3 Dimension Construction Management, Inc.

Read the official release (oshrc.gov)

Plain-English summary

3 Dimension Construction Management served as general contractor for converting a building into a self-storage facility and hired KIPI to perform interior demolition before asbestos abatement. OSHA cited the company for failing to ensure that the demolition contractor complied with the asbestos construction standard. The judge found that KIPI performed Class I asbestos work because its demolition damaged and removed asbestos-containing thermal system insulation. The company knew or should have known about the asbestos, yet it did not require basic controls, and workers had access to the contamination. The serious violation was affirmed and a $2,200 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1101(d)(5)
• Outcome: Serious Citation 1, Item 1 affirmed; $2,200 penalty assessed.
• Key point: A general contractor must ensure an asbestos contractor complies with the asbestos standard when demolition work creates or controls asbestos contamination.

Full text (OSHRC public release)

                          Some personal identifiers have been redacted for privacy purposes

                       UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
OSHRC DOCKET NO. 15-0625
v.
3 DIMENSION CONSTRUCTION
MANAGEMENT, INC.,
Respondent.

     Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois
            For Complainant

     Eric J. Miller, Esq., Eric J. Miller Law Group, Ltd., Rockford, Illinois
              For Respondent

Before: Administrative Law Judge Patrick B. Augustine

                                      DECISION AND ORDER

I.       Procedural History

     This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (“the Act”). Responding to a complaint about asbestos exposure and lack of

adequate protection, the Occupational Safety and Health Administration (“OSHA”) initiated an

inspection of a 3-Dimension (“Respondent”) worksite, located at 5860 N. Pulaski, Chicago,

Illinois on September 25, 2014. (Tr. 33–34). As a result of the inspection, OSHA issued a

Citation and Notification of Penalty (“Citation”) to Respondent, which alleges one serious

violation of the Act and proposes a penalty of $2,200.00. The Citation was issued on March 13,

2015. Respondent timely contested the Citation.

       Trial in this matter commenced on Monday, November 16, 2015, in Chicago, Illinois, and
      

lasted for two days. Four witnesses testified: (1) Compliance Safety and Health Officer (CSHO)

                                                       1

Bogdan Catalin; (2) John Mengel, principal of JSM Venture, which manages the building at

issue; (3) Brian Harrington, owner of Respondent; and (4) Matthew Clark, Respondent’s project

manager. The parties filed post-trial briefs.1

II.       Stipulations

       The parties entered into stipulations prior to the beginning of trial. Those stipulations

were introduced into the record as Joint Exhibit No. 1 (hereinafter “Ex. J-1”). In lieu of

reproducing them in their entirety, the Court shall make references to the stipulations in the

format indicated in the previous sentence.

III.      Jurisdiction

       Pursuant to the Joint Stipulations, the Court has jurisdiction over this proceeding pursuant

to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c). (Ex. J-1 at ¶

1). The Joint Stipulations also state Respondent is engaged in a business affecting interstate

commerce and is an employer within the meaning of the Act. (Ex. J-1 at ¶¶ 5–6). See also 29

U.S.C. § 652(c).

IV.       Factual Background

          a. Respondent’s Business

       According to Brian Harrington, who started the business in 2001, Respondent specializes

in converting properties into self-storage facilities. (Tr. 214–15).

       Harrington testified that his company is familiar with the entire conversion process,

including planning, construction, and implementing environmental controls. (Tr. 216).

Approximately 85% of Respondent’s business is what Harrington termed “bid to build”, which

means that the plans, drawings, and environmental aspects have been addressed by the owner.

1. The parties were given until April 30, 2016 to file their respective briefs. Complainant’s brief was filed timely.
   Notwithstanding having five months to compose a brief, Respondent’s counsel, after being contacted by the Court’s
   legal assistant, requested a one day extension to complete the post-trial brief, twice. In response, the Court received
   a brief roughly five pages in length, excluding stipulations, the table of authority, and table of contents. Only three
   of those pages constitute argument.

                                                     2
   

   All that is left for Respondent is the actual construction/conversion. The remaining 15% of

projects constituting Respondent’s business are what Harrington referred to as “design build”,

which includes hiring an architect, designing the facility, performing environmental analyses,

and building the self-storage facility. (Tr. 216).

   As part of the conversion process, Respondent issues a request for bids. Subcontractors

can base their bid on the plans and basic requirements provided by Respondent through an FTP

site. (Tr. 217). After receiving bids, Respondent goes through a process of review and ultimately

selects the low bidder that is capable of meeting the requirements of the job. (Tr. 218–19). Once

an agreement is reached between Respondent and the subcontractor, they have a pre-construction

meeting at the worksite. (Tr. 221). This meeting is designed to introduce the supervisors for both

Respondent and the subcontractor, allow for a walkthrough of the worksite, and review the

worksite expectations. (Tr. 221).

   In this case, Respondent hired KIPI to perform demolition services. Respondent was

familiar with KIPI based on its work on another self-storage project run by Respondent. (Tr.

230). According to Harrington, a representative of KIPI named “Max” walked through the

worksite with Matt Clark, Respondent’s project manager. (Tr. 229–30). During that

walkthrough, KIPI was informed that it was responsible for removing walls and ceilings, but the

utilities should be left alone. (Tr. 229). Harrington also testified that KIPI was “fully

understanding” that asbestos abatement was going to occur at some point in the renovation

process. (Tr. 229–30). At the time KIPI was hired, however, Respondent did not verify that KIPI

was properly qualified to handle demolition in an asbestos environment; instead, Respondent

assumed that KIPI was certified to perform such work based on the fact that a demolition

                                                 3

contractor is “typically” fully certified and on KIPI’s representation that its employees had taken

the OSHA 10-hour course.2 (Tr. 249).

        b. The Worksite

    The worksite, as noted above, was located at 5860 North Pulaski Road, Chicago, Illinois.

The single-story structure was previously a multi-purpose space that was occupied by a couple of

different businesses. (Tr. 116, 224–25). The building itself was comprised of three separate, yet

interconnected, large rooms and an office space at the front of the building. (Tr. 42). At the time

of the inspection, the building was owned by 5860 Storage Properties, LLC, but managed by

JSM Venture, LLC, which is owned by John Mengel. (Tr. 114–15).

        c. Sequence of Events

    The events that led to the inspection started with John Mengel’s purchase of the building

in June 2014. (Tr. 116). Mengel intended to convert the building from a multi-tenant space to a

self-storage facility. The conversion process began in approximately September 2014, when the

remaining tenants vacated the building. (Tr. 116–17). Initially, Mengel hired T2 (also a general

contractor) to aid him with the plans and drafting the building permit; however, beyond the

initial paperwork, T2 had no further connection to the project. (Tr. 118–19). Shortly thereafter,

Mengel hired Respondent as general contractor for the construction project. (Tr. 121).

    Although Respondent was hired as the general contractor, Mengel told Harrington that he

would be entering into a separate contract for environmental remediation services. (Tr. 124,

225). On September 9, 2014, Mengel had Ed Boomsma of Environmental Emergency

Management Systems, Inc., perform a walkthrough of the property, identify asbestos-containing

material (ACM) or presumed asbestos-containing material (PACM), and provide a quote for

remediation. (Tr. 127, 228, 242–43, 302–303). Clark, Respondent’s project manager, walked the

2. Harrington testified under cross-examination that, after this incident, he now requests significantly more
   certification documentation. (Tr. 249).

