned Dee-Tam’s offkes and again spoke to &&grass. Meleney testified that on this occasion Snodgrass assured him that he would have Path& get the documents to OSHA, but that Pathak would not be back into the ‘office until January 18, 1988. Meleney testified that soon thereafter, he brought to the attention of OSHA’s Area Director the fact that he was haying trouble “getting documents.” Meleney stated that the next day, January 13, 1988, the Area Director telephoned Dec. Tam’s place of business and “talked to the same woman who sent us the letter on September 19th.” According to Meleney, the Area Director “requested that this information be sent immediately to [OSHA’s] attention or he would issue an administratitivesubpoena for that information.” The next day, on January 14, 1988, the materials were delivered to OSHA, Later in January 1988, OSHA made a further request for additional information which was provided promptly by Dec-Tam in the beginning of February l988.3
C. Arguments of the Parties
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Dee-Tam argues that the facts are undisputed and support nothing more than a finding of inadvertent delay. It asserts that simple negligence is not a basis for a wilW violation, citing WUiams Entep 9 13 BNA OSHC 1249, 1256-57, 19%4/V CCH OSHD ll 27,893, p. 36,589 (No. 85-355, 1987). It also argues that the judge’s factual findings do not establish that the violation was the result of “a conscious, intentional, deliirate,
voluntary decision,” as is required for proof of a willful violation under FX. MizssiizaConrtr.’Co. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974).
Dee-Tam contends that it could not forward all the materials when they were first requested and that it therefore advised OSHA in writing that it would provide them when

• they were received from EnviroSciences, and that OSHA did not object. Dec-Tam argues that the only apparent basis for the judge’s statement that it displayed an “obstructionist” attitude is the compliance offker’s testimony that he had to call Dee-Tam a number of times in the first two weeks of January 1988 in order to get the requested documents. Dec-Tam

3 Although the record is unclear as to the date, Dec-Tam’s Pathak testified that at one point he had asked the compliance officer if “he needed any other documentation for the case.” Also, apparently, OSHA made at least one other request for information not requested in its letter of August 28, 1987, and such information was timely furnished by Dee-Tam.
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points out, however, that its president had renmmi the compliance officer’s calls and advised a hat ia industrial hygienist had called EnviroSciences and asked for the re- quested mate* . me Secretary of Labor argues that the First Circuit, the court to which she can
appeal this case, has affirmed a willful violation even where a pardonable offense is shown, citing F. X M&Sk. She ad& that most courts have found willful violations either where an employer who is aware of a specific standard knowingly violates ‘it, citing Me~~~ty Constr. Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), or where an employer does not-have such specific knowledge but is indifferent to, or carelessly disregards, employee safety, citing Havens Steel Co. v. OSHRC, 738 F.2d 397, 401 (10th Cir. 1984).
The Secretary also relies on Keco Ittdrrs., 13 BNA OSHC 1161,.1987 CCH OSHD II 27,860 (No. 81-263, 1987) and Thennai Reduction Cop., 12 BNA OSHC 1264, 1984-85 CCH OSHD li 27,248 (No. 81-2135, 1985), cases in which the Commission affiked willful w violations against employers who were aware of their duty to disclose, yet failed tq-produce occupational injury and illness records. The Secretary contends that although DecoTam argues that the records were not in its control, Dec-Tam “cannot shirk its legal duty to provide the information mandated by the law.” D. Analysis of Willfidness
A violation is willful if it was committed with intentional disregard for the
requirements of the Act or plain indifference to employee safety. Keco Ikdus., 13 BNA OSHC at 1163,1987 CCH OSHD at p. 26,472. Under long-standing Commission precedent, to establish a willful violation, it is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation, serious or nonserious. A willfbl violation is differentiated by heightened awareness of the illegality of the conduct or condition and by a state of mind of conscious disregard or plain indifference. Williams Entep, 13 BNA OSHC at 1256,1986-87 CCH OSHD at p. 36,589. There must be evidence that an employer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard. Also, a willful violation/charge is not justified if an employer has made a good faith effort to comply with the standard, even though the employer’s efforts are not entirely effective or complete. Id., 13 BNA OSHC at 1257, 7

19&j-87 CCH OSHD at p. 36,589. See, a@ RD. Anderson Conrtr. Co., 12 BNA OSHC 1665, 1669, 1986437CCH OSHD ll 27,50& p. 35,641 (No. 81-1469, 1986)(numerous step taken to comply with asbestos standard preclude willful finding).
. The two willful recordkeeping cases relied on by the Secretary do not support a

finding of willfulness here. In both Keco Indusbies and Thermal Reduction, the employers did not suggest that they did not have the records. Rather, they refused to supply them even though they were presented with search warrants. In both . cases the employers also attempted to devise an extra hurdle for the Secretary to clear before she could have the records. In l7termal Reduction, this consisted of a refusal to disclose the records until the company was given protection against self-incrimination. In Keco Iiuibries, the company wanted the compliance officer to provide a signed, written request detailing the reasons why he wished to see the records. Dec-Tam’s “mere” neglect of its duty to timely provide docui ments to the Secretary is in sharp contrast to the intransigence exhibited by the .employers in Keco Iiuhstries and mema Reduction who consciously, intentionally, deliirately and voluntarily refused to comply with their known duties. We also find the &xMary’s cititkm to the First Circuit’s holding in FX Messina not to be applicable in the case’at bar. In that. case, which dealt with a violation of a trenching standard and the duty of the employer to shore such a trench to guard against a cave-in, the First Circuit found that the employer had
. measured the depth of the trench and knew it to require shoring under the specifically standard. Despite this knowledge, the court found that the employer proceeded $th the work and thus had made a “conscious, intentional, deliberate, voluntary choice” to violate the standard. In contrast, Dec-Tam, at every juncture, acknowledged its duty and assured OSHA of its intention to comply. That distinction precludes a finding of willful under the legal principles established in F.X. hfessirta.
The wiilfulness charge relates to the employer’s state of mind when it committed the violation. See General Motors Corp., Electra-MotiveDiv.9 14 BNA OSHC 2064, 2069, 1991 CCH OSHD li 29,240, pa 39.168 ( Xo. 82-630, 1991). ‘:OSHA’s written request for the documents was made on August 28. 1987. In response to that request, Dee-Tam supplied OSHA with six of the eight documents it had requested. Although Dec-Tam failed to provide OSHA with the two documents that are designated in this citation, Dee-Tam wrote OSHA informing OSHA of the reasons for the delay and warranted that it would supply the ,
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other documents as soon as it received them from EnviroSciences. While Dee-Tam’s failure to &mediately provide all the documents establishes a violation of the Act, it does not suggest either an intentional disregard for the requirements of the Act or a plain indifference to employee safety. Furthermore, by its actions, DecoTam clearly acknowledged its duty under the Act and based on these circumstances, this delay does not suggest either an intentional disregard nor a plain indifference. It suggests instead that DecoTam made a good faith effort to comply with the standard even though its efforts were not entirely complete. Marnon Group, Inc., 11 BNA OSHC 2090,2092,1984-85 CCH OSHD 126,975, p. 34,643

(No. 794363, 1984).
Dec-Tam subsequently -- between the time of its initial response to the document request and December 28,1987, when compliance officer Meleney called the company and asked for the remaining documents -- did a poor job of keeping track of the status of its request to EnviroSciences for the missing documents in a period when OSHA wasa not getting back to the company with any further requests for the documents. Under the circumstances, we cannot say that Dec-Tam’s failure to seek the records from EnviroS&nces more diligently deserves to be described as “obstructionist” or wil&l. The evidence suggests that Dec-Tam failed to coordinate its recordkeeping and monitoring duties under the standard with the company it hired to carry out those duties. Although such shortcomings clearly indicate that Dee-Tam was neglectful in the way it responded to the Secretary’s re- quest, they do not establish willfulness.
.

Dec-Tam’s response to the requests for the documents made between December 28, 1987 and the January 14, 1988 date on which it finally turned over the documents was questionable at best. If this period of delay had continued, we would have found that the -
*elation here w willful. However, because the first part of that period came between the major holidays of Christmas and New Year’s Day and the time period that followed was less than two weeks in duration, we do not find the violation willful. Once again, this conduct falls short of an intentional dipregard for the Act or a plain indifference to employee safety and health. Moreover, during this time, OSHA requested additional materials from Dee-Tam which the company provided in a timely fashion. Clearly, the weight of the evidence falls far short of establishing “obstructionism.” Atbugh we vacate the willful characterization, we do find that the violation was serious. A s&~us violation is one that could result in serious damage to the health of employees. phelpr Dodge C&p., 11 BNA OSHC 1441, 14484, 1983-84 CCH OSm n 26,552, p. 33,925 (No. 80-3203, 1983), affd, 725 F.2d 1237 (9th Cir. 1984). The finding of a serious violation does not require that the harm would have occurred, but that it could have occurred. Here, in contrast to other recordkeeping obligations under the Act, Dec. Tam’s delay in timely producing data on the asbestos exposure levels to which its employees were subjected could have delayed the Secretary’s efforts at enforcement of the asbestos standard against Dec-Tam, thereby creating the possibility that employees could have suffered exposure to asbestos which in turn could have caused death or. serious physical harm to the employees exposed to asbestos. Considering these circumstances in light of the penalty factors enumerated in section 17@ of the Act, 29 U.S.C. 5 666(j), we assess the then maximum penalty for a serious violation of $1,000.
III. Roper Placement of Sampling Equipment
A. Background
.
The Secretary’s Serious Citation Noe 1, item la alleges that Dec-Tam violated 29 C.F.R. 8 1910.1001(c) by exposing three employees removing asbestos from what was referred to as the cascade fire extinguisher hold (the “hold”) to airborne concentrations of asbestos in excess of 0.2 fibers per cubic centimeter (“f/cc”) of air as an &hour, time- weighted average (“TWA”).4 The employees were allegedly exposed to concentrations of asbestos fibers between 0.67 f/cc and 0.88 f/cc for &hour TWA’se These exposures were 3.36 to 4.43 times the 0.2 f/cc permissible exposure limit (“PEL”)e The citation noted that asbestos exposure can cause lung cancer, mesothelioma, and asbestosis, and proposed a penalty of $720.

4 Section 1910.1001(c) provided:

9 1910.1001 Asbestos, tremolite, anthophyllite, and Win&tee
d. ‘ennissible quote
i>pl
limir (EL). The employer shall ensure that no employee is exposed
to an airborne concentration of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals in excess of 0.2 fiber per cubic centimeter of air as an eight (%)-hour time- weighted average (TWA) as determined by the method prescribed in Appendix A of this section, or by an equivalent method.
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B. Judge’s Decision me judge affirmed a serious violation of the standard‘and assessed a $500 penalty.
He found that the results of the Secretary’s sampling showed that employees Joe Sayio, Jim R&y, and Melbert Heard, who were removing asbestos “lagging” (lining, covering) from the piping system of the hold, were exposed to concentrations of asbestos fibers in excess of the

0.2 f/cc PEL
The judge rejected Dec-Tam’s contention that OSHA’s air sampling cassettes should have been placed inside the respirators of the employees. Relying on Brown lh,st&hg S~S., I& v. Secretaryof Labor, 629 F.2d 428,429 (6th Cir. 1980), cert denied, 450 U.S. 9i2 (1981), the judge found that compliance with the standard was properly determined by measuring the airborne concentration of asbestos fibers with sampling cassettes placed neai the chins of employees being sampled.
C. Arguments of the Parties
s
Dee-Tam argues that the judge erred because the exposure monitoring regulation at 29 C.F.R. 5 1910.1OOl(d)(1) requires that personal samples for determining employee exposure “shall be made fkom breathing zone air samples” and the breathing zone of the employees in question was inside their respirators. Since the compliance officer did not sample the air inside the employees’ respirators, pet-Tam argues, the Secretary did not produce evidence regarding the levels of asbestos inside the breathing zone of the employees.
. The Secretary argues that the method of determining employee exposure under the cited standard is prescribed in paragraph 7 of the mandatory Appendix A which follows the standard: “ [PIersonal samples shall be taken in the ‘breathing zone’ of the employee,” Le., attached to or near the collar or lapel near the worker’s face. She also states that employee exposure is “plainly and unambiguously” defined in subsection (b), Dejfnition.r,of the asbestos standard as “exposure to airborne asbestos . . . that would occur if the employee were not using respiratory protective equipment.” 29 C.F.R. 0 1910.1001(b).
D. Diwusion on Breathing Zone Issue
The definition of “[elmployee exposure” at section 1910.1001(b) is “exposure to asbestos . l l that would occur if the employee were not using respiratory protective equipment.” This plain statement of what constitutes employee exposure .disposes of the .
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issue before us. The secretary’s
placement of the sampling cassettes on the employees
clothing near their cfiin~ was proper under the cited standard. The judge was correct in affirming the violation, and &c-Tarn’s arguments to the co@rary are rejected.
A position essentially the same as that advanced by Dec-Tam was rejected by OSM
when the asbestos standard was adopted. In discussing permissible exposure limits (c‘PEL’s”),OSHA noted that it “has traditionally defined PELs and etiployee exposures as the airborne concentration of a contaminant measured without regard to the use of respirators” (emphasis in the original).’ It concluded that the “inhaled into the lungs” approach “would necessarily depend on increased reliance on respiratory protection as a I& of defense against hazardous workplace exposures, which runs counter to the Agency’sstated preference for the traditional hierarchy of controls: the use of engineering and work practice controls as the first line of defense, followed by respiratory protection.” 51 Fed. Reg. 25675-76 (1986).
w
F. Severiryof the Alleged Violation
I. Factual Backpund
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According to the compliance officer, there were visible asbestos fibers throughoutthe .
hold during the asbestos removal process. Employee Savio was exposed to 4.43 times the allowable limit for asbestos, employee Riley 3.87 times the limit, and employee Heard 3.36 times the limit? The employees were wearing half-mask respirators that the Secretary concedes were adequate for the circumstances.’ According to the compliance officer, the - respirators were “in good shape,” but, he testified, “[a]ny number of things could go wrong that would defeat the purpose of a half-mask” respirator. In particular, he testified that

5 The Sixth Circuit’s Brown hularing case cited by the judge involved the same issue under an earlier version of the cited stan&d. The court affirmed a Commission administrative law judge’s decision that compliance with the standard was determined by measuring the airborne concentration of asbestos fibers in the working environment, not the concentrat ,iIon of fibers inside a respirator. The judge relied on language in the standard which stated that compliance wit h the rlppiiable PEL could not be achieved by the use of respirators, except under certain circumstancesnot pertinent here. Brown InsulatingSys., Inc., 78 OSAHRC 42/E2 (No. 773’7, 1978)(ALJ).

