Foster-Wheeler Constructors, Inc.

Plain-English summary

Foster-Wheeler Constructors renovated a boiler at a Florida power plant while an asbestos-abatement subcontractor removed insulation nearby. Foster employees worked and traveled in areas where monitoring and physical samples showed that asbestos fibers had escaped the removal enclosures, but Foster did not monitor its employees at the start of the job. The Commission held that the construction standard required initial monitoring for each asbestos job without separate proof that exposure above a regulatory limit was likely. Monitoring performed for the abatement subcontractor did not satisfy Foster's obligation because Foster did not show that it covered its own employees at the start of their work and met the standard's other requirements. The employee-misconduct defense also failed because Foster's work rules did not keep employees out of a ground-floor aisleway where asbestos was found. The Commission declined to decide whether the violation was serious, affirmed the violation, and increased the penalty from $640 to $1,000. The bundled ALJ decision separately affirmed an employee-records standard item with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.58(f)(2)(i) and 1910.20(g)(2)
• Outcome: The initial-monitoring violation was affirmed and its penalty increased to $1,000; the Commission did not decide its classification.
• Key point: Initial asbestos monitoring is required at the start of each covered construction job unless the employer proves that a stated exception applies.

Full text (OSHRC public release)

                                      UNITED STAtES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMiSSION
                                       One Lafayette Centre
                                ii 20 20th Street, WV~ - 9th Floor
                                    Washington, DC 20036-3419

SECRETARY OF LABOR, ..

                       Complainant,

     v.                                         ..       OSHRC DOCKET NO. 89-287
                                                ..

FOSTER-WHEELER ..
CONSTRUCTORS,INC., ..
..
Respondent. ..

                                            DECISION

BEFORE: FOULKE, Chairman, and MONTOYA, Co&ssioner.
BY THE COMMISSION:
The issue presented to the Commission in ‘this action is whether Commission
Administrative Law Judge Paul L. Brady erred in affirming a citation issued by the Secretary
of Labor (“the Secretary”) to Foster Wheeler Constructors,Inc. (“Foster”), for f&g to
monitor its employees’ exposure to asbestos fibers at the start of an asbestos removal job.
The cited standard is found at 29 C.F.R. 3 1926.58(f)(2)(i).’ The specific issues directed
for review are whether the judge erred in: (1) finding that Foster’s operations were covered
by the cited standard; (2) rejecting Foster’s claim that any exposure was the result of
unpreventable employee misconduct; and (3) classifying the violation as serious under

‘That standard states:

    Each employer who has a workplace or work operation covered by this standard, except as
    provided for in paragraphs (f)(2)(ii) and (f)(2)(iii) of this section, shall perform initial
    monitoring at the initiation of each asbestos job to accurately determine the airborne
    concentrations of asbestos to which employees may be exposed.

At the time of the alleged violation, the cited standard included the additional terms “tremoiite, anthophyllite,
or actinolite” after the word “asbestos,” each time it appeared. (So did the other provisions of section 1926.58
quoted below.) Those additional terms have since been deleted from those provisions (the terms are included
in the definition of “asbestos” in section 1926.58(b)). The language of the provisions at issue here is otherwise
essentially unchanged.
 2

section 17(k) of the Occupational Safety and Health Act (“the Act”),’ 29 U.S.C. 5 65 l-678,
For the reasons that follow, we affirm a violation of the cited standard.
BACKGROUND
Foster had entered into a contract to renovate Boiler No. 3 at the Port Everglades
electrical power plant of Florida Power and Light Co. (“FP & L”). As part of the contract,
Foster subcontracted to Combined Services, Inc. (“CSI”), an asbestos abatement contractor,
the responsibility to remove the old asbestos insulation from the boiler. During removal of
this asbestos insulation, CSI used plastic enclosures and other precautions to prevent the
release.of asbestos fibers. The parties dispute whether those precautions were adequate.
Foster employees worked .in the area of the boiler at the same time as CSI’s asbestos
removal operations, because the plan of work was to return the boiler to service as soon as
possible since it supplies needed electric power to South Florida. The boiler was about 160
feet high, with a furnace in the center that was surrounded by a network of pipes. The
asbestos insulation covered some of the pipes, which were in the open air, and parts of the
furnace. The boiler had various levels, composed of steel grating.
Following an employee complaint about possible asbestos overexposure, OSHA
industrial hygienist (“IH”) Peter Foreman inspected the area of the boiler, beginning on
November 15, 1988. The citation at issue resulted from that inspection. After a full hearing
on the citations, Judge Brady affirmed a serious violation of the cited provision, and assessed
a $640 penalty. 3 Upon Foster’s petition, review was directed on the issues stated above.

*Section 17(k) states:

    [A] serious violation shall be deemed to exist in a place of employment if there is a
    substantial 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 the violation.

‘Judge Brady presided over the second hearing on the merits in this case. An earlier hearing on the merits
was held before Commission Judge Joe D. Sparks, who later became ill and retired without issuing a decision.
At Foster’s request, a new hearing on the merits was held before Judge Brady.
 3
DISCUSSION
1l Whether the judge erred in ruling that lhter’s Y the
work operation was covered bv
cited standard

     Section 1926.58( a)( 3) provides:
     (a) Scope and application. This section [$ 1926.581 applies to all construction
     work as defined in 29 CFR 1910.12(b),[4] including but not limited to the fol-
     lowing:

    i;i ‘Construction, alteration, repair, maintenance, or renovation Of stmctures,
    substrates, or portions thereof, that contain asbestos[.]