                                                4
   

   worksite with Boomsma and Mengel, during which time Boomsma identified ACM/PACM

throughout the building. (Tr. 297–98). Ultimately, however, Mengel opted for the abatement

services of Celtic Environmental (“Celtic”), whose quote was half of what Boomsma proposed.

(Tr. 135, 298). That quote was premised on the demolition contractor, KIPI, exposing the

ACM/PACM prior to abatement taking place. (Tr. 126, 298). Respondent had a representative

present during Celtic’s walkthrough of the property as well. (Tr. 228).

    KIPI began demolition on September 10, 2014, before Mengel had hired Celtic. (Tr. 84;

Ex. C-8H). Even though asbestos was previously identified during the walkthroughs with

Boomsma and Dave Smrz of Celtic, no exposure assessment was performed and no

precautionary measures were implemented prior to demolition beginning. (Tr. 301). Instead,

KIPI was instructed by Clark to remove walls and ceiling grids prior to any abatement taking

place. (Tr. 229). Further, Harrington testified that KIPI was specifically told that their job was to

expose the asbestos-laden pipes in order to allow Celtic to perform remediation services. (Tr.

229, 266). Thus, even though Respondent disclaims specific knowledge3 regarding the presence

of asbestos, it is clear that, based on the walkthroughs, Respondent was generally aware that

KIPI would be working in close proximity to asbestos.

    Celtic performed an environmental survey on September 15, 2014. (Tr. 137, 159; Ex. C-

9d). Celtic’s proposal, which was sent to Mengel the same day, identifies asbestos at the

worksite as follows:

    The 9X9 asbestos tile and mastic is found in the Pump room area of the property
    and the North East corner offices of the building as shown.

    The asbestos pipe insulation is found throughout the property in the warehouse
    area. [sic] Mezzanine and above the drop ceiling in the finished store front area.
    An excess of over 2,500 Linear Feet of pipe insulation is estimated to be in the
    property.

3. Respondent requested from Mengel the Phase I Environmental survey of the property, but did not receive it until
   long after the demolition job had been completed. (Tr. 227, 267; Ex. C-4). The Phase I survey was performed in
   September 2013. (Ex. C-4).

                                                   5
   

   (Ex. C-9d) (emphasis added). The key proviso to the agreement was that cost was contingent

upon “the entire demo [being] done prior to us starting the abatement . . . .” (Id.). Of course this

was a near-foregone conclusion—during the interim period between Boomsma’s walkthrough

and Celtic’s proposal, KIPI had been demolishing ceilings and walls for at least 3 days. (Exs. C-

8a, C-8h, C-8i). According to the log book filled out by [redacted], Respondent’s

superintendent, the ceiling tile removal in the office portion of the building was 95% complete

on September 12, 2014. (Tr. 86; Ex. C-8i). Celtic was not scheduled to begin abatement until

October 1, 2014. (Tr. 82; Ex. C-8f). The log books indicated that KIPI continued to perform

demolition for five additional days after Mengel reached an agreement with Celtic. (Ex. C-8).

       d. The Inspection(s)

   Upon receiving a complaint regarding potential asbestos hazards at the worksite,

Complainant sent CSHO Bogdan Catalin to perform an inspection of the premises on September

25, 2014. (Tr. 33–34). As he approached the building, CSHO Catalin observed pipes that

appeared to be covered with asbestos insulation. (Tr. 36; Ex. C-7a). On closer inspection, CSHO

Catalin saw that the insulation covering those pipes was damaged. (Tr. 36–37). As the CSHO

made his way around the building, he introduced himself to [redacted], who identified himself as

Respondent’s superintendent. (Tr. 39). CSHO Catalin conducted an opening conference with

[redacted] and invited him to call all relevant stakeholders. (Tr. 40). CSHO Catalin informed

both Respondent and KIPI that he would be opening an inspection of both companies. (Tr. 42).

By the close of the opening conference, [redacted] had obtained approval from management to

allow the inspection and accompanied CSHO Catalin during his inspection. (Tr. 42).

   CSHO Catalin and [redacted] entered the building from the rear and worked forward

towards the office portion of the building, which was fronted by Pulaski street. (Tr. 43). After

entering the first room, CSHO Catalin observed ducting, ceiling or drywall framing, and piles of

                                             6

debris on the floor. (Tr. 43; Ex. C-7a at 6). Similar observations were made in the second room

from the back of the building. (Tr. 44–45; Ex. C-7a at 9). In the last, big room prior to the front

office area, CSHO Catalin saw two scissor lifts, two bucket attachments for a Bobcat, a

cordoned-off area that had structural concerns, as well as construction debris. (Tr. 48–49; Ex. C-

7a at 10–13). According to KIPI employees, the Bobcats were used to remove the ceiling

structure, which CSHO Catalin later confirmed through observation and review of Respondent’s

log books. (Tr. 48–49, 54–55; Ex. C-8h). Finally, CSHO Catalin approached the last room in the

building, also known as the office area. (Tr. 50). The office, which CSHO Catalin had observed

from the front of the building, had a pipe elbow with damaged asbestos insulation. (Tr. 50; Ex.

C-7 at 15). CSHO Catalin determined that, in the process of removing the surrounding

structures, the pipe was impacted and asbestos broke off. The insulation had ragged edges,

which indicated that it was not properly removed or stripped. (Tr. 50). The office also had two

additional asbestos-lined pipes that had been exposed by removing the ceiling framework.4 (Tr.

52). CSHO Catalin also found a respirator in the office area, indicating that someone needed to

protect themselves against airborne particulate matter. (Tr. 57).

    After taking a number of photographs, CSHO Catalin indicated that he would be

returning for a second day of inspections. (Tr. 58). He returned to his office, briefed his

supervisor, and contacted the City of Chicago Public Health Department due to the potential for

asbestos debris and exposure. (Tr. 59–60). From there, CSHO Catalin; John Mengel; Barbara

Kay, an inspector with the City of Chicago; Matt Clark and [redacted], representing Respondent;

Joe Smrz, owner of Celtic; and Nathan Kestelyn, owner of KIPI, agreed to meet back at the

worksite on September 30, 2014. (Tr. 59).

4. CSHO Catalin confirmed that the pipe insulation was asbestos by reviewing the Phase I Environmental survey
   that was performed the year prior. (Tr. 56; Ex. C-4).

                                                7
   

   The second inspection was carried out in much the same fashion as the first—the group

walked the worksite, starting with the back room and proceeding to the office at the front of the

building. (Tr. 62; Ex. C-7b). In the last room prior to the office area, CSHO Catalin

photographed an exposed asbestos-insulated pipe that was damaged. (Tr. 63–64; Ex. C-7b at 1).

The damage was located at a point in the ceiling where a wall had been removed, as indicated by

the overspray of white paint on the exposed ceiling. (Tr. 63; Ex. C-7b at 1–4). CSHO Catalin

also photographed other evidence of damaged asbestos insulation. (Tr. 66; Ex. C-7a at 5). Even

though CSHO Catalin informed Respondent of his suspicions regarding the presence of asbestos

in the initial inspection, it appeared as if the debris piles that had been previously located

throughout the building were removed between the first inspection and the beginning of the

second inspection, but there was no indication that additional precautions were taken. (Tr. 64).