6 The compliance officer did nc It conduct sampiing on the four other employees who worked in the hold.

’ According to Table 1, referenced at 29 C.F.R. 1910.1001(g)(2)(i)inpa, the required respirator for airborne concentrations of asbestos not in excess of 2 f/cc (10 times the PEL) is the half-mask respirator. The Secretary acknowledges in her brief that “the emplovces # working in the ferry’s hold happened to be wearing adequate respirators.”
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employee -Heard was wearing a 5- to 7-dqy growth of beard under his respirator, and he stated that he had read “studies [which] have shown that, even in the first few days of a stubble beard; there will be leakage between the mask and the employee’s face if there is facial hair . . . where the respirator comes in contact with the employee’s face” and that “‘ [tlhe greatest amount of leakage in a [half-mask] negative pressure respirator is in the first three days after an employee has started wearing a beard.” However, despite being influenced by his understanding of these studies, the compliance officer testified that he did not perform any type of test on Heard to determine if the seal on Heard’s respirator had been affected.
2. Judge’s De&on and Arguments of the Pa&s The judge affirmed a serious violation of section 1910.1001(c) but faired to &plain why he found it serious. Dee-Tam argues that the finding of a serious violation is precluded by the judge’s finding elsewhere in his decision (and by the Secretary’s concession) that . all the employees working in the hold were wearing respiratory protection that was proper for the amount of airborne asbestos measured in the hold. The Secretary disagrees, arguing that any precautions Dec-Tam might have taken against employee injury, such as the use of respiratory equipment, are properly considered *in determining the penalty, not in characterizing the degree of the violation, citing Turner Co., 4 BNA OSHC 1554,1566,1976- 77 CCH OSHD ll 21,023, p. 25,283 (No. 3635, 1976), order set aside and remanded on other grounds, 561 F.2d 82 (7th Cir. 1977)(precautions taken against injury one of four elements to be considered in determining gravity of a violation for purposes of penalty assessment). The Secretary contends that by violating the standard, Dec-Tam subjected its employees to unacceptably high levels of carcinogenic asbestos contamination with little more protection than what she terms “inherently unreliable respirators.” The probability of serious physical harm plainly existed, she argues, because the employees working in the hold were exposed to asbestos fibers.
3. Dbssion
Under section 17(k) of the Act, 29 U.K. 0 666(k), a violation is serious if there is substantial probability that death or serious physical harm could result. Super Excavators, Inc., 15 BNA OSHC 1313, 1317, 1991 CCH OSHD 7 29,498, pe 39,804 (No. 89-2253, 1991). athough Dee-Tam violated the cited standard and exposed its employees to asbestos during 13

their asbestos removal duties, the Secretary concedes that the employees were wearing respirators appmptiate for the levels of asbestos measured and that the respirators were “in good shape.” There is also no evidence that would establish that the one employee’s “stubble beard” caused his respirator to leak. we therefore find that the Secretary failed to prove that there was a substantial probability that death or serious physical harm could result from Dec-Tam’s violation of the standard. Accordingly, we affirm the violation as other-than-serious, IVI Failure to Conduct Full-ShiftMonitoring A. Background
The Secretary alleges in item 1 of Wilbur Citation No. 2 that DecoTam violated 29 C.F.R. 8 1910.1001(d)(l)(ii)8 by failing to obtain representative &h&r TWA’s of the asbestos its employees were exposed to by sampling them for asbestos on a fUU,&hour shift basis between July 29 and September 3, 1987. She proposed a penalty of $8,000. w On July 27 and 28,1987, Dec-Tam conducted full-shift, 8-hour sampling (monitoring) of i.ts employees while they were removing. transite board above deck.
Subsequently,

8 Section 1910.1001(d)(1)(ii) -- and other pertinentparts of the regulation invoked in t& arguments of the parties below -- provided: . *

8 1910.1001 Asbestos, tremolite, anthophyUite, and actinoiite.

(d; &sure monitoring--( 1) GeneraL

(& iepresentative &hour TWA employee exposures shall be determined on the basis of one or more samples representing full-shift exposures for each shift for each employee in each job classification in each work area.
(2) hitid monkwing. (i) Each employer who has a workplace or work operation covered by this standard, except as provided for in paragraphs (d)(2)(ii) and (d)(2)@) of this section, shall perform initial monitoring of employees who are, or may reasonably be expected to be exposed to airborne concentrations at or above the action level.
(ii) Where the employer has monitored after December 20,1985, and the monitoring satisfies all other requirements of this section, the employer may rely on such earlier monitoring results to satisfy the requirements of paragraph (d)(2)(i) of this section.
(iii) Where the employer has relied on objective data that demonstrates that asbestos, tremolite, anthophylite, actinoiite, or a combination of these minerals is not capable of being released in airborne concentrations at or above the action level under the expected conditions of processing, use, or handling, then no initial monitoring is required.

& &anges in monitoringfiequency. If either the initial or the periodic monitoring required by paragraphs (d)(2) and (d)(3) of this section statistically indicates that employee exposures are below the action level, the employer may discontinue the monitoring for those employees whose exposures are represented by such monitoring.
 14

DecoTam’sasbestos removd operations shifted to asbestos removal underneath and around the ferry’s pilothouse and then to asbestos removal from the lagging around pipes b&w deck in the hold. Between July 29 and September 3, 1987, Dec-Tam failed to conduct .
&how, WA monitoring that represented the full-shift exposure of its employees to the asbestos they were removing. At most, two l-hour samples were taken each day during that period. A l-hour sampling does not indicate what an employee’s exposure would be for an
&hour, on-the-job period. This item was directed for review on the issue of whether the judge erred in af&ming the alleged violation either (a) because it is duplicative of the

alleged violation of 29 C.F.R. 5 1910.1001(d)(5) in citation no. 1, item 2 discussed in Part VII below, or (b) because the Secretary failed to establish noncompliance with the cited standard.
B. Arguments of the Parties
Although Dec-Tam argues that it has been cited twice for not monitoring the exposure levels of employees working in the hold, its primary argument is that it was not required ta monitor there in order to meet the additional monitoring requirement of stibsec- tion (d)(5). It claims that subsection (d)(5) clearly and unambiguously refers back to I subsection (d)(2)@), which permits an employer to rely on earlier monitoring. Dee-Tam maintains that it has frequently done such work elsewhere and has taken samples fkom that work and the work it did removing pipe lagging above deck on the ferry.
According to the Secretary, citation no. 2, item 1 and citation no. 1, item 2 &ere not
*
combined because she believed that the alleged violation of full-shift monitoring subsection (d)(l)@) in citation no. 2, item 1 was willful, while the alleged violation of additional monitoring subsection (d)(5) in citation no. 1, item 2 was not.’ ‘The Secretary argues that the compliance officer testified that Dee-Tam conducted initial monitoring on July 27 and 23 during transite board removal, but that during the next six or seven we&s, although different asbestos removal operations were performed aboard ship (asbestos was removed from pipes and from around the pilothouses), only two l-hour samples were taken daily. The Secretary contends that these changes in Dec-Tam’s work

g The Secretary acknowledges that it would have been more technically correct if citation no. 2, item 1 had alleged a violation of both subsections (d)(S) and (d)( l)(ii). operations triggered the requirement in subsection (d)(s) for additional monitoring. Since no monitoring flva~conducted, the Secretary contends that Dec-Tam violated subsection (d)(5), as alleged in citation no. 1, item 2 and affirmed by the judge. The limited amount of monitoring that Dee-Tam actually did perform, the Secretary continues, also did not comply 4th the specification in subsection (d)( l)(ii) for 8-hour sampling representing full- shift exposures, and therefore a separate violation of citation no. 2, item 1 is established.
C Jlrdge’s De&ion
The judge affirmed a violation of section 1910.1001(d)(1)(ii), finding:
There is no evidence that Dee-Tam performed personnel monitoring in the hold, nor evidence of whether prior similar removal jobs existed, in whit% iepresentative eight-hour TWA full shift employee exposures were taken, on which to base its decision on the type of respiratory protection and work controls to be implemented in the hold.
The judge noted that compliance officer Meleney testified that the differencebetween citation no. 2, item 1 and citation no. 1, item 2” is that citation no. 1, item 2 concerns Dec-Tam’s failure to perform the addiitionalmonitoring that was required when its asbestos removal operations changed from above deck transite board removal to the removal of pipe lagging in the hold. Citation no. 2, item 1, on the other hand, concerns Dec-Tam’s alleged failure to perform that monitoring on the full shift, 8-hour basis required by the standard.
D. Discussion
Dee-Tam does not dispute that its l-hour sampling failed to comply wkh the
requirements of subsection (d)( l)(ii) calling for &hour, full-shift monitoring, the issue directed for review. Dee-Tam argues that the initial monitoring standard at subsection (d)WO Permits it to rely on the results of earlier monitoring to avoid the requirements for .

lo The Secretazy alleged in item 2 of Serious Citation No. 1 that Dee-Tam violated 29 C.F.R. 8 1910.1OOl(d)(!5) by failing to conduct additional personal monitoring of its employees between August 4 and 19, 1987, after their asbestos removal work changed during this period from transite board removal to pipe lagging removal and their work practices changed from wet methods to dry methods. The proposed penalty was %720. Judge Furcolo affirmed an other-than-serious violation of subsection (d)(5), finding:

[lJhe standard required Dee-Tam to perform additional monitoring in the hold as the shift to removal of asbestos pipe lagging from transite board removal qualified as a change inwork process warranting additional monitoring.

The propriety of his finding of a violation was not directed for review, but review was granted on whether he erred in finding the violation to be other-than-serious, rather than serious. See b@a Part VII.
 .
16

a&&ml monitoring of subsection (d)(S) when the changes enumerated there occur. Under this theory, the requirement for additional monitoring is eliminated, as is the requirement in subsection (d)(l)@) that such monitoring be conducted on an &hour, full-shift basis. There’ are two flaws in Dee-Tam’s theory. First, the exception Dec-Tam relies on in subsection (d)(2)@) is expressly declared to be inapplicable by the “[n]otwithstanding the provisions of (d)(2)@)” language of subsection (d)(5). Second, there is no evidence in the record of the prior monitoring on which Dee-Tam relies. Thus, there is no monitoring on which it can rely to avoid the additional monitoring requirement of subsection (d)(S). Since the monitoring it conducted aboard the ferry between July 29 and September 3, 1987 was indisputedly conducted on only a l-hour, rathei than on an 8-hour, full-shift basis,11we find that Dec-Tam violated subsection (d)( l)(ii) and, although it was not in-dispute, subsection (d)(5) as well?*
Although Dec-Tam could have complied with the requirements of s&se&on (d)(S) and subsection (d)(l)(ii) by conducting the additional monitoring in the hold on a fuu shift, &hour basis, (subsection (d)( l)(ii)), it is clear that the-secretary is not barred fkom enforcing both of those standards here. As we stated in H.H. Hall Cims~, 10 BNA OSHC 1042,1046, 1981 CCH OSHD 1 25,712, p. 32,056 (No. 76-4765, 1981), “section 5(a)(2) of the Act requires an employer to comply with all standards applicable to a hazardous condition even though the abatement requirements of two applicable standards may be satisfied by compliance with the more comprehensive standard. Thus, there is no unfair burden imposed on an employer when the same or closely related conditions are the subject of more than one citation item and where a single action may bring an employer into conipliance with the cited standards.” (Emphasis in original). See Wright& Lopez, Inc., 10 BNA OSHC 1108, 1981 CCH OSHD 4 25,728 (No. 76-256, 1981).

l1 The additional monitoring referred to in subsection (d)(5) wasrequired to be performedwhen Dec-Tam’s asbestos removal work production and processes moved from above deck to the hold and when its work practices in the hold changed from the removal of asbestos by wet methods to the removal of asbestos by dry methods, “[n]otwithstanding the provisions” of subsection (d)(l)(ii), to which Dee-Tam directs us. See 29 C.F.R. 0 1910.1001(d)(S), below. Also see Part VI below.

I2 The judge foun d that Dee-Tam violated subsection (d)(5). Dee-Tam did not petition for review of the judge’s action, and the propriety of the judge’s action was not directed for review. 17 in such cases, the Commission has wide discretion in the assessment of penalties for distinct but potentially overlapping violations. “[I]t is appropriate to assess a single penalty for overlapping violations . . .” H.H. Hall. Our discussion of the appropriate penalty to l

be assessed for the violations of subsections (d)(l)@) and (d)(5) appears below under Part VII, where the severity of the subsection (d)(5) violation as well as an appropriate penalty, is addressed.
E. Severityof the Violation
1. Judge’s Decision
Although the judge downgraded this alleged willful citation item to serious and assessed a penalty of $500, instead of the $8,000 proposed by the Secretary, he did not explain why he found the violation to be serious. Whether he erred in characterizing the violation as serious is before us on review.
2. Argument of the Secretary’3
The Secretary emphasizes that the requirements of the asbestos standard are
premised on the finding she made when she promulgated the standard that there’ is a significant risk of death and serious disease resulting from exposure to aibestos.. These diseases include asbestosis, an irreversible and terminal scarring of the lung tissue; mesothelioma, a cancer that can be contracted in the pleural lining of the lung or the peritoneum; and lung cancer, particularly among cigarette smokers. The Secretary argues that the exposure monitoring requirement, which is the keystone bf the asbestos stkard’s protection system, is designed to protect employees against these diseases by insuring that their employer knows when to take action to protect them from exposure to asbestos. Without accurate information about employee exposure, the employer cannot properly evaluate whether its engineering and work practice controls are effective or whether respirators are required and, if SO.which type of respirator. Without exposure information obtained through monitoring, emplovees
d will not know if they are being exposed to harmful carcinogens nor will their physicians have accurate data for treatment, the Secretary adds, relying on the preamble to the asbestos standard.
51 Fed. Reg. at 22,683.

l3 Although the Secretary did not argue separately on behalf of the seriousness of the full-shift monitoring item, she made the arguments presented in this section, and pertinent to this issue, on behalf of the seriousness of the additional monitoring item, an item that involves the same essential facts.
 .
18

The &crew contends that the Commission has not required proof that a violation results in actual overexposure to a toxic material as a prerequisite to a determination that a violation is serious. She reties on St. Joe Resources CO., 13 BNA OSHC 2193, 1989 CCH OSHD ll 28,519, p. 37,840 (No. 81-2267, 1989); r&d . and remanded on other groutcis,
916 F.2d 294 (5th Cir. 1990); Amcu Lead Co., 13 BNA OSHC 2169, 1989 CCH OSHD ll28,518, p. 37,833 (No. 80-1793, 1989), r&d and remanded on other~ounds, 916 F.2d 294 (5th Cir. 1990); and Schuylkill Metals Corp., 13 BNA OSHC 2174,2179, 1989 Cm OSm 1 28,520, p. 37,848 (No. 81-856, 1989), three cases in which employers violated the lead standard by failing to pay their employees overtime and shift differential compensation after the employees were transferred to different jobs pursuant to the standard’smedical removal protection (“MRP”) provision. Although the Secretary did not prove actual exposure to excessive lead, the Commission found serious violations. It reasoned that MRP benefiis attack the serious health hazards presented by metallic lead by removing barriers to - employee cooperation with medical sunteillance and eliminating the pos&ility Fiat employees would expose themselves to. the serious health risks associated with u&g chelating drugs to reduce their blood lead levels.
The Secretary also cited PIterpsDodge where, she contends, the Commission and the Ninth .Circuit affirmed a serious violation even though the violation of the arsenic standard did not cause actual employee exposure to excessive amounts of arsenic. The Secretary argues that in Phelps Dodge, both the Commission and the court “looked to the harm the cited regulation was intended to prevent” and found the violation serious because the harm was death or serious physical injury. 11 BNA OSHC at 1448-49, 1983-84 CCH OSHD at p. 33,925 and 725 F.2d at 1240. The Secretary contends that the same approach to determining whether a violation was serious was followed in Anaconda Aluminum Co., 9 BNA OSHC 1460,1476-77, 1981 CCH OSHD II 25,300, p. 31,349 (No. 13102,1981), where a serious violation was found for an employer’s failure to provide a suitable respirator for an employee exposed to carcinogenic coal tar pitch volatiles.
3. Argument of Dee-Tam
Dee-Tam argues that even if the judge was correct in finding a violation, he erred in . finding it serious and in assessing a $500 penalty. Dee-Tam claims that, since both these items concern the failure to monitor in the hold, by finding a serious violation here the judge 19

directly contradicted his finding that the company’s violation of subsection (d)(S) for its fail- ure to perform additional monitoring (see infra Part VII) was other-than-serious.
Dec-Tam contends that the MRP cases cited by the Secretary in support of her position that the violation was serious are inapposite. Dec-Tam maintains that although a violation of the MRP standard may have a chilling effect by discouraging employees from complying with a medical surveillance provision, a violation of the asbestos monitoring standard does not chill any employee rights. Dec-Tam claims that, at most, such a violation would only cause employees to seek respiratory protection, which was provided here.
4. Discussion
The results Dee-Tam obtained from its daily, l-hour sampling did not represent the full exposure of its employees to asbestos. In the preamble to the final asbestos standard, the Secretary notes that the primary purpose of employee monitoring is to determine the extent of employee exposure to asbestos:

Exposure monitoring informs the employer whether the employer meets the obligation to keep employee exposures below the 8-hour TWA exposure limit.
Exposure monitoring also permits the employer to evaluate the effectiveness m of engineering and work practice controls and informs the employer whether additional controls need to be installed. Furthermore, exposure monitoring is necessary in order to determine whether respiratory protection is required at all, and if so, which respirator is to be selected.
51 Fed. Reg. at 22,683.
By not conducting full-shift monitoring, Dee-Tam was unable to meet any of these obligations. The failure to obtain information so critical to the health of its employees can only be categorized as serious.‘4 See Amcrx Lead Phelps Dodge. Accordingly, we affirm the judge’s finding that the violation was serious.

l4 The fact that Dec-Tam’s employees who were exposed to asbestosexceedingthe PEL while working in the hold were wearing respirators appropriate for use in the circumstances has no bearing on whether the violation is serious. Our inquiry here is into the broader issue of whether Dec-Tam’s failure to conduct full&ift monitoring could lead to death or serious physical harm, not -- as was the case in Part III above -- whether the employees’ exposure to excessive amounts of asbestos could lead to death or serious physical harm. 20 CI:Roper ProtectiveEquipment
A. Background

The Secretary alleges in item 1 of Serious Citation Nd. 4” that Dec-Tam violated
section 19lO.l~l(g)(2)(i) by failing to require three employees who were exposed to air- borne concentrations of asbestos at 8-hour TWA’s of ten times the PEL to wear fuu facepiece, air-purifying respirators equipped with high-efficiency filters, as required by Table 1 of subsection (g)?