(Emphasis added). As the discussion above reflects, it is clear that Foster had a “workplace
or work operation covered by this standard” (section 1926.58) because it was engaged in
construction work, specifically renovation of a structure (the boiler) that contained
asbestos.’ Foster did not allege or show that it was entitled to either of the exceptions to
the initial monitoring requirement at sections 192f5.58@‘)(2)(ii)
or (f)(2)(iiQ6 In addition,

4Section 1910.12(b) provides:

    (b) &jGzit&m. For purposes of this section [29 CFR Part 19101,Cbzsz~~tion wodc means
    work for construction, alteration, and/or repair, including painting and decorating. See
    discussion of these terms in 8 1926.13of this title.

The parties and judge have not relied on Section 1926.13,and we have found no discussion in it that affects
the result in this case.

S”Renovation” is defined in the standard as “the modifj&g of any existing structure, or portion thereof, where
exposure to airborne asbestos q result,” Section 1926.58(b) (emphasis added).

6 The first exception, at paragraph (f)(2)(ii), provides:

    The employer may demonstrate that employee exposures are below that action level and/or
    excursion limit by means of objective data demonstrating that the product or material
    containing asbestos cannot release airborne fibers in concentrations exceeding the action level
    and/or excursion limit under those work conditions having the greatest potential for releasing
    asbestos.

The other exception, at paragraph (f)(2)(iii), provides:

    Where the employer has monitored each asbestos job for the TWA, and where he has
    monitored after March 14, 1988, for the excursion limit, and the data were obtained during
    work operations conducted under workplace conditions closely resembling the processes, type
    of material, control methods, work practices, and environmental conditions used and
                                                                                          (continued...)

4

Foster failed to show that it had subcontracted ai1 of the construction work that involved
dealing with “structures, substrates, or portions thereof, that contain asbestos.”

    Foster argues that the cited standard does not apply if its employees work “in a large

building ‘complex where at a considerable distance, asbestos abatement is proceeding.”
However, it is clear that an “asbestos job” includes any new work assignment involving
“[clonstruction, alteration, repair, maintenance, or renovation of stnxtures, substrates, or
portions thereof, that contain asbestos.” Section 1926.58( a)( 3). Foster has not presented
any evidence that its work fell outside this definition. In fact, the evidence presented
indicates that Foster employees were working around asbestos. The boiler as a whole was
subject to the standard because it was undergoing general renovation, and asbestos insulation
was being removed from various parts of it.
Foster also argues that initial monitoring is required only when there is a “reasonable
likelihood [of) exposure to asbestos at excessive concentrations over a harmful period of
time.” To the contrary, the cited provision requires monitoring “at the initiation of each
asbestos job” without affirmative proof that exposure to excessive concentrations of asbestos
fibers was likely. Nor is there any minimum acceptable time period of exposure for
purposes of avoiding the monitoring obligation.’
Furthermore, Foster’s arguments find no support in Commission precedent. In one a

case, the Commission ruled that the employer was not required to initially monitor where
the only employee access to asbestos fibers was during a l-day insulation removal operation,
and such an operation was conducted only once every five vears. Dtuzueme Light Co.. 11
BNA OSHC 2033,2037,19&I-85 CCH OSHD ll26,959, p. 3&01
d
(No. ~9-1682, ;984). The
Commission held that the provision cited there, the formel section 1910.1001(f)(1), did “not ’
contemplate that employers must monitor such sporadic operations.” Id However, the

6(...continued)
prevailing in the employer’s current operations, the employer may rely on such earlier
monitoring results to satisfy the requirements of paragraph (f)(2)(i) of this section.

7Fosterasks that the Commission take “judicial notice . . . of the fact that employees other than those engaged
in asbestos abatement are not monitored” in “Federal buildings as in other buildings and worksites.”
However, Foster has failed to present any evidence in support, and the statement is not the kind of generally
known,indisputable fact that would be appropriate for official or judicial notice. See Fed. R. Evid. 201(b).
 5

provision cited here requires that the emplOyH perform monitoring “at the initiation of each

asbestos job,” regardless of duration or frequency. Thus, D~ltesrre does not support
Foster’s position8
me Secretary arpes that under the standard cited here, “the monitoring requirement
is triggered when employees, involved in any type of construction activity where asbestos is
present, may reasonably encounter exposure to airborne asbestos.” Foster knew or should
have known that its employees could reasonably encounter exposure to airborne asbestos
during the boiler renovation. For example, air samples were taken for Foster in July 1988,
a‘ few months before the work began, which showed that asbestos already was in the air
within the boiler area.
The samples taken in July that could be read evidenced only low levels,‘the highest
reading being 0.006 fibers per cubic centimeter of air [‘(~/cc”].~By contrast, the permissrble
exposure limit (“PEL”) is 0.2 f/cc as an 8-hour time weighted average (“TWA”). Section
1926.58(c)(l). The action level--the level at which regular air monitoring, medic&l
surveillance and other precautions are required-is 0.1 f/cc as an 8-hour TWA SeCtiOIl

1926.58(b), (d)(3)-(5), (1). The allowable excursion limit is 1 f/cc as averaged over a 30-
minute period. Section 1926.58(c)(2). Because Foster does not suggest and we do not find
that it comes within either of the two exceptions to the initial monitoring requirement,
Foster was required to initially monitor its own employees’ exposure based on the fact that
the July samples confirmed that this. was an “asbestos job” within the meaning of the
.
standard.