Clark testified that KIPI was responsible for removing debris. (Tr. 311). In response to the

conditions at the worksite, Ms. Kay ordered a total cleanup of the worksite, and CSHO Catalin

requested air clearance results. (Tr. 71). Celtic began developing an abatement plan that day.

(Tr. 70).

    At some point after the second inspection on September 30, 2014, CSHO Catalin

interviewed [redacted]. (Tr. 72). At the conclusion of the interview, [redacted] sent CSHO

Catalin three photographs illustrating the conditions of the worksite as they existed on September

12, 2014, or roughly two weeks prior to the first inspection.5 (Tr. 72). The photographs illustrate

conditions similar to those observed by CSHO Catalin on September 25, 2014, including debris

piles and the same damaged pipe insulation that he observed from outside the building during his

inspection. (Compare Ex. C-7a to Ex. C-7c).

5. CSHO Catalin testified that the date stamp on the photographs from [redacted] indicated the date of September
   12, 2014. Respondent did not put forth countervailing evidence to suggest otherwise.

                                                  8
   

   In addition to reviewing photographs, CSHO Catalin requested and reviewed the daily

work logs kept by Respondent. (Ex. C-8). These work logs describe in detail such things as the

nature of the workday’s operations, equipment used, and problems encountered. One notation in

particular caught CSHO Catalin’s eye: on September 17, 2014, the log indicates that a pipe was

hit by KIPI during demolition of the ceiling in the “West Warehouse”. (Tr. 79; Ex. C-8c).6

According to Harrington and Clark, Respondent cordoned off the area to prevent access and

believed that the CMU 3R rated fire wall provided sufficient encapsulation of the asbestos and

that tape and spray-painted lines on the floor were sufficient to prevent entry or exposure. (Tr.

253–55, 273–74, 316–17). Interestingly, Harrington did not issue a formal directive to stay away

from the pipes until September 22, 2014, or roughly 5 days after a KIPI employee hit the pipe.

(Tr. 275–76; Ex. C-9b).

    CSHO Catalin also took bulk samples from various debris piles and floor tile, and found

that, of his samples, only the floor tile indicated asbestos content. (Ex. C-10). CSHO Catalin did

not take samples from the pipes because he did not have appropriate equipment to do so. (Tr.

168). However, even though the specific samples taken by CSHO Catalin did not come back

positive, there is no dispute that the pipes identified in the photos contained asbestos. Lending

credence to CSHO Catalin’s conclusion that his sampling results did not accurately represent the

asbestos hazard at the worksite is a Clearance Air Sampling survey performed by Northern

Environmental Development, Inc. (“NED”) (Tr. 98–99; Ex. C-5). CSHO Catalin testified that he

received a copy of the survey from Smrz after Celtic completed the abatement in early October,

2014.7 (Tr. 95). The NED report indicated that it applied “aggressive air sampling methods in

6. The Court finds that this is damaged pipe is different than the one illustrated in the photos send by [redacted],
   which were taken on September 12, 2014 and, according to CSHO Catalin’s testimony, were in a different room.
   (Tr. 79).
7. It is not immediately clear whether the air sampling occurred prior to or after Celtic’s remediation efforts. CSHO
   Catalin testified that he received the clearance survey results after Smrz had told him that Celtic completed
   remediation, not that they were the post-remediation survey results. (Tr. 95). Given that NED observed damaged,

                                                    9
   

   accordance with AHERA”, including the use of a leaf blower prior to sampling and the

placement of 20-inch box fans that were left running during the sampling period. (Ex. C-5). The

results of the survey indicated that the average of the five air samples was more than double the

AHERA8 clearance standard. (Ex. C-5). In addition to asbestos-positive air sampling results,

NED observed damaged and friable asbestos pipe insulation still attached to the pipes as well as

in piles on the ground. (Ex. C-5). For CSHO Catalin, this survey confirmed what his samples

were unable to prove—the entire worksite, including various debris piles, contained asbestos.

(Tr. 98).

V.       Discussion

     The facts of this case are, for the most part, undisputed. The real issue in this case is the

application of the cited standard to the facts. The standard describes the general scope of the

general contractor’s obligations and its obligations vis-à-vis the “asbestos contractor”. See 29

C.F.R. § 1926.1101(d)(5). Respondent is the general contractor under this set of facts; however,

the term “asbestos contractor” is left undefined and thus it is not immediately apparent how that

term applies. See id. § 1926.1101(b).

     Since the term “asbestos contractor” is not defined in the regulation, Complainant argues

that the regulation is ambiguous and therefore proposes an interpretation that broadens the

concept of an asbestos contractor into virtually any contractor at a worksite that contains

asbestos. See Compl’t Br. at 24–26. As such, under Complainant’s interpretation, KIPI would be

included within the scope of the term “asbestos contractor”.

friable asbestos both on the pipes and on the ground, the Court infers that the clearance survey was performed pre-
remediation, because the results of the survey indicate that remediation had not yet commenced. See Okland
Construction Co., 3 BNA OSHC 2023, 2024 (No. 3395, 1976) (reasonable inferences can be drawn from
circumstantial evidence). Irrespective of when the survey was performed, however, the conclusion is the same—the
worksite was contaminated with asbestos. The only difference is whether KIPI employees were potentially exposed
to more than double the AHERA clearance standard during its demolition efforts, or whether the asbestos level was
conceivably higher (if we assume that the survey took place after Celtic performed remediation).

8. “AHERA” stands for Asbestos Hazard Emergency Response Act. See generally 15 U.S.C. § 2641.

                                                   10
   

   Respondent contends that Celtic, not KIPI, was the asbestos contractor and that Mengel’s

separate contract with Celtic absolved Respondent of its responsibilities under 1926.1101(d)(5).9

Resp’t Br. at 9. Respondent premises its interpretation of the standard on the definition found in

AHERA. See 15 U.S.C. § 2642(1).

    Based on what follows, the Court finds that, although Complainant’s suggested

interpretation of the standard is unduly broad, he nonetheless established that KIPI was

performing the duties of an asbestos contractor, that Respondent violated the standard, and that

the violation was serious.

         a. Legal Standard

    To establish a prima facie violation of section 5(a)(2) of the Act, Complainant must

prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated;

(3) one or more of the employees had access to the cited condition; and (4) the employer knew,

or with the exercise of reasonable diligence could have known, of the violative condition. Ormet

Corp., 14 BNA OSHC 2134 (No. 85-0531, 1991).

         b. Citation 1, Item 1

    Complainant alleged a serious violation of the Act as follows:

    29 CFR 1926.1101(d)(5): As supervisor of the entire project, the general
    contractor did not ascertain whether the asbestos contractor was in compliance
    with the asbestos standard, and did not require such contractor to come into
    compliance with this standard:

9. Respondent proffers one additional, quasi-constitutional argument that, even under the most deferential
   treatment, is difficult to understand and just plain wrong. As far as the Court can tell, Respondent seems to suggest
   that cited standard contravenes “construction common law” without making it entirely clear what aspect of the
   common law is being contravened or how the cited standard conflicts with it. Resp’t Br. at 8. To the extent that
   Respondent is suggesting that it is inappropriate to hold a general contractor responsible for ensuring the safe
   operations of its subcontractors, the Court would note the overwhelming Commission and circuit court precedent to
   the contrary. See McDevitt Street Bovis, Inc., 19 BNA OSHC 1108 (No. 97-1918, 2000). To the extent that
   Respondent’s argument implies that the standard contains an exception merely because it states that “the general
   contractor is not qualified to serve as the asbestos ‘competent person’”, such an argument is belied by the second
   sentence of the standard, which clearly expresses the general contractor’s obligations with respect to the asbestos
   contractor. This argument is a reflection of the amount of time the Court perceives Respondent spent drafting its
   brief. See fn.1, supra.

