American Asbestos Control Co.

Plain-English summary

American Asbestos Control removed insulation from an aluminizing pot without a negative-pressure enclosure or a connected decontamination area. A nearby bulk sample contained 70 percent asbestos, although the contractor's air samples were well below the permissible exposure limit. The ALJ held that asbestos-removal work required the enclosure and decontamination protections unless an applicable exception or feasibility defense was established, and he rejected the contractor's defenses. He reclassified the two alleged willful violations as serious and assessed $1,000 for each. During Commission review, the Secretary withdrew the citations. With no matters remaining, the Commission dismissed the case.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.58(b), 1926.58(e)(1), 1926.58(e)(2), 1926.58(e)(6), 1926.58(e)(6)(i), 1926.58(e)(6)(iv), 1926.58(j)(2)(i), 1910.1001(e), and 1904.5(b)
• Outcome: The asbestos-removal citations were withdrawn and vacated, eliminating the two $1,000 penalties under review.
• Key point: The Secretary's withdrawal during Commission review removed the ALJ's affirmed asbestos-enclosure and decontamination items from the final disposition.

Full text (OSHRC public release)

Docket No. 88-2268

SECRETARY OF LABOR,

Complainant,

v.

AMERICAN ASBESTOS CONTROL CO.,

Respondent.

OSHRC Docket No. 88-2268

ORDER

The Occupational Safety and Health Review Commission, having
received the Secretary's Notice to Withdraw Citations, dated September 7, 1990 and having
concluded that no further matters remain before the Commission requiring further
consideration by the Commission, hereby orders the captioned action dismissed.

Edwin G.Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: September 25, 1990

SECRETARY OF LABOR,

Complainant,

v.

AMERICAN ASBESTOS CONTROL CO.,

Respondent.

OSHRC Docket No. 88-2268

APPEARANCES:

Bruce C. Heslop, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland,
Ohio, on behalf of complainant

Robert W. Thomson, Esquire, Pittsburgh, Pennsylvania, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge:

The respondent, American Asbestos Control Co. ("AACC"), is a Pennsylvania
corporation engaged in asbestos removal and abatement operations in a multi-state area.
The company is a "certified abatement contractor", and its employees are
licensed to perform asbestos removal and abatement in the various states where AACC
operates (Tr. 73-74). The company engages approximately 120 employees in its operations
(Tr. 193).

Armco is a large steel manufacturer with a plant located in
Middletown, Ohio, where it produces a variety of products for use in the auto industry. On
August 11, 1988, Mr. Patsy Izzo, together with Mr. Robert Wilson, were sent by AACC to the
Armco plant to remove certain material from the inside of a large aluminizing pot (pot
"A") located in an area designated as "Door 661." At the time in
question, pot "A" had been taken out of service, was partially dismantled, and
consisted of a frame on a base supporting a number of vertical "yokes" (Exs.
C-2, C-6). Izzo and Wilson were instructed by an Armco foreman to remove insulation
believed to contain asbestos from the inside of the yokes.

Before the work began, Izzo took samples of the ambient air in
the vicinity of pot A. These samples were later analyzed by AGX, Inc., an independent
testing laboratory, and found to contain fibers at a concentration of .003 fibers per
cubic centimeter (Tr. 222-223, 232; Ex. R-4). Both Izzo, and Wilson wore appropriate
protective clothing and respirators at all times while they worked in the pot removing
insulation (Tr. 18-19, 40, 192). While performing the work inside the pot, Wilson wore a
personal air sampling monitor to measure the amount of airborne fibers during the period
the work was performed (Tr. 224). These samples were also submitted to AGX, Inc., after
the work was completed, and the results reflect a concentration of asbestos fibers in the
.003 to .004 range (Tr. 224-227; Ex. R- 4).