%e standard at issue here is different in scope from both the former and current general industry initial
monitoring requirements for asbestos. Unlike the former 0 19lO.lCKIl(f)(l), the construction industry standard
at issue here does not require proof by the Secretary that asbestos fibers actually are being released. Further,
unlike the current general industry provision, 5 1910.1001(d)(2)(i), the construction industry standard does
not require affirmative proof that the employees may reasonably be expected to be exposed “at or above the
action level and/or excursion limit.”

‘Another sample showed 0.004 Elcc.Three other samples showed 0.001 Vcz Two others were unreadable due
to “Filter Covered with Dust,” and the other one was unreadable because “Filter melted due to extreme
temperature.” Heckman testified that the July readings “are not unlike ambient air samples taken on city
streets or in any other power house or industrial location.” However, Foreman testified that a concentration
as little as .OOl percent asbestos fibers. would be a significant concentration if released into the air.
 me evidence presented at the hearing revealed that the asbestos removal operations
did not go perfectly, and Foster was on full notice of that fact. For example. it obtained
daily readings from Kemron, a consultant hired by CSI, some of which showed more than
0.1 f/cc of asbestos fibers in the air outside the enclosures. Those readings clearly indicated
that the enclosures did not ensure containment of all the airborne asbestos.
Further, when Foreman arrived for the inspection, he overheard other contractors
telling Foster’s jobsite superintendent, Doug Roberts, that there were maintenance problems
with the enclosures. In addition, following the Secretary’s inspection, Foster’s own con-
sultant concluded:
With the nature of operations being accomplished at this job site, it would be
anticipated that asbestos exposure to Foster Wheeler employees would be
controlled; however, during this two day suntey, I observed breaches in what
would be constiered good pmctice in dealtig with asbestos removal. lkn$ore,
I cannot conclude that asbestos exposures are total& conctouecL
(Emphasis added). Foster’s safety director, Heckman, testified that in his opinion the
enclosures prevented the release of asbestos fibers as far as possble. However, that
testimony is not credible in light of both the conclusions of Foster’s own consultantand
Kemron’s readings, mentioned above. Foreman’s obsentations also establishinadequacies
in the enclosures.
The Secretary proved the necessary employee access to the hazards. E.g., Armour
Food Co., 14 BNA OSHC 1817,1824,198790 CCH OSHD lI 29,088, p. 38,886 (No. 86-247,
1990) (requisite access to cited hazards exists where employees have been in zone of danger
while taking “their normal means of ingress-egress to their assigned workplaces”). For
example, the evidence showed that Foster employees walked past unbarricaded areas in the
first floor aisleway when going to and from their work stations? Foreman took numerous

“Foster relies on Heckman’s testimony that Foster employees would not “have any reason to be in” the
aisleway. However, the only reason Heckman gave for that conclusion is that the employees had no work
assigned there. He did not contradict Foreman’s prior testimony that Foster employees walked through the
aisleway to get to and from their work assignments. Heckman testified that the part of the aisleway from
which bulk sample 1 was taken ‘*as accessible [to Foster employees], yet restricted py an enclosure].”
Heckman acknowledged that one photograph in evidence showed a Foster employee at work on the ground
floor beyond the aisleway, although he estimated that that employee was at least 75 feet away from where
another contractor’s employee was dry-sweepingdirt.
bulk samples from dirt there during his inspection. Seven of those samples contained
asbestos, in amounts ranging from 4 percent clown to 0.001 percent asbestos fibers. Foster
stipulated that Foreman’s samples were properly taken and that the analysis was accurate.
Foreman testified specifically as to why Foster employees had access to the asbestos hazards
there:
This was the ground level area where any employee for any contractor would
have to work or walk . on numerous occasions to get to the other parts of
l l

     the boilers that were being worked on.

Further, Foreman testified that one of Kernron’s air samples was taken in the same general
area where he took his bulk samples--the ground floor area, outside the enclosures. That
Kemron sample, taken the day before Foreman’s inspection began, showed.0.272 f/cc over
a LUEminuteperiod. Foster points out that the 0.272 f/cc reading was not a TWA However,
Heckman acknowledged that the reading “indicates the fibers per cc that were found on the
sampling membrane.” Foster stipulated that Kemron’s sampling methods, analysis and
custody were valid, and raised no question as to their accuracy. Furthermore, Heckman
testified that Foster relied on Kemron’s air samples in deciding what the exposures of Foster
employees would be?
Foster relies on Commission decisions that vacated citations on factual grounds under
the former initial monitoring requirement for general industry, section 1910.1001(f)(1).
However, those cases do not support Foster. We have already discussed one of those cases,
Dlquesne Light Co. Another was Cornell University,83 OSAHRC 46/B2 (No. 82-1095,1983)
(ALJ), a decision by a former Commission administrative law judge. Asbestos removal
operations were conducted in the university’s liiiraxy. Cornell was cited because, although
Cornell employees were not involved in those operations, they worked in an adjacent hall.
However, the judge in Cornell found as a fact that sufficient precautions had been
taken to prevent any escape of asbestos fibers from the library and to warn of the asbestos