I5 Serious Citation No. 4 does not appear in the Commission’s official case file. The allegations with respect to item 1 of the citation have been restated from page 15 of the Secretary’s complaint.

I6 Section 1910.1001(g)(2)(i) and Table 1 provide:

0 1910.1001 Asbestos, tremolite, anthophyllite, and actinoiite.
....
(g) Respiratoryprotection-
.
;‘$ kespLapi&ator selection (i) where respirators are required underthissection,the employer .
shall select and provide, at no cost to the employee, the appropriate respirator as specified . in Table 1. The employer shall select respirators from among those jointly approved as being acceptable for protection by the Mine Safety and Health Administration (MSHA) ad by the
.
National Institute for Occupational Safety and Health (NIOSH) under the provisions of 20 CFR Part 11.

TABLE l-RESPIRATORYPROTECTIONFORASBESTOSJREMOLITE, ANTHOPHYLLIE, AND ACTINOLITE FIBERS

Airborne concentration of asbestos, tremolite,
anthophyllite, actinolite,
Required respirator
or a combination of these minerals
Not in excess of 2 f/cc 1. Half-mask air-purifying
(10 X PEL).
respirator, other than a
disposable respirator, equipped with high- efficiency filters.
Not in excess of 10 f/cc 1. Full facepiece air-
(50 X PEL).
puriqing respirator
equipped with high- efficiency filters.

NOTE: a. Respirators assigned for higher environmental concen- trations may be used at lower concentrations. b. A high-efficiency filter means a filter that is at least 99.97 percent efficient against mono-dispersed particles of 0.3 micrometers or larger.
 21 v

The results of sampling conducted for Dee-Tam by its consultant, EnviroSciences, established that: on July 27,1987, employee James Wages was exposed to airborne asbestos at an &hour TWA of 5.2 f/cc while wearing a half-mask respirator; on July 29, 1987, employee R. McCloud was exposed to airborne asbestos at an 8-hour TWA of 4.0 f/cc while wearing a half-mask respirator; and, on July 30, 1987; employee C. Rivera was exposed to airborne asbestos at an S-hour TWA of 2.9 f/cc while wearing a half-mask respirator.
OSHA industrial hygienist Frederick Malaby testified that the cited standardrequires full face respirators where there are airborne concentrations of asbestos in excess of 2 fibers/cc (but below 10 WCC). He stated that it is never permissible to wear half-mask respirators at the levels of asbestos that these three employees experienced
EnviroSciences’ president, Theodore Lemek, testified that, even ’ though
EnviroSciences’ sampling had obtained a TWA result of 5.2 WCCduring transite board removal on July 27, he had recommended that Dec-Tam’s employees wear half-mask respirators” because “substantial visual and laboratory information” indicated the pre&nce of substantial amounts of non-asbestos material in the air. LRmek admitted, however, that “[w]e made no clear quantification of the amount of material that was asbestos fiber versus non-asbestos fiber” and that it was “a semi-quantitative determination 0 0 0 an educated guess so to speak” that led him to suggest that half-mask respirators were appropriate.
‘Lemek acknowledged in his testimony, as does a “Notice to Dec-Tam Personnel” prepared for Dec-Tam by EnviroSciences and introduced into evidence as Exhibit R-4, that

• in counting the amount of asbestos fibers in the air -- where different types of fibers are present in the air as well - it is not permissible under NIOSH rules to differentiate between fiber types. Em&Sciences did follow this notice and counted all fibers as asbestos fibers in assessing the monitoring results obtained here.
  8. Judge’s Decision

The judge rejected Dee-Tam’s reliance on Lemek’s “educated guess.” He found that because EnviroSciences did not make a precise quantification of the fiber content or “document its vague approximations,” he could not conclude that half-mask respirators were

17
Lemek also testified that he had explained to the site supervisor that if “any of the workers. . . felt uncomfortable with the situation . . the site supervisor should not hesitate in giving them additional l

protection.”
 22

appropriate under the circumstances. The judge affirmed the item as serioks, but did not discuss why he considered the violation to be serious. He assessed a $50 penalty rather than the $720 proposed by the Secretary.
C. ~rgumettts of Parties on UVzettiirStandard Holated
Dec-Tam argues that its employees used half-mask respirators because
EnviroSciences’ Lemek had determined that one-half to three-quarters of the total fibers in the sampling results were mineral wool, and therefore recommended the use of those respirators. The company acknowledges that Lemek also testified that NIOSH requires reporting all fibers in a sample, even if some are not asbestos.
The Secretary argues that the judge acted properly in finding a violation because Dec- Tam failed to provide full-face respirators for employees exposed to concentrations of asbestos in excess of 2 f/cc. She points out that respirator choices are governed by Table 1 of the cited standard and that Appendix & paragraph 13(b)18 of the asbestos st&d&rci requires the counting of all particles as asbestos, in the absence of other information. me Secretary contends that Dee-Tam only offered a “vague guess at what con&u@
its sample,” and that the judge properly found such evidence lacked crediiility.
D. Discuss&
Dec-Tam does not dispute that the sampling conducted for it by Envirosciences during transite board removal revealed asbestos levels of 5.2 f/cc, 4.0 f/cc, and 2.9 f/cc. Neither does it dispute that the three employees were all wearing half-mask respiratok when those results were registered. Under Table 1, referred to in section 1910.1001(g)(2)(i), when the airborne concentration of asbestos is above 2 f/cc (10 times PEL) but not in excess of 10 f/cc (50 times PEL), the required respirator is a “[flun facepiece air-purifying respirator equipped with high-efficiency filters.” Because the evidence establishes that its employees

l8 The pertinent appendix section provides:

APPENDIXA To ~1910.1001-0SHA REFERENCE METHO~MANDATORY

Sampling and Analytical Procedure
....
13. Obsente the following counting rules.
b: In the absence of other information, count all particles as asbestos, tremoiite, l l

anthophyllite, and actinolite that have a length-to-width ratio (aspect ratio) of 3:1 or greater.
 23

did not wear the required full facepiece respirators, Dee-Tamfailed tocomplywiththecited standard.
Dee-Tam’s claim that its employees could use noncomplying respirators because &&o&iences Lemek believed that there was a substantial amount of non-asbestos- containing fiber material included within those sampling results is completely without mefit, Compliance with section 1910.1001(g)(2)(‘) 1 1s
’ premised on the painstaking, microscopic measurement of samples required by Appendix A of section 1910.1001. These measure- ments indicated that half-mask respirators were not appropriate. Lemek’s “educated guess” should not have been given any consideration. Accordingly, we affirm the judge’s action in
finding that the standard was violated.
’
E. Arguments of the Partieson &verity * . Dee-Tam argues that there is no proof that the leitel of protection provided by the half-mask respirators failed to protect its employees against death or serious physical harm, w citing TubeShenango Co., 10 BNA OSHC 1613, 1982 CCH OSHD II 26,051 (No.. 78-4723, 1982). Dee-Tam further relies on Drcqueme Light Co.; 11 BNA OSHC 2033,203&39,1984- 85 CCH OSHD 1126,959, pp. 34,602-03 (No. 79-1682, 1984), where the Commission found an other-than-serious violation because the Secretary did not prove that a ‘serious disease could result from an isolated, one-day instance of asbestos exposure.
The Secretary argues that Dee-Tam chose the least desirable means of protecting its employees and in doing so needlessly exposed them to the risk of contracting asbestos- related disease. In promulgating the asbestos standard, the Secretary argues, she specifically rejected the results of a study by the DuPont company purportedly showing that certain half- mask respirators provide protection for up to ten times the PEL, citing 51 Fed. Reg. at 22,695, 22,697.
F. Discussion
In Shenango, the Commission concluded that the cited violation was other-than- serious because wipe samples taken by the compliance officer showed that there was no asbestos present. In this case, during the three sampled days, Dec-Tam’s employees were exposed to asbestos fibers at about 14 to 26 times the permissible exposure limitlg while

lg The PEL was 0.2 f/cc as an 8-hour TWA The employees were exposedto airborne asbestos in the amounts of 5.2 f/cc, 4.0 f/cc and 2.9 f/cc as 8-hour TWA%. 24

wearing half-mask respirators. According to Table 1, half-mask respirators are only appropriate for use m con~n~ations of asbestos considerably lower than those experienced by the employ- that is, at 10 times the PEL or lower. Therefore, because the employees were exposed to carcinogenic asbestos at 14 to 26 times the PEL while wearing inadequate respirators, we find it clear that the judge properly characterized the violation as serious. See Anaconda Alkamhum, 9 BNA OSHC at 1477, 1981 CCH OSHD at p* 31,349 (where standard’s purpose is to protect employees against contracting life-threatening disease, employer’s failure to provide employee with respirator suitable to reduce his exposwe to coal tar pitch volatiles to the required limit is serious violation). We further note that Dquesne Light on which Dee-Tam relies is inapposite because the. asbestos exposure involved here was no isolated instance but was in fact part of the day-to-day duty of the employees of this asbestos removal company.
PenaltyAssssment
I
While afkming the violation as serious, the judge reduced the penalty proposed by the Secretary from $720 to $50 without prqviding an explanation for his action. * We reluctantly aff!irm the $50 penalty assessed by the judge.
VZ Proper Housekeeping Methods
A. Backpund
The Secretary alleges in item 5 of Serious Citation No. 1 that Dec-Tam violated the . housekeeping standard at 29 C.F.R. 1910.1001(k)(1)~ by not maintaining the hold’ as free as practicable of asbestos dusts and wastes from asbestos pipe lining material that was removed without first being wetted and then allowed to accumulate on the floor and ledges.
A penalty of $720 was proposed.
In item lb of Serious Citation No. 1, the allegedly
duplicative item, the Secretarv4 alleged that Dee-Tam violated 29 C.F.R.

a Section1910.lOOl(k)(
1) provides:

9 1910.1001 Asbestos, tremolite. anthophyllite, and actinolite.

;k;Horrsekecping. (1) Ail surfaces shall be maintained as free as practicable of accumulations of dusts and waste containing asbestos, tremolite, anthophyllite, or actinolite.
 25 s 1glo.l~l(f)(l)(i)21 by fa&g to implement feasible controls to reduce and maintain employee exposures to below the 0.2 f(cc EL. Three employees removing asbestos in the hold were allegedly exposed to concentrations of asbestos fibers between 0.67 f/cc and 0.88 f/cc for 8-hour TWA exposures. The citation suggested that asbestos exposure could be reduced by wet asbestos-removal methods, by more careful handling of removed pipe lag-
@g, and by the use of glove bags. A $720 penalty was proposed for that violation also.
B. Judge’s Decision
The judge affirmed an other-than-serious violation of the housekeeping standard at subsection (k)(l), and a serious violation of the subsection (f)(l)(i) allegation. He assessed $100 penalties for each of the violations. The judge affirmed a housekeeping violation be- cause:
Respondent did not attempt, to the extent feasible in this work environment, to keep the surfaces free of debris, and because there was evidence that there
would have been less debris had proper wet removal methods been used - a l l 0 -
The judge noted that four of the exhibits submitted by the Secretary showed accumulations of dust and waste on the floors and ledges of the hold. He also relied on testimony that asbestos had accumulated on surfaces throughout the hold and that some of the asbestos
was capable of being vacuumed.
,
In aEirming a violation of subsection (f)(l)(i), the judge found that the Secretary established that Dee-Tam did not “employ the feasible work practice of wetting removal methods.” He based his conclusion on testimony that asbestos lagging must be taken off in layers and re-wet with a wetting agent called amended watep as removal continues. The record shows that the three Dee-Tam employees initially in the hold neither used amended water to wet down the pipe insulation before they removed the pipe covering nor continued

21 Section 1910.1001(f)(1)(i) provides:
f#1910.1001 Asbestos, tremolite, anthophyllite, and actinolite.

;iMethodr of compliance. --( 1) Engineering controlsand workpractices. (i) The employer shall institute engineering controls and work practices to reduce and maintain employee exposure to or below the exposure limit prescribed in paragraph (c) of this section, except to the extent that such controls are not feasible.

22 The judge stated that both compliance officer Meleney and EnviroSciences’ Lemek testified that amended water, which is treated with surfactant, will wet asbestos more effectively than plain water.
 .
26

to wet do- he asbestos d&g the removal process. The judge furhr relied on testimony that the four or five additional employees who subsequently joined the removal team in the hold did not wet the asbestos prior to its removal and, as a result, a “snowstorm” of airborne dust was generated throughout the room.
C. Aqpments of the Part&s
Dec-Tam argues that the judge’s sole basis for affirmhg a violation is his finding that wet removal practices were not used in stripping the covering off pipes in the hold to reduce the amount of asbestos debris. It contends that this is duplicative of the affirmed violation of subsection (f)(l)(i) (citation no. 1, item lb), where the judge also found that it did not use the feasible work practice of wet removal methods.
The Secretary contends that Dec-Tam’s failure to use wet remov&l methods was not the -only reason given by the judge for finding that Dec-Tam had violated housekeeping subsection (k)( 1). She states that the judge provided two reasons: (1) “[R]espondent did. not . attempt, : to the extent feasible in this work environment, to keep the surfaces f&c of debris” and (2) “[Tlhere was evidence that there would have been less debris had proper wet removal methods been used.” The Secretary points out that housekeeping section 1910.1001(k) imposes general requirements on employers for the clean-up of asbestos accumulations - by practices such as cleaning, vacuuming, shoveling and waste disposal -- to minimize sources of exposure that engineering controls generally are not designed to control, citing 51 Fed. Reg. at 22,700. By contrast, she contends, engineering controls and work practices (enumerated in section 1910.1001(f)(i)-(ix)) act on the source of emissions to reduce or eliminate employee exposure and include local exhaust ventilation and wet removal methods, citing id. at 22,693.
Therefore, the Secretary argues that even if the judge based his finding of a violation of the housekeeping standard on the company’s failure to use wet removal methods, a violation of that standard was also established by the unrefuted evidence that at least some of the asbestos debris was capable of being vacuumed, since vacuuming is one of the house- keeping methods specifically enumerated in subsection (k)(4). Consequently, the Secretary concludes, each violation is based on a separate course of conduct and both the subsection (f)(l)(i) allegation and the subsection (k)( 1) housekeeping allegation should be affirmed on the basis of H.H. Hull., 10 BNA OSHC at 1046, 1981 CCH OSHD at p. 32,056. 27

~t,hou& the &crew
argues that the judge set forth two separate bases for finding
that the cited housekeeping standard was violated, the following portion of the judge’s
. decision persuades us that the judge found violations of both standards because Dee-Tam failed to implement wet removal methods:
[The Secretary] established that proper [wet] removal methods were not being implemented as a feasible engineering control. Thus, because of this, I>ec- Tam failed to keep surfaces “as free as practicable” of accumulations of . asbestos debris.
(Citations omitted).
Moreover, the Secretary’s own citation for violation of the housekeeping standard appears only to be directed at accumulations of asbestos debris resulting from Dee-Tam’s failure to use wet removal methods. It provides: “Asbestos pipe covering debris, removed without first being wetted, was allowed to accumulate on the floor and ledges of this hold.” M
We therefore conclude that Dee-Tam could have complied with both housekeeping subsection (k)(l) and subsection (f)(l)(i) by using proper wet removal work practi&.~ However, under I%H1Hall, the Secretary may enforce both standards against Dee-Tam, but we will consider the two citations items together for penalty p~rposes.~
The Secretary proposed a $720 penalty for her subsection (k)(l) housekeeping allegation and a combined penalty of $720 for her subsection (f)(l)(‘)I work practice controls allegation and two other allegations (items l(a) and l(c) of citation no. 1). me judge assess&dpenalties of $iOOeach for the subsection (k)( 1) violation and the subsection (f)(l)(i) violation. After a consider-
ation of the penalty factors enumerated
in section 17(j) of the Act, we assess a total

23 Although the record shows that amended water is more effective in wet removal than plain water,the housekeeping standard does not requm the use of amended water.

