Reliance Environmental Management, Inc.
Asbestos violations affirmed but willful classification rejected
Apply this to your situation
This order from 1998 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Reliance Environmental Management removed asbestos during renovation of an abandoned department store in Toledo, Ohio. OSHA cited monitoring, training, wet-method, work-practice, decontamination, and shower violations. The judge rejected the company's challenges to the inspection and its employee-misconduct defense. Failures involving written monitoring results, wet methods, dry cleanup, control methods, and decontamination areas were affirmed, while the initial exposure-determination and shower items were vacated. The judge found that the Secretary did not prove willfulness because outside environmental inspections had found no asbestos violations and parts of the conduct could have resulted from misunderstandings. The affirmed asbestos work-practice and decontamination items were therefore classified as non-willful, and total penalties of $15,200 were assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.1101
- Outcome: Two items vacated; five items affirmed, including four reclassified as non-willful; $15,200 total penalty assessed.
- Key point: Serious asbestos violations were established, but prior citations alone did not prove willfulness where the record supported possible misunderstandings and some outside inspections found acceptable practices.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1924 Building - Room 2R90
100 Alabama Street, S. W.
Atlanta, Georgia 30303-3109
Phone: (404) 562-1640 Fax: (404) 562-1650
:
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 96-1290
:
RELIANCE ENVIRONMENTAL :
MANAGEMENT, INC., :
Respondent. :
:
Appearances:
Janice Thompson, Esquire Michael A. Holman, Esquire
U. S. Department of Labor Bricker & Eckler, LLP
Office of the Solicitor Columbus, Ohio
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Ken S. Welsch
DECISION AND ORDER
Reliance Environmental Management, Inc. (REM), is an asbestos removal contractor with an
office in Holland, Ohio. In February, 1996, REM was working at the abandoned Macy’s building in
Toledo, Ohio when the Occupational Safety and Health Administration (OSHA) initiated an
inspection of the jobsite. As a result of the inspection, REM received serious and willful citations on
August 6, 1996, for alleged violations of the construction asbestos standards at 29 C.F.R.
Part 1926.1101. REM timely contested the citations.
The serious citation alleges that REM failed to determine employee exposures in violation of
§ 1926.1101(f)(1)(ii) (item 1); failed to notify employees of their asbestos monitoring results in
violation of § 1926.1101(f)(5)(ii) (item 2); and failed to provide initial asbestos worker certification
training at no cost to the employee in violation of § 1926.1101(k)(9)(i)1 (item 3). The serious citation
proposed penalties totaling $12,600.
The willful citation alleges that REM failed to use wet methods to control employee asbestos
exposure in violation of § 1926.1101(g)(1) (item 1a); used prohibitive work practices including dry
sweeping and shoveling asbestos containing material (ACM) or presumed asbestos containing
material (PACM) in violation of § 1926.1101(g)(3) (item 1b); removed asbestos containing pipe
insulation without one or more control methods in violation of § 1926.1101(g)(5) (item 1c); failed
to establish decontamination areas in violation of § 1926.1101(j)(1)(i) (item 2); and failed to provide
shower facilities in violation of § 1926.1101(j)(1)(i)(B) (item 3). The willful citation proposed
penalties totaling $147,000. REM timely contested the citations.
The hearing was held August 25 to September 5, 1997, in Toledo, Ohio. REM stipulates to
jurisdiction and coverage (Tr. 5). REM argues that OSHA’s inspection was unreasonable; denies the
alleged violations; and asserts an employee misconduct defense. REM’s arguments regarding the
inspection and employee misconduct are rejected and the violations except for monitoring and shower
facilities are affirmed as non-willful.
Background
In June 1995, the former Macy’s department store, located in downtown Toledo, Ohio, was
a 75-year old abandoned eleven story building with a first level basement and two sub-basements.
The building contained approximately 350,000 square feet of space. Each floor was approximately
455 feet long and 200 feet wide. The Alexander Company, owner of the building, decided to
renovate the abandoned building into new apartments on the upper floors, shopping areas on the first
two floors and parking in the basement (Exh. C-5; Tr. 42, 44-45, 1183, 1654, 1707).
Prior to initiating the renovation work, The Alexander Company hired Toltest, Inc. to survey
the building to located areas which contained asbestos (Exhs. C-4, C-5; Tr. 41-42). Each bidder for
the asbestos removal work, including REM, was given a copy of the Toltest survey and allowed to
walk through the building (Tr. 73-74, 268-269, 1653-1654). The Toltest Building Survey of June
1995 became part of the bid agreement (Exhs. C-5, C-12; Tr. 212).
1
The alleged violation of § 1926.1101(k)(9)(i) was amended without objection to an “other” than serious
willful violation (Tr. 844-845, 940).
2
On September 9, 1995, REM, as low bidder, received the contract to perform the asbestos
and lead paint abatement work2 at the Macy’s building (Tr. 1182, 1653-1654). For the asbestos
removal contract, REM was to remove from all floors accessible floor tile material, some acoustical
tile material, asbestos-containing mechanical insulation (TSI), some accessible electric conduit which
had asbestos wrapping, the asbestos from inside the nonworking elevator shaft, and asbestos
containing ceilings and pipe insulation on the eight floor and basement (Tr. 1655-1656). After
completion of the bid contract work, representatives of The Alexander Company, Rudolph-Libbe,
the general contractor, and Toltest inspected the building and conducted air samples. Final clearance
was obtained by REM in October, 1995 (Tr. 92, 1957-1658).
In December 1995, Toltest, upon the request of Rudolph-Libbe Corporation, again inspected
the building and found pieces of asbestos laying in different areas on the eight floor and other floors
(Tr. 77, 81). The debris was caused by the demolition contractor, Homrich, Inc. At the request of
The Alexander Company, REM returned to the building two or three days a week to clean up the
debris. REM was also given a change order by The Alexander Company to remove asbestos from
duct work on the eight floor (Exh. C-12 pp. 3-4; Tr. 1666-1667). By February 1996, there was
debris throughout the building including numerous cut pipes (Exh. R-2; Tr. 121, 125, 155-156).
During this period, the building had no running water except in the basement (Tr. 1183,
1227). Also, other than permanent electricity to the lighting system, temporary power was provided
by the general contractor (Tr. 76, 1228-1229). There was no permanent heat in the building. REM
provided salamanders for temporary heat (Tr. 1230). During January to March 1996, the average
weather temperature for Toledo ranged from 18 degrees to 30 degrees Fahrenheit (Exh. R-46).
On February 1, 1996, Toltest, at the request of The Alexander Company, reinspected the
basement area and found all accessible pipe insulation to be in place and in the same condition as
when Toltest originally surveyed area in June 1995 (Exh. C-8; Tr. 81-83, 157). After discussion as
to whether it was part of the original contract, REM received another change order to the contract
to remove the asbestos insulation in the first level basement (Exh. C-12 p. 8; Tr. 215-216, 268-269,
1668).
2
The lead paint abatement is not part of the OSHA citations.
3
REM’s asbestos removal work was under the supervision of Jim Fields, foreman and
competent person (Tr. 265, 1793). On February 12, 1996, Fields inspected the first level basement
“to see what work had to be done. We will have to rip wall out to get to the pipe” (Exh. C-10;
Tr. 269-270). On February 14 -15, 1996, REM employees removed walls and insulation from the pipe
in the basement (Tr. 274-275, 427-428, 509-510, 524-525, 641-643). According to Fields’Daily
Progress Report, he “sent a few men down to start ripping out walls in basement. Kevin went into
basement to start glove baging” (Exh. C-10). On February 15, Fields notes that;
Basement crew tour down walls. ACM is on floor and on ledges. Put
AFD down there to filter out air had crew clean up ACM and put it
into bags. Water is frozen. Will have to build containment to get the
rest of ACM off the pipes because they have ice on them. Had Larry
and Joe strip fiberglass in basement. Elev. is broke.” (Exh. C-10).
On February 15, 1996, OSHA received a complaint from a REM employee alleging, among
other things, that REM was dry removing asbestos containing material from the basement; there was
no shower facility; and REM performed no air monitoring (Exh. R-7). On February 16, OSHA
Industrial Hygienist (IH) Laura Ulczynski, along with another IH and a compliance officer, initiated
an inspection of REM’s asbestos removal work at the Macy’s building. In the basement, the
inspectors found bags of debris (Exhs. C-7 photos 1-193; Tr. 758). The bulk samples, taken from
six of the bags, showed 50% to 75% asbestos (Exh. C-26). OSHA’s air monitoring in the basement
area, however, was negative.
On March 5, 1997 IH Ulczynski returned to the Macy’s building at the request of REM
concerning the removal of asbestos from vertical pipes located in the pipe chase in the elevator shaft
from the second floor to the eleventh floor (Exh. C-35; Tr. 797-798, 1485). On April 17, 1996, after
receiving a complaint from a Rudolph-Libbe employee, IH Ulczynski returned to the Macy’s building.
She observed no equipment room (dirty room) attached to the containments on any of the floors
(Exh. C-30; Tr. 808, 811). On April 23, 1996, after the elevator shaft containment was removed, The
Alexander Company requested REM to reclean the elevator shaft and to remove the debris from the
shaft (Tr. 817-818).
4
During its inspection of the Macy’s building, OSHA received no complaints concerning any
of the other contractors and for most of February, REM was the only employer on-site while OSHA
conducted its inspection (Tr. 819-821).