“Foster could have relied on Kemron’s monitoring as Foster’s initial monitoring under the standard if that
monitoring: (1) had been contemporaneous with the inception of Foster’s work; (2) had been extensive
enough to cover all the exposures of Foster employees; and (3) had met the other monitoring requirements
of section 1926.58(f)(S). However, no such showing was made. If Foster had established that it could rely on
Kemron’s monitoring, it would, of course, still be required to take any compliance measures indicated by those
readings.
 8

hazards. He also found that no Cornell employees entered the library during the asbestos
removal operations, and that they would have no access to it in the course of their u,o&,
travel or other job-related activities. By contrast, here the judge found that the precautions
against escape of asbestos fibers from the enclosures were inadequate, and that Foster
employees had access to areas where asbestos fibers likely were being released. Cornell is

not analogous to this case. In addition, the judge in Cornell rejected the same legal test of
when initial monitoring is required that Foster advocates here.
Foster discusses Goodyear ?fre & Rubber Co., 5 BNA OSHC 1473, 1475 (No. 13442,
1977). That decision also involved the former general industry standard, and stated the
same legal test of when initial monitoring is required as the other Commission decisions
involving that general industry standard. E.g., Shenango Co., 10 BNA OSHC 1613, 1615,
1982 CCH OSHD lI 26,051, p. 32,728 (No. 78-4723, 1982); Research Cottrel& Inc., 9 BNA
OSHC 1489, 1497, 1981 CCH OSHD li 25,284, p. 31,263 (No. 11756, 1981). The citation
to Goodyear wasvacated because there was no evidence that asbestosfiberswere released
into the air. Here, there was much evidence that asbestos fibers were being released into
the air. Goodyear is inapposite.
For the reasons discussed above, we conclude that Foster’s workplace and work
operations were covered by the cited standard. The Secretary also established the other
elements of a violation. As mentioned above, it is undisputed that Foster , did not comply
with the cited requirement, because none of its employees were monitored,at the initiation
of the asbestos iob. l2 Furthermore ? Foster’s employees had access to the bhazards, and it
d

knew of the presence of airborne asbestos in various parts of the boilerwhere its employees
travelled or worked. Thus, the Secretary established all the elements of a violation. E.g.,
Gary Concretehds., Inc., 15 BNA OSHC 1051,1052,1991 CCH OSHD ll 29,344, p. 39,449

(No. 861087, 1991). Based on the circumstances present here, Foster was required to
“perform initial monitoring at the initiation of [the] asbestos job to accurately determine the

‘*Foreman testified that the purpose of Kemron’s sampling of air outside of CSI’s enclosures was “to comply
with the monitoring requirements for the OSHA standards for Combined Sewices employees.”
 9

airborne concentrations of asbestos to which employees may be exposed.” Section
1926.58(f)(2)(i), supra note 1.

20 mether the judge en;ed in rejecting Foster’s claim that any access by its,employees
to areas containing asbestos was the result of unpreventable employee misconduct
Foster argues that any activities by its employees that created noncompliance with the
standard resulted from unpreventable employee misconduct. To establish that defense, the
employer must show that: (1) it had established work rules designed to prevent the violative
conditions from occurring; (2) the work rules had been adequately communicated to its
employees; and (3) it had taken steps to discover violations of those rules, and had
effectively enforced the rules when violations had been discovered. E.g., Gmy Cmcrete, 15
BNA OSHC at 1055, 1991 CCH.OSHD at p. 39,452.
Foster had a number of relevant work rules. Foster told its employees not to go
under a barricade for any reason. Each area where asbestos was being removed was
enclosed by plastic, with a barricade around it warning of asbestos hazards. Foster also
instructed its employees not to use the elevator, bathrooms, toilets, or canteen areas used
by the asbestos abatement workers. Heckman testif’ied at the original hearing that Foster
would not work with any insulation that was identified as asbestos.13
However, Foster did not prohibit employees from using the ground floor aisleway
when going to and from their assigned work. As mentioned above, Foreman testified
without contradiction that Foster employees, like all employees on the site, had to use that
aisleway. Thus, Foster’s defense fails, because it did not show that it had a workrule clear
enough or broad enough to eliminate employee exposure to asbestos fibers during ingress *
and egress from the job. See, e.g., Mosser Conrtt. Co., 15 BNA OSHC 1408,1415,1991 CCH
OSHD ll 29,546, p. 39,906 (No. 894027, 1991) (where employer had relevant worlcrule, but
it was not “clear enough or broad enough to eliminate employee exposure” to the specific

13Heckman further testified at that hearing that “[elmployees were told through an orientation that if they
came into an area that they suspected could be asbestos, to inform the supervisor,” who would have CSI
analyze it. “If it wasn’t identified as asbestos, Foster Wheeler would proceed and perform their . . . demolition
or construction activities.”
 10

violative conditions, workmle was not adequate); Gary Concrete, 15 BNA OSHC at l()jj-56
1991 CCH OSHD at p. 39,453 (employer’s instructions “too general” to inform emp/ovee
.

of “how to prevent the violation” of cited standard).