Izzo and Wilson began working inside pot A around 9:00 a.m. The
work consisted of pulling material off the yokes by hand, putting this material into
plastic bags, and then removing the bags by lifting them out the top of the pot by rope
(Tr. 20-21, 24). Izzo described the material removed from the yokes as
"boardlike," resembling a plywood sheet, and testified it broke easily in his
hand (Tr. 22-23, 28, 243). About 20 bags of this material were removed during the course
of the day (Tr. 25). While working in the pot, Izzo observed employees of Armco working in
the area just outside the pot. One of these employees, William Sparks, who was working in
the area along with other Armco employees, observed the removal operation from a vantage
point about three to four feet away and described the conditions around the pot as
"very dusty" (Tr. 54-55). Sparks also noted Armco employees had placed a fan at
the bottom of the pot blowing air from the outside into and through the pot (Tr. 69-70).
None of the Armco employees working in the area were wearing respirators or protective
clothing (Tr. 56). After removing the bags containing the material pulled from the yokes,
Izzo and Wilson used a vacuum to remove any remaining particles of this material from the
floor of the pot (Tr. 22). The removal operation was concluded about 3:00 p.m.

In response to a complaint received concerning the above
described procedure, William Wilkerson, an industrial hygienist employed by the
Occupational Safety and Health Administration, conducted an inspection of the removal site
(Tr. 83). After an initial meeting with Armco officials, Wilkerson proceeded to the area
in question about 2:45 p.m. and observed Izzo and Wilson walking out of Door 661 (Tr. 83).
Wilkerson interviewed both Izzo and Wilson, determined from them the general nature of the
work they had performed, and then proceeded to inspect the removal site and sketch out a
diagram of the area (Tr. 85; Ex. C-6). He took a series of photographs which are contained
in the record as Exhibits C-1 through C-5 (Tr. 88). Wilkerson also took a "bulk
sample" from the "square base of the pot outside of the framework which
contained the yokes. . . at most a foot and a half away from the yokes" (Tr. 96). He
described this sample as "a white boardlike material. . . triangular in shape, about
an eighth of an inch thick" (Tr. 97). The sample was placed in a vial, sealed, marked
and shipped to the OSHA laboratory in Salt Lake City, Utah, for analysis (Tr. 98-99). The
results of the tests conducted on this sample (bulk sample #4) reflect an asbestos content
of 70 percent (Tr. 99; Exs. C-9, C-10).

As a result of Wilkerson's inspection, AACC was issued a
willful citation [[1]] as follows:

29 CFR 1926.58(e)(6)(i): The employer did not establish
negative pressure enclosures where feasible, before commencing removal, demolition and
renovation operations:

(a) On August 11, 1988, employees [ sic ] removed asbestos containing material from
the interior of pot A at door 661 at Armco, Inc.'s Middletown Works and a negative
pressure enclosure was not constructed around the removal operation.

29 CFR 1926.58(j)(2)(i): The employer did not establish a
decontamination area consisting of an equipment room, shower area and clean room in
series, that is adjacent and connected to the regulated area for the decontamination of
employees contaminated with asbestos:

(a) On August 11, 1988 at Armco, Inc.'s Middletown Works,
employees removed asbestos containing material from the interior of aluminizing pot A,
door 661 and were not provided with appropriate decontamination facilities.

It is undisputed in the record that AACC did not install a
negative pressure enclosure nor a decontamination area at the site in question. However,
AACC raises the following arguments in support of its position that such safeguards were
not required:

1. There is no evidence that respondent handled
   asbestos-containing material.

2. The area in question was not a "regulated area"
   requiring the use of negative pressure enclosures and decontamination facilities.

3. The installation of negative pressure enclosures and
   decontamination facilities was not feasible under the circumstances of this case.

4. The work performed by AACC falls within the "small
   scale short duration exemption" provided in the pertinent regulation.

