OSHRC Docket No. 81-1469


Before: BUCKLEY, Chairman, and WALL, Commissioner.[[1]]

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

R.D. Anderson Construction Company, Inc., is a general contractor engaged in commercial construction. On April 16, 1981, it was engaged in renovating and reconstructing Marvin Hall, a four-story building on the campus of the University of Kansas in Lawrence, Kansas. Following an inspection by three OSHA compliance officers, the Secretary issued a citation alleging that Anderson had willfully violated several provisions of the asbestos standard, 29 C.F.R. 1910.1001. Administrative Law Judge Paul E. Dixon affirmed the citation and assessed a $2,100 penalty.

After the judge's decision was directed for review, subitems 1A, 1D and 1E were withdrawn. Only two items remain before the Commission. Item 1C alleges that Anderson willfully violated the initial monitoring requirement of 29 C.F.R. 1910.1001(f)(1). Item 1B alleges that Anderson willfully violated the labeling requirement of 29 C.F.R. 1910.1001(g)(2)(i).

We conclude that Anderson violated section 1910.1001(f)(1) but that the violation was not willful. We vacate the citation item alleging a violation of the labeling requirement under section 1910.1001(g)(2)(i).

Item 1C: 29 C.F.R. 1910.1001(f)(1), Initial Monitoring

Item 1C alleges that Anderson violated section 1910.1001(f)(1) by not conducting "initial monitoring" to determine whether employees engaged in the renovation of Marvin Hall were exposed to airborne concentrations of asbestos fibers above prescribed limits. The standard states:

1910.1001 Asbestos.
* * *
(f) Monitoring--(1) Initial determinations. Within 6 months of the publication of this section, every employer shall cause every place of employment where asbestos fibers are released to be monitored in such a way as to determine whether every employee's exposure to asbestos fibers is below the limits prescribed in paragraph (b) of this section. If the limits are exceeded, the employer shall immediately undertake a compliance program in accordance with paragraph (c) of this section.
The parties agreed, and Judge Dixon found, that Anderson had not monitored the air in Marvin Hall to determine whether its employees were over-exposed to airborne asbestos fibers. The parties had also stipulated that asbestos was present.[[2]] Instead, the parties dispute whether asbestos fibers had been "released" into the air within the meaning of the standard.

The Secretary must prove a violation of a standard by a preponderance of the evidence, that is, he must convince the tier of fact that the evidence taken as a whole shows that the fact sought to be proved is more probable than not. See Ultimate Distribution Systems, Inc., 82 OSAHRC 22/ B12, 10 BNA OSHC 1568, 1570, 1982 CCH OSHD 26,011, p. 32,653, (No. 79- 1269, 1982), and cases cited. The Secretary must therefore prove here that it was more likely than not that asbestos fibers were released. Shenango Co., 82 OSAHRC 25/A2, 10 BNA OSHC 1613, 1982 CCH OSHD 26,051 (No. 78-4723, 1982); Goodyear Tire & Rubber Co., 77 OSAHRC 82/A2, 5 BNA OSHC 1473 (No. 13442, 1977). The Secretary could have met this burden by taking air samples to determine whether asbestos fibers were in the air, but did not do so.[[3]] He also did not take wipe samples. See OSHA Industrial Hygiene Technical Manual VIII.B.1.h (1984)(prescribing procedure for taking wipe sample for asbestos), reprinted in CCH Employ. S.& H. Guide, No. 680 (1984), and in 2 BNA OSHR Reference File p. 77:8001, p. 77:8351. Instead, the Secretary relied on circumstantial evidence to meet his burden. On the basis of this evidence, the judge found that it was more likely than not that asbestos fibers were "released" into the air. He found that air currents, dry sweeping of dust and debris and the open nature of the worksite, combined with concentrations of loose asbestos, made it more likely than not that asbestos fibers were released into the air. We agree.

Marvin Hall was an old building with two-foot-thick stone walls. Sandwiched between its floors was a material with a texture like sawdust. To install new utility equipment, Anderson made cuts in the floors and thereby exposed this fill material. As work on each section of flooring was completed, a layer of concrete was poured over the floor, effectively encapsulating the fill material.