30 Whether the judge erred in classifying the violation, if any, as serious
66[A] serious violation is established if an accident is possible and there is a substantial .

probability that death or serious physical harm could result from the accident.” E.g., &I&
FreightwaysCop., 15 BNA OSHC 1317, 1324, 1991 CCH OSHD ll 29,500, p. 39,813 (No.
86-35 1, 1991).14 The judge found: “[alsbestos is a well known carcinogen and is especially
implicated in lung cancer. The violation was serious, creating a probability of death or
serious physical harm.”
We hesitate to affirm the judge’s decision on this complex and subtle issue, because
none of the many measurements that were taken outside the plastic enclosures in the boiler
show a violation of the PEL or action level (both of which are 8-hour TWA’s), or of the
excursion limit. Levels of exposure below those limits are not regulated under the standard.
On the other hand, we hesitate to conclude that the initialmonitoring violationwas other
than serious, because the monitoring that was done indicates that airborne asbestos levels
were at times above 0.1 f/cc in certain areas of the boiler. To decide all the questions
relevant to whether the violation should be classified as serious would involve a remand to
the judge for credl%ility findings. There was conflicting testimony regarding the extent of
certain Foster employees’ exposure.
We need not and do not resolve whether the violation was serious, as resolution of -
that issue will not affect the abatement requirements or penalty here, and none of the
parties’ rights will be adversely affected. The Secretary will not be constrained by this
approach. He may propose any appropriate penalty, classification and abatement
-requirements in future citations, and may rely on the underlying facts found here. Nor will

‘tie Secretary also must prove that the employer knew, or with the exercise of reasonable diligence, could
have known of the presence of the violative conditions. 29 U.S.C. 8 666(k). There is no dispute here that
Foster knew of the presence of airborne asbestos fibers in the workplace. It obtained the results of all of
Kemron’sdaily air sampling as soon 3s they became available.
 11

the employer be constrained by OUI approach here. It will bear no greater burden in a
future case than if the violation had been found nonserious. Further, no employee rights
under the Act will be prejudiced. (For example, the abatement date is unaffected.) In the
circumstances, the Commission exercises its discretion not to decide whether Foster’s

violation was serious. See, e.g., General Motors Cop, Electra-MotiveDiv., 14 BNA OSHC
2064, 2071.72, 1991 CCH OSHD lf 29,240, p. 39,171 (No. 82-630, 1991) (commission need
not decide whether employer’s failure to provide access to exposure records was “serious”
under the Act, where no party’s rights would be adversely affected).”

4l Penally
The Secretary proposed a $640 penalty and the judge assessed that amount. We
believe that a higher penalty is appropriate, based on the severity of the potential
consequences of asbestos exposure to levels in excess of permissible exposure levels.
Asbestos-related diseases can be fatal, and include mesothelioma, lung cancer and asbestosis.
Foster is a subsidiary of Foster Wheeler USA Corp., and had about 200 employees on the
jobsite. Also, as discussed above, Foster knew about the presence of asbestos insulation at
the boiler all along. In fact, it originally constructed the boiler in about 1958, using asbestos
insulation.
To Foster’s credit, it had numerous work rules designed to avoid employee exposure
to asbestos fibers, and it kept track of Kemron’s daily air sampling results regarding CSI’s
employees. Those results generally showed low levels of asbestos fi’bers outside the
enclosures (less than 10 percent of the action level). The Secretary has not presented a past
history of violations. On balance, we assess a penalty of $1000.

%n employer may rebut a showing of seriousness by presenting evidence of other measurements, taken under
conditionscomparable to those cited, which indicate that all of the employees’ exposures were below regulative
triggers. If those measurements indicate that no employee was exposed to the action level or excursion limit
during the cited work, the failure to conduct full-shift initial monitoring would not contribute to a risk of
death or serious physical harm under the standard. Thus, that failure would not be classified as serious.
Kemron’s measurements here do not make the kind of thorough showing that would disprove seriousness.
On the other hand, we cannot find the violation serious based on the limited measurements, as discussed
above, so we decline to resolve the issue of seriousness here.
 12

     For the reasons given above, the Commission affirms a violation of 5 192658(f)(2)(i)

and assesses a $1000 penalty.

                                                      Edwin G. Foulke, Jr.
                                                      Chairman

Dated: Auclust 23. 1993
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFE-I? AND HEALTH REVIEW COMMiSSl()N
OneLafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                           FAA
                                                                           COM I2021 5c6-5050
                                                                           m  ‘202) 606-5050

SECRETARY OF LABOR, ..

         Complainant,                ..

  v.                                        Docket No. 934412

FOSTER-WHEELER ..
CONSTRUCTORS, INC., ..

         Respondent.




                        NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission WAS ISSUE UC
August 23,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES 1’0
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970. 29 U.S.C. 9 660.

                                             FOR THE COMMISSION

August 23, 1993
Date
Docket No. 89-287

YOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
CounseI for Regional Trial Litigation
Office of the Solicitor? U.S. DOL
Room S4004
‘00 Constitution Ave.? N.W.
Washington, D.C. 20210

Don McCoy, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Room 407B, Federal Building
299 East Broward Boulevard
Ft. Lauderdale, FL 33301

John E. Wilson, Esq.
Foster Wheeler Corporation
Perryville Corporate Park
Clinton, New Jersey 08809

Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E. ’
Atlanta, GA 30309-3 119
 UNITED SATES OF AMERICA
OCCUPATIONAL SA ,FETY AND HEALTH REVIEW COMM!SSION
1825K SrREETN.W.
4TH FLOOR
WASHINGTOND.C.2G006-I
246

Secretary of Labor, ..
Complainant, :
.
v. .. Docket No. 89-287

Foster Wheeler Constructors, Inc., 1
Respondent. :
.