Respondent's first argument is considered specious. It is incredulous that respondent, an
asbestos removal specialist, would be called in by Armco to remove a totally neutral
substance. Indeed, Mr. Barry Krieder, respondent's vice-president and former operations
manager, admitted under cross-examination that the principal activity performed at the
Armco plant was "insulation removal," a process in which you would reasonably
expect to "encounter asbestos" (Tr. 221).

The primary thrust of this argument is that the sample taken at
the site by Wilkerson (bulk sample #4, which was later determined to contain 70 percent
asbestos), was not representative of the material removed from inside the pot. Wilkerson
is an industrial hygienist with 14 years' experience and extensive training in his field
(Tr. 81). The sample he selected was taken from the base of the pot in the area depicted
in Exhibit C-3 and was "at most a foot and a half away from the yokes
themselves" (Tr. 96). Prior to selecting the sample, he had obtained from Izzo and
Wilson a description of the material removed, and the sample fit the description (Tr. 97).
Wilkerson did not obtain a sample from the bagged material pulled from the yokes because
this material had already been removed from the site. His method of selecting the bulk
sample was reasonable under the circumstances of this case, and respondent's argument that
the material removed from the yokes contained no asbestos is rejected.

Respondent's remaining arguments are based upon its interpretations of the involved
standards differing significantly from that of the Secretary. The first point of departure
relates to the term "regulated area," which is defined at 29 C.F.R. �
1926.58(b) to mean:

". . . [a]n area established by the employer to demarcate
areas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or
a combination of these minerals exceed or can reasonably be expected to exceed the
permissible exposure limit."

Respondent asserts the facts of this case support a conclusion
that the airborne concentration of asbestos fibers did not exceed the permissible exposure
limit of 0.2 fiber per cubic centimeter of air nor could it have been reasonably expected
to exceed such limit. The Secretary does not challenge the results obtained in the air
sampling performed by respondent during the removal procedures at "pot A" which
reflect a range (.003 to .004 fibers per cubic centimeter) well below the PEL.
Accordingly, respondent urges that the Secretary can prevail on this issue only if the
record establishes that it was reasonable to expect the PEL would be exceeded during the
course of the removal procedures. Respondent relies upon a subjective determination made
by Izzo prior to beginning the work that the removal operation would not produce a
concentration of asbestos fibers in excess of the PEL. In this regard, Izzo testified that
the "boardlike substance (to be removed) was already hanging from the yoke, and when
you touch it, you can see that nothing was coming off of it; nothing friable was coming
off." He further testified that since he considered the material was not
"friable", he did not believe the removal operation would generate much dust
and, therefore, the PEL would not be exceeded (Tr. 39-40). Since Izzo is experienced in
asbestos removal, respondent urges that his determination satisfied the "reasonable
expectations" provisions contained in the foregoing definition of "regulated
area" and relieved respondent of any requirement for installing an enclosure or
decontamination area.

The Secretary takes a decidedly different position in the case
based primarily upon OSHA Instruction CPL 2-2.40 issued by the Assistant Secretary of
Labor for Occupational Safety and Health (Ex. C-8). The pertinent part of this instruction
reads as follows:

3. Regulated Areas. Paragraph 29 CFR 1926.58(e)(1)
   requires employers to establish regulated areas where airborne concentrations of asbestos,
   tremolite, anthophyllite, actinolite or a combination of these minerals exceed or can be
   expected to exceed the PEL. Paragraph 29 CFR 1910.1001(e) of the General Industry Standard
   requires the same.

a. The construction standard describes two distinctly different
types of regulated areas which must be established based on the type of work being
performed. Employers performing general construction operations, such as the cutting of
asbestos-cement sheets, the lathing of asbestos-cement pipes or the removal of
asbestos-containing floor tiles, are required to establish regulated areas in accordance
with 29 CFR 1926.58(e)(1) and demarcated in accordance with 29 CFR 1926.58(e)(2).

b. 29 CFR 1926.58(e)(6) requires employers performing asbestos removal, demolition, and
renovation operations to establish negative-pressure enclosures before starting their
work, wherever feasible.