Discussion
Reasonableness of OSHA’s Inspection
OSHA’s inspection of REM’s asbestos removal work at the Macy’s building was in response
to an employee’s complaint and was limited to items complained. The complaint alleged, among
other things, the dry removal of asbestos, lack of shower or decontamination unit, and no air
monitoring (Exh. R-7). REM consented to the inspection without requiring a inspection warrant
based on probable cause.
Section 8(a) of the Occupational Safety and Health Act (Act) directs that the OSHA
inspection be conducted in a reasonable manner, at reasonable times, and within reasonable limits.
REM alleges that the inspection was not reasonable because it was based on an improper motive, i.e.
to put it out of business and to harass. REM seeks to suppress OSHA’s evidence gathered during
the inspection and to dismiss the citations (REM Brief, p. 31-33).
To establish an affirmative defense of unreasonable inspection, there must be evidence of
unreasonable conduct by OSHA. Hamilton Fixture, 16 BNA OSHC 1073, 1077 (No. 88-1720,
1993). The evidence must show that OSHA substantially failed to comply with the provisions of
§ 8(a), and such noncompliance substantially prejudiced REM. Gem Industrial, Inc., 17 BNA
OSHC 1185 (No. 93-1122, 1995). Evidence that a compliance officer conducted an inspection to
harass an employer can be relevant to a § 8(a) defense. See Quality Stamping Products Co., 7 BNA
OSHC 1285, 1287 n. 6 (No. 78-235, 1979).
As examples of its claim of harassment, REM notes that OSHA compliance officer Floyd
Gattis stated to Charles Burge of C.S. Burge Inc. at another demolition project that “they (REM)
were having trouble down at Macy’s and one of his main things was to put Wayne Enterprises and
Reliance out of business” (Tr. 1425-1426). Also, another compliance officer, William Trepanier, in
a casual conversation with a stranger stated that “Reliance Environmental was responsible for all of
the problems that were occurring down in the old Macy’s building.” He also called REM’s president
an “habitual liar” that could not be trusted and that “Reliance Environmental would do anything to
5
cut corners and would do anything to, quote, ‘make a buck,’end quote” (Tr. 1438-1439). Another
OSHA representative named “Mike” allegedly stated that IH Ulczynski “seems bent on catching
Reliance doing something (Tr. 1473).
REM, also, argues that IH Ulczynski overlooked violations of the demolition contractor, did
not conduct an objective impartial inspection by only interviewing employees with unfavorable things
to say about REM, announced to representatives of the general contractor that REM was guilty and
displayed a hostile attitude toward REM’s foreman, Jim Fields (Tr. 925-926).
REM’s harassment defense is rejected. OSHA’s inspection was not shown unreasonable. It
was conducted during normal business hours and the OSHA inspectors involved in the inspection
acted in a reasonable manner. The inspection was in response to an employee complaint. See 8(f)(1)
of the Act. It was limited to the employee complaint who alleged violations in REM’s asbestos
removal work (Exh. R-7). The alleged impartiality by the OSHA inspector is based more on who was
cited than actual bias. There was no reason asserted nor shown indicating any hostility towards REM
by IH Ulczynski. There was no evidence of bias or prejudice in her almost two days of testimony.
REM is not relieved of its responsibility to comply with the Act. Other contractors working at the
Macy’s building were not the subject of an employee complaint. Also, it was not shown that IH
Ulczynski failed to inspect observable violative conditions created by other contractors. During most
the OSHA inspection, REM was the only contractor on-site.
With regard to comments by OSHA compliance officers, Gattis and Trepanier, OSHA denies
the statements were made based on an investigation by Area Director Anderson (Exhs. C-41, R-53;
Tr. 1489). He could not verify the allegations. However, Anderson’investigation was limited to
interviewing the compliance officers and not the witnesses to the comments (Tr. 1500, 1502). At the
hearing, the witnesses testified and appeared credible. Neither Gattis3 nor Trepanier testified.
Such comments, if made by Gattis and Trepanier, are clearly inappropriate. The area director
also considers the statements improper (Tr. 1505). However, neither Gattis nor Trepanier were
involved in the inspection of REM. They were not shown to influence the OSHA inspection or
3
Floyd Gattis transferred from the OSHA Toledo office to Atlanta in approximately March 1996 (Tr.
1490).
6
express the attitude of the inspectors and supervisors actually involved in the inspection. The
inspectors involved in the inspection did not express a bias or show a lack of impartiality.
For REM to prevail, there must be a showing that such inappropriate comments influenced
the inspection and prejudiced REM. The statements and actions by OSHA representatives that REM
claims demonstrate an “improper motive,” even if true, are insufficient by themselves to support a
finding of vindictive prosecution. In addition to evidence of animus, REM must show that it would
not have been cited absent that motive. National Engineering & Contracting Co., 18 BNA
OSHC 1075, 1077 (No. 94-2787, 1997). The record from the inspection supports a prima facia
showing of violations.
Further, even if REM had shown a “realistic likelihood” of vindictiveness, there still no basis
to conclude that the Secretary’s prosecution of REM in this case was unreasonable. OSHA’s
decision to prosecute appears to be based upon the normal factors ordinarily considered in
determining what course to pursue. OSHA’s inspection in this case was conducted as a result of an
employee complaint involving REM’s asbestos removal work. Such complaints, if reasonably based,
require OSHA to initiate an inspection. Based on two previous inspection of REM which resulted
in citations, OSHA clearly had a basis to determine that the employee’s complaint reasonably
identified possible safety and health violations (Exhs. C-16, C-17). The citations in this case, the
willful designation and the proposed penalties also appear based reasonably on the evidence OSHA
developed from its inspection.
REM failed to establish that IH Ulczynski’s behavior resulted in any prejudice in its ability to
present its defense. REM’s contention that it was prejudiced by IH Ulczynski’s failure to conduct
a more thorough inspection, or her refusal to credit the explanations of some REM’s employees is
without merit. IH Ulczynski had previously inspected REM twice and was familiar with its operation
(Exhs. C-16, C-17; Tr.752- 753). REM had ample opportunity to examine and record conditions at
the work site and to question its own employees during and after the OSHA inspection. Moreover,
REM was afforded a full opportunity to correct any of Ulczynski’s misapprehensions at its closing
conference (Exh. C-35). Finally, as is shown by the record, REM mounted a complete defense at the
hearing.
7
IH Ulczynski has been employed by OSHA since 1990 (Tr. 750). During the hearing, she
demonstrated an attitude of fairness and integrity. Her conduct and testimony did not bear a trace
of bias, prejudice, or animosity towards REM. The record shows that IH Ulczynski conducted a fair
and impartial inspection.
REM’s motion to dismiss the citations are denied.
The Alleged Violations
In order to establish a violation of a standard, the Secretary must show by a preponderance
of the evidence that (1) the cited standard applies to the alleged condition; (2) the terms of the
standard were not complied with; (3) employees were exposed to or had access to the violative
condition; and (4) the employer knew or could have known of the violative condition with the
exercise of reasonable diligence. Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218,
1221-22 (No. 88-821, 1991).
REM does not dispute that its asbestos removal activities were covered by § 19261101 et seq.
The work involved “construction, alteration, repair, maintenance, or renovation of structures,
substrates, or portions thereof, that contain asbestos.” See § 1926.1101(a). REM contracted to
remove the asbestos containing material (ACM) or presumed asbestos containing material (PACM)
from an abandoned 75-year old building which the owner intended to renovate into apartments and
commercial business (Exhs. C-5, C-12). Toltest surveyed and sampled numerous locations in the
building and concluded that “Several types and quantities of asbestos containing materials (ACM)
were located within the facility as outlined in our report. They include, spray-on acoustical plaster,
thermal system insulation, tank insulation, flooring materials, duct insulation and several other types
of materials” (Exh. C-5). The Toltest survey identified the material, location, amount, friability,
condition and whether positive for asbestos (Exh. C-5, Appendix E).
It is also undisputed that REM’s asbestos removal work at the Macy’s building was Class 1,
asbestos removal. The OSHA standards identify four classes of asbestos work. “Those activities
presenting the greatest risk are designated Class I work, with decreasing risk potential attaching to
each successive class.” 59 Fed. Reg. 40,964, 40,976 (August 10, 1994). “Class I asbestos work
means activities involving the removal of TSI [Thermal system insulation] and surfacing ACM and
PACM.” See §1926.1101(b). ACM is any material that contains more than one percent asbestos.
8
PACM is thermal system insulation and surfacing material found in buildings constructed no later than
1980. See §1926.1101(b). The Toltest survey of the Macy’s building identified the ACM and PACM
to be removed by REM. REM contracted to perform the asbestos abatement. The removal of TSI
and surfacing ACM which Toltest identified in the Macy’s building is Class I asbestos work as defined
at § 1912.1101(b).
Further, evidence of REM’s asbestos abatement was found on February 16, 1996, by IH
Ulczynski. She found bags of dry asbestos in two areas of the basement and on the eight floor. Bulk
samples were taken from each location (Tr. 768, 780). The bulk samples showed 50% to 75%
asbestos (Exh. C-26 pp. 2-25 to 2-35).
At the hearing, REM argues that the debris containing asbestos material in the basement
resulted from the accidental disturbance when the walls were ripped out by the employees (Tr. 1298-
1299). REM asserts that this work activity was Class IV which includes “activities to clean up dust,
waste and debris resulting form Class I, II and III activities” §1926.1101(b) (REM Brief, p. 34-36).
However, employees engaged in Class I activities are expected to clean the debris from their “removal
of TSI and surfacing ACM and PACM” activities. Dr. Curt Varga, REM’s expert, testified that when
asbestos is intentionally removed, it should be promptly cleaned up and that the cleanup is also Class
I work (Tr. 1557).