                                  NOTICE OF DOCKETING

The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on September 12,1991. fhe decision of the Judge will become a final order of the
Commission on October 15,199l unless a commission member directs review of the decision
on or before that date. ANY PAM DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETR’ION FOR DISCRETIONARY REVIEW. Any such petition
should be received by the Executive Secretary on 01 before October 2,lSSl in order to permit
sufficient time for its review. See Commission Rule91, 29 C.F.R. 5 2200.91.

All further pleadings or communications regarding this case shall be addressed to:

                              Executive Secretary
                              Occupational Safety and Health
                               Review COmmiSSiOn
                              1825 K St., N.W., Room 401
                              Washington, 0. C. 20006-1246

Petitioning parties shall also mail a Copy to:
I

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

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial
Litigation will represent the Department of Labor. Any party having questions about review rights
may contact the Commission’s Executive Secretary or call (202) 634-7950.

                                                                 FOR THE COMMI       N
                                                                              P?

SePtember !2, 1991
Date
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for R8@onal Trial Litigation
Office of the sdcitor~ U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Don McCoy, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Room 4078, federal Building
299 East Broward Boulevard
Ft. Lauderdale, FL 33301

John E. Wilson, Esquire
Foster Wheeler Cofpofation
P8rryViile cOfpOfat8 Park
Clinton, New J8fS8y 0880940

Paul L Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtf88 Street, N.E.
Atlanta, GA 303093119
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
7365 PEACHTREE
STREET. N E.. SUTE 240
ATLANTA,
GEORGIA 30309-31’9

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                                                                                            2-d-,                                 1

SECRETARY OF LABOR, 1
1
Complainant, 1
1
v. ) OSHRC Docket No. 89-287
1
FOSTER WHEELER CONSTRUCTORS, )
INC., 1
1
Respondent. 1

APPEARANCES:
Donald R. McCoy, Esquire, Associate Regional
Solicitor, U. S. Department of Labor, Fort
Lauderdale, Florida, on behalf of complainant.
John E. Wilson, Esquire, Foster Wheeler Corporation,
Clinton, New Jersey, on behalf of respondent.

                            DECISION AND ORDER



       BRADY,    Judge:              Foster Wheeler Constructors, Inc.,

(Foster) was under contract to renovate a large boiler at the
Port Everglades electrical power plant of Florida Power and
Light Company. Foster was hired to dismantle the existing
boiler, to install new components, and to handle the
9nechanical aspects" of the boiler reconstruction (Tr0
176) l
 Pursuant to an employee complaint, OSHA industrial

hygienist Peter Foreman conducted an inspection of the work
site beginning on November 15, 1988 (Tr. 22). As a result of
the inspection, the Secretary issued to Foster two citations.
Citation No. 1 alleges the serious violation of 29 C.F.R.
§1926.58(f)(2)(i) for failure to conduct initial monitoring at
the beginning of an asbestos job to determine the airborne
concentration of asbestos. Citation No. 2 alleges an tgothergg
violation of 29 C.F.R. § 1910.20(g)(2) for failure to make
readily available to its employees a copy of the Secretary's
standard which explains how employees may obtain access to
their medical and exposure monitoring records.
A hearing was held in this case on February 6 and 7,
1990, presided over by Judge Joe D. Sparks. Subsequent to
Judge Sparks' retirement, the case was reassigned to the
undersigned. The parties were‘ offered the opportunity to
request a hearing de novo, which Foster elected to do. Foster
requested the hearing de novo based on Foster's belief that
the previous hearing had raised questions regarding the
credibility of two of the Secretary's witnesses, Lance and
Kirk Shier (Tr. S-7). On December 4 and 5, 1990, a second
hearing was held.
The Port Everglades Power Plant is owned and operated by
Florida Power and Light Company (Florida Power) at Fort
Lauderdale, Florida. The plant provides electric power for

                                2

south Florida. Florida Power undertook to revamp the boilers
to increase the efficiency of its power generating operations.
Boiler No. 3 is approximately 160 feet high. It is an
open structure with several levels, staircases, and floors
made of metal grating (Ex. C-l, Tr. 39-40, 43). Foster was
contracted to rebuild certain sections of Boiler No. 3 at the
same time as Combined Services, Inc. (Combined),'an asbestos
abatement subcontractor, was conducting asbestos removal (Tr.
176-177). Approximately 200 Foster employees were employed on
the Port Everglades project. Combined was "working &round the
clock" to remove "tons of asbestos" from the boilers (Tr. 310
32) 0 Another contractor, Kemron, was retained to monitor the
asbestos exposure of Combined employees. It is undisputed
that no Foster employees were monitored, either by Kemron or
Foster (Tr'.32).
During his inspection, Foreman observed that plastic
enclosures sealed with duct tape had been erected in an
attempt to control the asbestos fibers (Tr. 38). Foreman
observed that **thedoors of the enclosures were in very poor
condition; that they were deteriorated; that the plastic was .
blowing in the breeze; that the doors were open; that the duct
tape [was] falling off; and that there were actual holes in
the plastic wall on the outside" (Exs. C-3 - C-7, Tr. 45).
Foreman took bulk samples from the workplace floort and
also sent for analysis two samples of the insulating material
which Kemron obtained for him. Foster stipulated that the

                      .          3

sampling results presented at the hearing were correct and
that the proper procedure was followed in taking the samples
(EX. C-9, Tr. 48).