Under this interpretation, the Secretary urges that the work
performed by respondent's employees was asbestos removal which brings respondent within
the ambit of � 1926.58(e)(6) and requires the installation of a negative-pressure
enclosure before beginning the removal process unless such installation is not feasible.
In support of her position, the Secretary refers to the preamble to the revised asbestos
standard for the construction industry (51 Federal Register 22705, et seq.,
June 20, 1986), which sets forth increasingly stringent requirements for those operations
found to be associated with the highest levels of asbestos exposure:

As the record demonstrates, employees engaged in asbestos
removal, demolition, and renovation operations generally have the highest asbestos
exposures of all construction workers (51 Fed. Reg. 22706).

The Secretary further notes � 1926.58(e) provides for two
types of regulated areas requirements explained in the preamble as follows:

The definition of "regulated area" in the revised
asbestos standard covers two types of regulated areas; the negative-pressure enclosures
mandated in paragraph (e)(6) for major asbestos abatement operations, and the restricted
access required wherever airborne asbestos concentrations exceed the PEL. The fact that
the revised standard contains requirements for two types of regulated areas reflects both
the wide differences in construction worksites and OSHA's approach in this standard to
dealing with this wide range in exposure conditions. . . . The negative pressure enclosure
that constitutes the second type of regulated area defined and required by the revised
rule (paragraph (e) (6)) is intended to provide employees engaged in the most hazardous
asbestos operations - asbestos abatement projects - with the greatest possible amount of
protection, and also to protect members of the public and other workers on site who are
not directly involved in the abatement project from bystander exposure to asbestos. (51 Fed.
Reg. 22707-22708).

The law is clear that the Secretary's interpretations of
Department of Labor regulations are controlling unless unreasonable. United
Steelworkers v. Schuylkill Metals, 828 F.2d 314 (5th Cir. 1987); Usery Hermitage
Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978). It is concluded that the Secretary's
interpretation of the requirements under � 1926.58(e) is reasonable and consistent with
both the language of the regulations and the overall purpose of the Act.

To allow an employer engaged in asbestos removal to forego the
installation of negative-pressure enclosures and decontamination areas based upon pure
speculation that the PEL will not be exceeded would nullify the preventive purposes of the
Act. Even though the test results in this case established, after the fact, that the PEL
was not exceeded, each asbestos removal site presents its own particular circumstances and
there appears to be no reliable method to determine in advance whether a removal operation
will or will not produce fibers in excess of the PEL (Tr. 164-167). To apply the
regulations as respondent urges would, as the Secretary suggests, be "akin to playing
Russian roulette" and place at risk the health of asbestos workers and other persons
in the area, in the event of a miscalculation.

Having determined that asbestos removal operations are
controlled by � 1926.58(e)(6) of the regulations, as those regulations are interpreted by
the Secretary, it is now necessary to consider whether the installation of
negative-pressure enclosures was "feasible"[[2]] as that term is used in the
regulations. CPL 2-2.40 (Ex. C-8) recites the following:

Negative pressure enclosures are considered to be feasible in
all situations, except where space limitations prohibit the construction of the enclosure,
or where the erection of a negative-pressure enclosure would create a greater hazard
(e.g., toxic gases present in area). (At page 7)

The Secretary relies upon the testimony of Industrial Hygienist
Wilkerson to support her position that the installation of a negative-pressure enclosure
was feasible in this case. Wilkerson testified the enclosure could have been constructed
using two by four lumber, six- mil plastic sheeting, and a filtering system as described
in Appendix F of � 1926.58 (Tr. 106, 111). The framework of the pot and yokes could have
been utilized to support the enclosure (Tr. 106-108, 136). It was his opinion that a
decontamination area, including a portable shower, could have been located in the pit
opposite the location of pot B (Tr. 117-119, 138; see also Ex. C-6). Any special
limitations imposed by the configuration of the area could have been eliminated by moving
pot A since it could be moved on a track to various locations (Tr. 15, 116).[[3]]