                                                    11
   

   a. The employer, acting as a General Contractor, requested, directed and
   approved of sub-contractor employee(s) to conduct interior demolition. While
   demolishing ceiling structures and dividing drywall partitions, subcontractor
   employee(s) damaged pipe(s) covered with ACM/PACM thermal system
   insulation. The General Contractor did not require the sub-contractors performing
   demolition work to come into compliance with 1926.1101 asbestos standard.

(Ex. C-1).

   The cited standard provides:

   All general contractors on a construction project which includes work covered by
   this standard shall be deemed to exercise general supervisory authority over the
   work covered by this standard, even though the general contractor is not qualified
   to serve as the asbestos “competent person” as defined by paragraph (b) of this
   section. As supervisor of the entire project, the general contractor shall ascertain
   whether the asbestos contractor is in compliance with this standard, and shall
   require such contractor to come into compliance with this standard when
   necessary.

29 C.F.R. § 1926.1101(d)(5).

               i.    The Standard Applies

   With respect to the cited standard, Complainant contends that the term “asbestos

contactor” should be interpreted as broadly as the scope of the standard itself, which is to say that

any contractor performing work at a site with the potential for asbestos exposure is an asbestos

contractor. See Resp’t Br. at 25–26. The question is whether Complainant’s interpretation is

entitled to deference. “When determining the meaning of the standard, the Commission must

first look to its text and structure.” The Davey Tree Expert Co., 2016 WL 845440 at *1 (No. 11-

2556) (citing Superior Masonry Builders Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003)).

If the meaning of the standard’s language is “sufficiently clear” the inquiry ends. Unarco Comm.

Prods., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993). However, if “the meaning of the

regulatory language is not free from doubt”, the standard is ambiguous. Martin v. OSHRC (CF&I

Steel Corp.), 499 U.S. 144, 150–51 (1991). Only in that instance will the Commission defer to

Complainant’s reasonable interpretation of the standard. See id; Unarco, 16 BNA OSHC at

                                             12

1502–1503. However, both the courts and the Commission have rejected Complainant’s

interpretation of a standard when it strains the plain meaning of the regulatory text. See, e.g.,

Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, (No. 89-1206, 1993).

   “A regulation is ‘ambiguous’ as applied to a particular dispute or circumstance when

more than one interpretation is ‘plausible’ and ‘the text alone does not permit a more definitive

reading.”’ Exelon Generation Co. v. Local 15, Int'l Bhd. of Elec. Workers, 676 F.3d 566, 570

(7th Cir. 2012) (citing Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 207 (2011)). However,

“a reviewing court should not confine itself to examining a particular statutory provision in

isolation. The meaning—or ambiguity—of certain words or phrases may only become evident

when placed in context.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132

(2000); see also Am. Fed’n of Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 737, 740 (D.C. Cir.

1986) (“[R]egulations are to be read as a whole, with each part or section . . . construed in

connection with every other part or section”) (internal quotation marks and citation omitted);

Summit Contractors, Inc., 23 BNA OSHC 1196, 1202–1203, (No. 05-0839, 2010) (noting rule of

statutory construction that every word be given effect), aff’d per curiam, 442 F. App’x 570 (D.C.

Cir. 2011) (unpublished); E. Smalis Painting Co., 22 BNA OSHC 1553, 1580, (No. 94-1979,

2009) (same). As such, the disputed provision should first be read within the context of the

asbestos standard as a whole. If the ambiguity cannot be resolved, the Court will defer to

Complainant’s interpretation of the standard unless it is “plainly erroneous or inconsistent with

the regulation.” Auer v. Robbins, 519, U.S. 452, 461 (1997).

    At the most general level, the asbestos in construction standard applies to the work at

the worksite. According to the scope and application paragraph, “This section regulates asbestos

exposure in all work as defined in 29 CFR 1910.12(b), including but not limited to the following:

Demolition or salvage of structures where asbestos is present . . . ; construction, alteration,

                                           13

repair, maintenance, or renovation of structures, substrates, or portions thereof that contain

asbestos . . . .” 29 C.F.R. § 1926.1101(a)(1), (3). The overwhelming weight of the evidence

shows that the worksite was contaminated with asbestos. Further, the work performed by KIPI

and supervised by Respondent, whether considered demolition or renovation, is covered by the

standard.10

     Although it is left undefined, the term “asbestos contractor” appears to have a specific

meaning; the term is only used twice throughout the entire asbestos standard. See 29 C.F.R. §

1926.1101(b). The context in which the term is used, however, indicates that its application was

intended to be far more restrictive than the construction Complainant now advocates. This is

particularly evident in subsection (d) of the asbestos standard, which is where the provision cited

by Complainant is located and the only portion of the standard where the term “asbestos

contractor” is used. Subsection (d)(1) provides:

     On multi-employer worksites, an employer performing work requiring the
     establishment of a regulated area shall inform other employers on the site of the
     nature of the employer’s work with asbestos . . . and the measures taken to ensure
     that employees of such other employers are not exposed to asbestos.

Id. § 1926.1101(d)(1) (emphasis added). This section essentially breaks the worksite into two

camps: (1) employers whose work with asbestos requires the establishment of a regulated area;

and (2) other employers at the worksite. See id. The employer whose work requires the

establishment of a regulated area, in turn, has an obligation to inform “other employers” of the

nature of its work and to take measures to prevent the employees of “other employers” from

becoming exposed. Subsection (d)(2) further clarifies that asbestos hazards are to be abated by

“the contractor who created or controls the source of asbestos contamination”, or the same

10. The Court mentions both renovation and demolition in light of the standard’s definition of “demolition”, which
    is defined as the “wrecking or taking out of any load-supporting structural member and any related razing,
    removing, or stripping of asbestos.” 29 C.F.R. § 1926.1101(b). The testimony was unclear as to whether load-
    supporting members of the building were removed. However, the definition of “renovation” means the modifying
    of any existing structure, or portion thereof. Id. In either case, the standard applies, and, as will be discussed later,
    under either definition KIPI qualifies as an “asbestos contractor.”

                                                       14
    

    contractor whose work requires the establishment of a regulated area. Id. § 1926.1101(d)(2). On

the other hand, subsection (d)(3) indicates the obligations of “all employers of employees”

exposed to asbestos hazards, including those working adjacent to a regulated area. Id. §

1926.1101(d)(3) (emphasis added). In other words, there are generally applicable obligations for

all employers of employees that are potentially exposed to asbestos, and there are more specific

obligations for an employer who creates or controls the source of asbestos contamination and

thus requires the establishment of a regulated area.

     Subsection (d)(4) is the first provision to use the term “asbestos contractor”. Specifically,

it states:

     All employers of employees working adjacent to regulated areas established by
     another employer on a multi-employer worksite, shall take steps on a daily basis
     to ascertain the integrity of the enclosure and/or the effectiveness of the control
     method relied on by the primary asbestos contractor to assure that asbestos fibers
     do not migrate to such adjacent areas.

