DEC-TAM Corporation
Asbestos violations and penalties modified
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA inspected DEC-TAM Corporation's asbestos-removal work aboard a ferry in Newport, Rhode Island. The Commission reviewed several findings involving delayed production of exposure records, exposure monitoring, regulated-area controls, respirators, protective clothing, and employee notification. 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 also modified the classification of the regulated-area violation to other-than-serious and affirmed serious violations involving full-shift and additional monitoring and respirator selection. It retained findings concerning protective clothing and employee notification while recalculating combined penalties. The final assessed amounts included $1,000 for the delayed-records violation, $1,000 combined for two monitoring violations, $500 for the regulated-area violation, $50 for respirator selection, and $200 combined for protective-clothing and notification violations. 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
..
SECRETARY OF LABOR, ..
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Complainant, 1
9
.
..
v. OSHRC Docket No. 88423
0
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DEC-TAM CORPORATION, ..
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Respondent. :
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DECISION m
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.
3
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.
4
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 .
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 .
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.
.
6
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
,
8
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.
10
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
.
11
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 -
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.”
12
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
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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.
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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
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