Respondent's evidence consisted of the testimony of Izzo and
Mr. Barry Krieder, respondent's current vice-president and former operations manager (Tr.
190). Izzo considered it "impractical" to install an enclosure (Tr. 40) and gave
the opinion that there was no appropriate location to install a decontamination chamber
(Tr. 41) but conceded the construction of a negative-pressure enclosure was "a
possibility" (Tr. 42). Krieder visited the site in question the day before the
hearing, took photographs (Exs. R-2, R-3), and prepared a sketch of the area (Ex. R-1).
Based upon his observations, Krieder concluded the construction of an enclosure and decon
chamber was "unfeasible" (Tr. 196) because (1) the location of the pot at the
time of the removal operation did not permit the fitting of the poly-sheeting between the
outer sides of the yokes and the walls of the pit (Tr. 199, 201-202), and (2) enclosing
the pot would require employees to remove the stripped insulation from the top of the pot
while standing on its narrow rim, thereby creating a falling hazard to these employees
(greater hazard) (Tr. 197, 200-202). Krieder also testified that constructing the
enclosure and decon chamber would be a time-consuming and expensive undertaking
turning" a very small job into a major project" (Tr. 204).

Respondent's argument that the position of the pot at the time
of the removal operation prevented the installation of an enclosure overlooks the fact
that the pot was movable (Tr. 220-221) and could have been placed in a location which
would have afforded sufficient space to construct both the enclosure and the decon chamber
outlined in Appendix F, and as described in the testimony of Wilkerson. The argument that
the use of an enclosure would expose respondent's employees to a falling hazard while
standing on the rim removing material from inside the pot is unconvincing since any hazard
created by moving the pot away from the walls of the pit could be compensated for by
installing temporary railings to protect against falls (Tr. 215).

Respondent's argument that construction of an enclosure and
decon chamber would be difficult, expensive and time-consuming does not warrant a
conclusion that this factor makes compliance with the standard infeasible. In American
Textile Mfg. Institute, Inc. v. Donovan, 101 S. Ct. 2478 (1981), representatives of
the cotton industry challenged the validity of the cotton dust standard on
"feasible" grounds. In that case, the Supreme Court held the plain meaning of
the word "feasible" in a standard dealing with toxic or harmful physical agents
is "capable of being done" ( Id. at 2490). The court further held that a
cost-benefit analysis is valid only if the "benefit" of the worker's health is
placed above all other considerations save those making attainment of this
"benefit" unachievable. See also Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA
OSHC 1028, 1983 CCH OSHD � 26,353 (No. 16118, 1982); Harmony Blue granite Co., 83
OSAHRC 14/A2, 11 BNA OSHC 1277, 1983-84 CCH OSHD � 26,467 (No. 14189, 1983); Ace
Sheeting and Repair v. OSHRC, 555 F.2d 439 (5th Cir. 1977); Bratton Furniture
Manufacturing Co., 83 OSAHRC 30/A2, 11 BNA OSHC 1433, 1983 CCH OSHD � 26,538 (No.
81-799, 1983). In this case, respondent did not establish that the installation of the
required facilities was unachievable or impossible. At most, respondent's evidence shows
only that implementing the procedures required by the standard would be time-consuming and
costly. These factors, when balanced against the health of employees, cannot serve to
excuse respondent from compliance with the mandate of the standard.

Finally, respondent urges that its operation at this particular
work site falls within the exception provided in � 1926.58(e)(6)(iv) as follows:

(iv) Exception: For small-scale, short-duration
operations, such as pipe repair, valve replacement, installing electrical conduits,
installing or removing drywall, roofing, and other general building maintenance or
renovation, the employer is not required to comply with the requirements of paragraph (e)
of this section.