Id. § 1926.1101(d)(4) (emphasis added). By describing the obligations of “all employers of

employees” in relation to the work of the “primary asbestos contractor”, the standard makes clear

that: (1) the “asbestos contractor” is responsible for controlling the migration of asbestos fibers;

and (2) all employers with employees that are potentially exposed to asbestos are responsible for

ensuring that the control methods implemented by the asbestos contractor are effective insofar as

such methods prevent the migration of asbestos fibers into adjacent work areas. Id. When read in

conjunction with sections (d)(1), (d)(2), and (d)(3), there is a clear dichotomy between asbestos

contractors and other employers of employees. There is the contractor who creates or controls

the source of asbestos contamination and who, by virtue of such work, is required to establish a

regulated area and employ a competent person. Id. § 1926.1101(d)(1)–(5). Then, there are all

“other employers”, whose obligations are triggered by their proximity to regulated areas and the

attendant likelihood of asbestos exposure. See id. § 1926.1101(d)(1); see also id. §

                                              15

1926.1101(g)(9) (“Class III asbestos work shall be conducted using . . . controls which minimize

the exposure to employees performing the asbestos work and to bystander employees.”).

    The general contractor has obligations with respect to both groups (it is deemed to

exercise supervisory authority); however, its obligations vis-à-vis the “asbestos contractor” are

more specific and relate to the creation and/or control of asbestos contamination, which requires

the employment of a competent person.

    According to the standard, a competent person is defined as:

    [O]ne who is capable of identifying existing asbestos hazards in the workplace
    and selecting the appropriate control strategy for asbestos exposure, who has the
    authority to take prompt corrective measures to eliminate them, as specified in 29
    CFR 1926.32(f): in addition, for Class I and Class II work who is specially trained
    in a training course which meets the criteria of EPA's Model Accreditation Plan
    (40 CFR 763) for supervisor, or its equivalent and, for Class III and Class IV
    work, who is trained in a manner consistent with EPA requirements for training of
    local education agency maintenance and custodial staff as set forth at 40 CFR
    763.92 (a)(2).

Id. § 1926.1101(b). This provision indicates both the general expectations for a competent

person, as well as the required core competencies of that person based on the class of work being

performed. In addition, section (e), which discusses regulated areas, states that “the employer

shall ensure that all asbestos work performed within regulated areas is supervised by a competent

person.” Id. § 1926.1101(e)(6); see also id. § 1926.1101(d)(1) ([A]n employer performing work

requiring the establishment of a regulated area shall inform other employers on the site . . . .”).

The type of work which is required to be performed in regulated areas is Class I, II, III, or

“where airborne concentrations of asbestos exceed, or there is a reasonable probability they may

exceed a PEL”, which covers certain types of Class IV work. Id. § 1926.1101(e)(1).11

11. Under Complainant’s interpretation there would be no need for these four classifications to exist because any
    contractor working in a building that had asbestos, even though the work they were performing is not asbestos-
    related, would be an “asbestos contractor.” This further convinces the Court that his interpretation is unreasonable
    since it would repeal important distinctions and requirements of the regulation.

                                                    16
    

    The Court is cognizant of Complainant’s motivation to provide the broadest protection

possible; however, the protections afforded by the standard do not require expansion of the term

“asbestos contractor” in order to assure their effectiveness. Subsection (d) as a whole indicates

the manner in which every employer of employees is expected to comply with the asbestos

standard. To the extent that the cited provision already requires the general contractor “to

exercise general supervisory authority over the work covered by this standard”, there is no need

to expand the term “asbestos contractor” to include all contractors, regardless of the actual work

they perform, on a worksite that contains asbestos. 29 C.F.R. § 1926.1101(d)(5). The cited

provision simply makes it clear that even though the general contractor may not employ a

competent person, it is still expected to exercise its “supervisory authority” over those employers

whose work requires one. As noted above, the type of work that requires a competent person is

Class I, II, III, and IV.

    Although the term “asbestos contractor” is not specifically defined in subsection (b), it is

nonetheless given contour by the standard as a whole. Subsection (d) indicates that an asbestos

contractor is a contractor that creates or controls the source of asbestos contamination, which

requires the services of a competent person and, in most cases, the establishment of a regulated

area. The remainder of the standard confirms that if the work you are performing involves the

control or creation of asbestos contamination and requires both the establishment of a regulated

area and the employment of a competent person, then you are engaged in one of the work

classifications established by subsection (g). See generally id. § 1926.1101(g); see also id. §

1926.1101(b) (defining “competent person”). Thus, the Court finds, when the regulation is read

as a whole, the term “asbestos contractor” is not ambiguous, but rather connotes an employer

engaged in Class I, II, III, or IV work as those classes are defined in the regulation. Therefore,

Complainant’s proposed interpretation is not entitled to deference.

                                             17

That Complainant’s proposed interpretation is overly broad does not end the discussion.

Coincident with its proposed interpretation, Complainant contends that the term “asbestos

contractor” applies to Respondent’s work specifically because it was engaged in demolition

operations in an asbestos-contaminated building, which is work covered by the terms of the

standard. See id. § 1926.1101(a)(1). Utilizing the definition of “asbestos contractor” determined

by the Court, the question then becomes: whether the demolition work performed by KIPI

constituted Class I, II, III, or IV work? Based on what follows, the Court finds that Respondent

was engaged in Class I work, which means that the standard applies as alleged by Complainant.

   Based upon the facts presented, the Court finds Respondent was not engaged in either

Class II or Class IV work. Class IV work is custodial in nature and involves contact with, but

not the disturbance of, ACM and PACM. See 29 C.F.R. § 1926.1101(b) (defining “Class IV

asbestos work”). Class II work involves the removal of ACM “which is not thermal system

insulation”. Id. (defining “Class II asbestos work”). Respondent was not merely performing

clean-up or maintenance services, and at least some of the ACM involved was TSI. Thus, if

KIPI is an asbestos contractor as alleged, it is either a Class I or Class III asbestos contractor.

   All of the parties involved in the conversion of the worksite were aware of the scope of

the work performed by KIPI. Harrington, Mengel, and Clark testified that KIPI was hired to

expose, but not disturb, pipes and other utilities that they knew, or at least should have known,

contained asbestos. The demolition work involved the removal of walls, as well as the removal

of ceiling tiles and the suspended structure that holds the tiles in place. The walls ran

perpendicular to some of the asbestos-covered pipes, and the structure holding the ceiling tiles in

place was attached to the solid, structural portion of the ceiling, adjacent to the same pipes. (Ex.

C-7c at 3, C-7b). In some instances, the ceiling was removed by using chain come-alongs

attached to a skidsteer or Bobcat. KIPI was also required to remove debris from the worksite.

                                              18

(Tr. 247–48). At no point were precautions taken to protect against asbestos exposure, save for

warnings that KIPI should avoid hitting the pipes. (Tr. 291, Ex. C-9b).

     The photographs taken by CSHO Catalin and [redacted] illustrate the results of KIPI’s

demolition work: multiple locations where the asbestos surrounding a pipe was damaged and in a

friable condition, and multiple piles of debris that, upon further inspection by NED, were

identified as containing asbestos. (Ex. C-5, C-7). Further, the results of the survey performed by

NED showed that the average of the five air samples taken was more than double the AHERA

clearance standard. (Ex. C-5). The Court concludes that KIPI was engaged in work covered by

the standard—it performed demolition services in a building, known by Respondent to contain

asbestos, and damaged multiple asbestos-insulated pipes in the process.