24 That some of the asbestos accumulations could have been vacuumed awayand that the work practices standard (subsection (f)(l)(i)) attacks the cited asbestos debris problem at its source, while the housekeeping standard (subsection (k)(l)) attacks it down the line, as the Secretary argues, do not provide any basis for assessing separate penalties under the circumstances here where deficient. wet removal practiceswere responsible for both violations.
 .
28

combined penalty of $200 for the violations of homekeeping subsection (k)( 1) (citation no, 1, item 5) and work practice controls subsection (f)(l)(i) (citation no. 1, item lb)?
WX AdditiortalMimitoting ViokUiontSevetityand Penalty A Backpuqd
The Secretary alleges in Serious Citation No. 1, item 2 that Dee-Tam violated 29 C.F.R. s 1910.1001(d)(5)26by failing to perform the additional personal monitoring of its employees between August 4 and 19, 1987, after asbestos removal work changed from transite board removal to pipe lagging removal and work practices changed from wet methods to dv methods. A penalty of $720 was proposed B. Judge’s Decisbn
The judge affirmed an other-than-serious violation of subsection (d)(5), statingz [Tlhe Secretary failed to prove that serious physical harm could probably
.
result due to its [Dec-Tam’s] failure to monitor. There is no evidence in the record fkom which I can conclude that as a result of this violation employees -
-
have been or will be exposed to excessive amounts of asbestos fibers and
.
could subsequently suffer death or serious physical harm. See lk Shenango .
Company, 10 BNA OSHC 1613 (.l982) (Fin-&g of violation of monitoring standard at 1910.1001(f)(~) 1 is non-serious as no evidence shown that employees have been or will be exposed to excessive amounts of asbestos fibers resulting in death or serious physical harm). See also Research Come@ Inc., 9 BNA OSHC 1489 (1981).
The judge explained that exposed employees were wearing half-mask respirators, which the Secretary had agreed constituted proper respiratory protection given the amount of-airborne asbestos measured. The judge assessed a penalty of $100.

25 If --Tam has already; paid the SlOOpenalty asses& by the judge for its violation of section 1910.101(f)(l)(i) (citation no. 1, item lb), the company is entitled to a %lOOcredit on the combined $20 penalty we now assess

26 Section 1910.1001(d)(5) provides:

8 1910.14MDlAsbestos, tnmolite, anthophyllite, and actinolite.

(d) Expomn mtmitwihg.--

$&UionaZmtvzitMng. Notwithstanding the provisions of paragraphs (d)(2)@) and (d)(4) of this section, the employer shall institute the exposure monitoring required under paragraphs (d)(2)(i) and (d)(3) of this section whenever there has been a change in the production, process, control equipment, personnel or work practices that may result in new or additional exposures above the action level or when the employer has any reason to suspect that a change may result in new or additional exposures above the action level.
 .
29 c. Argument of the Secretary

The Secretary argues that the judge erred when he found that the Secretary failed to prove that serious ham could probab& result due to Dec-Tam’s failure to monitor and

that a~ a result of the violation employees have been or will be exposed to excessive amounts of asbestos fiber.
She argues that to prove a serious violation she need only show that a violation “co&i result in serious damage to the health of employees,” quoting St. Joe Reswrq 13 BNA OSHC at 2197,1989 CCH OSHD at pe 37,840 (emphasis added) and citing other-cases including Amas Leadand Sck@iU Metai!s.
The Secretary further contends that the judge’s requirement of proof that the violation has or will result in excessive employee exposure is erroneous because it assumes that a serious violation may only be found if there is overexposure to asbestos. She argues that the seriousness of an employer’s actions is measured by the potential for harm and . not simply by whether that harm actually comes to pass.
In addition, the Secretary argues, as detailed above in Part IV, that asbestos can cause death and numerous serious diseases and that exposure monitoring is the keystone of the asbestos standard’s protection system.
D. Argument of Dee-Tam
Dec-Tam argues that the Secretary’s test for seriousness essentially eliminates the “substantial probability” requirement from the Act. Dec-Tam contends that the judge’s finding that the Secretary failed to prove that serious harm to Dee-Tam’s employees “could probably” result encompasses the “substantial probability” requirement.
Dee-Tam also contends that the Shenano and Research CottreUcases relied on by
the judge concern analogous violations of the asbestos monitoring requirement of section 1910.1001(f)(1), as amended by section 1910.1001(d)(2), and are controlling here. It points out that the Secretary concedes that the half-mask respirators worn by its employees provided proper respiratory protection for the amount of airborne asbestos measured in the ferry’s hold. As in Shenango, therefore, Dee-Tam argues, there is no evidence that employees were exposed to excessive amounts of asbestos fibers. In addition, Dec-Tam relies, as it did in Part V sup, on Duquesne Lig/zt,where the Commission found an other- AL 30

than-seriousviolation because the Secretary did not prove that a serious disease could result from an isolate& one-day instance of asbestos exposure.
E. Discussion
. It is unclear whether the judge used the wrong test for proof of a serious violation here when he found that the Secretary ftied to prove that serious physical harm “could probably result” from Dee-Tam’s failure to monitor. As mentioned above, section 17(k) of the Act states that a serious violation is deemed to exist when there is a “substantial probability that death or serious physical harm could result” from a condition or practice. It is possible that the judge was improperly imposing a stricter test for seriousness than the Act authorizes. It is also possible, as Dec-Tam argues, that the judge merely meant to encompass the terms of section 17(k) in his own language.
Although the judge’s intentions are not clear, we find that he erroneously downgraded the severity of this item to other-than-serious. In Part IV supra, we &firmed, on essentially .
the same facts, the judge’s finding of a serious violation for Dee-Tam’s failue to conduct the full-shift monitoring required by subsection (d)(l)@). There, we noted that emplqees exposed to asbestos face the risk of developing such chronic diseases as &estosis, lung ’ cancer, pleural and peritoneal mesothelioma, and gastrointestinal cancer. Exposure monitor- ing is intended as an early warning system to protect employees against these diseases. By failing to conduct additional monitoring in the hold, Dee-Tam failed to inform itself
-. whether it was keeping the exposure of its employees below the 8-hour WA
exposure limit. This left it unable to evaluate the effectiveness of any engineering and work practicezontrols, or to learn whether additional controls were necessary and whether, and what kind oE, respiratory protection was required for its employees.*’ Dee-Tam’s violation of the cited standard was, therefore, serious.
The cases cited by the judge in support of his other-than-serious finding are inapposite. In Shenango, there was no proof of any exposure to asbestos fibers. Here, Envirosciences’ testing showed that the employees were overexposed to excessive levels of

*’ For the reasons given above under Part IV where we discussed the severity of Dec.Tam’s violation of full- shift monitoring subsection (d)(l)(ii), the fact that Dec-Tam’s employees happened to be wearing respirators which were appropriate for the levels of asbestos to which they were overexposed has no bearing on whether the violation of the cited monitoring section was serious. See sups note 16, 31

asbestos. In Research CottreU,the severity of the violations was not an issue. Dquae Light is also inapposite. It dealt with just a single day’s exposure to asbestos. The exposure of DecoTams employees in the hold continued for more than three weeks.
F. PenaltyAwments
Arguing in support of her proposed $720 penalty, the Secretary states that at least seven or eight employees working in the hold between August 8 and September 3,1987 were exposed to airborne asbestos, and that therefore the gravity of the violation was high. In addition, the Secretary argues that although Dec-Tam was in the asbestos removal business, it displayed little or no good faith in complying with the standard because it owned only one device to analyze air samples, and that device was inoperative. The Secretary also points out that Dec-Tam had not asked EnviroSciences to conduct the additional monitoring re- quired by the standard and that Dec-Tam had been cited for failing to accurately monitor personnel exposure to asbestos in 1984 and 1987.
Dec-Tam does not address the penalty.
Ge Discussion
.
As stated in Part IV above, we consider the serious violations of additional monitoring subsection (d)(5) and full-shift monitoring subsection (d)( l)(ii) together for penalty purposes. With respect to subsection (d)(5), the Secretary alleged the violation to be serious and proposCd a penalty of $720; the judge erroneously found the violation to be other-than- serious and assessed a penalty of $100. With respect to subsection (d)( l)(ii), the Secretary l

alleged the violation to be willful and proposed a penalty of $8,ooO; the judge found the violation to be serious and assessed a $500 penalty. After a consideration of the penalty factors in section 17(j) of the Act, we assess a total combined penalty of $1,000 for separately-cited serious violations of subsections (d)( l)( ii) and (d)(S).
V7IL Order
For the reasons stated above:
We vacate the judge’s actions in finding a willful violation of section 1910e1001(m)(s>(ii)(Willful Citation No. 2, item 2) and assessing a $10,000 penalty; we find a serious violation of the cited standard and assess a $1,000 penalty;
We affirm the judge’s actions in finding a violation of section 1910.1001(C) (Serious Citation No. 1, item la) and in assessing a $500 penalty, but we affirm the violation as other- than-serious;
32
.

We’ affirm the judge’s action . in finding a serious violation of section lgl().lOOl(d)(l)(ii) (willful Citation No. 2, item 1) and we assess a toal, combined penalty of $~,()oo for the violation of section 1910e1001(d)(l)(ii) and the violation of section 1910.1001(d)(5) (Se rious Citation No. 1, item 2) referred to below, We affirm the judge’s action in finding a serious violation of section 1910.1001(g)(2)(i) (Serious Citation No. 4, item 1) and assess a $50 penalty;
We affirm the judge’s action in Ending a violation of section 1910.1001(k)(1) (S&o~ Citation No. 1, item 5) and we assess a total, combined penalty of $200 for the violation of section 1910.1001(k)(1) and the violatiori of section 191O.l~l(f)(l)(i) (%~OUS Citation No. 1, item lb);
We affirm the judge’s action in finding a violation of section1910.1001(d)(5) (Serious Citation No. 1, item 2), but affirm the violation as serious. As stated above, we assess a total combined penalty of $1,000 for the violation of section 1910.1001(d)(5) ahd w‘the violation of section 1910.lOO1(d)(l)(ii) (Willful Citation No. 2, item 1).

Edwin G. Foulke, Jr. chairman

Donald G. Wiseman
’
. . Commissioner

Dated: January 19, 1993
Montoya, Commissioner; Concurring in paa and Dissenting in part:
Although I am in ageement with my colleagues as to the other parts of the lead option, I disagree with their conclusion that Dec-Tam’s failure to furnish OSHA with important monitoring records until it was threatened with an administrative subpoena
was

only a serious violation of section 1910.l~l(m)(5)(ii). In my opinion, the judge’s characterization of Dec-Tam’s actions as “obstructionist” was correct. Therefore, I would affirm his finding Of a willful Violation.
The Facts
Based in New England, Dec-Tam’s primary activity is asbestos removal.
On
August 27,1987, OSHA compliance officer Henry E. Meleney requested certain documents by telephone from Dee-Tam president Lee Snodgrass, who asked that the request be put in writing. OSHA sent a letter requesting the documents on the following day. By cover letter of September 14,1987, Dec-Tam forwarded documents that did not deal with asbestos monitoring, and committed itself to forward the remainder “as soon as l 0 l received” from EnviroSciences, Dec-Tam’s subcontractor for asbestos. monitoring.
In December of 1987, after returning to New England from a work detail, compliance - officer Meleney discovered that Dec-Tam still had not furnished the remaining . documents.
These documents included the results of monitoring conducted to determine the amounts of asbestos to which Dee-Tam employees were exposed while removing asbestos from the ferry. On December 28, 1987, Meleney telephoned Dec-Tam’s industrial hygienist, Ajay Pathak, and once more requested the information. Meleney asked that the material be gathered and sent “as soon as possible, but this week.” Although Pathak agreed to send the documents, he did not. At about this time, Meleney also telephoned Theodore Lemek, president of EnviroSciences, who told him that the documents already had been forwarded to Dee-Tam. In fact, Lemek admitted on cross-examination that he “perhaps” told Meleney during this conversation that he had sent the documents to Dee-Tam “a long time ago.” On January 4, 1988, Meleney once more telephoned Dee-Tam to request the
documents. That time, he was informed by a company secretary that Pathak was not in the office and that company president Snodgrass would return his call. When Snodgrass had not done so by January 7, 1988, Meleney again telephoned Dec-Tam and was again told that Snodgrass would return his call. Though Snodgrass finally did return the call on January 8, 2 1988, he merely advised Meleney that industrial hygienist Pathak was the person in charge of fom&hg the requested documents and that all further communication regarding the documents should therefore be made through Pathak -- who, of course, was the same person who had assured Meleney on December 28 that the documents would be sent that week. On January 12, 1988, Meleney again telephoned Dee-Tam to request the documents, at which time he was again told by Snodgrass that he would have Pathak get the documents for him. Meleney was also told that Pathak was out of the office and would not return until January 18, 1988.
Meleney then informed OSHA’s Providence (Rhode Island) Area Director, Kipp W.
Hartmann that he was having trouble getting the documents from Dec-Tam. Hartmann telephoned Dec-Tam on January 13, 1988 and insisted that the information be sent immedi- ately, warning that an administrative subpoena would otherwise be issued. The EntioScien- ces documents - on EnviroSciences’ letterhead dated September 30, 1987 - with-a separate cover letter fkom.Dec-Tam’s Administrator, were received by OSHA on the following day.
Analysis
Under section 17(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
8 666(a), 29 U.S.C. 53 651-678 (the “Act”), a violation is willful if “it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety.” Keco Mus., 13 BNA OSHC 1161, 1163, 1987 C&I OS-ID 1 27,860, p. 36,472 (No. 81-263, 1987).
With respect to the first element, intentional disregard of a standard may be established by showing that the employer knew of an applicable regulation prohibiting the conduct or condition and consciously disregarded t it. WZiams Enrep., 13 BNA OSHC 1249, 1257,1986-87 CCH OSHD ll27,893, p- 36.589 (No. 850355,1987). Here, the evidence estab- lishes that Dec-Tam was familiar with the reauirements 1 of a nearlv identical standard. It
4

was issued a citation less than three months before the Secretarv4 first requested the monitoring records in this case allegingCI a violation of section 1926.58(n)(5)(ii), a recordkeeping provision of the asbestos standard for construction. Ihe earlier citation alleged a violation for Dec-Tam’s failure to assure OSHA immediate access to requested records. 3 Despite this awareness of the requirement that OSHA be given immediate access to asbestos monitoring records, Dee-Tam did not comply with the August 28, 1987 written request for monitoring records until four-and-one-half . months had passed. In the interim,
OSHA was forced to make repeated requests for the monitoring documents. Industrial hy@enist Pathak failed to furnish the documents during the week of December 28, 1987, although he said he would. Company president Snodgrass -- to whom the compliance officer had made his original request for the documents back on August 27, 1987 - was slow in