On March 4, 1981, Anderson received a letter from the University of Kansas. The letter confirmed an oral understanding that the University would forward to Anderson a copy of a report by state architectural officials on the fill material. The subsequently forwarded report contained the results of tests by Kansas health officials, who found that the floor fill material was 15% chrysotile asbestos. The report went on to warn that:

The floor fill material taken from Marvin Hall was in a state where it could have contaminated the area. However, since this material has been literally enclosed by having a concrete floor poured over the existing floor and floor fill material, this material at this point does not facilitate a need for concern. Be advised, however, that if holes are to be cut in the new floor and penetration of the existing floor is necessary, there is a very good chance that this floor fill material will be released and become airborne. If this happens, the Contractor should be advised of the potential danger and should issue his workmen the appropriate masks and clothing. It is the best interests of all concerned that his (Contractor's) men be outfitted accordingly and he be made aware of the potential dangers involved.

The letter gave Anderson its first written indication that the worksite contained asbestos. On April 16, 1981, Marvin Hall was inspected by two OSHA compliance officers.

The compliance officers found that, at the time of the inspection, there was no demolition work or other activity taking place that would pulverize material and carry particles into the air. All floor cuts had been covered over with concrete, thus eliminating them as potential sources of airborne asbestos. However, during the removal of a staircase, a panel had been removed, exposing the asbestos-laden floor fill material and leaving some of it hanging off the edge. According to one compliance officer, this material could have dropped to any lower floor. A sample of the material was taken; it was found by an OSHA laboratory to contain 30% chrysotile asbestos. They also found demolition debris throughout the building and took seven samples of dust and debris. Three samples contained no asbestos and one was not tested for reasons that are not clear. One sample taken from debris that had settled on tables and pipes on the first floor contained 0.1% asbestos. A sample taken from the corridor on the first floor contained less than 1% asbestos. A sample taken from an exposed window well on the first floor, where the sill had not yet been installed, was found to be 60% amosite asbestos. No explanation was offered for the presence of this amosite asbestos, a form different from the chrysotile asbestos in the floor fill material identified by the Kansas health officials. Air velocity readings taken on the first floor indicated an air current ranging from 220-600 feet per minute, caused by natural ventilation. One of the compliance officers testified that there were many open or missing windows and doors. Anderson's project manager, Ken Pecis, testified, however, that at the time of the inspection only three of the 350 windows on the site were missing. The compliance officers also testified that they observed employees engaged in the practice of dry sweeping, which could release asbestos into the air. When questioned by the compliance officer, one of the sweepers stated that he did cleanup work all over the site.

Judge Dixon found that it was more likely than not that asbestos fibers had been released into the air. Anderson argues that the judge's finding should be overturned because the movement of air in the building was normal and that the building was fully enclosed. Anderson points to the lack of testimony that anyone felt a breeze or the movement of air and maintains that, contrary to the judge's view of the evidence, it made no cuts in the floors. It claims that it did not expose the asbestos fill during a floor cut but during the removal of the staircase, and that the fill material that was so exposed lay undisturbed.

We agree with Anderson's claim that the judge erroneously found that a "cut" had been made in the floor. There was confusion in the record over the purpose of the floor opening and the manner of its creation, which apparently led the judge to conclude that a cut had been made. Despite this, Judge Dixon's essential conclusion that it was more likely than not that asbestos fibers were released is correct. Whatever the purpose of the floor opening or the manner of its creation, the pertinent fact is that the asbestos fill material was exposed during the reconstruction of Marvin Hall. Moreover, the material was loose and friable, with the texture of sawdust. Although it lay undisturbed, compliance officer Phipps testified that the material was hanging off the sides of the opening and could have dropped off. Furthermore, some of the dust and debris that had settled on the floors and tables and pipes in the building was found to have contained asbestos. Dry sweeping of this material occurred all over the building, making it likely, at the least, that the asbestos-laden dust would become airborne. Although Anderson's vice-president Pecis testified that Marvin Hall was enclosed, Judge Dixon found the airflow tests conducted by the compliance officers were more reliable. The air current increased the likelihood that asbestos dust raised by dry sweeping, or falling off the exposed fill material, would be carried into the air. On the whole, we therefore agree with the judge's assessment that it was more likely than not that there were asbestos fibers in the air.