     According to the standard, “demolition” is defined as “the wrecking or taking out of any

load-supporting structural member and any related razing, removing, or stripping of asbestos.”

Id. § 1926.1101(b). Though there was not explicit testimony on the issue of whether load-

supporting structural members were removed during the process of converting the building, both

parties have characterized KIPI’s work as demolition.12 (J-1 at ¶4). The asbestos that KIPI

damaged during the process was identified as thermal system insulation, or TSI. (Tr. 135, 204;

Ex. C-4).

     The standard defines a Class I asbestos work as “activities involving the removal of TSI

and surfacing ACM and PACM.” Id. “Removal” is further defined as “all operations where

ACM and/or PACM is taken out or stripped from structures or substrates, and includes

demolition operations.” Id. (emphasis added).13 This understanding of demolition as Class I

12. The Court makes note of the definition of demolition to point out that KIPI’s work, to the extent that it did not
    involve the removal of a structural member, could also just as easily be characterized as “renovation”, which the
    asbestos standard defines as “the modifying of any existing structure, or portion thereof”. 29 C.F.R. § 1926.1101(b);
    see also id. (defining “repair”).
13. The preamble expands on this definition: “‘Removal’ means all operations where ACM and/or PACM is
    removed from a building component, regardless of the reason for the removal. It includes those maintenance, repair,

                                                     19
    

    asbestos work is supported by the preamble to the asbestos standard: “Exposures to asbestos in

the construction industry were classified into six activity categories: . . . Demolition—

involving14 asbestos removal prior to the demolition of all or part of a building or industrial

facility that contains asbestos materials. Demolition falls under asbestos work Class I as defined

in the revised standard.” 59 Fed. Reg. at 41,041 (emphasis added); see also id. (discussing

building renovation and remodeling, including the demolition of drywall, as covered by

classification standard).

    The clear import of the foregoing passages is that demolition, whether partial or total, is

characterized as Class I asbestos work. This stands to reason because, as this case illustrates and

the preamble discusses, demolition is a destructive activity. Tearing down walls and removing

structural components in close proximity to asbestos creates a strong likelihood of the creation

of, and exposure to, damaged or friable asbestos. See 29 C.F.R. § 1926.1101(a)(1). In this case,

such exposure occurred as evidenced by the damaged pipe sections photographed by CSHO

Catalin and [redacted] and the air sampling results performed by NED. Subsequently, the

asbestos that was damaged and, in some cases, fell to the ground, was removed from the

worksite by KIPI. Based on the foregoing, the Court finds that KIPI was engaged in Class I

asbestos work. Accordingly, the Court finds that Complainant properly characterized KIPI as an

asbestos contractor.

    Prior to moving on, the Court would like to address the arguments of Respondent

regarding the application of the cited standard. First, Respondent seems to suggest that because

renovation and demolition activities where ACM and/or PACM removal is incidental to the primary reason for the
project, as well as where removal of ACM and/or PACM is the primary reason for the project. Removal should be
distinguished from “disturbance” which includes “cutting away” a small amount of ACM or PACM.” Occupational
Exposure to Asbestos, 59 Fed. Reg. 40,964, 40,978 (August 10, 1994); see also id. at 40,990 (Class I asbestos work
consists of the “removal” of asbestos-containing TSI and surfacing material and of PACM, including demolition
operations involving these materials.”).

14. The Court highlights this word to point out that it appears to be a typo. In the other five “activity categories”
    mentioned in the preamble, all of the subsequent explanations begin with the word “including” to indicate that the
    explanation that follows the activity category is an example of that type of activity. See 59 Fed. Reg. at 41,041.

                                                     20
    

    Complainant failed to introduce evidence that indicated KIPI was a certified asbestos contractor,

the Court cannot find that KIPI was an asbestos contractor. Resp’t Br. at 9. Whether KIPI was a

certified asbestos contractor has no bearing on whether Respondent had a responsibility, as

general contractor, to ensure that KIPI was complying with the requirements of the asbestos

standard. The determining factor is the type of work that KIPI was performing, not the manner in

which the parties characterized its work pursuant to this particular building contract. See, e.g.,

GEM, Inc., 22 BNA OSHC 1843 (No. 1924, 2009) (ALJ Spies) (“[C]ontract designations are

private agreements; their terms are not controlling.”). As the Court concluded above, KIPI

performed demolition operations in a building contaminated with asbestos, which the standard

characterizes as Class I asbestos work. In order to perform Class I asbestos work, KIPI is

required to have a competent person certified pursuant to 40 C.F.R. § 763. Regardless of

whether KIPI was certified, however, it was incumbent upon Respondent to ensure that KIPI

adhered to the requirements for Class I asbestos work.15 See 29 C.F.R. § 1926.1101(d)(5).

    Second, there is nothing in the Act to suggest that the “asbestos contractor” be a singular

entity, as Respondent seems to argue. Clearly, Celtic was an asbestos contractor; however, as the

tier system suggests, different entities, depending on the type of work they are performing, could

conceivably be asbestos contractors. See generally 29 C.F.R. § 1926.1101(g). Further, the use

of the term “primary asbestos contractor” contemplates that more than one asbestos contractor

may be on site at any given time. See id. § 1926.1101(d)(4). For example, in an interpretation

letter issued by Complainant, the Director of Enforcement Programs stated that “if you use a

separate crew of workers for doing final cleanup at the demolition site, the standard’s training

requirements for performing Class IV asbestos work apply for those workers.” Richard E.

Fairfax, “Application of Asbestos Standard to Demolition of Buildings with ACM in Place”

15. Ensuring that KIPI had a properly certified competent person would have been one of those requirements.

                                                   21
    

    (August 26, 2002).16 Again, as noted above, the Court is not bound by the terminology used in

the various contracts entered into by the parties—while Celtic may have been an asbestos

contractor, there is nothing in the standard to prevent KIPI from also being an asbestos

contractor.

    Finally, Respondent appears to suggest that it should not be held responsible for the acts

of the asbestos contractor because Mengel contracted separately with Celtic. Regardless of

whether Respondent was a party to the environmental remediation contract with Celtic, the

standard nonetheless imposes a duty upon Respondent to ensure that asbestos contractors comply

with the terms of the standard. See Central of Georgia R. Co. v. OSHRC, 576 F.2d 620, 624 (5th

Cir., 1978 (“[A]n employer may not contract out of its statutory responsibilities under OSHA.”).

Even assuming that Respondent did not have a duty to ensure Celtic’s compliance, it still had a

duty to ensure that KIPI complied with the terms of the asbestos standard.

    Though Complainant’s proposed expansion of the term “asbestos contractor” is unduly

broad, the foregoing discussion illustrates that, in this case, such an expansion is unnecessary.

The work of KIPI, regardless of how it may have been characterized by Respondent, Mengel, or

Smrz, was the type of work that the asbestos standard categorizes as the work of an asbestos

contractor. Regardless of whether KIPI was a certified asbestos contractor (there is no evidence

of this either way), it was performing a job that required such certification. There is no need to

expand (d)(5)’s application to contractors whose employees may be exposed to, but do not

directly work with, asbestos. See generally 29 C.F.R. § 1926.1101(d). Those employers are

already under the umbrella of a general contractor’s “supervisory authority”. A plain reading of

the standard as a whole makes it clear that KIPI was performing the work of an asbestos

16. That same interpretation letter also discussed the application of the proper asbestos standard in the context of
    building demolition without first removing ACM. See Fairfax, supra. According to that interpretation, “Demolition
    of a building with ACM left in place falls under the definition of removal of installed ACM. . . . If any asbestos-
    containing thermal system insulation or surfacing material is left installed in the building, then the work being
    performed is Class I asbestos work.” Id.