returning telephone calls from the compliance officer in January of 1988, and, when he did so, it was only to state that someone else, Pathak, was to provide OSHA with the documents, but that Pathak would be out of the office for a week or so. Only when OSHA’s area director threatened Dee-Tam with an administrative subpoena was Dee-Tam somehow able to provide OSHA with the documents on the following day. This was so, even though the scheduled return date of the Dec-Tam employee
who was supposed to provide the documents was still days away.
Applying these. facts to the second clement, I find further reason that the violation should be characterized as wilEu1in that Dee-Tam displayed plain indifference to the safety of its employees by failing to immediately provide OSHA with employee asbestos monitoring records.
The sought-after records were critically important for the detection, treatment and
prevention of occupational disease. See 53 Fed. Reg. 38,162; 45 Fed. Reg. 35,212. Information obtained by monitoring indicates to an empIoyer the levels of asbestos to which its employees are exposed, which in turn enables the employer to decide which engineering, . work practice, and/or respiratory devices are required to protect its employees. Thus, the monitoring provisions are the linchpin of the asbestos standard: they are integral to the successful application of this standard.
Dec-Tam’s lengthy delay in obtaining the required records from EntiroSciences and
turning them over to the Secretary both impaired the company’s ability to protect its employees from the life-threatening diseases caused by asbestos exposure and kept the Secretary from pursuing any possible enforcement actions she might have taken under the Act had she obtained the records earlier. h sum, after making both an oral and a detailed written request for the records, 0s~ had to make a total of five further requests for the records, and threaten an administrative subpoena, before it finally got them. In my view, these facts plainly demonstrate that the company intentionally disregarded the requirements of the Act and therefore wiWullyviolated the cited standard. Further, the facts provide. no basis to support Dec-Tam’s claim that its failure to provide the records was a case of simple negligence. It is not simple negligence to fail to provide OSHA with access to documents, required by regulation to be furnished immediately, until after OSHA has requested them at least seven times and has threatened an administrative subpoena.
The lead opinion rationalizes in part its decision that Dec-Tam’s failure to turn over the requested documents for a four-and-one-half month period was not willful on two bases: (1) the Secretary chose not to pursue her request for documents more zealously after she received Dec-Tam’s letter of September 14,1987 stating that the requested documents not forwarded with the letter would be forwarded “as soon as . .
l received” from EnviroSciences, and (2) the Christmas and New Year’s Day holiday period is not a particularly productive work period. I find these bases unconvincing.
I note, initially, that Dec-Tam’s reliance on EnviroSciences is misplaced. An employer may not contract out its OSHA responsibilities. Bock v. City Oil Well Serv., 795 F.2d 507 (5th Cir. 1986). Dec-Tam, not EnviroSciences, was under a continuing obligation to furnish all the requested documents to OSHA from the August 28, 1987 date on which the compliance officer first requested them in writing. Despite .this obligation and Dec- Tam’s statement in its September 14, 1987 letter to OSHA that it would forward the balance of the documents “as soon as . . . received” from EnviroSciences, there is no evidence that Dee-Tam made any effort to obtain the documents from EnviroSciences before the end of December 1987. EnviroSciences had finished typing those documents by the September 30, 1987 date that appears on them. Also, although business does slow down during the holiday period, that period -- even if it is construed to extend from the week before Christmas to the Monday following New Year’s Day -- comprised only about two weeks out of the four- and-one-half month period that Dee-Tam delayed in furnishing the documents. 5 Penalty

Section 17(j) of the Act provides that the Commission consider the appropriateness . of a penalty with respect to the size of the employer, its history of previous violations, good f&h, and the gravity of the violation. The parties have stipulated that Dee-Tamemployed about 150 people at the time of the citations. Two citations had previously been issued to Dee-Tam. One, also invohringthe company’s failure to turn over asbestos exposure records, was affirmed by settlement agreement. I would find that the company showed bad faith in taking approximately fou-and-one-half months to turn over all the requested materials to OSHA and would agree with the judge’s characterization of this behavior as “obstructionist.” I would also find that the gravity of the violation was high because of the high degree of danger involved with asbestos exposure and the fact that the records requested included . important employee monitoring records. I would therefore assess the $10,000 penalty
-
assessed by the judge.

Commissioner

Dated: January 19, 1993

. .
 .

UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-t 246

FAX
COM (2C2,634-4008
FTSi202,634-4008

..

SECRETARY OF LABOR,
l
.

.

..
.

Complainant,
..
v. .. Docket No. 88-0523
.
DEC-TAM CORPORATION,
.
.
Respondent.
.

NOTICE OF COMMISSION DECISION

The attached decision and order by the Occupational Safety and Health Review Commission was issued on Januarv 19, 1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL m THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF TEIIS DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.

FOR THE COMMISSION

Januarv 19, 1993
k& $1&dh+ -e /aJ
Date
Ray k Darling, Jr. d
Executive Secretary
 Docket No. 88-0523

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Albert H. Ross, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
11th Floor
One Congress Street
Boston, MA 02114

Paul V. Lyons, Esq.
Foley, Hoag & Eliot
One Post Office Square
Boston, MA 02109

Office of thel

Administrative Law Judge
. Occupational Safety and Health
Review Commission
Room 420
McCormtick Post Office and Courthouse .
Boston, MA 02109-4501
 UNITED STATES OF AMf:AIcA

OCCUPAfl()NAL SAFETY ANO HEALTH REVIEWCOMM~SSION 182s K STREET.N.W
4fH FLOOR wASkIlNGTON.
D.C.20006-1246

May 12, 1989
IN REFERENCE TO SECRETARY OF LABOR v.

OSHRC
DEC-TAM Corpration
DOCKET.NO. 88-0523

NOTICE IS GIVEN TO THOSE LISTEDBELOW:

NOTICE OF DOCKETING
Daniel 3. Mck, Esq.
Counsel for Regional Trial Litigation
Notice is given that the above case was
Office of the Solicitor, USDOL
docketed with the Cmlssion on
200 Constitution Ave., N.W., Room S4004
The decision
Washington, D.C. 20210
will be&me a final order
of the Comnission on unless a Comission of the decision on or before that date.
Albert H. ROSS, Regional Solicitor
Office of the Solicitor, USDOL
Petitions for discretionary re‘viewshould
John F. Kennedy, Federal Bldg.
received on or before
Government Center, Room 1803
in order to pemit su
Boston, MA 02203
review. See Comission Rule 91, 29 C.F.R.
sec. 2200.91.+

All pleadings or other documents that may be filed shall be addressed as follows:
Paul V. Lyons .
Esquire
Executive Secretary
Foley, Hoag & Eliot
Occupational Safety and Health _
. One Post Office Square
Review Commission
Boston, MA 02109
1825 K.St., N.W.9 Room 401
Washington, D.C. 20006

Foster Furcolo, Judge
Occupational Safety &
Health Re.viewCommission
McComack Post Office &
Ray H. Darling, Jr.
Courthouse
Executive Secretary
Room 420
Boston, MA 02109-4501
*A copy of any petition for discretionary rc
must be served on the Counsel for Regional Trial Litigation, Office of the Solicitor, USDOL, 200 Constitution Ave., N.W., Room 9 Washington, D.C. 20210. If a Direction fol Review is filed the Counsel for Regional Tr Litigation will represent the Department 01 Labor.
 UNITED.STATES OF AHERICA

SECRETARY OF LABOR,
l
0

Complainant
:
v. 0
0 OSHRC!Docket No. 88-523
DEC-TAM CORPORATION,
l
0

Respondent

APPEARANCES:

Albert H. Ross, Esq., Regional Solicitor:
ROBERT YETMAN, Esq., of Counsel
U. S. Department of Labor
JFK Federal Bldg. - Room 1803
Boston, Massachusetts 02203

PAUL V. LYONS, Esq.
Foley, Hoag brEliot
One Post Office Square
Boston, Massachusetts 02109

This is a proceeding arising under the provisions of section
10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 5 651 et seq., 84 Stat. 1590 et seq., "the AcP) to review citations and proposed penalties issued pursuant to sections g(a) and 10(c) of the Act. As a result of an inspection of Respondent's workplace, located at Newport Offshore, Ltd.# Newport, Rhode Island, on August 7, August 12, and August 13, 1987, Respondent was issued Serious Citation Number 1, Willful Citation Number 2, and Other Citation Number 3, dated February 4, 1988, and Serious Citation Number 4, dated February 19, 1988. On Febmaq 2% 1988, Respondent filed with a representative
of tb secretary of Labor a notification of intent to contest all
citations and proposed penalties. A hearing on the matter was .
held on August 15, 16, 17, and 25, 1988.
Respondent, Dee-Tam Corporation, is a corporation . with an office and place of business located at 10 Lowell Junction Road,
Andover, Massachusetts, and is engaged in the business of
asbestos removal. At the time of the citation, Dee-Tam was a
medium-sized firm employing approximately one hundred and fifty people (Tr. 3).
Dee-Tam was retained by Newport Offshore, Ltd., to remove asbestos-containing material from an out-of-service Staten Island Ferry (Tr. 8, 511). The removal project involved the elimination of asbestos-containing pipe lagging and transite board from the decks and from the holds below the main deck, and removal of
asbestos covering ductwork, between windows, underneath
stairways, in gypsum board, and between the car deck and the .

upper passenger deck (Tr. 569)               0      Both Newport Offshore, the prime

contractor for the renovation project, and Dee-Tam, retained the services of Enviro-Sciences, an asbestos consulting firm and
environmental laboratory (Tr. 500)
0 Enviro-Sciences was hired by
Newport Offshore to ensure that all asbestos was removed
completely by Dec-Tam, and to conduct clearance air sampling to ensure that no asbestos contamination went outside the regulated areas. Enviro-Sciences was required by Dee-Tam to analyze air samples and air monitoring cartridges (Tr. 524).

0
-2-
 As a response to an employee complaint, OSHA Compliance officer Hq IS. Meleney was assigned to inspect the Newti offshore shipyard on August 7, 1987. When he arrived, he met and had an opening conference with Dee-Tam's safety director Noel Mann. They later proceeded to the location where the ferry was docked and met with Scott Ladd, supervisor of the removal project for Dee-Tam, and Bob Jones of Enviro-Sciences (Tr0 9 , 153). Aside from the work being performed by Dee-Tam and Enviro- Sciences, Meleney observed much activity on the boat, which was generated by numerous contractors who were on board to renovate the ferry as a proposed jail site (Tr. 10, 11, 551).
Meleney went to the main deck on which was a sequestered "regulated area", sealed off by plastic and enclosures, where asbestos was being remove-d and Dee-Tam employees cleaned up removal debris (Tr. 13). He stayed at the site for three hours and determined that additional inspection time was required.
Meleney returned on August 12, where he found that activity
at the site had increased, and the ferry had been moved&o a dry dock. He met again with Mann and Ladd and observed removal operations in what he called the "cascade fire extinguisher hold,'@ an enclosed space below deck, where employees removed asbestos pipe lagging (Tr. 15, 15O)e While in the hold, he conducted air sampling by hanging portable, model G, MSA pumps on the employees* belts while they worked. He calibrated the pumps both before and after testing (Tr. 17). He stayed in the hold for approximately four hours, where he observed asbestos fibers
-3. floating in the air, a scene which he described as resembling a
WnOwBtO~"
(Tr. 40).

On the basis of this inspection he recommended to his supervisor that the following citations be issued: tation Number &
A0
~910.1001tc~0
Complainant alleges that 29 CoFmRe 5 19lO.lOOr(c)l/ was violated in that, based upon sampling results of three employees who were removing asbestos lagging from the piping system in the hold, the employees were exposed to a concentration of asbestos fibers in excess of 0.2 fibers per cubic centimeter of air-as an
eight hour time weighted average (“TWA”)
(Tr. 20). The results
of the tests were as follows=' Joe Savio was exposed to 0.88 fibers per cubic centimeter (cc), which is 4.43 times the 0.2 exposure limit allowed under the standard (C-2a, C-2b, Tr. 20-

22) 0 Jim Riley was exposed to 0.77 fibers per cc, or 3.87 times the allowable limit (C-2c, C-2d). Melbert Heard's results showed an exposure to 0.67 fibers per cc, or 3.36 times the allowable limit for asbestos exposure (C-2e, C-2f). An analysis of a bulk

f/ (c) Permissible exposure limit (PEL).
The employer shall ensure that no employee is exposed to an airborne concentration of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals in excess of 0.2 fiber per cubic centimeter of air as an eight (8).hour time- weighted average (TWA) as determined by the method prescribed in Appendix A of this section or by an equivalent method. sample of asbestos that was being removed from insulation in the cascade hold was found to be 80% asbestos:
55% chwsoltile and 25% amosite (C-2e, C-2g, Tr. 30, 170, 243).
Respondent argues that since the employees were wearing appropriate and properly functioning respiratory equipment, that they were not exposed to airborne asbestos fibers (Tr. 264,
416).

Because the sampling cassette was placed on the employees' belts, outside of the employees' breathing zone, respondent argues, the employees had no actual exposure to the measured concentrations of asbestos fibers. The Secretary interprets the standard differently, asserting that the use of respirators is irrelevant under the standard. The Secretary argues that notwithstkding the fact that employees were wearing respirators, the standard limits exposure of employees to an airborne con&entration of asbestos fibers to 0.2 fibers per cc, and that Qmployee exposure" is defined in 29 C.F.R 5 1910.1001(B) as e@exposureto airborne asbestos ...that would occur if th$: employee wrere not
using respiratory protective equipment?
See also. 29 C.F.R. 5
1910.1001(f)(i) and (ii). I find the Secretary's position to be correct. Evidence of the employees* actual exposure, based on samples taken inside of their respirators is not relevant to a decision. See. Brown Insulating Svstems, 6 BNA OSHC 1802 (1978), affirmed. Brown InsulatincrSystems v. Secretary of Labor, 629 F2d 428 (6th Cir. 1980). The sixth circuit in Browq affirmed the decision of the Review Commission which held that the lack of

-5.
evidence Qf mccwsive asWst0s cmrtamina-tim inside the respiratory protective mask did not preclude finding a violation of 29 C.F.R. 5 lgiO.lOOl(b)(2), predecessor of 1001(c), as compliance with the standard is determined by measuring the airborne concentration of asbestos fibers in the working enviroment. I find that, according to the language of the standard, the exposure intended to be proscribed by the standard is that which exists in the working environment: that which would occur if the employee were not wearing respiratory protective equipment.

a
(f)(11(11 0

   The    Secretary        alleges     a    violation         of    29     C.F.R.   §

l9lO.lOOl(f)(l)(i)2/ in that on August 12, 1987, in the cascade fire extinguisher hold, Dec-Tam did not implement feasible controls to reduce employee exposure to airborne asbestos fibers
while removing asbestos pipe lagging.
The engineering controls
and work practices found by the Secretary to be absent were the proper method of wetting the asbestos before and during its removal and the use of glove bags to prevent the asbestos from becoming airborne.