    Sample A-l, a bulk sample of the insulating                 material

which was being removed from the boiler penthouse, contained
15% asbestos. Sample A-2, the pipe insulation material,
contained 10% asbestos (Tr. 50).
Foreman obtained Bulk Sample No. 4 about a foot 0utside.a
ground-level enclosure. It contained 4% asbestos (Ex. C-10,
Tr 0 52) 0 This bulk sample was taken from a ground-level area
where any employee could walk through the area to get to other
parts of the boiler. The area was commonly used to cross the
north side of the lower level of-Boiler No. 3 (Tr. 53).
Bulk Sample No. 1 contained .OOl% asbestos fibers. It
was taken 10 to 15 feet away from the enclosure, in an area
that was described as heavily traveled by Foster's employees
(Ex. C-11, C-12; Tr. 55, 162).
Foreman found concentrations of asbestos in samples of
dirt that had settled on the flat surfaces of the t9hazvac8V
and
HEPA machines at ground level (Tr. 56-59). Foreman observed a

worker dry sweeping dirt and debris in the area where he
obtained Bulk Sample No. 7. The dirt the employee was
sweeping contained .Ol% asbestos (Tr. 58). Foster's employees
had access to the area, and Foster's safety director
identified a Foster employee in the area in Exhibit C-16 (Tr.
215). A wipe sample from the top of a drinking water

                                      4

container at ground level contained .OOl% asbestos (Ex. c-18 8

Tr. 62).
AlI of the bulk and wipe samples that Foreman took except
one mineral wool sample contained asbestos. All except the
representative insulation samples, A-1 and A-2, were obtained

outside the regulated areas at ground level, in areas where
Foster employees worked or walked (Tr. 64). The results taken
by Kemron showed airborne concentrations of asbestos above the
background levels throughout the boiler area outside of the
enclosures (Ex. R-l, Tr. 67).
The results for November 9, 1988, include a sample which
contained 391 fibers per cubic centimeter of air which was
taken from the roof of Boiler rjo. 3, outside the regulated
area, almost twice the action level of .1 fibers per cubic
centimeter (Tr. 71-71). Many of the sampling results show
"overloads" in which the material was deposited on the filter
so heavily that a visual count of the fibers could not be
conducted (Tr. 73-74).
On November 14, 1988, an area sample taken at ground
level showed ,272 fibers per cubic centimeter, which exceeds
the PEL. On November 17, 1988, an area sample inside the
northeast hatch of the penthouse was .209 fibers per cubic
centimeter, also exceeding the PEL (Tr. 78).
Kernron's sampling results were furnished to Foster as
soon as they were obtained (Tr. 78) 0 Foster's employees
received no training in asbestos safety, except a warning not

                             5

to go into the asbestos enclosures (Tr. 117). Workers were
also instructed to withdraw if they saw falling white powder

(Tr. 82).
In July, 1988, before the work at the Port Everglades

plant began, Foster conducted testing which showed
"backgroundl'levels of airborne asbestos of .OOl-JO6 fibers
per cubic centimeter. Many of the Kemron results taken after
the work was in progress during the period from October 2,
1988, through January 11, 1989, showed higher amounts (Tr.
181). Robert Heckman, Foster's corporate safety and health
director, stated that approximately 120 of the daily samples
were taken outside the enclosures and that four or five
exceeded the action level of the asbestos standard (Tr. 181).
Foster was aware when the project was in its planning
stage that asbestos was contained in the insulation material
in the boiler (Tr. 272-273). Foster had some bulk sampling
done in July, 1988, to determine where the asbestos was
located. Two of four bulk samples taken from the insulation
material while it was in place on the boiler showed asbestos
fibers (Tr. 274). Foster decided to treat all of the
insulation as if it contained asbestos (Tr. 277). Foster took
no other steps to determine the levels of asbestos to which
its employees might be exposed (Tr. 310).

                        CITATION NO. 1
         Item 1:   29 C.F.R. S 1926.58(f)(2)(i)