                                                    22
    

    contractor and that Respondent, as general contractor, had an obligation to ensure that KIPI

complied with applicable provisions of the standard “even though [Respondent] is not qualified

to serve as the asbestos ‘competent person’”. Id.

              ii.    The Terms of the Standard Were Violated

   Respondent failed to ensure KIPI’s compliance with the asbestos standard. There is

nothing in the photographs, testimony, or documentary evidence to suggest that KIPI

implemented even the most basic asbestos control measures during the eight documented days of

work between the start of the job and the inspection by CSHO Catalin. Respondent was

represented on the worksite every day by [redacted], who observed KIPI’s work and filled out

the daily reports. (Tr. 39; Ex. C-8). Respondent was aware that KIPI was hired to perform

demolition, but only to the extent that it exposed asbestos-laden pipe. Nevertheless, having been

informed of the asbestos content of the building, Respondent did not ascertain whether KIPI was

in compliance with the asbestos standard (it was not) and did not require KIPI to “come into

compliance” when it was apparent that such precautions were necessary. Accordingly, the Court

finds Respondent violated the terms of the standard.

              iii.   Respondent Knew or, with the Exercise of Reasonable Diligence,
                     Could Have Known of the Violative Condition

   “To establish knowledge, Complainant must prove that the employer knew or, with the

exercise of reasonable diligence, should have known of the conditions constituting the violation.”

Jacobs Field Svcs. N.A., 2015 WL 1022393 at * 3 (No. 10-2659, 2015) (citing Contour Erection

& Sliding Sys., Inc., 22 BNA OSHC 1072, 1073 (No. 06-0792, 2007)). To determine reasonable

diligence, the Court considers several factors, including “an employer’s obligation to inspect the

work area, anticipate hazards, take measures to prevent violations from occurring, adequately

supervise employees, and implement adequate work rules and training programs.” Id. (citations

omitted); see also N&N Contractors, Inc., 18 BNA OSHC 2121 (No. 96-0606, 2000).

                                           23

“The actual or constructive knowledge of an employer’s foreman can be imputed to the

employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82–928, 1986).

“An employee who has been delegated authority over other employees, even if only temporarily,

is considered to be a supervisor for the purposes of imputing knowledge to an employer.” Paul

Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379, 1381–82 (No. 76–4271, 1981). It is the

substance of the delegation of authority, not the formal title of the employee having such

authority, that determines whether a person is properly characterized as a supervisor. Dover

Elevator Co., 16 BNA OSHC 1281 (No. 91-862, 1993). See Diamond Installations, 21 BNA

OSHC 1688 (No. 02-2080, 2066) (permitting imputation of knowledge to employer based on

temporary delegation of authority). The Commission has also held that an individual empowered

to take corrective action, or is responsible for ensuring that work is done safely, can be

considered a supervisor for the purposes of imputing knowledge to the employer. See Rawson

Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003); Kern Bros. Tree Svc., 18

BNA OSHC 2064 (No. 96-1719, 2000).

   Although Respondent made multiple attempts to disclaim knowledge of asbestos

contamination at the worksite, there are ample counterexamples throughout the record: (1)

Harrington walked the worksite with Mengel to discuss the scope of the project, during which

time Mengel informed Harrington about the presence of asbestos and that he was hiring an

outside contractor for environmental remediation; (2) Respondent’s Project Manager, Matt

Clark, did a walkthrough of the worksite with Ed Boomsma, who identified ACM in the building

and provided Mengel with a quote for remediation services; (3) Respondent directed KIPI to

remove the drop ceiling, but to avoid hitting the asbestos-laden pipes that rested above it; and (4)

two days after the walkthrough with Boomsma, Respondent participated in another walkthrough

with Dave Smrz from Celtic, who specifically directed Respondent to expose the affected areas,

                                            24

but not to go any further. (Tr. 223–29). Thus, through Harrington and Clark, Respondent had

actual knowledge of the presence of asbestos throughout the worksite. Since both Clark and

Harrington are members of management, the Court finds that their knowledge is properly

imputable to Respondent.

    For the sake of argument, however, if we assume that Respondent was somehow unaware

of the presence of asbestos at the worksite, the Court would still find that Respondent had

constructive knowledge of both the presence of asbestos and its attendant duty to ensure KIPI

complied with the standard. Harrington testified that approximately 15% of the conversions that

Respondent performs involve the entire process, including environmental remediation. (Tr. 216).

Respondent’s experience in this area means that it is familiar with the rules regarding “presumed

asbestos containing material” or PACM. According to the standard, any TSI or surfacing

material found in buildings constructed prior to 198017 will be presumed to contain asbestos

unless “rebutted pursuant to paragraph (k)(5) of this section.” 29 C.F.R. § 1926.1101(b). As the

evidence shows, there was nothing to rebut the presence of asbestos; rather, the observations of

environmental remediation experts and subsequent analysis of the materials confirmed the

presence of asbestos in the areas indicated by Boomsma and Smrz. Thus, it was incumbent upon

Respondent to presume that the material on the pipes was asbestos-containing.

    Under this set of facts, the Court finds that Respondent failed to exercise reasonable

diligence in both identifying and responding to a known hazard. Harrington testified that he

relied on the representations of Mengel as to the nature and extent of the asbestos hazard,

notwithstanding that: (1) it was directly aware of the extent of the asbestos contamination

through the various walkthroughs that Respondent’s representatives participated in during the

initial stages of the job; and (2) Respondent should have operated under the assumption that

17. Testimony established that Respondent was aware the building was constructed prior to 1980. (Tr. 277–278).

                                                   25
    

    asbestos was located throughout the building based on its age and the materials present

throughout. Even though Respondent has performed (or contracted for) asbestos remediation

services during these self-storage conversion projects, and even though Respondent knew that

asbestos hazards were present, no additional measures were taken. Even if the Court were to

accept (which it does not) that Respondent did not actually know that there was a hazard, then

these facts illustrate that Respondent should have. Whether it was the age of the building and the

built-in presumption regarding the asbestos content of certain building materials or the fact that

the scope of work was explicitly described as demolition without disturbing asbestos,

Respondent cannot credibly disclaim knowledge of violative conditions. Accordingly, the Court

finds Respondent had both actual and constructive knowledge of both the extent and nature of

the asbestos contamination.

               iv.    Respondent’s Employees Were Exposed to the Hazard

      The Commission does not require definitive proof of actual exposure to the hazard;

rather, the question is whether employees have access to the hazard. Gilles & Cotting, Inc., 3

BNA OSHC 2002 (No. 504, 1976). Access to a hazardous condition exists “if there is a

‘reasonable predictability’ that employees ‘will be, are, or have been in’ the ‘zone of danger.’”

Kokosing, 17 BNA OSHC 1869 (citing Capform, Inc., 16 BNA OSHC 2040 (No. 91-1613,

1994)).