2l (f) Methods of compliance. - (1) Engineering controls and work practices. (i) The employer shall institute engineering controls and work practices to reduce and maintain employee exposure to or below the exposure limit prescribed in paragraph (c) of this section, except - to the extent that such controls are not feasible.
-60
 Theodore Lemek, Jr., president Of EhVirO-SCiendeS, testified

that as an engineering control, the cascade hold had a negative pressure and negative air device to transfer fresh air into the

hold (tr. 503-505). meek testifieq that he would recommend the use of.water treated with a wetting agent ('amended water*) on amosite, a particular type of asbestos that was found to comprise 25% of the asbestos found in the insulation in the cascade hold

(Tr. 170, 243, 554). Plain water, he attested, would **notbe totally effective controP (Tr. 555). Further, that the asbestos lagging must be taken off in layers, each layer becoming re-wet
as removal continues (Tr. 574).
He testified that amended water
was used during removal, however, Lemek did not enter the cascade

hold during the period of time that asbestos was being removed -. to see whether amended water was actually used by employees and how the wetting methods were performed (Tr. 575).
At the hearing, Meleney described his observation of the
August 12 removal process in cascade hold: initially, three Dec- Tam employees were involved in removing asbestos. One employee used an "exactom-type knife to cut through the covering placed over the asbestos insulation on the piping, and used tin snips to cut the wires that held the covering on (Tr. 32,35), An employee would remove the asbestos lagging manually, while another employee held a refuse bag underneath the lagging for its disposal (C-3d, C-3e, C-3f, C-3g, Tr. 31). The three employees initially in the hold, Heard, Riley, and Savio, used a water hose to perform some wetting on the insulation prior to the removal of
-7.
the covers (Tr. 32, 33, 35; C-3h, C-3i, C-3j, C-3k). Meleney tmtified Thai t& m&hod of remal in this case was plain

water: they wetted down the insulation prior to, but not during

the removal (Tr. 36). There was no drenching of the asbestos to

the point of saturation (Tr. 268, 269).
.
Four to five additional employees later entered the hold to
aid in the removal work (Tr. 37-38: 165). These employees did not use water to wet the asbestos prior to its removal (Tr. Qo, C-8b, C-9c)o As a resul& Meleney observed that airborne dust was generated throughout the room (Tr. 40, 278) causing what he described as a ~~snowstonP. These additional four to five employees worked for approximately three to three and one half of- the four hours that Meleney observed (Tr. 164). There was no supervisor in the hold during this time (Tr. 166).
There was one water hose provided in the cascade hold for the use of seven employees: the hose would be passed back and forth between two or three employees, so Meleney concluded that there was always a group of employees who were not tretting asbestos at all (Tr. 165). The supervisor had approached Meleney and told him that he had been informed by employees that some of the workers were ripping out asbestos dry, but that since he was not in the hold, he did not realize what was going on (Tr. 167). Meleney discussed the dry removal he observed with Ladd (Tr. 167).
Meleney and Lemek testified, and the Secretary asserts, that

• 8 -
  amended water, which was treated with surfactant, will wet

a&e&US nmn3 effectively than plain water. Respondent awes that it required a specific work practice of wetting the asbestos prior to its removalu and that Dee-Tam's supervisors did not observe the employees' alleged failure to follow company policy. Respondent thus raises the affirmative defense of isolated employee misconduct, arguing that Dee-Tam cannot be found to have violated the standard because, without its knowledge, some employees failed to heed its policy of wetting- down asbestos- containing material before removing it.
In order to establish the isolated employee misconduct defense, the employer must show, after the Secretary has made out a primg facie case of a violation of the Act, that the violation . resulted from employee misconduct that contravened a company work

rule that was effectively communicated and uniformly enforced. H a B . Zachrv Co. vm O.S.H.R.C., 7 BNA OSHC 2202, affirmed, 638 F.2d 812 (5th Cir. 1981); Brock v. L. E. Meyers Co., Hiah Voltage Div., 818 F2d 1270 (6th Cir. 1987) cert. denied, 108 S. Ct. 479 (1987). The rationale for this rule is that the employer has the final responsibility for compliance with the Act, thus, he has the duty to implement, communicate, and enforce feasible work rules in order to avoid liability for the violative conduct of

3/ See, R-3: Dec-Tam Corporation's "Division 2 Specifications for Proposed Asbestos Work" part 7(e)(6) states, nBefore asbestos material is handled, it must be sprayed with water containing a wetting agent to prevent excessive dispersal of asbestos fibers. The sprayed on material should be wetted repeatedly during the work process to minimize asbestos fiber dispersion." - 9 -
its employees. Dance Constra Co. L *WV 585 F.2d 1243 (8th
Cir. 1978) (n[Respondent] cannot fail to properly train and

supervise its employees and then hide behind its lack of e

knowledge concerning their dangerous work practices"); L. E.

Mevers, sUU& at 1277, citing Se Rep. 1282, 91st Gong, 2d Sess I . 0 lo-ii, remmted in I 1970 U.S. Code Gong. & Admin. News 51778 5182.
The Secretary makes out a prima facie case of an employer's
awareness of a potentially preventable hazard "upon the

introduction of
proof of the employer's failure to provide
adequate safety equipment or to properly instruct its employees dn necessary Safety precautions." LE. Meyers, su~ra, at 1277,

noting Brennaq v. OSHRC., 511 F.2d 1139, 1143 n.5 (9th Cir. 1975)

and Danca, gUDra* While Respondent submitted proof of its work rule concerning wetting procedures, and its initial training program of the new Dec-Tam abatement workers, as part of its respirator program, there was no evidence of Dee-Tam's continued enforcement of its work rule (R-6, R-12, p. 482-487). The record shows that while some plain-water wetting was used, some employees used no water at all. It is not evident that Respondent

enforced its work rule or properly supervised the implementation
of proper wetting methods.
This is underscored by the absence of
a wetting agent in the cascade hold and the presence of only one
hose available for seven employees.
"(T)he employer who wishes
to rely on the presence of an effective safety program to establish that it could not reasonably have foreseen the aberrant

• 10 -
  behavior of its empluyees must demonstrate that programIs

effectiveness in practide as we11 as in theory." L.E. Mevers,

.SS 0 at 1277. Respondent did not meet the burden or proving

that its safety program was enforced as written such that the conduct of its employees in violating that policy was

*@idiosyncratic and unforeseeable.tig Id.
The Secretary also claims that the use of glove bags was a
feasible engineering control which should have been implemented in the cascade hold (p. 42, 45-46; see also, 29 C.F.R. 5 1926.58 Apprendix G). The testimony of Lemek tended to establish that because the majority of the piping was in very close proximity to

bulkheads, turbines, and the boiler, coupled with the use of the wet removal method, that glove bags would not have been a feasible additional engineering control (p. 508). Similarly, testimony of Ajay M. Pathak, Director of Industrial Hygiene at Dec-Tam Corporation indicated that glove bags are used for small- scale, short-duration activity (~~461, 579). In the tight space of the cascade hold, Pathak did not believe that the two men required to operate each glove bag could properly do so (p.581). Further, that the layers of paint on the pipe lagging would have made the glove bag removal operation infeasible; in the process of removing the pipe lagging under these circumstances, damage to the glove bag would be probable, frustrating the purpose for
which it was intended (p. 581).
'mThequestion of whether a means
of protection is infeasible must be answered in light of the - 11 -
 .

 practical realities of                   the       particular workplace.        "Dun-par

l8
12 Em4 osxc 1949, 1960 (1986). The
Secretary failed to present evidence concerning the practical use .
of glove bags in the cascade hold beyond Meleney's "bare claim*' that th,is type of engineering control was feasible.
. JBzn-Par,
-8 at 1960. Dec-Tam presented credible testimony which established that glove bags were infeasible due to the nature
of
the work space and the type of asbestos removal involved in the
hold.

Therefore, while we find that Dec-Tam did not employ the
feasible work practice of wetting removal methods, which would
have reduced employee exposutieto asbestos, it was not required to use glove bags as an engineering control, as such use would . have been infeasible.
C0 l(cI: alleued 0
violation
C.F.R.

0 lOOlffH21
l
l

The Secretary alleges that Respondent violated 29 C.F.R.
.
19lO.lOOl(f)(2)~ in that it did not have a written program to

9/ (2) Compliance program. (i) Where the PEL is exceeded, the employer shall establish and implement a written program to reduce employee exposure to or below the limit by means of enginering and work practice controls as required by paragraph (f)(l) of this section, and by the use of respiratory protection where required or permitted under this section. - -(ii) Such programs shall be reviewed and updated as necessary to reflect significant changes in the status of the employer's compliance program. (iii) Written programs shall be submitted upon request for examination and copying to the Assistant Secretary, the Director, affected employees and designated employee representatives. (iv) The employer shall not use employee rotation as a means of compliance with the PEL.

J

• 12 -
   reduce employee exposure to the asbestos Permissible Exposure
  Limit rpEL). The Secretary claims that the written program was
  not produced until the hearing, and that the submitted programs failed to fulfill the requirements of the standard (R-3, R-S).
  The Secretary argues
  that the standard contemplates a written
  . program to address the "unique hazards present at a particular work site@" while the programs submitted by Respondent provide merely a generic substitute.
  There is no evidence that the standard requires any more than what was provided by Respondent. Meleney testified that he
  asked Pathak for a copy of the program by phone after the
  inspection, in November or December 1987 (~058). Pathak
  testified that he provided the program to Meleney in late January or early February of 1988 in response to the telephone
  conversation between the two (p.464).
  Respondent's exhibit 3
  sufficed as a written program specifying the engineering controls and *work practices to be used to reduce employee exposure and .
  Respondent's exhibit 5 satisfied the requirement of a' written respirator program in compliance with this standard. Therefore, we find that this item must be vacated.
  D0 (d1,e eaed violation of C F
  l l R0
  0 fql(3) (11 l

   The      Secretary                alleges     a    violation       of     29       C.F.R.
  

  1910.1001(g)(3)(i)5/ in that Respondent failed to implement

fl/ (3) Respirator program. (i) Where respiratory protection is required, the employer shall institute a respirator program in accordance with 29 C.F.R. 1910234(b),(d),(e), and (f).
- 13 -
its respirator program in accordance with good industrial

hygiene W-i-.
Specifically, that on August 7, 1987, Xeleney
observed employee Heard working in a regulated area with a half
mask negative pressure respirato&
donning a three to seven day
..
beard growth (Tr. p. 62; C-4a, C-4b).
The Secretary asserts that
this beard growth adversely affects the protective function of the respirator as it may disturb the proper seal of the
respirator. Meleney testified that he did not know whether there
was actual leakage in the respirator, but stated that all employees were qualitatively fit tested (Tr. 168). Meleney did not perform qualitative fit testing, positive or negative pressure testing, or any other leakage test on Heard (Tr. p.195, 205). The air sampling results obtained of the work . area indicated that employees were exposed to airborne concentrations of asbestos in excess of 0.2 fibers per ccq/.
The testimony of Frederick Malaby,
a certified industrial
hygienist with the Occupational Safety and Health Administration .
in Boston, tended to establish that facial hair growth could cause a respirator to become less effective, as it would interrupt the face-to-face piece seal (Tr0 426-428). He presented that one having a beard or facial hair growth must use a non-face-to-face piece seal ( Tr. 442-443, C-21,22). Dec-Tam

w Although this conclusion was based on air sampling results conducted upon Joe Savio (C+a, C+b), Heard and Savio worked together in the same area on August 7 (Tr. 66, C4b). Thus, M to the same area of exposure as Savio, though Heard had 'access no @actual exposurego was proven. Donovan v. Adams Steel Erectors, Inc. F. 2d 804 (3rd Cr. 1985).

• 14 -
  argues that since Meleney did not perfom any tests to determine the presence of leakage, that the mere presence of beard growth does not presumptively have a negative effect on a face seal. . Further, that Complainant% allegatiOn.is not supported by the language of the regulation.
  29 C.F.R. 1910.134(e)(5)(i) states, in pertinent part:
  Respirators shall not be worn when conditions prevent a good face seal.
• be a growth of
  Such conditions may beard....
  The Commission has recently interpreted this language to mean that the listed conditions in the standard, which “may prevent a

good face seaP namely, in this case, a growth of beard, do not
always prevent a good seal. Omaha Steel Castinas Comwr i2 BNA
OSHC 1804 (1986).
Thus, in Omaha Steel, the Review Commission
vacated a citation for violation of 29 C.F.R. 1910,134(6)(5)(i)

when evidence that respirators were not providing good face seals
rested soley
on the opinions of the industrial hygienist's
testimony that, among other things, a growth of beard always
prevents a good face seal.
In Omaha Steel, there were no tests
performed
during the inspection to determine whether the
respirators worn by employees were leaking. To establish such a violation, the Commission held, the Secretary must prove not only that one of the listed conditions in the standard exists, but also that the condition actually caused air leakage around the
face piece. Omaha SteeL, sunra, at 1807. Because of lack of
evidence of the latter, the evidence was found insufficient to - 15 -
L
support a violation.$.v
E)ecausethe Secretary
in the hstant Case similarly failed
to test for face piece leakage, coupled with employee Heardgs
training in the use of respiratOr8, and testimony that all

Dee-Tam employees were qualitatively fit-tested, she failed to
show that Respondent neglected to implement a respirator program in accordance with good industrial hygiene practice. It was not
proven that Heard’s growth of beard actually prevented a good.
seal. Accordingly, this
part of the citation must be vacated.

The Secretary alleges that Dee-Tam was also in violation of
1910.1001(g)(3)(i)by failing to assure the eraployees removed
contaminated respirator filters before entering a clean change
room on August 12, 1987 (Tr. 66).
PIeleneytestified that he
pbserved an employee leave the show&r area without first removing
the filter from his half-mask respirator. He testified that all
pieces of equipment, including all clothing and materials that

are to       be     removed from an asbestos                     environment,         need    to   be

consigned          for disposal,           bagged,      and     left within      the    regulated

area (Tr. 68, 186). He stated that the proper technique would be
to enter the shower with a respirator on, then wet the filters
with water from the shower, remove the filters, put them in the contaminated area, and exit with a washed-off respirator without
a filter in it. Mkeney did not know whether a shower is
considered a regulated (contaminated) area or not (Tr. 182).

6.51 It must be noted, however, that Dee-Tam's respirator program and procedures require that all employees wearing respirators must be clean shaven (R-5, R-11).

• 16 -
   Respondent offered Appendix F to 29 C.FoR. 191001001to show

policy (Tr. 188), While only an advisory provision, it suggests I in pertinent part:
TO prevent inhaling fibers in contaminated change rooms and showers, leave your respirator on Until you leave the shower and enter the clean change room.
29 C.F.R. 1910.1001, Appendix P, III (B). This section strongly recommends a practice contrary to that suggested by Meleney; its

language instructs that the filter remain in the respirator until one enters the clean change room in order to avoid any potential asbestos contamination in the shower area. While Meleney disagreed with this provision, and believed it to be contrary to good industrial hygiene practice, he could offer no counter OSHA policy or provision to substantiate his claim. Neither, as stated earlier, was he certain whether the shower was a regulated area or not. The testimony of Lemek tended to show that the shower is a contaminated area, thus, the respirator must remain on in the shower. As the employee exits the shower into the clean area, Lemek explained, the filters and the respirator are then removed so that the employee may breathe non-contaminated air (Tr. 523). Because this practice is consistent with OSHA policy, this part of the citation must also be vacated.
E 0 Dem 2 : alleged violation of 29 C.F.R. 1001(d)(5).
The Secretary alleges that Respondent violated 29 C.F.R.

• 17 -
  1g10.1001(d)(5)7/ in that it failed to institute additional
  exposure monitoring required under W(3)W of that section,
  where there might have been new Or increased exposures above the action level due to a change in work practices. The Secretary asserts that such additional monitoring was required when the process changed from removal of transite board on the main deck

of the vessel to removal of asbestos pipe lagging below deck (or. 71, 72).
The record established that
transite board removal was

performed on July 27, 1987 above deck, and continued until approximately August 7, 1987 (Tr. 402, 518, 519: C-19). Transite board is cement board which contains chrysotile asbestos
w and
mineral wool (Tr. 518, 519, 560). Various open removal took place below decks between August 8, 1987 and September 3, 1987 (Tr. 402, C-19). Removal of asbestos pipe lagging in the cascade hold was observed by Meleney on August 12. Complainant's

7J (5) Additional monitoring. Notwithstanding the prov&sions of - paragraphs (d(2)ii) and (d)(4) of this section, the employer shallinstitute the expsore monitoring required under paragraphs (d)(2) (i) and (d)(3) of this section whenever there has been a change in the production, process, control equipment, personnel or work practices that may result in new or additional exposures S above the action level or when the employer has any reason to suspect that achange may result in new or additional exposures above the action level. 8/ Monitoring frequency (periodic monitoring) and patterns. After the initial determinations required by paragraph (dx2xi) of this section, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of the employees. In no case shall sampling be at intervals greater than six months for employees whose exposures may reasonably be foreseen to exceed the action level.