The record shows that the employees (Joseph Garcia, Jason Vargyas, Billy Marshall) working
in the basement removed 200 to 300 feet of ACM aircell and the asbestos insulation form ceiling
pipes, both outside of and behind the partition walls (Tr. 437-438, 509-512, 642, 685). William
Watson, foreman for the electrical subcontractor who was in the basement while REM’s employees
were removing asbestos insulation, confirmed the employees’ testimony (Tr. 639-640, 642). Jim
Fields, foreman, testified that ACM insulation was also removed from elbows on February 14, 1996
(Tr. 282). According to REM’s daily progress report, on February 14 “Kevin [Brice] went into
basement to start glovebaging” (Exh. C-10). A glovebag is used for removing ACM from pipes. See
definition § 1926.1101(b). Therefore, the record establishes that the employees were engaged in
removal of ACM or PACM in the basement during February 13-15, 1996, and such activities
constitute Class I asbestos work.
9
The argument that Jim Fields, foreman, was not aware of the employees’asbestos removal
activities and such removal was contrary to his instructions to remove the walls, involve issues of
knowledge to establish a violation and REM’s asserted employee misconduct defense. These issues
are discussed with regard to the alleged violations. REM’s argument, however, does not change the
nature of the work activities as Class I asbestos removal. OSHA for clarification has stated:
that ‘clean up’ performed as a Class IV activity does not include
picking up and bagging asbestos debris/dust during Class I, II, or III
work. Class I, II, and III work is subject to the requirement in
paragraph (g)(i)(iii) of the construction and shipyard standards for
prompt clean-up and disposal of asbestos-containing waste and debris.
Therefore, the collection and bagging of dust and debris that results
from Class I, II and III work is considered a part of that class of work
and must be done by employees trained to do such work, Class IV
activities consist of clean-up work that takes place in an area after a
Class I, II, or III job in that areas has been completed.”
61 Fed. Reg. 43,454, 43,4456 (August 23, 1996) (Exh. C-44).
ACM was not only “disturbed” (thereby not qualifying for Class IV work), but intentionally
removed from the pipes. Therefore, REM’s work in the basement on February 13-15 was Class I
asbestos work.
SERIOUS CITATION
Item 1; Alleged Violation of § 1926.1101(f)(1)(ii)
The citation alleges that “employee exposure samples were not made from the breathing
zone.” Section 1926.1101(f)(1)(ii) provides that:
Determinations of employee exposure shall be made from breathing
zone air samples that are representative of the 8-hour TWA and
30-minute short-term exposures of each employee.
The Secretary alleges that there was no air monitoring performed by REM during the Class
I asbestos removal work in the basement of the Macy’s building on February 13 -15, 1996 (Tr. 840;
Secretary Brief, p.14).
Section 1926.1101(f)(1) requires that determinations of employee exposure be made by the
employer who has a work operation where exposure monitoring is required. The employer is
required to perform an initial exposure assessment of the operation “to ascertain expected exposures
10
during that operation” and daily monitoring “that is representative of the exposure of each employee
who is assigned to work within a regulated area who is performing Class I or II work” See
§§ 1926.1101(f)(2) and 1926.1101(f)(3).
REM asserts that it was not required to do air monitoring because Jim Fields, foreman, made
a negative exposure assessment (REM Brief, p. 38). However, even with the negative exposure
assessment, Fields continued to conduct air monitoring at the Macy’s building (Exh. R-38; Tr. 1739).
REM notes the air monitoring results for Kevin Brice dated February 14 and Eric Bishoff on February
15, 1996 (Exh. R-38).
Jim Fields, REM’s foreman and competent person, testified that he made a negative exposure
assessment based on air monitoring results from other projects (Tr. 1221). Under
§ 1926.1101(f)(2)(iii), a negative exposure assessment is permitted:
For any one specific asbestos job which will be performed by
employees who have been trained in compliance with the standard, the
employer may demonstrate that employee exposures will be below the
PELs by data which conform to the following criteria4 :
(B) Where the employer has monitored prior asbestos jobs for the
PEL and the excursion limit within 12 months of the current or
projected job, the monitoring and analysis where performed in
compliance with the asbestos standard in effect; 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 employer’s current operations, the operations
were conducted by employees whose training and experience are no
more extensive than that of employees performing the current job, and
these data show that under the conditions prevailing and which will
prevail in the current workplace there is a high degree of certainty that
employee exposures will not exceed the TWA and excursion limit.
The Secretary argues that it was not until the sixth day of hearing that REM ever claimed it
made a negative exposure assessment (Sec. Brief, p 16). During the inspection, IH Ulczynski was
not shown a negative exposure assessment (Tr. 951, 1744). Also, IH Ulczynski after reviewing
4
Subsections (A) and (C) which involves objective data showing no release of airborne fibers and the
results of initial exposure monitoring are not applicable to this discussion.
11
monitoring results for the Macy’s building, testified that levels of exposure in some instances were
above the permissible exposure limit (PEL) and provided no basis to discontinue monitoring (Exh. C-
38; Tr. 1042-1043).
REM offered a documentative history of monitoring results at prior projects: Exhibit R-65
involves asbestos ceiling cut down and some floor tile samples; Exhibit R-68, involves asbestos floor
tile removal; Exhibit R-69 involves thermal system insulation and demolition; Exhibit R-70 involves
duct work removal; and Exhibit R-71 involves patch and repair of asbestos-containing material
(Tr. 1719, 1736-1739). The documents were put together approximately two to three weeks before
Jay Burzynski, president of REM’s testimony (Tr. 1720). Burzynski testified that the monitoring
results were distributed to his supervisors and used in making a negative exposure assessment
(Tr. 1739).
The reason for establishing a negative exposure assessment is so that the employer can ensure
employee exposures for any one specific asbestos job on a current project will be consistently below
the PEL. However, if the employer has any reason to suspect that there may be exposures above the
PEL and/or excursion limit, additional monitoring is required regardless of whether a negative
exposure assessment was previously produced for a specific job. See § 1926.1101(f)(4)(ii) and
definition at § 1926.1101(b). The standard does not require a written assessment. It does, however,
require that the employer demonstrate by data “that there is a high degree of certainty that employee
exposures will not exceed the TWA and excursion limit.” § 1926.1101(f)(2)(iii)(B).
REM’s negative assessment is rejected for the work performed in the basement. There is no
showing how Fields used the documentation and what specifically was considered relevant to the
specific asbestos jobs anticipated in the basement. There is no indication that a negative assessment
was made prior to OSHA’s inspection. Also, the documentation supporting the assessment does not
contain the information required by the standard as to environmental conditions, type of work
performed, and the type of asbestos exposure. It fails to show that REM took breathing zone air
samples that were representative of the 8-hour TWA or 30-minute short-term exposures of each
employee. There were no 30-minute short-term exposure sampling done until February 24, 1996
(Tr. 840). The assessment does not show the type of material worked on, the environmental
conditions, whether it was dry or wet removal, and the experience of the crew (Tr. 1760-1761).
12
Also, REM’s own personal monitoring results at the Macy’s building show over exposures
(Exh. R-38, C-34; Tr. 1761-1762). Therefore, REM failed to demonstrate a negative evaluation
assessment in compliance with the standard was made prior to its asbestos removal work in the
basement on February 13-15, 1996.
In addition to claiming a negative evaluation assessment, REM asserts that it performed daily
personal monitoring while asbestos removal work was done at the Macy’s building. The record
shows periodic air monitoring during asbestos removal work in the basement, including REM’s air
monitoring results on February 14 and 15 involving Kevin Brice, gloving bagging, and Eric Bishoff,
clean up of ACM (Exh. R-38 p. 33-38, also in C-34). The results showed .081 fibers per cubic meter
(F/cm) for Brice and .360 F/cm for Bishoff. When IH Ulczynski asked Jim Fields, foreman, during
the inspection for the air monitoring results for the basement asbestos removal, she was informed that
the samples were at his home (Tr. 778, 1350). The samples were not received by Toltest for analysis
until February 19, 1996.
IH Ulczynksi testified that employees told her there was no monitoring done in the basement
prior to her inspection (Tr. 840). Former employees, Joe Garcia, Jason Vargyas, and Billy Marshall,
testified that while removing insulation from pipes in the basement on February 14 and 15, 1996,
REM did not perform personal monitoring for asbestos. Garcia, asbestos worker, testified that he
did not see anyone wearing a personal monitoring pump in the basement on February 14 and 15
(Tr. 429, 440). Likewise, Jason Varygas, asbestos worker, did not see anyone wearing a personal
monitor (Tr. 519, 527). Billy Marshall stated there were no monitors worn on February 13 and 14
(Tr. 688). However, on cross-examination, Marshall did not recall whether or not Brice wore a
personal air monitor (Tr. 725).
The records maintained by REM show the monitoring results for Brice and Bischoff while
removing asbestos in the basement on February 14 and 15, 1996. Despite other employees not seeing
them wearing a personal monitor, the monitoring results were not refuted. It was not shown that the
other employees should have been aware or recall the work of Brice or Bishoff over a year earlier.
Brice or Bischoff did not testify and apparently not interviewed by OSHA. The Secretary questions
the reliability of the samples because Kevin Brice is the brother of Jim Fields, foreman and Eric
Bischoff is Brice’s roommate (Tr. 955, 960, 1384). However, Jim Fields informed IH Ulczynski that
13
the samples were obtained at the time of the inspection. The results from Toltest also show the dates
sampled. The Secretary has the burden of proof. There is no showing that the sampling results for
Brice and Bischoff were not representative of the other employees working in the basement. The
Secretary failed to establish a violation of § 1926.1101(f)(1)(ii).