      “[A]n employer who either creates or controls the cited hazard has a duty under § 5(a)(2)

of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other

employers ‘engaged in the common undertaking.’” McDevitt Street Bovis, 19 BNA OSHC 1108

(97-1918, 2000) (quoting Anning-Johnson, 4 BNA OSHC 1193, 1199 (No. 3694, 1976)). “An

employer may be held responsible for the violations of other employers ‘where it could

reasonably be expected to prevent or detect and abate the violations due to its supervisory

                                             26

authority and control over the worksite.”’ Summit Contractors, Inc., 23 BNA OSHC 1196 (No.

05-0839, 2010) (quoting McDevitt at 1109). According to the cited standard, Respondent (as

general contractor) is “deemed to exercise general supervisory authority over the work covered

by this standard . . . .” 29 C.F.R. § 1926.1101(d)(5).

   KIPI was hired to perform demolition throughout the entire worksite. As a condition of

Celtic’s contract with Mengel, it was understood that KIPI was hired to expose, but not remove,

asbestos. According to multiple sources, the building had roughly 2500 linear feet of asbestos-

lined pipe. During the course of the demolition process, pipe insulation was damaged, hanging

from the ceiling, and ultimately observed in debris piles on the floor of the building.

Additionally, subsequent air testing revealed an airborne asbestos concentration more than

double the accepted clearance rate. (Ex. C-5).

   The damaged insulation, coupled with the aforementioned test results, show that KIPI

employees were exposed to asbestos contamination during the demolition process. According to

the cited standard, Respondent is deemed to exercise general supervisory authority over the

worksite and, as such, “could be reasonably expected to prevent or detect and abate violations

due to its supervisory authority and control . . . .” McDevitt, 19 BNA OSHC at 1109. Based on

that authority and control, Respondent is obligated “to protect not only its own employees, but

those of other employers ‘engaged in the common undertaking.’” See id., supra. Respondent and

KIPI were engaged in the common undertaking of preparing the worksite for environmental

remediation and, eventually, conversion to a self-storage facility. Thus, the Court finds that

Respondent was obligated to supervise and protect KIPI’s employees as if those employees were

its own. In addition, Respondent’s worksite superintendent, [redacted], was present at the

worksite every day, supervising KIPI’s work, which means he was also exposed to the

                                             27

contamination caused by KIPI’s demolition activities. (Tr. 262). Accordingly, the Court finds

that Respondent’s employees were exposed to the hazard.

               v.   The Violation was Serious

   A violation is classified as serious under the Act if “there is substantial probability that

death or serious physical harm could result.” 29 U.S.C. § 666(k). Commission precedent

requires a finding that “a serious injury is the likely result if an accident does occur.” Mosser

Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation omitted); see Omaha

Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 784 (8th Cir. 2002). Complainant does not

need to show there was a substantial probability that an accident would occur; he need only show

that if an accident did occur, serious physical harm could result. See Trinity Industries, Inc., 504

F.3d 397, 401 (3d Cir. 2007).

   In Trinity Industries, a foundry owner hired a contractor to perform work on a furnace.

Id. at 399. During the course of the work, an employee of the contractor identified an insulation

blanket that was later determined to contain 5% amosite asbestos. Id. Trinity was cited for

failing to determine the location and quantity of asbestos and failing to notify the contractor

regarding the same. Id. The Administrative Law Judge determined that the violations were not

serious because the Secretary failed to meet her burden of showing “any significant exposure to

asbestos”. Id. The Commission did not direct the case for review. On appeal, the Third Circuit

Court of Appeals reversed. The Third Circuit held:

   [T]he question is whether, as a result of the failure to test and notify, it was
   possible that an accident could occur in which it was substantially probable that
   death or serious physical harm would result. See, e.g., Phelps Dodge Corp., 725
   F.2d at 1240; Secretary of Labor v. Miniature Nut & Screw Corp., 17 BNA
   OSHC 1557 (O.S.H.R.C.1996); Secretary of Labor v. Dec–Tam Corp., 15 BNA
   OSHC 2072 (O.S.H.R.C.1993). Given that the violations made it possible that
   workers could unwittingly stumble into large amounts of asbestos without
   adequate protection, there was no need to show that Pli–Brico employees suffered
   any actual exposure to asbestos, much less the “significant exposure” that the ALJ
   required, in order for the Secretary to show that a serious injury could result.

                                            28

Given the “detrimental health effects” that can result from exposure, 51 Fed.Reg.
22,612, 22,615 (June 20, 1986), the failure to test for asbestos in those situations
in which it is presumed to be present (and, given the failure to test, the
concomitant failure to communicate the results of any tests) is unquestionably a
“serious” violation.

Id. at 401.

    The facts presented in this case are not substantially different. Respondent’s failure to

adequately supervise KIPI made it possible for those employees to be exposed to asbestos during

demolition operations. This is only exacerbated by the fact that Respondent was expressly told

that the purpose for conducting the demolition was to expose asbestos-covered pipes for

subsequent environmental remediation. Respondent’s failure to ensure that KIPI complied with

the appropriate standards exposed both KIPI’s employees and other contractor employees to

asbestos, which was confirmed by the airborne testing conducted by NED. The Court sees no

reason to depart from the holding of the Third Circuit, which held that exposure to asbestos can

cause serious health problems. See id. (Tr. 108). Accordingly, the Court finds the violation was

properly characterized as serious.

    At bottom, Respondent abdicated its duty to ensure asbestos contractors, such as KIPI,

complied with applicable regulations. Irrespective of how the various contracts were structured,

the cited standard is clear that, as general contractor, Respondent had an obligation to ensure

KIPI’s compliance with the asbestos standard. Subsection (d) illustrates the different types of

exposure that may occur on a construction site and the respective obligations of each employer.

As the general supervisory authority on the worksite, Respondent was expected to ensure that

asbestos contractors complied with the terms of the standard, not only for the protection of KIPI,

but for every other employee on the worksite that may be incidentally exposed to improperly

contained asbestos. Respondent failed to comply with that obligation. Thus, the Court finds that

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Complainant established that Respondent violated 29 C.F.R. § 1926.1101(d)(5), and that the

violation was serious. Accordingly, Citation 1, Item 1 shall be AFFIRMED.

VI. Penalty

     In determining the appropriate penalty for affirmed violations, section 17(j) of the Act

requires the Commission to give due consideration to four criteria: (1) the size of the employer’s

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the

employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration

and is determined by the number of employees exposed, the duration of the exposure, the

precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,

15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and

its judges conduct de novo penalty determinations and have full discretion to assess penalties

based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel

Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138

(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).

     Complainant has proposed a penalty of $2,200. The proposed penalty is based on the

following: (1) a reduction of 60% due to Respondent having fewer than 25 employees; (2) an

increase of 10% based on Respondent’s violation history; (3) a determination that the potential

injuries were of high severity; and (4) that the probability of injury was lesser, due to the

uncertainty regarding the length or location of exposure. (Tr. 108–110). Although the airborne

exposure survey performed by NED seems to indicate regular and pervasive exposure to asbestos

at the worksite, the Court does not see any compelling reason to depart from Complainant’s

assessment. Accordingly, a penalty of $2,200 shall be ASSESSED.

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ORDER

   The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED, and a penalty of $2,200.00 is ASSESSED.

SO ORDERED.

                                                /s/ Patrick B. Augustine
                                              Patrick B. Augustine

Date: July 22, 2016 Judge, OSHRC
Denver, Colorado

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