• 18 - exhibit 6, a report of personnel monitoring on the ferry by
  ~~iro-sciances, -veals that no personnelmmples were taken between August 8, 1987 and August 19, 1987.'(Tr.75, 293). Meleney testified that because removal operations changed from transite board to pipe lagging, such additional monitoring is required under the standard to ensure that the proper respiratory protection is being used, and to determine whether engineering controls are adequate (Tr. 76). Meleney testified that.whenever there is a change in work practices in which it should be expected that exposure would be above the action level, additional eight hour TWA's are required.
  Respondent argues that there was no change in work practices . or in the production process to warrant additional monitoring. In tie alternative, Respondent contends that removal of pipe lagging did not require new testing because Enviro-Sciences and Dec-Tam already possessed testing data from previous removal projects, and from eight-hour TWA’s taken on the upper deck, obviating the need to perform such additional tests (Tr. 511). Lemek testified that there was no reason to perform any other eight-hour TWA samplings because it was a 'I continuous job? removal on a vessel (Tr. 511). However, Lemek also testified that transite board removal is different from pipe lagging removal in some ways (Tr. 561).
  While Enviro-Sciences performed some personnel sampling, the record shows that none were taken in the cascade hold on the day that removal changed from above to below deck. Further, it was - 19 -
  .
  the responsibility of Dec-Tam, the employer, not Enviro- Sciences, to moaitor employee exposure under the Act (or, 534, 553). While Enviro-Sciences had some testing responsibilities, for both Dee-Tam and Newport Offshore, Ltd., it is ultimately the responsibility of the employer to ensure that such testing is performed.
  I find that the standard required Dec-Tam to perform
  additional monitoring in the hold as the shift to removal of asbestos pipe lagging from transite board removal qualified as a
  change in work process warranting addditional monitoring.
  Respondent offered no evidence that previous monitoring of this
  type of work process had been performed, and it is not 'clear,
  . in
  absence of such data, whether it would be sufficient under the standard.
  Respondent argues that, if affirmed, this item should be reduced to other-than-serious. Section 17(k) of the Act provides that,
  . a serious violation shall be deemed to exist in a place of employment if there is a sub- stantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of violation.
  29 U.S.C. 3 666(j). Thus, to sustain a serious violation, the secretary must prove that the employer has actual or constructive knowledge of the hazardous condition, Brennan v. O.S.H.R.C. & Rawnond Hendrix, 511 F 2d 1139 (9th Cir. 1975), and that exposure

• 20 - to this condition could result in the substantial probability of

Labor, 638 F.2d 831 (5th Cir., Unit A 1981).
The knowledge element for a serious violation refers to knowledge of the physical conditions, not to knowledge of the applicable OSHA standard. Southwestern Acoustics & SDecialtv 5 BNA OSHC 1091 (1977). Respondent had knowledge of the conditions in the hold as well as the standard requiring monitoring of employees removing asbestos. Dkc-Tam is engaged in the business of asbestos removal, and its duty to perform personnel monitoring Is essential to the protection of its employees.
However r the Secretary failed to prove that Verious
physical harm could probably result due to its failure to monitor. There is no evidence in the record from which I can conclude that as a result of this violation employees have been or will be exposed to excessive amounts of asbestos fibers and could subsequently suffer death or serious physical harm. See, The Shenanao ComDanV, 10 BNA OSHC 1613 (1982) (Finding of violation of monitoring standard at 1910.1001(f)(i) as non-

serious as no evidence shown that employees have been or will be

exposed to excessive amount of asbestos fibers resulting in
death or serious physical harm).
See also, Pesearch Cottrell.
Inc. 9 BNA OSHC 1489 (1981). Therefore I find that this citation must be affirmed as other-than-serious.9/ u While OSHAms Field Operation Manual instructs compliance officers to cite a specific condition . as '@serious"where the condition could result in, inter alla Vllnesses that could shorten life or significantly red& physical or mental efficiency by inhibiting the normal function of a part of the

• 21 -
   F 0 Item 3.
  0 alleaed violation of 29 C 0F R 0 $ l

The Secretary alleges that Respondent violated 29 C.F.R. 5

lglO.lOOl(g)(4)(i)10/ in that it failed to ensure that a negative pressure respirator was properly fitted on employee . Melvin Heard,
who wore a half-mask respirator while not clean shaven (Tr. 79). Further, that Respondent was cited for the same condition on June 23 I 1987, under 29 C.F.R. 5 1926.58(h)(4) at its University Heights Shopping Center project (Tr. 79, 81, C-7). As noted in the discussion of the alleged violation of 29 C.F.R. 5 1910.1001(g)(3)(i)r the Commission has held that the presence of a beard does not presumptively prevent a good face seal in . absence of field test data for face piece leakage (see. pp. l3-
0
158 a!iuZw*
a Steel Castiws ComBany I 12 BNA OSHC 1804
(1986). Employees were instructed and trained to perform a

P/cant. asbestosis, byssinosis, hearing impairment, central nervous system impairment and visual impairmenU FOM ch.IV,B.l.b(3)(a)l-2 (October 21, 1985), cited in BOKAT, STEPHEN A. THOMPSON, HORACE A., OCCUPATIONAL SAFETY AND HEALTH LAW (BNA, Washington D.C. 1988). There was no connection established here, however, between the cited standard and the probability of harm. Employees were wearing half-mask respirators, which the Secretary agrees was proper respiratory protection given the amount of airborne asbestos measured in the cascade hold. There is little question that the contraction of cancer or asbestosis is a serious physical harm, yet there is a question about whether the evidence demonstrates the possibility that the violation could cause such harm to employees.

lO/ (4) Respirator fit testing. (1) the employer shall ensure that the respirator issued to the employee exhibits the least possible facepiece leakage and that the respirator is fitted properly.

c

• 22 -
  .

qualitative fit test each time the respirator was to be used (R- 5, R-6, R-7, R-11, R-12). Because of these reasons, and in light of the earlier discussion with respected to 29 C.F.R. 5 1910,
.

1001(g)(3)(i), this item must be vacated.
G 0 Item 4: alleged violatio~nof 29 c 0F R l 0 S 191O.lOOl~h~(1).
The Secretary alleges that Respondent violated 29 C.F.R.
5 1910,1001(h)(1)11/ in that employees working in the cascade
hold on August 12, 1987 were not wearing proper
personalinappropriate head covering, and two had open coveralls to their waists, exposing their t-shirts, while removing asbestos pipe lagging, unnecessarily exposing them to airborne asbestos fibers (C-8a).
Respondent incorrectly argues that coveralls and head
coverings are not. required under this standard. SSS,
1910.1001(h)(1)(i) and (ii). More persuasive is Respondent's
affirmative defense that this was an instance of isolated
employee misconduct.
.
It is clear from the record that this standard was violated.
It was also established that Respondents had a written work rule requiring the wearing of "special whole body clothing, head and. foot coverings@* (R-3, p.1, 4(b)) and that other employees at the observed site complied with this practice (C-8b). The employer had the duty to communicate and enforce its work rules in order to avoid liability for the violative conduct of its employees.

ll/ (h) Protective work clothing and equipment-(l) Provision and use. If an employee is exposed to asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals - 23 -
Dance,
suDrra@ Evidence of such enforcement was manifest
written warnings to employees, leading to possible in Dee-Tarn@@@ suspension or termination, concerning violations of this company policy (R-8, R-10). A warning to*Domenic Savio on August 3,

1987, for example, concerned his failure to wear proper protective clothing and exhibited Dee-Tam's effort to enforce ais work rule at the Newport site. The violation was an instance of isolated employee misconduct and this item must be

vacated.
0
H 0 ftem 5.0 alleaed violation of 29 C F Rl 0 l § 1910.1001~~(~~.
The Secretary alleges that Respondent violated 29 CF.&. 5 1910,1001(k)(1)12/ in that surfaces in the cascade hold were not maintained as free as practicable of accumulations of asbestos waste and dust. ComplainanVs exhibits 9a through 9d illustrate
. the accumulation of dust and waste on the floors and ledges of the- hold (Tr.. 86,88). Meleney testified that he observed asbestos collecting on surfaces throughout the hold, especially on hull surfaces (Tr. 88-90). He testified that in areas where

ucont. above the PEL, or where the possibility of eye irritation exists, the employer shall provide at no cost to the
. employee and ensure that the employee uses appropriate protective work clothing and equipment such as, but not limited:
l

Coveralls or similar full-body work clothing: (ii) Gloves, head (f)

coverings, and foot coverings: and (iii) Face shields, vented goggles, or other appropriate protective equipment which complies with 5 1910.133 of this Part. 12/ (k) Housekeeping. (1) All surfaces shall be maintained as free aspracticable of accumulations of dusts and waste containingasbestos, tremolite, anthophyllite, or actinolite.

• 24 -
  wet removal methods were used, less asbestos debris gathered as c~rrrpad to -se amas where dry removal methods were used pr.

338). Feasible engineering controls, he testified, would have limited the amount of debris to a lesser degree than the extent
shown. (Tr. 333).
I,emektestified that he saw debris
. in the cascade hold: paint husks, general non-specific debris, and
specifically, asbestos
debris, some of which was capable of being

vacuumed (Tr0 555,556). There was some asbestos-containing debris on the vessel found during a New York inspection, which predated the ferry's arrival in Rhode Island (Tr. '512, 541, 5600 561). Lemek did not observe the removal process in the hold (Tr.
575).
.
While the Secretary did not prove the feasibility of using
glove bags in the hold, she established that proper-west removal

methods were not being implemented as a feasible engineering

control (Tr. 36-40, 165, 268, 269, 278, 555, 575). Thus, because of this, Dee-Tam failed to keep surfaces “as free as
. practicable" of accumulations of asbestos debris.

The respondent argues that the housekeeping standard is so vague as to render it unenforceable. Respondent argues that the
standard, particularly the phrase "as free as practicable"
requires "men of common intelligence to guess at its meaning" such that they may differ as to its application. Culberson Well Services, Inc.8 12 BNA OSHC 1535 (1985). Respondent notes that an employer and an OSHA compliance officer may disagree as to what constitutes a surface that is “as free as practicable" of asbestos debris.

• 25 -
   In determining the constitutionality of a standard, courts

have held that,

[W]e must consider the Statue "not only in terms of the statue'on its face' but also in light of the conduct to which it is applied."...So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster.
Ryder Tq!~!ILlnes~ Inc. Ve B-man,
497 F.2d 230,233 (5th Cir,
l

1974), cited in Vance Con&r..
Inc. v. Donovan, 723 Fo2d 410 (5th

Cir. 1984). The Vance Court, in reviewing the constitutionality of the standard, 29 C.F.R. 5 1926.102(a)(l), also employed the Review Commission's objective, reasonably prudent person
testinto the standard. Vance, sugra, at 412-413. See also,
Research Cottrel&, 9 BNA OSHC 1489 (1981). The question thus becomes whether a @@reasonable person" in light of common understanding and practices could ascertain whether all surfaces were maintained as free as practicable of acckaulations of asbestos dust atiddebris.
A reasonable person, familiar with industry practices with respect to asbestos removal and cleanup, could deduce that these
surfaces were
not kept "as free as practicable" of these
accumulations.
The focus of our inquiry is on whether the
employer exhausted all feasible or practicable methods to keep
surfaces free of asbestos debris.
The standard gives specific
reference to certain feasible controls to be used to accomplish this purpose, including wet methods. 29 C.F.R. 5
1910.1001(f)(1)(i) through (f)(l)(ix). Further, Respondent's
asbestos abatement program specifically refers to the types of

• 26 -
  .

controls recognized by the industry (R-3, R-5). Because the
standard affords a reasonable warning of the proscribed conduct,

 in      light          of       industry       practice,      it        cannot        be   deemed

uncontitutionally vague. Because Respondent did not attempt, to I. the extent feasible in this wofk environment, to keep the surfaces free of debris, and because there was evidence that there would have been less debris had proper wet removal methods
been used, the Respondent is found to be in violation of this
standard.

         While       it         is   found that     Dec-Tam    had           knowledge of        this

 condition,          the         Secretary      failed to     prove          that     exposure to

accumulations of asbestos debris under these circumstancesIcould
result in the substantial probability of serious
death or
..
physical harm. Bun-., at 831. There is no evidende from
which it can be concluded that as a result of the housekeeping
violation, employees were actually exposed to excessive amounts . of' asbestos fibers from which they could suffer death or serious
physical harm.
Therefore, I find that this violation must be
affirmed as other-than-serious.

I 0 Item 6: allecredviolation of 29 C.F.R l S 1915.77(c)0 The Secretary alleges a violation of 29 C.F.R. 1915,77(c)J3/ . in that Respondent did not provide scaffolds or ladders to employees working five feet or more above solid surfaces in the
cascade hold. Meleney testified that he observed enmlovees

13/ (c) When employees are working aloft, or elsewhere at elevations more than 5 feet above a solid surface, either - 27 -
climbing around on -the pipes, at
least ten feet above the floor,

em - -QPP- mern to preps them frum falling during the
asbestos removal operation (Tr. 9%
C-lOa). The measurement from
the ceiling of the hold to the floor varied, as the floor was the sloping hull of the ship (3% 92). In one instance, . an employee
braced himself between an approximately one foot wide platform and an I-beam, by placing one foot on each, at least ten feet above the ground, while removing pipe laging (Tr. 94, C-lOc, C-

10% C-1Oh). Employees supported their weight on ceiling structures and pipes, in various bodily contortions, while engaged in the removal process (Tr. 95; C-lOe, C-lOf, C-1Oh). In
each of Complainant9
photographs, there were no scaffolds or.
ladders, to protect employees from the risk of a fall of ten feet or greater on to a steel floor structure with protruding I-beams (Tr. 96).

Meleney described the possible methods of constructing such
a support system: for example, a planking system buttressed by catwalks in the hold, or a horizontal scaffold system supported

by guardrails (Tr. 340-345). While Meleney did not actually measure the distance from floor to ceiling, Meleney's estimation

was accurate.
The exhibits clearly depict a measurement of
13/cant. scaffolds or a sloping ladder, meeting the requirements of this subpart, shall be used to afford safe footing, or the employees shall be protected by safety belts and lifelines meeting the requirements of 5 1915.154(b). Employees visually restricted by blasting hoods, welding helmets, and burning goggles shall Work from scaffolds, not from ladders, except for the initial and final welding or burning operation to start or complete a job, such as the erection and dismantling of hung scaffolding, or other similar, nonrepetitive jobs of brief duration.

• 28 -
  approximately
  two and one half man-lengths, a distance of ten
  feet or mom
  (Tr. 347).
  Respondent's argument that it did not have knowledge of the violation because no supervisor was present in the cascade hold
  on this day has no merit.
  Respondent was aware of the con-
  struction and layout of the hold: it was Dee-Tam's responsibility
  to provide ladders or scaffolding under these circumstances.
  Respondent cannot fail to provide proper equipment and
  supervision of employees and "then hide behind its lack of knowledge concerning their dangerous work practices.n DancQ

Gsimsu*, .alARxL Therefore item 6 must be affirmed as serious.
II. Wi&.JfulCitation Number 2
I

           A   a       Item   10  l         alleaed     violation  l

of 29 c.F.R.
~910:1001~d~ (11fiiL
The Secretary alleges a willful violation of 29 C.F.R. 5 19lO.lOOl(d)(l).(
ii)14/ in that Respondent failed to conduct
representative eight-hour TWA employee exposures at this work
site after July 28, 1987.
Specifically, she charges that no
personnel sampling was conducted in the cascade hold when
asbestos lagging removal took place. Meleney testified that Dec- Tam provided sample results which indicated that eight-hour TWA’s were taken only on July 27 and 28, 1987 during transite board removal, while removal operations continued through the beginning
of September (Tr. 98, 515; C-6).
Meleney testified that such
14/ (ii) Representative 8-hour TWA employee exposures shall be determined on the basis of one or more samples representing full- shift exposures for each shift for each employee in each job classification in each work area.

• 29 - sampling was necessary in order to determine the appropriate

respiratorg -iOn far -1-s mei tfretyPe of engineering

controls to be used (Tr.99). He and Lemek testified that it is

always the employer's responsibility to assure that his employees are monitored according to the standard (Tr. 107,

534)* Larry Hill of Dec-Tam did not ask Enviro-Sciences to take

personnel samples, nor was it the contractual responsibility of Enviro-Sciences to do SO (Tr. 534, 553). The samples taken by Enviro-Sciences were those of air samples outside the controlled areas to determine if there was any release of asbestos fibers (Tr. 557).
Respondent argues that it had extensive experience. with similar operations, including the performance of eight-hour TWA

amplea, as did Enviro-Sciences. However, not only did testimony establish that Enviro-Sciences took no personnel samples, Meleney testified that only the initial monitoring requirements of this standard are satisfied if the employer uses sampling results

e taken after December of 1985, and they satisfy ali other
'requirements of the standard (Tr. 308). 29 C.F.R. 5
1910.1001(d)(2)(ii).J5/ There is no evidence that Dec-Tam
performed personnel monitoring in the cascade hold, nor evidence of whether prior similar removal jobs existed, in which representative eight-hour TWA full shift employee exposures were taken, on which to base its decision on the type of 15/ Meleney testified that the difference between this citation and serious citation number 1, item 2, is that the latter concerns additional monitoring required during different operations: the former indicates that when such monitoring was required, it was not done in accordance with the standards's requirements (Tr. 366).