That does not end our inquiry, however. Section 1910.1001(f)(1) requires an employer to conduct initial monitoring where asbestos fibers "are" released into the air. If the standard were read literally, however, employers would be required to initially monitor once any asbestos fibers were released into the air. It would be irrelevant that the release of asbestos fibers might have been unknown and even unknowable because, for example, the material in question was not known to contain asbestos. To construe the standard so literally, however, would effectively require the infeasible, despite the requirement of section 6(b)(5) of the Act under which this standard was adopted, that the Secretary adopt only "feasible" standards.[[4]] To avoid this result, we construe the standard to require monitoring when the release of asbestos fibers into the air may reasonably be foreseen. Such a test comports with other monitoring requirements of the asbestos standard, which require that both personal and environmental monitoring be conducted at intervals of not greater than six months where exposure to asbestos "may reasonably be foreseen" to exceed prescribed limits. 29 C.F.R. 1910.1001(f)(2)(ii) and (f)(3)(ii). It also comports with the Commission precedent on employer knowledge, which requires employers to remedy violative conditions if they have actual knowledge or if they could have known of the conditions with the exercise of reasonable diligence. Dunlop v. Rockwell International, 540 F.2d 1283, 1292 (6th Cir. 1976); Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD   25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD 25,345 (No. 13732, 1981); Wenczel Tile Co., 82 OSAHRC 14/C8, 10 BNA OSHC 1477, 1982 CCH OSHD 25,971 (No. 77-2039, 1982).[[5]]

Applying this test, we find that it was reasonably foreseeable that asbestos fibers would be released into the air of Marvin Hall. It is true, as Anderson argues, that the letter received by Anderson from the University of Kansas warned that an asbestos problem would arise if further cuts were made in the flooring, and that no cuts were made after receipt of the letter. We disagree with Anderson, however, that the letter gave it no reason to foresee that asbestos might be released. The letter clearly warned Anderson that the floor fill material was asbestos-laden and of a consistency that it could become airborne. At the time of the inspection a portion of the floor fill material was exposed to allow for the removal of a stairway. Having received the warning, Anderson could reasonably have foreseen that exposing the floor fill material during the removal of the stairway could have resulted in the release of airborne asbestos fibers. Moreover, Anderson should have concluded from the letter that its demolition of the building may have already released asbestos into the workplace and could reasonably have foreseen that these would be released into the air during subsequent construction activities and dry sweeping of dust and debris.

Nonetheless, the record fails to establish that the violation was willful. To establish that a violation was willful, the Secretary must prove that the violation was committed with intentional disregard of the Act's requirements or plain indifference to workers' safety. Cedar Construction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978); D.A. L. Caruso, Inc., 84 OSAHRC ___, 11 BNA OSHC 2138, 1984 CCH OSHD 26,985 (No. 79-5676, 1984). A violation is not willful if the employer has a good faith belief concerning a factual matter critical to the existence of the violation. C.N. Flagg & Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD 19,251 (No. 1409, 1975); see also Mel Jarvis Construction Co., 1981 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD 25,563 (No. 77-2100, 1981).

In finding the violation willful, the judge stated that Anderson's receipt of the letter, warning it of the presence of asbestos, created a heightened duty to take precautions. Despite exposing the asbestos fill material when working on the stairway, Anderson failed to take any precautions, and failed to warn either its employees or subcontractors of the asbestos hazard. The judge concluded that Anderson deliberately ignored its duty to comply with the standard.

Although we disagree with Anderson's narrow reading of the letter, there is nothing in the record to indicate that its interpretation was made in bad faith. Moreover, Anderson's project manager Ken Pecis testified that after he received the letter, he notified the state officials that the asbestos would be removed in accordance with OSHA requirements. Pecis also indicated that after learning of the asbestos problem he ordered hooded jumpsuits and face masks and told his superintendent, Bill Valentine, to obtain plastic bags. Valentine confirmed that the protective gear was delivered to the worksite. Clearly, Anderson was taking steps necessary to comply with the asbestos standard in the event additional floor cuts were made. These steps convince us that its failure to conduct initial monitoring was not the product of either intentional disregard of worker safety or plain indifference to the requirements of the Act.

Item 1B: 29 C.F.R. 1910.1001(g)(2)(i), Labeling

Item 1B alleges that Anderson violated 29 C.F.R. 1910.1001(g)(2)(i) by failing to label asbestos material or their containers. The standard states:

1910.1001 Asbestos.
* * *
(g) Caution signs and labels
* * *
(2) Caution labels--(i) Labeling. Caution labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing asbestos fibers, or to their containers, except that no label is required where asbestos fibers have been modified by a bonding agent, coating, binder, or other material so that during any reasonably foreseeable use, handling, storage, disposal, processing, or transportation, no airborne concentrations of asbestos fibers in excess of the exposure limits prescribed in paragraph (b) of this section will be released.