Item 2: Alleged Violation of § 1926.1101(f)(5)(ii).
The citation alleges that employees “were not informed in writing of the monitoring results
which represent their exposure.” Section 1926.1101(f)(5)(ii) requires that:
The employer shall notify affected employees of the results of
monitoring representing the employee’s exposure in writing either
individually or by posting at a centrally located place that is accessible
to affected employees.
The purpose of the standard is to keep employees informed of their exposure results. The
standard places the responsibility to inform employees on the employer. The employer is given the
option of notifying affected employees; either individually or by posting the results at a place
accessible to the employees.
The record is not in dispute. REM did not have a job trailer or a job office at the Macy’s
building. Because of job conditions, Jim Fields, REM’s foreman, kept the monitoring results of
employees in his job file (Tr. 308-309, 1216-1217). Fields acknowledges that at the time of the
OSHA inspection the monitoring results were not posted nor were employees informed individually
in writing. The results in his file were told to employees, if requested. He stated that if the results
were high, he would verbally notify the affected employee. Fields testified that he never had an
employee ask to see his air monitoring results. (Tr. 308-309, 1227).
REM does not dispute that the monitoring results were not posted or provided to employees
in writing. REM seeks to reclassify the violation as “other-than-serious” (REM Brief, p. 39). REM
argues that employees knew results were available to them in Fields’job file. Joe Garcia, asbestos
worker, testified that he knew the results were maintained in a book kept by Jim Fields which he
could request to look at. He considered the book Fields’personal property which he could not touch
unless permitted by Fields (Tr. 441). Similarly, Jason Vargyas testified that he knew the monitoring
results were kept with his supervisor and that he was “sure he could get the results if . . . [he] wanted
14
them.” (Tr. 551). Varygas, however, was never told his results in writing (Tr. 527). Hugh Williford
also knew where the air monitoring results were kept (Tr. 1099).
Although some employees as noted by REM knew where the results were kept, the record
also shows that Rick Wisbon was never told verbally or in writing of the sampling results although
he had asked to see them many times (Tr. 594-595, 617). Also, Billy Marshall never saw the results
of his air monitoring and nobody told him (Tr. 698). IH Ulczynski testified that not one employee
told her during the inspection that he had been notified of their monitoring results by REM (Tr. 843).
The standard places the responsibility of notification on the employer and not the employees.
The standard is not triggered only because the employee’s monitoring results were above the PEL
or excursion limit. According to Fields’testimony, employees were not notified even verbally unless
specifically requested by the employee or if the employee’s result was high. The standard offers an
employer two options; in writing to the employee individually or by posting at a centrally located
place. Maintaining the results in a job file available upon request does not comply with the
requirements of the standard and REM’s responsibility to its employees.
REM argues that it could not be posted at the Macy’s building because of demolition work.
There is, however, no showing that the results could not have been provided to each employee
individually in writing such as with their paycheck or that the result could not have been posted at
REM’s main office. Jay Burzynski, president of REM, testified that the monitoring results are
currently posted at REM’s office where employees go at least once a week (Tr. 1613-1614).
A violation of § 1926.1101(f)(5)(ii) is affirmed. The violation is serious. REM knew of the
requirements and choose to ignore them. Although some employees may have known that Fields
kept the results in a book, it was not shown that all employees knew. Without knowing the
monitoring results, an employee may not make necessary adjustments in their work practices to limit
exposure to asbestos. Also, employees may not voluntarily wear appropriate protective equipment
such as respirators (Tr. 844). The information belongs to the employee for the protection of his
health and not just if the results exceed the PEL.
A penalty of $4,200 is reasonable. The Commission is the final arbiter of penalties in
contested cases. Under § 17(j) of the Act, in determining an appropriate penalty, the Commission
is required to consider the size of the employer’s business, history of previous violations, the
15
employer’s good faith, and the gravity of the violation. Gravity is the principal factor to be
considered.
REM had approximately 35 employees on February 1996 (Tr. 195). REM was inspected
twice previously by IH Ulczynski and both inspections resulted in citations (Exh. C-16, C-17).
During her first inspection, IH Ulczynski gave Burzynski a copy of the new asbestos standard
(Tr. 840). REM is given credit as a small employer (Tr. 1079). REM is not entitled to credit for
good faith or history. The gravity is considered moderate because the employees were not provided
the results as required by the standard.
Item 3: Alleged Violation of § 1926.1101(k)(9)(i)
The citation alleges that “the costs of initial asbestos worker certification training were paid
by employees through payroll deduction.” Section 1926.1101(k)(9)(i) provides:
The employer shall, at no cost to the employee, institute a training
program for all employees who are likely to be exposed in excess of
a PEL and for all employees who perform Class I through IV asbestos
operations, and shall ensure their participation in the program.
The facts are not in dispute. The issue for determination is whether the individuals required
by the Ohio Department of Health and the Environmental Protection Agency to receive initial
asbestos worker certification training were employees of REM while participating in the training. The
standard requires the employer to institute training programs at no cost to employees. Except for the
initial asbestos certification training, REM pays for all the other training programs and its employees
time spent in the training (Exhs. R-32, R-41, R-42; Tr. 393, 535-536, 728-729).
The individuals who are not already certified asbestos workers must receive the initial asbestos
worker certification training. Certification is required before any asbestos worker begins work. The
initial asbestos worker certification training is provided by private companies such as Environmental
Abatement Systems, Inc. (EAS), located in Detroit which is a EPA licensed asbestos training
company. The required initial certification training is 32 hours or 4 days with an examination. The
individual is then issued a certificate of completion (Exh. C-13; Tr. 1405). Jay Burzynski, president
of REM, testified that it was REM’s practice that if a potential worker did not have a asbestos worker
certification, the worker was referred to a training company such as EAS for certification. According
to Burzynski, the worker could obtain the certification on his own or if he need financial assistance,
16
REM would pay the training company, such as EAS. Burzynski characterized the payment to the
training company as a “loan” to the potential worker. If the worker completed the training and
received certification, the worker would be hired by REM and the cost of the initial asbestos worker
certification training was paid back to REM by the employees through payroll deduction of $50 over
a six-week period (Tr. 1582-1583).
The workers taking the initial training course upon referral by REM are required to sign a
REM form entitled “Employee Financial Responsibilities” (Exhs. C-14, C-43) which provided that:
TRAINING COSTS
In compliance with Ohio Department of Health and The
Environmental Protection Agency, all field workers working with
asbestos must be a Certified Asbestos Worker. Initial certification
training has a total cost of $300.00 and $70.00 for yearly renewal
certification. The costs incurred for initial training shall be the
responsibility of the employee. Reliance Environmental Management,
Inc. will pay “up front” for the class and then be reimbursed by the
employee with a payroll deduction of $50.00 per week for 6 weeks.
The time spent by the individual at the initial training class will be the
individual’s OWN time. The costs incurred for yearly renewal
certification will be the sole responsibility of Reliance Environmental
Management, Inc.
The same provision appears in REM’s Company Policy manual (Revised August 1, 1995)
(Exh. R-27; Tr. 1712-1713). However, the policy manual added the following:
An individual will not become an employee until they are a certified
asbestos worker. If an employee becomes certified after he is
employed it shall be the responsibility of the company to pay for the
individuals certification.
REM argues that except for Billy Marshall who it acknowledges was an employee while
taking the initial certification training, the other individuals identified by the Secretary who took the
required initial certification training were not employees of REM while in training (REM Brief, p.40).
The individuals, however, subsequently became REM employees.
Farrell Davis, president of EAS, testified that his company offered training in asbestos worker
and refresher courses (Tr. 1403-1404). The cost of the initial training course for asbestos worker
certification since 1988 was $275. A group rate for six participants was $225 with the seventh person
17
free (Exh. C-13 -billing to REM for November 7 through 11, 1995, initial training class; Tr. 1414-
1415). Jay Burzynski conceded that REM’s cost for the November 1995 training was $225 per
participant referred to EAS (Tr. 1713). REM through $50 payroll deductions over six weeks charged
the individuals who went to work with REM after completing the course, $300 or 33 percent interest
above REM’s actual cost for the training (Tr. 1713-1714). Burynzliki denied that he was aware
REM paid EAS a lower price for training than the $300 REM charged the employee (Tr. 1715). The
$50 deduction from the employee’s wage was shown under “education” on the pay stub (Exh. C-31,
C-32; Tr. 590).
IH Ulczynski also found that prior to receiving the initial certification training, workers were
provided a physical examination by REM and several of the workers used a REM truck to travel to
and from the training site in Detroit. A fax from the EAS referred to the workers as employees
(Tr. 845-846). However, there was no requirement that after completing the training, the worker had
to work for REM. Davis testified that workers who complete the training go to work for whichever
contractor paid the most.
In determining whether an employment relationship exists, the Commission has adopted an
economic realities test. As described in Loomis Cabinet Co., 15 BNA OSHC 1635, 1637
(No. 88-2012, 1992), the economic realities test employs the following factors: (1) who the worker
considers his employer; (2) does the alleged employer have the power to control the worker; (3) who
has the responsibility to control the worker; (4) does the alleged employer have the power to fire,
hire, or modify the employment conditions of the worker; (5) does the worker’s ability to increase
their wages depend on efficiency rather than initiative, judgment, and foresight; and (6) how are the
worker’s wages established. The key factor in addressing the employment issue is the right to control
the work. See Abbonizio Contractors, Inc., 16 BNA OSHC 2125 (No. 91-2929, 1994); Acchione
& Canuso, Inc., 7 BNA OSHC 2128 (No. 16180, 1980).