Both the preamble and Appendix G of the standard define the "small-scale,
short-duration" exception in terms of the tasks to be performed rather than in terms
of the size of the job or the time required to complete it.

Although OSHA finds it impossible to specify with precision the
exact size of a "small-scale" maintenance job or to pinpoint the time involved
in a "short-duration" task, the Agency believes that providing employers with
examples of the type of operations that OSHA considers to be included in this class of
operations will provide employers with the guidance needed to use the rule's exemptions
appropriately. Paragraph (e)(6) enumerates several of these operations including: Pipe
repair, valve replacement, installation of telephone circuits, electrical conduits, and
drywall; and other general building maintenance and renovation tasks. (51 Fed. Reg.
22706).

Appendix G to � 1926.58 defines "short-term, small-scale
operations" in terms of renovation and maintenance activities which are tasks such
as, but not limited to:

• Removal of asbestos-containing insulation on pipes

• Removal of small quantities of asbestos-containing insulation on beams or above ceilings

• Replacement of an asbestos-containing gasket on a valve

• Installation or removal of a small section of drywall

• Installation of electrical conduits through or proximate to asbestos-containing
  materials

In similar fashion, OSHA Instruction CPL 2-2.40 defines
"small-scale, short-duration" to mean:

(1) Maintenance or renovation tasks, where the removal of asbestos-containing materials is
not the primary goal of the job (e.g., repairing a valve which entails the removal of
asbestos, installing electrical conduit which must be fastened to asbestos-cement siding,
etc.).

(2) Activities where employees' exposures to asbestos can be
kept below the action level via worker isolation techniques, such as glove bags or other
methods described in Appendix G.

(3) An operation which has been included in the employer's
asbestos maintenance program (as required in Appendix G) of all employers who are claiming
an exemption from the requirements of 29 CFR 1926.58(e)(6).

(4) Nonrepetitive operations (viz.: not a series of small-scale
jobs, which if performed at one time would have resulted in a large-scale removal).

Wilkerson considered the possible application of the exception
to respondent's operations (Tr. 119) but concluded that the exception did not apply
because the "primary goal of (respondent's) work was to remove asbestos" (Tr.
121). He also considered whether respondent utilized isolation techniques such as glove
bags or other methods described in Appendix G and concluded none of these procedures had
been followed[[4]] (Tr. 122-124).

In summary, the Secretary urges that the exception is limited
in scope to certain maintenance tasks and not to asbestos removal operations, which
operations fall within the upper limits of exposure to asbestos fibers (Secretary's Brief,
pgs. 21-23). Respondent counters that such an interpretation is a blatant attempt by the
Secretary to amend the standard by administrative fiat without regard to the notice and
comments provisions of the Administrative Procedures Act (5 U.S.C. � 553, et seq.) and
results in unconstitutional discrimination against asbestos removal contractors
(Respondent's Brief, pgs. 21-29).

On balance, it is concluded that the Secretary's position
relating to the nonapplication of the exception provided in sections 58(e)(6)(iv) and
58(j)(2)(i) to those engaged in asbestos removal is a reasonable interpretation of the
standard and is in accord with the overall purposes of the Act. The very nature of
asbestos removal places those engaged in this activity, as well as those working in close
proximity thereto at high risk of exposures to hazardous asbestos fibers. Asbestos
contractors who hold themselves out to the general public and to those who engage their
services as professional removers of such hazardous substance must make every reasonable
effort to insure that exposure is kept to a minimum even if these efforts increase the
time and costs to achieve the desired results of protecting workers from the hazard. It is
appropriate for the Secretary to require a higher standard of performance from those who
engage in asbestos removal and to restrict the application of the exception in question to
those engaged in activities less likely to result in high levels of exposure.