• 30 - respiratory protection and work controls to be implemented in the hold.
  The Secretary seeks to sustain this citation as willful

because Respondent was cited for the Sm8 type of violation on two previous occasions which became final orders of the Review Commission (Tr. 100-103, 353, 586-596; C-11, C-12, C-13)16/ In
addition, the Secretary
finds that this is willful because of the
serious potential consequences of asbestos exposure.
TO prove "willfulness," the Secretary has the burden of
proving that Vhe Respondent knew of the standard, and its violation was voluntary or intentional or with plain indifference
to the Act." Brock v. Morello Brothers Const l a nc., .809 F.2d
161, 164. (1st Cir. 1987).
Although the Secretary succeeded in
showing Dee-Tam's knowledge of the standard due to previous similar citations it received, she fell short of establ.ishingthe state of mind necessary to sustain a willful characterization of this item. The fact that Dec-Tam was formerly cited for similar violations of this standard is not reason enough to impute
intentional disregard of the Act.
The Respondent is found in
serious violation of the standard at C.F.R.~1910.lOO1(d)(l)(ii).

16/ On June 28,
1987, Respondent was issued a citation for a violation 29 C.F.R. 1926.58(f)(l)(ii): "Determinations of of employee exposures were not made from breathing zone samples that were representative of the eight-hour Time Weighted Average for each employee," as air samples were taken for only two hours (C- 11) On October 19, 1984, Respondent was issued a citation for a vioiation of 29 C.F.R. 1910.1001(f)(2)(i) in that "proper samples were not collected from the breathing zones of employees when determining exposure to airborne asbestos fibers." (C-12).

• 31 -
   d violation C.F.R.

The Secretary alleges a willful violation of 29 C.F.R. gj
19iO.lOOl(m)(5)(ii)17/ in that requested records were not
provided to the Secretary within a reasonable time after the request for access was made pursuant to 29 C.F.R. f 1910.20(e).
Meleney's first request for these records was made on August
27 8 1987 of Dee-Tam president Lee Snodgrass, followed by a
written request to Snodgrass on August 28 (Tr. 111-113; C-15). Dee-Tam responded through Betty Lacharite by letter dated September 14, 1987, which enclosed all items except monitoring results and sampling and analytical methods used which, Dec-Tam
m stated, would be later supplied by Enviro-Sciences (Tr. 112, 113, 381, C-2, R-2).
Meleney was in California from September 1987 through the

rPiad&e Qf ~9VM!h~ Qf $987 (Tr. 388-389) l He ccrllsd Pzr#ak on December 28 concerning the information not yet received. Meleney
. called again on January 4, 1988 and January 7, 1988 to get these

results from Snodgrass, who returned his call on January 8. Snodgrass informed him that all further communication regarding the results should be made through Pathak (Tr. 116).

17/(ii) The employer, upon request shall make any exposure records required by paragraph (m)(l) of this section available for examination and copying to affected employees, former employees, designated representatives and the Assistant Secretary, in accordance with 29 C.F.R. 5 1910.20 (a)-(e) and (g)-W"

-32 -
Meleney called again on January 12 and spoke with Snodgrass who told him that Pathak would be away from the office for a few days

W 0 117). Meleney told the Providence Area Director, or 0 *
Hartmann, that he was having trouble getting documents from Dec- Tam. Hatimann called Dee-Tam's Ms. Lacharite on January 13, 1988 and requested that the information be sent immediately or else an

administrative subpoena would
issue. Dec-Tam provided such
records on January 14, 1988I which included written medical
opinions, fit testing results on certain employees, and air monitoring done by Enviro-Sciences (Tr. 370; C-6 pp. l-4, C-17).
At the end of January, Meleney requested personnel sampling results and other information which were provided promptly by Dec-Tam in the beginning of February (Tr. 390; C-6 p.5).
Meleney classified this alleged violation as willful because of the four and one half month delay in receiving the material. In addition, Dec-Tam had been previously cited on June 23, 1987, for .a similar violation, 29 C.F.R. 5 1926.58(n)(5)(ii),.in that no exposure records were provided on request (C-16).
Lemek had received a call from Meleney in late December or
early January concerning Meleney's difficulty in obtaining -
documents from Dec-Tam. Lemek told him that he had already sent
this information to Dec-Tam
(Tr. 573-574). He also testified to
receiving a call from Pathak in late December who was looking
for

results of personnel sampling and any other information relevant to the Staten Island Ferry project (Tr. 521).
While the first four pages of personnel sampling results are dated September 30,

• 33 -
  I
  1987 (C-6; p. 378), there was no indication in Enviro-Sciences’ files as to wfrenthe material Was actually sent to Dec-Tam (w,

521-522).
The evidence establishes that the transmittal of some of the requested material, namely the report of personnel monitoring, was untimely: and I find that such delay was the result of an
*gobstructionistn attitude of Respondent, culminating in a
knowing, intentional violation of, or indifference to, the Act.
I therefore affirm this item as a willful violation.
III. Other-than-Serious Citation nwer
3
A0
1910 looltlH2~
0

0 0 (111 l 0 w

The Secretary alleges a violation of 1910.lOOl(i)(2)(ii)~ in that Dec-Tam did no provide soap and hot water in its shower facilities. Meleney testified that he took a shower at the site on August 12# in a facility he described as a hose with a spray noizle inside of aplastic two-by-two-foot enclosure, rather than . a portable shower stall, with no hot water and no soap available

(Tr0 121, 122).
He was the first person to shower and did not
ask anyone for soap or inquire as to why there was no hot water (Tr. 394).

J&/ (ii) The employer shall provide shower facilities which comply with 5 1910.14l(dx3) of this part.
The relevant affected sections are: (d)(3)(iii) Body soap or other appropriate cleansing agents convenient to the showers shall be provided ...(iv) Showers shall be provided with hot and cold water feeding a common discharge line.

• 34 - bmek testified that there was a shower and clean change
  room in each controlled area (Tr. 52% 576). When Lemek took a
  shower at the work site, both soap and hot water were available (Tr. 576). He testified that there was a hot water heater at the shower area which was able to be turned on or off (Tr. 577).
  The rebuttal testimony presented by Lemek indicates that there may have been circumstances which would cause Meleney's
  experience to be a unique one.
  The hot water heater may have
  been turned off ,.and the soap available in a speclfied location.

At any rate, Meleney made no further inquiry of the shower conditions and did not observe other employees experience the
same conditions.
In that state of the evidence, it cannot be
concluded that soap and hot water were not available to employees. Therefore this item must be vacated. IV l Serious Citation Number 4
A0 Item 1: alleged violation of 29 C.F.R.
0
01001kfl~2~(11 l
-
.

The Secretary alleges a violation of 1910.1001(g)(2)(i) 19/

19/ (2) Respirator selection. (i) Where respirators are required under this section, the employer shall select and provide, at no cost to the employee, the appropriate respirator as specified as specified in Table 1. The employer shall select respirators from among those jointly approved as being acceptable for protection by the Mine Safety and Health Administation (MS=) and by the National Institute for Occupational Safety and Health (NIOSH) under the provisions of 30 C.F.R.Part 11. (ii) The employer shall provide a powered, air-purifying respirator in lieu of any negative pressure respirator specified in Table 1 whenever: (A) An employee chooses to use this type of respirator: and (b) This respirator will provide adequate protection to the employee.

• 35 -
  in that Respondent failed to provide proper respiratory protection for its employees. Specifically, she charged that Respondent failed to provide and require 'employees to wear full face piece air purifying respirators with filters from July 27, 1987 to July 31, 1987 when they were exposed to airborne concentrations of asbestos in excess of -2 fibers per cc. The four affected employees described by Meleney were:

29/(cont.) Table 1 - Respiiratory protection. for asbestos, tremolite, anthophyllite, and actinolite fibers. Airbone concentration of asbestos, tremolite, anthophyllite, actinolite, Required respirator or a combination of
these minerals
.

Not in excess of 2 f/cc I l.lfalfmask air-purifying
(10 x Pel)
respirator, other than a
disposable respirator, equipped with high effi- ciency filters.
Not in excess of 10 f/cc 1. Full facepiece air-pur-
(50 x Pel)
ifying respirator eguip-
ped with high efficiency filters.
Not in excess of 20 f/cc 1. Any powered air-purifying
(100 x Pel)
respirator equipped with
high-efficiency filters.
2. Any supplied-air respira- tor operated in continuous flow mode.
Not in excess of 200 f/cc 1. Pull facepiece supplied-
(1000 x Pel)
air respirator operated in
in pressure demand mode.
Greater than 200 Voc 1. Full facepiece supplied air
(> 1,000 x Pel) or
respirator operated in pres-
unknown concentration
sure demand mode equipped with
an audinary positive pressure self-contained breathing appe- endus.
NOTE: a. Respirators assigned for higher environmental concentrations may be used at lower concentrations. b. A high- efficiency filter means a filter that is at least 99.97 percent efficient against mono-dispersed particles of 0.3 micrometers or larger.

• 36 -
  absence of such figure& given the monitoring results, it cannot be ~c‘laded t&at half-mask reSpi~t~~ Fm aPP=Priate under these Ci3XUmStanCeS.
  Respondent argues that serious Citation IV, Item 1 should be
  vacated because it was issued after the six month limitation period prescribed by 59(c) of the Act. The information had been requested in August and December of 1987 and January of 1988; part of the information on which the citation was based was sent in January and February of 1988 (C-6). While the original citations were issued on February 4, 1988, Citation Number IV,
  Item 1 was issued on February 19, 1988.
  Respondent filed its
  notice of contest on February 29, 1988 and did not challenge the timeliness of the citation in its Answer.
  *Section 9 (c) of the Act provides an absolute limitation of
  six months within which a citation may be issued. Citations issued six months after the last instance of violative conduct have been vacated because they have been barred by the statute of limitations. Wean United. Inc. 7 BNA OSHC 2086 (1979); Phelps
  Dodge CorPoration, 12 BNA
  OSHC 1390 (1985) (Respondent's last
  violative conduct occurred in January of 1984, therefore citation issued on August 14, 1984 was barred by the six month statute of limitations); Sun Ship. Inc. 12 BNA OOSHC 1185 (1985) (Citation was time-barred when OSHA was aware of facts constituting violation for at least eight months, thus citation must issue within six month of occurrence of violation, and not when the Occupational Safety and Health Administration decides its investigation is complete).
• 39 - a
  However8 the Commission in both Sun
  and Phelos Dodqq

-4-d w indicating 43ka-the statute of limitations
does not rtfn until OsHA discovers or
reasonably should have
discovered a violation. In Yelvinuton Weldina SewiCe, 6 BNA OSHC 2013 (1978) the Commission held that section 9(c) of the Act does not bar the issuance of a citation more than six month after the

occurrence of a violation if the Secretary's failure to discover the violation within the statutory time frame was due to the employer's failure to report an employee fatality as required by

OSHA regulations. The Commission reasoned that the policy of repose intended to be ensured by the statute of limitations would

not be undermined by tolling the statute in this cage, as the lgpolicyof repose frequently is outweighed...where the interests of justice require vindication of the plaintiff9 rights, as where a plaintiff has not slept on his rights but.was prevented
from asserting them."
Yelvington, sunra, citing Burnett v* New
York.Cent. R. Co., 380 U.S. 424, 429 (1965).
In the instant case, Meleney requested information from

• Respondent in August of 1987, but was not provided with it until
  five months later. The pause, however inadvertent, prevented
  OSHA from issuing its supplemental citation. Further, the fourth citation was issued approximately two weeks after the original citation and receipt of additional information from Dec-Tam. The Respondent was fully apprised of the facts and allegations of the
  fourth citation before it filed its notice of contest. The
  Respondent has 'not demonstrated prejudicial delay under these
  - 40 -
   1 0 J. Wages on July 27, was exposed to 5.2 fibers
  per =, or ww ten times the permissible limit
  allowed by the standard, wearing a half-mask
  respirator (C-6).
  2 0 R. McCloud on July 29 was exposed to airborne
  concentrations of 'asbestos at eight hour TWA’S
  of 4.0 fibers per/cc while wearing a half-mask
  respirator (C-6: Tr. 134).
  3 0 On July 30, C. Rivera was exposed to airborne
  concentrations of asbestos at an eight hour TWA
  of 2.9 fibers per cc while wearing a half-mask
  respirator (C-6, Tr. 135),
  Meleney testified that under these circumstances, the employees
  should have been wearing either a powered air purifying
  respirator, a full-faced respirator, an air purifying respirator,
  a continuous flow respirator, or a self-contained breathing
  apparatus (Tr. 133).
  .
  The sample monitored results represented fibers per/&, but
  the type of fibers in the sample were not identified (Tr. 396).
  In this case, Meleney assumed that these measurements were
  ,
  comprised wholly of asbestos fibers. He did not remember asking
  Dec-Tam whether it differentiated between fibers, but he recalled
  that at the informal conference, Dec-Tam felt that there was a
  possibility that not all fibers that were counted were asbestos

  (Tr0 399-400)0 The method used to calculate the TWA's are the
  . NIOSH analytical Methods, Method 7400-A Rules, which specifies
  that all fibers within a particular size range must be included
  in the measurement (C-6: Tr. 516).
  Lemek testified that while the measurements were not limited
  to asbestos fibers, vg{Enviro-Sciences}made no clear
  - 37 -
  A
   e

quantification of the amount of material that was asbestos fiber
mwWBfiWaa fle cuntim WD -fain that thclrp
was a "strong indication" that there was non-asbestos fiber in that sample based on visual inspections of the ship during the removal process and physical lab testing (Tr, 517). They made an "educated gues@* that more than half of the fibrous material consisted of non-asbestos fibers, particularly mineral wool (Tr. 519). Enviro-Sciences recommended the use of half-mask respirators based on this assumption, but instructed that if employees wanted additional protection, site supervisors should afford it (R-4, Tr. 520).
OSHA industrial hygientist Frederick Malaby testified that
0
In excess of 2 fibers per cubic centimeter of airborne concentrtions of asbestos,- the standard requires a full face piece respirator, which can be used up to 10 fibers per cc of air
or fifty times the PEL (Tr. 423). He stated that it is never
permissible to wear a half-mask respirator over 2 fibers per cc
of exposure (Tr. 426). .

    Respondent argues that because the measurements reflected

the total fiber representation during transite board removal, not

exclusively asbestos fibers, that the citation is inappropriate. It argues that because Lemek concluded that asbestos fibers comprised only approximately half of the total fiber, that half-mask respirators were appropriate.
Enviro-Sciences did not make a precise quantification of the fiber content, nor did it document its vague approximations. In - 38 - circumstances. nor the foregoing reasons, I have found that:
ORDER
The whole record having been considered, and due
consideration having been given to 29 U.S.C. section 666(j), it is ordered Citation number 1, Item la [1910.1001(c)] is affirmed as serious, and a penalty of $500 assessed.
Citation number 1, Item lb'[l9lO.lOOl(f)(l)(i)] is partially affirmed as serious, and a penalty of $100 assessed.
Citation number 1, Item lc [1910.1001(f)(2)] is vacated.
Citation number 1, Item Id [1910.1001(g)(3)(i)] is vacated.
Citation number 1, Item 2 [1910.1001(d)(5)J is affirmed as other-than-serious, and a penalty of $100 assessed.
Citation number 1, Item 3 [1910.1001(g)(4)(i)] is vacated.
Citation number 1, Item 4 [1910.1001(h)(1)] is vacated.
Citation number 1, Item 5 [1910.1001(k)(1)J is vacated as serious and affirmed as nonserious, and a penalty of $100 assessed.
Citation number 1, Item 6 [1915.77(c)] is affirmed as serious, and a penalty of $50 assessed.
Citation number 2, Item 1 [1910.lOOl(d)(l)(ii)] is vacated
as willful and affirmed as serious, and a penalty of $500 assessed.
Citation number 2, Item 2 [1910.1001 (m)(5) (ii)] is affirmed as willful, and a penalty of $10,000 assessed.

• 41 -
   citation number 3, Item 1 [1910.1001 (i)(2) (ii)] is

vacated.

Citation number QI Item 1 [19~o.lool(g)(2)(i)] iS affixed .

as ser,ious,and a penalty of $50 assessed.

So.ordered.

FOS!l!‘ER
FURCOID
Judge, OSHRC

Dated: my 9, 1989
Boston, Massachusetts

• 42 -