Having certified asbestos workers is an integral part of REM’s business of asbestos
abatement. Worker certification in the asbestos removal is required by both federal and state law.
The training satisfies the EPA requirements and not the specific requirements of REM. As described
by REM, workers without the certification have two options: “one, they can either go off and get the
certification on their own, or they can come to us and we will help them financially, . . . in essence
18
loaning them the money” (Tr. 1582). By loaning the money for training, REM reasonably expects
to receive qualified workers. REM even charges the worker more than the cost of the training.
Burzynski further testified that the newly hired individuals, after going to the training and getting the
certification, become an employee of the company and commence working for REM (Tr. 1582).
Also, the worker has the expectation of employment upon completion of the training course.
However, such expectation does not mean control.
Rick Wisbon testified that Burzynski hired him the same day of his job interview. He testified
that Burzynski said to him, “I will hire you, and then I will send you to school” (Tr. 627). He
completed W-2 health insurance form and other forms prior to training (Tr. 591). Wisbon used
REM’s van to drive back and forth from REM offices in Toledo to Michigan for the training. REM
made all the arrangements for the training (Tr. 589, 627).
Billy Marshall, asbestos worker, started at REM on June 14, 1995. During his first month,
he did remediation work, but no asbestos removal work (Tr. 671). He received regular paychecks
(Tr. 744). Marshall was given a physical examination for asbestos work on June 17, 1995. He
received the initial asbestos certification training in July 18 - 21, 1995 (Exh. C-15 p.2; Tr. 674). After
the training, $50.00 was deducted from for six weeks under the heading “education” (Exh. C-32; Tr.
676). REM concedes that Marshall was an employee when he received initial training (REM Brief,
p. 40).
REM also paid for Scott Weirich’s initial certification training (Tr. 1111). REM deducted $50
from each payroll check (Tr. 1127). Weirich described his hiring as:
Weirich: Came here. In my interview, they told me that I was hired. They sent
me to a class in Detroit. It was five days; four or five days. Then, I
went to work after that.
Holman: Okay, so they hired you and then sent you to the class or did they say,
Look, before we hire you, you’ve got to go to the class?
Weirich: Well, I was under the impression I was hired already because why
send someone to class that you ain’t -- if you’re not going to hire
them? Why send them to class? (Tr. 1127-1128).
The Secretary argues that the individuals who attended the initial certification training
provided by EAS at REM’s expense were under the control of REM. The training was in furtherance
19
of REM’s business. It was REM’s cost of doing business. The fact that the worker goes to work
for another employer after completing asbestos training happens all the time according to Kurt Varga,
REM’s expert (Tr. 1548-1549).
With exception of Marshall, which REM acknowledges was an employee at the time of his
initial training, the other individuals identified by the Secretary were not shown to be employees of
REM while attending the initial certification training. The training and certification was required by
the state and federal government. The training course was devoted to meeting the EPA requirements
for asbestos removal regardless of the employer. The training was not instituted by REM and not
conducted at REM’s place of business. REM was not shown to have any control over the course
content. During training, the worker did not perform any work for REM or supplement any of
REM’s employees. The standard contemplates that the training programs are initiated by the
employer, not programs required by the state or federal government as initial training to become an
asbestos worker. REM did not control or have the power to control the course content and the
activities of the training company. REM did not pay wages during the training. Although REM paid
for the training, if needed, and the worker had an expectation of employment upon receiving asbestos
worker certification, an employment relationship was not created until the worker started work for
REM. Several workers failed to complete the training or refused to work for REM upon completion
of the initial training. Of the thirteen individuals sent to EAS for initial training on November 7, 1995,
two dropped out after the first day and one after the second day. REM was charged $25 for each day
attended and $75 because the individuals failed to return the manual (Exh. C-13; Tr. 1414-1415).
Upon completion of the course, there was no assurance other than the $300 “loan” that the worker
would work for REM as opposed to another asbestos abatement employer. The record does not
show what part of the group which completed the training declined employment. The training skills
acquired during the training can be utilized by any asbestos employer.
Although a worker knew there was a job available upon successful completion of the training,
he also did not view the training as part of their job which would entitle them to wages. As stated
by Scott Weirich, “Well, anytime I work, I expect to get paid for it; but, you know, you can’t work
without a license, for one” (Tr. 1129-1130). To perform the asbestos work, the state and EPA
requires workers to obtain an asbestos worker certificate. Such training is not provided by REM but
20
is done by private companies such as EAS in Detroit. REM hopes that the workers for which it paid
for the training will work for REM upon certification. However, it has no guarantees. The workers
who received the initial asbestos certification training were not employees of REM except for Billy
Marshall. Although initial certification training benefits REM by providing it with certified asbestos
workers, the workers attend the training for their own benefit; to qualify for employment they could
not otherwise obtain. REM receives no immediate benefit while the workers are in training and the
workers are not productive for REM until after completing the training. See Donovan v. American
Airlines, Inc., 686 F.2d 267 (5th Cir., 1982) (an employer’s required flight attendant school did not
convert the trainees into employees under the Fair Labor Standards Act).
REM admits that Marshall was employed when he attended the initial worker training. REM
argues a good faith mistake and such mistake should be considered de minimus violation (REM Brief,
p. 40-41). The court rejects such classification. By sending Marshall after he was already on its
payroll and deducting from his wages more than the cost of the training directs an “other” than
serious classification. The Secretary moved to amend the violation to an “other” than serious willful
violation (Tr. 844-845, 940). REM disregarded the standard. There is no dispute that Marshall was
an employee and the standards requires that training is provided without cost to “employees.” REM
directed Marshall to participate in the training. However, the willful classification is rejected. There
is no evidence of intent or reckless disregard.
Accordingly, an “other” than serious violation of § 1926.1101(k)(9)(i) is affirmed.
WILLFUL CITATION
Item 1a: Alleged Violation of § 1926.1101(g)(1)
The citation alleges that in the basement of the Macy building “wet methods, or wetting
agents were not used to control employee exposures, during removal of asbestos containing pipe
insulation.” Section 1926.1101(g)(1) requires the employer to use engineering controls and work
practices in covered operations regardless of the levels of exposure. One of the required controls is
the use of:
wet methods or wetting agents to control employee exposures during
asbestos handling, mixing, removal, cutting, application, and cleanup,
except where employers demonstrate that the use of wet methods is
infeasible due to for example, the creation of electrical hazards,
21
equipment malfunction, and, in roofing, except as provided in
paragraph (g)(8)(ii) of this section.” See § 1926.1101(g)(1)(ii).
The use of the wet methods controls asbestos fiber dispersion. “The theory is that if you mist
the air and mist the material, the binders surrounding the asbestos fibers will close down on the fibers
and, therefore, slow or hinder the release of those fibers into the air” (Tr. 151).
On February 16, 1996, IH Ulczynski observed bags of debris in two areas in the first basement
and on the eighth floor (Exh. C-7; Tr. 758, 761-762, 779). She felt the bags and found there was no
dampness (Tr. 1805-1806). She cut open the bags and observed insulation material (Tr. 1770). Bulk
samples of material taken from several of the bags, ladder rungs and a ledge were found containing
50% to 75% asbestos (Exh. C-26 pp. 2-25 - 2-33; Tr. 769, 1769). The material was friable, thermal
system insulation and none of it appeared damp or wet (Tr. 1769-1770).
REM initially argues that the work performed was not asbestos removal. It involved Class
IV asbestos clean up work.(REM Brief, p. 34). On the evening of February 13, 1996, Jim Fields,
foreman, instructed his men remove the wall/soffit. According to Fields, he did not instruct the
employees to remove asbestos insulation. When he returned to the basement the second time, Fields
found asbestos mixed with drywall pieces (Tr. 1297-1298). The crew told him that the asbestos “was
coming down with the wall” (Tr. 1299). Fields then had the crew to promptly shovel up the debris
and put it into sealed bags (Tr. 1301-1302). Fields claims that he had not instructed the employees
to remove asbestos off the pipes and did not observe anyone doing so (Tr. 1303). This was
confirmed by asbestos workers, Hugh Williford and Scott Weirich who worked on February 15 (Tr.
1091-1092, 1118). Dr. Curt Varga, REM’s expert, classified the work as a spill (Tr. 1551).
REM’s argument is rejected. As discussed, the clean up work was part of REM Class I
asbestos removal activities. Also, wet methods or wetting agents are specifically required “during
asbestos handling, mixing, removal, cutting, application, and cleanup.” See § 1926.1101(g)(1)(ii).
Therefore, the use of wet methods or wetting agents to control employee asbestos exposure unless
shown infeasible were required during the removal or cleanup of asbestos debris in the basement.
REM does not dispute that the clean up of the asbestos in the basement was a dry removal.
Employees who worked in the basement testified that the asbestos was removed without water. Joe
Garcia, asbestos worker, testified that no water was used to remove asbestos on either February 14
22
or 15 (Tr. 427, 438-439). Jason Varygas also testified that there was no water being used to remove
asbestos on February 14 and 15, 1996 (Tr. 515, 525). Nor did employees use pump sprayers while
removing asbestos (Tr. 516). Varygas stated that Jim Fields knew dry removal was going on in the
basement and did not tell them to stop (Tr. 517). Billy Marshall testified that there was dry removal
of asbestos and no water or hand sprayers available when he removed asbestos in the basement
(Tr. 680, 687). Rick Wisbon, also testified that dry removal occurred every day on the site and that
Jim Fields was present most of the time (Tr. 597).