The compliance officer testified that none of the piles of scrap and piles of debris about the site were affixed with caution labels and that there were no bags or containers on the site labeled as containing asbestos. Although there were no containers labeled for the disposal of asbestos materials, the Secretary failed to establish that any containers on the site contained asbestos materials. The one scrap pile sampled by the compliance officer tested negative for asbestos, and there is nothing in the record to support a conclusion that any other scrap piles contained asbestos. The compliance officer did sample several loose accumulations of dust which were found to contain some asbestos. The Secretary does not argue, however, that the standard should be read so literally as to require that labels be affixed to loose dust, and we decline to so interpret it. Accordingly, we vacate item 1B.

Having reversed the judge's determination that the violation of 1910.1001 (f)(1) was willful, we reevaluate the amount of penalty to be assessed. The only indication of Anderson's size is that there were 12 employees at the site. Therefore, we conclude that it is a small employer. There is no evidence in the record to indicate that Anderson has any history of previous violations. Anderson's precautions against future asbestos exposure indicate a measure of good faith. Although we find that there were asbestos fibers in the air, the evidence fails to establish any likelihood that the level of exposure exceeded permissible limits or even what the level of exposure was. Therefore, we cannot say that the gravity of the violation was anything but low. Having considered the record and the statutory penalty criteria set for that section 17(j) of the Act, 29 U.S.C. 661(i), we assess a penalty of $100.

Accordingly, the judge's decision is modified as follows. Items 1A, 1D, and 1E are withdrawn. Item 1B of the citation is vacated. Item 1C is affirmed but the characterization of the violation as "willful" is vacated; a penalty of $100 is assessed.

Executive Secretary

DATED: February 10, 1986

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[[1]] Commissioner Rader took no part in this decision.

[[2]] Anderson does not take exception to the judge's finding that the asbestos was in fibrous form. The Secretary must show that the asbestos was in fibrous form, Goodyear Tire & Rubber Co., 77 OSAHRC 82/A2, 5 BNA OSHC 1473 (No. 13442, 1977), that is, that the particles were longer than 5 micrometers, with a length to width ratio of 3-to-1. 29 C.F.R. 1910.1001 (a)(2); Borg-Warner Corp., 78 OSAHRC 18/A2, 6 BNA OSHC 1393, 1978 CCH OSHD 22,555 (No. 10757, 1978). Although the Secretary did not formally introduce evidence to establish that fibers were present, the parties' stipulation that asbestos was present was based on answers by OSHA technicians to interrogatories Anderson had served on the Secretary. These answers were based on a laboratory analysis of samples. The analysis set forth the percentage of asbestos found in the samples and stated that the samples were tested for asbestos fibers 5 micrometers in length and with a length-to-width ratio of 3-to-1. The results reflected the number of such asbestos "fibers" found. Because Anderson does not take exception to the judge's finding that "fibers" were present, we leave the judge's finding undisturbed.

[[3]] Here, the compliance officers testified that they did not test the atmosphere for asbestos fibers because they did not believe that conditions at the worksite made it likely that asbestos levels exceeded permissible limits. This does not alone explain the absence of air samples, however. A belief that asbestos levels were then too low to exceed permissible limits explains why no samples were taken to investigate possible violations of provisions of the asbestos standard that apply when permissible levels are exceeded, such as the engineering control provision, section 1910.1001(c)(1). It does not, however, explain why no air samples were taken to determine whether there was any airborne asbestos, a necessary element of a violation of section 1910.1001(f)(1).

[[4]] Section 6(b)(5) of the Act, 29 U.S.C. 655(b)(5), states:
The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
(Emphasis supplied.)

[[5]] We find nothing in Marshall v. Western Electric Co., 565 F.2d 240 (2d Cir. 1977), that would suggest that our construction of the standard is impermissible. There the Commission had construed a similar requirement in an emergency vinyl chloride standard to not require initial monitoring because the employer had reliably predicted that concentrations of the substance would not exceed permissible limits. 77 OSAHRC 15/B13, 4 BNA OSHC 2021, 1977-78 CCH OSHD 21,538 (No. 8902, 1977). The court rejected this view, holding that the employer was not permitted by the standard to speculate whether permissible levels would be exceeded because the very purpose of initial monitoring is to determine for certain what the ambient levels were and whether permissible levels were exceeded. There was no question in Western Electric, however, that the employer knew that vinyl chloride would indeed be released into the air. Here, by contrast, we deal with the question whether an employer is required to initially monitor when he is uncertain whether asbestos would be released into the air. We do not suggest that an employer who knows of the release of asbestos fibers may decline to monitor because he thinks it unlikely that the permissible level would be exceeded.