                               6

29 C.F.R. S 1926.58(f)(2)(i) provides:
Each employee who has a workplace or work operation
covered by this standard, except as provided for in
paragraphs (f)(2Hii) and (f)(2)(iii) of this
section, shall perform initial monitoring at the
initiation of each asbestos, tremolite,
anthophyllite, or actinolite lob ' to accurately
determine the airborne concentrations of asbestos,
tremolite, anthophyllite, or actinolite to which
employees may be exposed.=
Foster argues that it was not required to perform initial
monitoring for asbestos because its employees were not

regularly exposed to *airborne asbestos. Their employment did
not require them to work with asbestos. The Secretary does

z   29 C.F.R. S 1926,58(f)(2)(ii) provides:
The employer may demonstratethat employee exposures
are below that action level and/or excursion limit
by means of objective data demonstrating that the
product or material containing asbestos, tremolite,
anthophyllite, actinolite, or a combination of these
minerals cannot release airborne fibers in which
concentrations exceeding the action level and/or
excursion limit under those work conditions having
the greatest potential for releasing asbestos,
tremolite, anthrophyllite, or actinolite.
     29 C.F.R. S 1926,58(f)(2)(iii) provides:
                                                                 .
Where the employer has monitored each asbestos,
tremolite, anthophyllite, or actinolite job for the
WA,   and where he has monitored after March 14,
1988, for the excursion limit, and the data were
obtained during work operations conducted under
workplace   conditions,    closely resembling the
processes, type of material, control methods, work
practices, and environmental conditions used and
prevailing in the employee's current operations, the
employer may rely on such earlier monitoring results
to satisfy the requirements of paragraph (f)(2)(i)
of this section.

not dispute the fact that Combined, rather than Foster,
removed the asbestos insulation and did most of its work

inside enclosures which were intended to prevent asbestos
fibers from escaping.

    The   record establishes that the containment enclosures

were not effective and that significant amounts of airborne
asbestos were released into the outside air, concentrations
which exceed the action level of .1 fibers per cubic
centimeter of air, or even the PEL of .2 fibers per cubic
centimeter which would be invisible to the workers (Tr. 82).
Foster's employees were exposed to airborne asbestos, even if
they were not required to actually handle the insulation.
The standard requires that an employer who has a "work
operation covered by this standard ... shall perform initial
monitoring at the initiation of each asbestos 000 jobtt
(emphasis added). Foster's work operation (the renovation of
the boiler) was covered by the standard at issue.
Section
1926.58(a)(3) provides:
This section applies to all construction work as
defined in 29 C.F.R. S 1910.12(b), including but not
limited to the following:
* * *

  (3) Construction, alteration, repairs, maintenance,
  or renovation of structures, substruts, or portions
  thereof, that contain asbestos...
  Foster did not demonstrate that it was exempted from

complying with the standard by fitting into either of the
exceptions provided for in paragraphs and

                        .                   8

(f)(Z)(iii)(allowing for proof that the asbestos-containing

material cannot release airborne fibers in which

concentrations exceeding the action level, and reliance upon
earlier monitoring, respectively).
Foster was engaged in a work operation covered by the
standard, and Foster did not fall within either of the two
exceptions to the standard. The standard required that Foster
perform initial monitoring at the initiation of the job, which
Foster concedes it did not do. Foster was in violation of 29
C.F.R. S 1926.58(f)(2)(i).

 The testimony of Lance and Kirk Shier was not necessary

to establish the Secretary's allegation that Foster violated
the cited standard. Therefore, there is no need to make a
determination of these witnesses' credibility.
Asbestos is a well-known carcinogen and is especially
implicated in lung cancer. The violation was serious,
creating a probability of death or serious physical harm.

                       CITATION NO. 2

         Item   1:    29 C.F.R. § 1910.20(g)(2)


 29 C.F.R. S 1910.20(g)(2) provides:
 Each employer shall make readily available to
 employees a copy of this standard and its
 appendices, and shall distribute to employees any
 informational materials concerning this standard
 which are made available to the employer by the
 Assistant Secretary of Labor for Occupational Safety
 and Health.

                                9

During his inspection, Foreman asked Arthur Punsky,

Foster's safety supervisor, for a copy of 29 C.F.R. § 1910.20

and its appendices. He did not receive a copy of the standard
until several days after he left the work site (Tr. 80).
Foster argues that the standard could have been made
"readily available" to any employee who asked for it, by
faxing the employee a copy from headquarters to the work site.
Faxing a document from a location distant from the work site
is not what the standard contemplates when it provides that
the employer "shall make readily available" to its employees a
copy of the standard. "Readily availableV1means having a copy
of the standard on the work site. Foster was in violation of
29 C.F.R. ‘S;1910.20(g)(2).

                           PENALTIES



   The Commission is the final arbiter of penalties in all

contested cases. Secretary v. OSAHRC and Interstate Glass
co
A# 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the
Act, the Commission is required to find and give "due
ConsideratiorP to the size of the employer's business, the
gravity of the violation, the good faith of the employer and
the history of previous violations in determining the
appropriate penalty. The gravity of the offense is the
principle factor to be considered. Nacirema Operating Co., 72

                                10

OSAHRC l/Blo, BNA OSHC 1001, 1971-73 CCH OSHD q15,032 (No. 4,

1972).

    upon due consideration of the relevant     factors,   it       is

determined that the appropriate penalty for Citation No. 1 is

$640.00, and for Citation No. 2 is no penalty .

          FINDINGS OF FACTS AND CONCLUSIONS OF LAW


    The
      foregoing constitutes the findings of
                                               fact and

conclusions of law in accordance with Federal Rule of 'Civil
Procedure 52(a).

                           ORDER


    Based upon the foregoing decision, it is hereby ORDERED.
                                                               l




 (1) That Item 1 of Citation No. 1 is affirmed and a

penalty in the amount of $640.00 is hereby assessed, and
(2) That Item 1 of Citation No. 2 is affirmed and no
penalty is assessed.

                            Judge

Date: September 4, 1991