REM argues that it was not feasible to use wet methods or wetting agents in removing the
asbestos in the basement. Jim Fields testified that the water was frozen and the two gallon pump-up
sprayers were also frozen. “So there wasn’t a whole lot of water in there” (Tr. 1300). REM’s
infeasibility argument is based on the water being frozen.
Section 1926.1101(g)(1)(ii) requires wet methods “except where the employer can
demonstrate that the use of wet methods is infeasible due to for example, the creation of electrical
hazards, equipment malfunction, and, in roofing.” As an exception, it is to be read narrowly and the
burden is on the employer to show entitlement.
REM’s infeasibility defense is rejected. REM failed to demonstrate that wet methods or
wetting agents were not feasible for use in the basement of the Macy’s building in February 13 - 15,
1996. REM argues that its action was consistent with EPA regulations, which provide an exception
from the use of water when it is below freezing. According to the national weather bureau, the
temperature in Toledo during the month of February, 1996 averaged from 19 to 34 degrees
Fahrenheit (Exh. R-46). REM asserts that the infeasibility exception to the use of wet methods under
§ 1926.1101(g)(1)(ii) should be interpreted consistent with the EPA exception applicable to the use
of water when the temperature is below freezing.
IH Ulczynski testified that OSHA considered the infeasibility exception to the use of wet
methods to apply to equipment malfunction, electrical hazards or in the roofing industry (Tr. 992-993;
also see Fed. Reg. at 40,989). OSHA has not given a variance for freezing conditions (Tr. 1024).
IH Ulczynski suggested heating the water, adding biodegradable antifreeze to the water, window
washer fluid, or adding salt to the water to keep it form freezing. Also, she suggested that REM
could not have delayed its removal work (Tr. 850).
23
The EPA regulates ambient air (Tr. 1178). EPA regulations do not enforce worker
protections (Tr. 1188). While OSHA does not make an exception for freezing temperatures, the EPA
does at 40 CFR § 61.145(c)(7) (Exh. R-55) which provides that:
When the temperature at the point of wetting is below 0 C (32 F):
(i) The owner or operator need not comply with paragraph (c)(2)(i)
and the wetting provisions of paragraph (c)(3) of this section.
(ii) The owner or operator shall remove facility components
containing coated with or covered with PACM as units or in sections
to the maximum extent possible.
(iii) During periods when wetting operations are suspended due to
freezing temperatures, the owner or operator must record the
temperature in the area containing the facility components at the
beginning, middle, and end of each workday and keep daily
temperature records available for inspection by the Administrator
during normal business hours at the demolition or renovation site.
The owner or operator shall retain the temperature records for at least
2 years (emphasis added).
There is no record that REM recorded the temperatures inside the basement or at any other
location in the Macy’s building. After the fact, REM obtained temperatures recorded at the Toledo
airport (Exh. R-46; Tr. 1231). Jim Fields claims that he recorded temperatures three times a day and
turned them into the office (Tr. 275). His records, however, were not produced by REM. Also, none
of the employees recalled seeing Fields with a thermometer recording the temperature (Tr. 436, 522,
598). Fields did discuss with Burzynski that the water was frozen at the Macy’s building (Tr. 293,
298). His daily progress report for Feb 14 notes that “water froze back up to showers and pump up
sprayers are froze.” His daily progress report for February 15 also notes “Water is frozen.”
(Exh. C-10). Fields also admitted that the pump up sprayer was not adequate to clean up the asbestos
in the basement on February 15 (Tr. 294). He stated that it was never discussed prior to February
19 that if there was no water, the job would be shut down (Exh. C-10; Tr. 299). Fields did not try
to add something to the water so that it would not freeze (Tr. 299). Further, the record indicates that
the bags containing asbestos debris were carried to the eighth floor containment to add water for EPA
approval (Tr. 299, 785-786).
REM has not met its burden of showing of infeasibility. The alternative methods, such as
suggested by IH Ulczynski were not shown to be unacceptable. Armstrong Steel Erectors, Inc., 1995
24
CCH OSHD ¶30,909 (No. 92-262, 1995); affd D.C. Cir 1996 CCH OSHD ¶ 31,024. REM failed
to show why the recommendations suggested by OSHA were not feasible for use in the basement.
OSHA standards do not provide exception for freezing temperature. It requires wet methods or
wetting agents. Also, the record is unclear whether some water was available for use.
A violation of § 1926.1101(g)(1) is affirmed.
Item 1b: Alleged Violation of § 1926.1101(g)(3)
The citation alleges that employees in the basement “dry swept and shoveled dust and debris
containing ACM or PACM from the floor.” Section 1926.1101(g)(3) prohibits work practices and
engineering controls “which disturbs ACM or PACM, regardless of measured levels of asbestos
exposure or the results of initial exposure assessments.” Within the prohibited work practices,
subsection (iii) prohibits “dry sweeping, shoveling or other dry clean-up of dust and debris containing
ACM and PACM.”
As discussed, REM argument that the employees in the basement on February 15 were not
engaged in asbestos removal is rejected (REM Brief, p. 34). Although several workers testified to
removing asbestos insulation (Garcia, Vargyas, Wisbon, Marshall) and others only to doing
preparation work (Hugh Williford, Scott Weirich), there is no dispute that workers also performed
clean-up work to remove the debris. Jim Fields admitted that in cleaning up the asbestos on February
15, the employees used a shovel, a broom and picked up the material with their hands. Fields was
aware that the debris contained asbestos. Jason Varygas and Billy Marshall confirmed that a shovel,
broom and no water was used to clean up the asbestos (Tr. 525-526, 688). As evident by the bulk
samples taken from bags of debris from the basement, the debris contained asbestos.
The standard specifically prohibits “dry sweeping, shoveling or other dry clean up of dust or
debris containing ACM or PACM.” There is no dispute that the debris contained ACM or PACM.
OSHA’s bulk samples contained 50 - 75 percent asbestos. The prohibition applies to any “work
related to asbestos or for work which disturbs ACM or PACM.” When Fields assigned the workers
to clean up the debris, he knew or should have known it contained ACM or PACM. The use of dry
methods such as brooms and shovels are strictly prohibited.
A violation of § 1926.1101(g)(3) is affirmed.
25
Item 1c: Alleged Violation of § 1926.1101(g)(5)
The citation alleges that employees in the basement were required to remove asbestos
containing pipe insulation without the use of one or more of the control methods.
Section 1926.1101(g)(5) requires that for Class 1 asbestos work, control methods include a negative
pressure enclosure, glove bag system, negative pressure glove bag system, negative pressure glove
box system, water spray process system, or a small walk-in enclosure.
REM argues that the action taken by Fields was reasonable and proper. He had not instructed
employees to remove asbestos from the pipes and did not observe anyone doing so (Tr. 1303). REM
does not argue that Fields used any of the methods outlined in § 1926.1101(g)(5) (REM Brief, p. 35).
Jim Fields did not consider using a containment or plastic sheeting when he asked the
employees to remove the walls in the basement on February 14-15. He, also, did not consider using
such methods when he discovered the asbestos in the debris. He made no attempt to encapsulate the
asbestos. He did not use HEPA vacuums to clean up the debris (Tr. 294-295). There were no
engineering controls used in removing the asbestos debris (Tr. 297). Fields testified that his brother,
Kevin Brice, was removing mag asbestos fittings off pipes using glove bags in the basement on
February 14 (Exh. C-10; Tr. 1294). Fields, therefore, was aware that asbestos was being removed
in the basement.
Also, employees who testified to removing asbestos insulation in the basement did not use
glove bags or a containment. Billy Marshall testified that there was no glovebags or a containment
(Exh. R-31; Tr. 680-681, 715, 724). Jason Varygas also testified to not using glovebags or a
containment (Tr. 515, 525, 562). Joe Garcia testified that Fields returned to the basement every hour
and did not tell them to stop work and use glovebags (Tr. 426-427). William Watson, the Pyramid
Electric employee, who observed REM employees removing asbestos from pipes in the ceiling, also
saw no glovebags or containment (Tr. 641-642). Watson’s crew wore masks because of the dust
(Tr. 644-645). When IH Ulczynski inspected the basement on February 16, she saw no containment
or glovebags in the basement on Feb 16. When asked, Fields responded “I just didn’t get to it”
(Tr. 778, 852-853).
26
The record shows that employees working in the basement were not using any of the required
methods for containing asbestos while performing Class I asbestos work. Based on Fields presence
on-site, the note in his daily log that Brice was using a glovebag in the basement, and the testimony
of employees, Fields knew or should have known of the asbestos removal work in the basement.
Fields’knowledge is imputed to REM. An employer has a duty to inspect its work area for hazards,
and an employer who lacks actual knowledge can nevertheless be charged with constructive
knowledge of conditions that could be detected through an inspection of the worksite. An employer
must make a reasonable effort to anticipate the particular hazards to which its employees may be
exposed in the course of their scheduled work. Automatic Sprinkler Corp. of America, 8 BNA OSHC
1384, 1387 (No 76-5089, 1980); Pace Constr. Corp. 14 BNA OSHC 2216, 2221(No. 86-758, 1991).
An employer is also chargeable with knowledge of conditions which are plainly visible to its
supervisory personnel. A.L. Baumgartner Constr., Inc. 16 BNA OSHC 1995 (No 92-1022, 1994).
A violation of § 1926.1101(g)(5) is affirmed.
Item 2: Alleged Violation of § 1926.1101(j)(1)(i)
The citation alleges that no decontamination area was established in the basement and adjacent
to regulated areas located on floors two through eleven where employees removed asbestos
containing pipe insulation from the pipe chase. Section 1926.1101(j)(1)(i) provides that:
The employer shall establish a decontamination area that is adjacent
and connected to the regulated area for the decontamination of such
employees. The decontamination area shall consist of an equipment
room, shower area and clean room in series. The employer shall
ensure that employees enter and exit the regulated areas through the
decontamination area.