Respondent's argument that the Secretary's interpretation
unconstitutionally discriminates against asbestos removal contractors has been noted but
is rejected. Since the Act's inception, the Review Commission has issued decisions holding
that it lacks the authority to consider the constitutionality of OSHA standards or to
question their wisdom. Divesco Roofing & Insulation Co., 73 OSAHRC 35/F6, 1 BNA
OSHC 1279, 1973-74 CCH OSHD � 16,443 (No. 345, 1973); Carpenter Rigging &
Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974-75 CCH OSHD � 19,252 (No.
1399, 1975); Van Raalte Co., Inc., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH
OSHD � 20,633 (No. 5007,1976); Hana Shoe Corporation, 77 OSAHRC 69/B4, 5 BNA OSHC
1552, 1976-77 CCH OSHD � 21,033 (No. 76-392, 1977).

The final question for resolution is whether the actions of
respondent constitute a willful violation of the Act's provisions. The Secretary takes the
position that respondent, as a result of a conscious decision by its foreman at the
jobsite not to install a negative pressure enclosure and decontamination chamber while
engaged in asbestos removal, committed an intentional, knowing or voluntary disregard for
the requirements of the Act. In support of her position, the Secretary cites inter alia
Asbestos Textile Co., 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1984-85 CCH OSHD �
24,763 (No. 79-3831, 1984); Intercounty Construction Co. v. OSHRC, 522 F.2d 777
(4th Cir. 1977); Georgia Electric Co. v. OSHRC , 595 F.2d 309 (5th Cir. 1979); Williams
Enterprises, Inc., 1986-87 CCH OSHD � 27,787 (No. 85-1415, 1986).

Respondent contends that it acted reasonably and in the good
faith belief that its actions at the work site did not contravene the Act's requirements.
Respondent relies on Secretary v. Keco Industries, Inc., 13 BNA OSHC 1161 (No.
81-263) and Secretary v. RSR Corporation, 11 BNA OSHC 1163, aff'd, 764 F.2d 355
(5th Cir. 1985).

After giving due consideration to the argument of both parties,
it is concluded that respondent's actions on the day in question did not constitute a
willful violation of the Act. This is a case of first impression. So far as this court has
been able to ascertain, there are no reported cases which have dealt with or construed the
involved standards or the Secretary's interpretation of these standards. Even though this
court has concluded that the Secretary's interpretation of these standards is reasonable
under the circumstances, neither the standards nor the Secretary's interpretations are so
clearly drawn as to render respondent's asserted position indefensible or implausible.
Respondent was at liberty to test its position through judicial review without running the
risk of being declared in willful violation of the Act. Accordingly, the violations will
be characterized as serious and a penalty of $2,000.00 will be assessed.

ORDER

The foregoing constitutes my findings of fact and conclusions of law. Based on the
foregoing, it is ORDERED:

1. Willful Citation No. 1, item 1, is affirmed as a serious
   citation and a penalty of $1,000.00 is assessed.

2. Willful Citation No. 1, item 2, is affirmed as a serious
   citation with a penalty of $1,000.00 assessed.

EDWIN G. SALYERS

Judge

Date: September 18, 1989

FOOTNOTES:

[[1]] An "other" citation alleging a violation of 29 C.F.R. � 1904.5(b) was
also issued but was not contested and has become a final order of the Review Commission by
process of law.

[[2]] The Secretary notes in her brief that � 1926.58(j)(2)(i)
relating to decontamination facilities does not contain a reference to
"feasible". It is, therefore, her position that respondent has the burden of
proof in this regard.

[[3]] William Sparks, respondent's maintenance millwright, also
confirmed that the pot could be and was actually moved ten feet from the wall prior to the
removal operation (Tr. 220-224).

[[4]] This aspect of the case is not in dispute. Izzo testified
no "mini-enclosures" or "glove bags" were used (Tr. 26). He testified
that some attempt had been made to "sponge wet" the insulation, but he was
"not permitted to dowse it with water" sufficiently to prevent the escape of
fibers (Tr. 27-28).