A decontamination area “is used for the decontamination of workers, materials, and
equipment that are contaminated with asbestos” (§ 1926.1101(b); Tr. 1240). Employees must enter
and exit the asbestos regulated area through the decontamination area which consists of an equipment
room, a shower area, and a clean room. REM was cited for two instances of failing to have a proper
decontamination area.
27
BASEMENT
There is no dispute that no decontamination area was established in the basement where
employees removed asbestos containing pipe insulation. As discussed, REM argues that Fields’
action was reasonable under the circumstance in that he did not instruct employees to remove
asbestos material and when he discovered the asbestos, Fields took immediate action to remove the
debris (REM Brief, p. 36).
The employees were removing asbestos insulation and cleaning up asbestos containing debris.
Samuel Ansara, the Toltest analyst, testified that there was no decontamination area in the basement.
There was no place to change and Ansara left his protective tyvek suit on the basement stairs (Tr.
178-179). Joe Garcia and Jason Varygas confirmed that there was no decontamination area in the
basement (Tr. 435, 520, 528). Billy Marshall testified that there was no shower except on the 8th
floor (Tr. 688-689, 780). IH Ulczynski also did not see a decontamination area in the basement
during her inspection on Feb 16, 19, and 26. There was one the first floor on March 5 (Tr. 799, 854).
James Fields testified that the decontamination area on the first floor was for employees to use on Feb
14 and 15 (Tr. 1256).
The record establishes that there was no decontamination area in the basement for employees
to use after handling asbestos containing debris.
PIPE CHASE AREA
There is no dispute that a decontamination room was on the first floor. The stairway areas
between floors where employees were removing asbestos from the pipe chase were sealed and
regulated providing access to the decontamination areas on the first floor. REM argues that Fields
based on IH Ulczynski’s instruction, constructed a remote decontaminant unit on the first floor.
Fields denied knowing that IH Ulzcynski who agreed to a remote decontamination area also wanted
REM to construct an equipment room on each of the other floors (REM Brief p. 36). REM does not
dispute that an equipment room was not established adjacent and connected to the regulated
(contamination) areas located on floors two through eleven.
On March 5, 1996, IH Ulzcynski returned to the Macy’s building at the request of REM.
REM was concerned about the asbestos removal from vertical pipes located in the pipe chase in the
elevator shaft area running from the second floor to the eleventh floor. Because of complaints about
28
the dust in the building, EPA had instructed REM that it would have to put the pipe chase under
containment even though REM intended to glovebag the vertical pipes (Exh. C-35; Tr. 797-798,
1174-1175). According to IH Ulzcynski, she agreed to allow REM to use a remote decontamination
area on the first floor provided REM had an equipment room on each floor attached to the pipe
chase/elevator shaft containment (Exh C-35; Tr. 798). An equipment room attached to the
containment would allow employees to leave the containment area, vacuum off or take off their dirty
suit, and put on a clean one before proceeding to the remote decontamination area on first floor
(Tr. 798). An equipment room or change room is defined as a “contaminated room located within
the decontamination area that is supplied with impermeable bags or containers for the disposal of
contaminated protective clothing and equipment.” See § 1910.1101(b).
Fields, however, disputes IH Ulzcynski’s account. Fields testified that Ulycnski instructed
only a remote decontamination area on the first floor and did not mention equipment rooms for each
floor (Tr. 1257-1258). REM argues that employees exited the pipe chase elevator shaft area by
means of the stairs which were also in containment all the way to the first floor (Tr. 1260). REM
asserts that Fields sought and obtained approval for the construction of a remote decontamination
area (Tr. 1257-1258). He did not recall any discussion about an equipment room on each floor
(Tr. 1288). REM argues that it would be illogical for Fields to have disregarded OSHA’s instruction
in the middle of an OSHA inspection (REM Brief, p. 37).
OSHA argues that because some of the upper stairs were missing, employees could not get
to the remote decontamination area without existing on several of the floors (Exh. C-40; Tr. 1789-
1790). Also, Greg Boehler, Rudolph-Libbe employee, testified that the stairs next to the elevator
were used by Rudolph Libbe and were not in containment (Tr. 490). Billy Marshall who worked in
the pipe chase/elevator shaft stated that some stairs were enclosed and some floors had missing
stairs. There was no decontamination area and some employees used HEPA vacuum to clean off (Tr.
694-695). IH Ulczynski recalled that she told Fields to include an equipment room on each floor
attached to the containment (Tr. 798). Douglas Sykes, a former REM supervisor, also understood
that there was to be an equipment room on each floor (Tr. 1484-1485).
The record establishes that a remote decontamination area was permitted by IH Ulzcynski
except that an equipment room was required on each floor. IH Ulzcynski’s instruction was confirmed
29
by Douglas Sykes, a former REM supervisor. The stairway was not complete throughout all floors
and to require employees wearing Tyvek suites and respirators to move up and down stairs is
illogical.
A violation of § 1926.1101(j)(1)(i) is affirmed.
Item 3: Alleged Violation of § 1926.1101(j)(1)(i)(B)
The citation alleges that on February 26, 1996, “the shower facility for the 8th floor
containment did not comply with 29 C.F.R § 1910.141(d)(3)(i) in that hot and cold water was not
provided.” Section 1926.1101(j)(1)(i)(B) provides in part that:
Shower facilities shall be provided which comply with 29 CFR
1910.141(d)(3), unless the employer can demonstrate that they are not
feasible. The showers shall be adjacent both to the equipment room
and the clean room, unless the employer can demonstrate that this
location is not feasible.
The standard requires a shower facility unless the employer can demonstrate that it is not
feasible. There is no dispute that on February 19 and 26, 1996, the shower facility for the 8th floor
containment was not operable. Fields daily progress reports indicate that on Feb 19, the hoses to the
shower were frozen (Exh. C-10; Tr. 297). The report also indicates that the PVC in shower was
broken. Hugh (Larry) Williford testified that the head on the shower was broken and a garden hose
with hot and cold water was used (Tr. 1092-1093). Williford claimed he accidentally had broken the
shower and repaired it immediately.
On February 26, IH Ulczynski discovered that the shower was not hooked up with any water
(Exh. C-7 page 1-205; Tr. 795). She told Douglas Sykes, a REM supervisor, that the shower was
broken (Tr. 796). Fields testified that the same part that broke on the February 19 also broke on the
26th. His daily progress report states that the “hot water tank keeps blowing a circuit” (Exh. C-10;
Tr. 1286-1297). Rick Wisbon confirmed that the shower was not working and the hot water tank
was not working. He stated that there was just a hose with a sprayer. He just squirted his legs
because “the water was too darn cold” (Tr. 595-596).
The record establishes that a properly functioning shower was not feasible and a garden hose
had to be used of February 19 and 26, 1996. Jeffrey Ridley, an asbestos coordinator for the City of
Toledo, Division of Environmental Services, inspected REM’s work on January 15. He testified that
30
he used the shower to wash his face (Exh. R-44; Tr. 1153). According to field reports, on February
16, Williford had broken the PVC for the shower and Fields testified that he had broken it on
February 26 (Exh. C-10; Tr. 1344). A hose had to be used.
When IH Ulczynski observed the unhooked shower on the 8th floor on Feb 26, the employees
were working inside the containment (Tr. 962). Employees were not ready to use the shower at that
time and IH Ulczynski did not re-inspect the shower (Tr. 966). As a result, a garden hose was used
to the shower the employees (Tr. 1248-1249). The hose was not hooked up when the employees
were in the containment. It was hooked up when employees went to clean up (Tr. 1250). Although
Wisbon testified that the shower was not working, he agreed he “squirted off with the hose”
(Tr. 595-596). Because the shower was broken, a garden hose was a feasible means for the
employees to shower that day.
A violation of § 1926.1101(j)(1)(i)(B) is not established.
Unpreventable Employee Misconduct Defense
REM alleges an employee misconduct defense to willful citation No. 2, item 1a,
§ 1926.1101(g)(1) (failure to use wet methods); item 1b, § 1926.1101(g)(3) (dry sweeping); item 1c,
§ 1926.1101(g)(5) (no control methods); and item 2, § 1926.1101(j)(1)(i) (no decontamination area)
(REM Brief, p. 41). To prevail on an employee misconduct defense, REM must show that (1) it had
established work rules designed to prevent the violation; (2) the work rules had been adequately
communicated to its employees; and (3) it had taken steps to discover violations, and had effectively
enforced the rules when violations had been discovered. Mosser Construction Co., 15 BNA OSHC
1408, 1414 (No. 89-1027, 1991). As an affirmative defense, REM has the burden of proof.
REM asserts that its safety program includes work rules, that its safety rules were
communicated to its employees, and that it took steps to discover any violations. REM trained its
employees, including supervisors, in asbestos removal practices. The employee training records
reflect the training received (Exh R-4 Rohr; R-13 Vargyas; R-22 Wisbon; R-32 Marshall; R-41
Williford; R-42 Weirich; R-45 Fields; R-56 Burzynski). REM also took disciplinary action when
employees violated safe work practices. REM disciplined several employees who worked during the
nights when the alleged dry removal occurred. Varygas was disciplined at least twice (Exhs. R-17,
R-18; Tr. 543-545). Marshall was also disciplined (Exh R-49; Tr. 1306). Garcia was disciplined
31
(Exh R-49; Tr. 1306). REM’s attempt to discover violations included Fields’ inspections of his
crew’s work (Tr. 1298).
Despite the assertions, REM’s evidence fails to show specific work rules prohibiting the
activity addressed by the cited standards including the use of dry methods, the lack of controls
methods and failure to use proper decontamination areas. Also, there were four employees removing
asbestos under the supervision of REM’s foreman and competent person, Jim Fields. Although there
is a dispute as to Fields’ instructions regarding the work in the basement, the record does not
contradict the improper methods used by employees to cleanup the asbestos debris. Such methods
were under the supervision of Fields.
REM produced a statement signed by employees stating that to their knowledge there was
no dry removal of asbestos at the Macy’s building (Exh. R-25). The statement did not specifically
address the cleanup in the basement. Also, Billy Marshall testified that he signed the statement
because he wanted to keep his job. He stated that Jay Burzynski, president, only wanted to know if
he signed the statement and not the truth of the assertion (Tr. 737-738). Billy Marshall was only
20 years old when he began working for REM in June 1995 (Exhs. R-33, p.9). Jason Varygas,
Marshall’s best friend and of the same age, is the younger brother of a REM manager (Tr. 545, 717).
Varygas testified that he did not sign the dry removal statement because he had already signed a
statement for OSHA and was not going to turn his words around (Tr. 576-577). He felt threatened
but he told his brother that he was going to tell the truth (Tr. 564, 577). Rick Wisbon, a foreman for
Jim Fields, worked the Macy’s project at the end of February. He quit for a better job and because
he did not feel REM was safe for his health (Tr. 388, 588, 592-593, 633). He testified that the
signature on the REM dry removal statement was not his (Exh. R-25; Tr. 625-626, 635).
Jim Fields directed the employees to perform the dry removal work and periodically inspected
their progress. He took no action to prevent the dry removal (Tr. 1330-1331). Fields did not ensure
the use of wet methods and control methods to remove the asbestos. Also, no decontamination area
was constructed in the basement on February 13 - 16, 1996 while removing and cleaning up the
asbestos debris. As supervisor, knowledge of the condition is imputed to REM. An employer is
chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. A.L.
Baumgartner Constr., Inc. 16 BNA OSHC 1995, 1998, 2000 (No 92-1022, 1994). Also, when the
32
misconduct is that of a supervisory employee, the employer must also establish that it took all feasible
steps to prevent the violative condition, including adequate instruction and supervision. Archer
Western Contractors, Ltd, 15 BNA OSHC 1013, 1017 (No. 87-1067). The Review Commission in
the Archer Western case stated that “where a supervisory employee is involved, the proof of
unpreventable employee misconduct is more rigorous and the defense is more difficult to establish
since it is the supervisors’ duty to protect the safety of employees under his supervision....A
supervisor’s involvement in the misconduct is strong evidence that the employer’s safety program was
lax.” The “fact that a supervisor would feel free to breach a company safety policy is strong evidence
that the implementation of the policy is lax” Mel Jarvis Constr., Co., 9 BNA OSHC 2117, 2123 (No.
78-6265, 1981), citing Jensen Construction Co.,7 BNA OSHC 1477 (No. 76-1538, 1979). It is the
employer's burden to show that the supervisory employee's misconduct was unpreventable. V.I.P.
Structure, Inc., 16 BNA OSHC 1873, 1875 (No. 91-1167, 1994).
REM’s employee misconduct defense is rejected.
Willful Classification for Citation No. 2
The violations alleged in citation No. 2 were classified as “willful.” A willful violation is “one
committed with intentional knowing or voluntary disregard for the requirements of the Act, or with
plain indifference to employee safety.” Conie Construction, Inc., 16 BNA OSHC 1870, 1872 (No.
92-264, 1994). A willful violation is differentiated from other classifications of violations by a
heightened awareness of the illegality of the conduct or conditions and by a state of mind showing
conscious disregard or plain indifference.
A violation, however, is not willful if the employer has a good faith belief that it was not in
violation. The test of good faith for these purposes is objective--whether the employer’s belief
concerning a factual matter, or the interpretation of a rule, was reasonable under the circumstances.
General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068-2069 (No. 82-630, 84-731,
84-816; 1991).
It is undisputed that at two prior projects, REM received citations and was advised of the
requirements of the asbestos standards. REM received a serious citation on July 13, 1995 and serious
and willful citations on April 16, 1996 (Exhs. C-16, C-17). The citations alleged violations of the
asbestos construction standards. The citations were settled and the violations affirmed with change
33
in some classifications and a reduction in penalties. Jim Fields, foreman, was also REM supervisor
on the other projects (Tr. 266-267). In the informal settlement agreement resolving the 1995 citation,
REM was informed of the asbestos requirements of the standards and invited to work with OSHA
(Exh. C-16 p. 14).
REM was cited willful for failing to use appropriate work practices such wet methods,
appropriate control methods and use of dry shoveling in removing asbestos in the basement (items
1a, 1b and 1c). Also, REM was cited willful for not having a decontamination unit (item 2). Fields
was REM’s supervisor and competent person on-site (Exh. R-45). REM, while removing asbestos
in the basement of the Macy’s building, failed to document the need for using other than the required
engineering controls and work practices. REM had not sought a variance from OSHA.
The Secretary, however, failed to establish the violations were willful. Jeffrey Ridley with the
Toledo Division of Environmental Services under contract with the Ohio EPA regularly inspected
REM’s work at the Macy’s building. His inspections included the adequacy of REM’s wetting
methods to ensure no release of fibers into the ambient air (Tr. 1138, 1141). On January 15, Ridley
found wetting method adequate (Exh. R-44; Tr. 1151). Also, during his inspections, Ridley found
no evidence of dry removal by REM (Tr. 1168). Ridley’s inspections identified no violations of the
asbestos standards.
Further, the record indicates that the employees may have misunderstood Fields’s instruction
about the work to be done in the basement on February 13, 1996. Regardless, the record does
establish that employees did remove asbestos insulation and Fields did become aware of the asbestos
removal. Once, the asbestos was down, Fields initiated a prompt clean up the debris. REM noted
that constructing a containment would have taken two days. Also, the purpose of a containment is
to protect the rest of the building and not the employee working inside (Tr. 1546-1547). The
employees were protected by protective clothing and North ½ mask respirators. OSHA’s air
monitoring results on February 16, were negative for asbestos in the basement (Exh. C-26; Tr. 771-
772). The asbestos removal work in the basement may have resulted from a misunderstanding and
although the clean up work was not handled properly by REM, it was not willful. There is no record
that REM failed to utilize proper work practices at other locations in the Macy’s building.
34
Item 2, failing to maintain equipment rooms on floors two through eleven while REM was
removing asbestos from the pipe chase in the elevator shaft, is also not considered willful. REM was
cited previously for a shower violation and IH Ulczynski spoke personally with Fields regarding what
was required for the pipe chase/elevator shaft. Douglas Sykes, a former REM supervisor, agreed
with Ulczynski’s account (Tr. 1474-1475).
However, the record indicates that Fields may have misunderstood the Ulczynski’s instruction.
There is no evidence that proper decontamination areas were not used at other times and locations
in the Macy’s building. Also, REM was not cited previously for failing to utilize decontamination
areas on other projects. According to the standard, a decontamination area consists of an equipment
room, shower area, and a clean room “in series.” Ulczynski directed that the equipment room be
separated from the rest of the decontamination area on the first floor. Fields had requested
Ulzcynski’s assistance during her inspection for the remote decontamination unit. It is unlikely that
Fields would have ignored a clear instruction to have an equipment room on each floor. Although
REM should have been aware of the inadequate stairway between floors and the difficulty to
employees in traveling the stairway with full protective equipment, the record fails to show an
intentional knowing or voluntary disregard for the requirements.
Penalty Consideration for Citation No. 2
For violations of §§ 1926.1101(g)(1), 1926.1101(g)(3) and 1926.1101(g)(5) (items 1a, 1b,
1c), a grouped penalty of $6,000 is assessed. REM knew of the condition through its supervisor on-
site and the exposure to asbestos can cause serious health problems including death. The gravity is
high gravity because of employee exposure to asbestos. Although the air monitoring was negative,
the bulk samples showed the debris being removed from the basement contained 50% to 75%
asbestos. REM is given credit as a small employer but no credit for history or good faith. REM had
received two previous serious citations.
Items 2, violation of § 1926.1101(j)(1)(i), a penalty of $5,000 is assessed. REM’s supervisor
on-site knew of the condition and employee exposure to asbestos can cause serious health problems.
There was decontamination unit in the basement and no equipment room on each floor. Because of
the exposure to asbestos, the gravity is high. REM is a small employer and had received two previous
serious citations.
35
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
SERIOUS CITATION NO. 1
1. Item 1, violation of § 1926.1101(f)(1)(ii), is vacated.
2. Item 2, violation of § 1926.1101(f)(5)(ii), is affirmed and a penalty of $4,200 is
assessed.
3. Item 3, violation of §1926.1101(k)(9)(i), is affirmed as “other than serious” and no
penalty is assessed.
WILLFUL CITATION NO. 2
1. Item 1a, violation of § 1926.1101(g)(1), Item 1b, violation of 1926.1101(g)(3), and
Item 1c, violation of 1926.1101(g)(5), are affirmed as non-willful and a grouped
penalty of $6,000 is assessed.
2. Item 2, violation of § 1926.1101(j)(1)(i), is affirmed as non-willful a penalty of $5,000
is assessed.
3. Item 3, in violation of § 1926.1101(j)(1)(i)(B), is vacated.
KEN S. WELSCH
Judge
Date:
36
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