SECRETARY OF LABOR,

Complainant,

v.

CLEVELAND ELECTRIC
ILLUMINATING COMPANY,

Respondent.

OSHRC Docket No. 88-1358

ORDER

The Occupational Safety and Health Review Commission has received the parties' Stipulation and Settlement Agreement in the captioned action. The case is before the Commission pursuant to a Direction for Review by Former Acting Chairman Linda L. Arey on July 3, 1989.

The Commission treats the parties' Stipulation and Settlement Agreement as a Joint Motion to Approve Settlement Agreement. Having reviewed the Settlement Agreement, attached hereto, it is found that the Agreement disposes of all issues pending before the Commission in this matter.

Therefore, the Commission grants the parties' Joint Motion to Approve Settlement Agreement, affirms the citations as amended and assesses the proposed penalties as amended.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: July 2, 1990


ELIZABETH DOL

SECRETARY OF LABOR,

Complainant,

v.

THE CLEVELAND ELECTRIC

ILLUMINATING COMPANY,

Respondent.

OSHRC DOCKET NO. 88-1358

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement and disposition of the issues in this proceeding which is currently pending before the Commission.

II

It is hereby stipulated and agreed by between the Complainant, Secretary of Labor, and the Respondent, The Cleveland Electric Illuminating Company, that:

1. Respondent represents that all of the alleged violations for which it was cited have been abated and shall remain abated.

2. Respondent hereby agrees to withdraw its notice of contest previously filed in this case.

3. The parties agree that in the future, when Respondent engages in boiler repairs, the provisions of 1926.58(e)(6) need not be followed for the removal of boiler skin casing so long as the work performed entails only the removal of the skin casing and not the intentional removal of asbestos-containing insulation.

Prior to the removal of skin casing, the boiler insulation will be tested, if practicable, to determine if it contains asbestos. In accordance with Respondent's Asbestos Abatement, Handling, and Disposal Procedure, if the sample reveals asbestos-containing insulation or if no sample is taken, the removal of skin casing will be considered an asbestos repair operation and appropriate personal protective equipment, including appropriate respiratory protection and protective clothing, will be used.

For the first skin-casing removal that involves asbestos-containing insulation that is performed after the effective date of this settlement agreement, employees will use powered air-purifying respirators with high-efficiency filters. Respondent will also provide employees engaged in such operations with full disposable coveralls with disposable gloves and head coverings. Respondent will perform initial monitoring on the first skin-casing removal that involves asbestos-containing insulation to determine the extent of employee exposure to asbestos, if any. In the absence of any initial monitoring during the first skin-casing removal, Respondent will provide employees engaged in skin-casing removal operations with full facepiece supplied air respirators equipped with an auxiliary positive pressure self-contained breathing apparatus. Air-monitoring results from the first such skin-casing removal will, whenever appropriate under 1926.58(f)(2)(iii), be relied upon to determine the expected level of exposure and appropriate personal protective equipment for subsequent skin-casing removal jobs.

Respondent shall demarcate areas where boiler skin operations are conducted in any manner that minimizes the number of employees within the area and protects employees outside the area whenever concentrations of asbestos exceed or can reasonably be expected to exceed 0.2 fibers per cubic centimeter.

After the boiler skin casing is removed, if asbestos-containing insulation is present, the requirements of 1926.58(e)(6) will be followed if such insulation is actually removed or otherwise substantially disturbed.

4. Complainant hereby agrees to reduce the total penalty from $2,100, as assessed by Judge Salyers in his Decision and Order of May 4, 1989, to $1,500.

5. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

6. None of the foregoing agreements, statements, stipulations, or actions taken by Respondent shall be deemed an admission by Respondent of the allegations contained in the citations or the complaint herein. The agreements, statements, stipulations, and actions herein are made solely for the purpose of settling this matter economically and amicably and they shall not be used for any other purpose, except for subsequent proceedings and matters brought by the Secretary of Labor directly under the provisions of the Occupational Safety and Health Act of 1970.

7. No authorized employee representative elected party status in this case.

III

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rules 2200.7 and 2200.100.

WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.

ORLANDO J. PANNOCHIA (Date)
Attorney for the Secretary

of Labor

KENNETH B. STARK  (Date)
Attorney for The Cleveland

Electric Illuminating
Company


SECRETARY OF LABOR,

Complainant,

v.

CLEVELAND ELECTRIC

ILLUMINATING COMPANY,

Respondent.

OSHRC Docket No. 88-1358

APPEARANCES:

Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Kenneth B. Stark, Esquire, Duvin, Cahn and Barnard, Cleveland, Ohio, and David R. Percio, Esquire, Cleveland Electric Illuminating Company, Cleveland, Ohio, on behalf of respondent.

DECISION AND ORDER

SALYERS, JUDGE: Respondent, Cleveland Electric Illuminating Company ("CEI"), contests a citation charging a serious violation of 29 C.F.R. 1926.58(e)(6)(i) for failure to establish a negative-pressure enclosure before commencing an asbestos removal or renovation operation; of 29 C.F.R. 1926.58(e)(6)(ii) for failure of its designated competent person to perform his duties in accordance with the standard; of 29 C.F.R. 1926.58(f)(1)(i) for failure to monitor the airborne concentrations of asbestos to which its employees may have been exposed; of 29 C.F.R. 1926.58(f)(2)(i) for failure to initially monitor the airborne concentrations of asbestos to which its employees may have been exposed; of 29 C.F.R. 1026.58(h)(2) for failure to provide appropriate respirators for its employees; and of 29 C.F.R. 1926.58(i)(3) for failure to transport contaminated clothing in sealed, impermeable containers. CEI also contests a citation for an other-than-serious violation of 29 C.F.R. 1926.58(k)(1)(i) for failure to post warning signs in a regulated area where airborne levels of asbestos may have been in excess of the permissible exposure limit (PEL).[[1]]

FACTS

CEI is the major power company for northeastern Ohio. On April 22, 1988, Occupational Safety and Health ("OSHA") Industrial Hygienist Julie Weis conducted an inspection of CEI's Lakeshore plant located on South Marginal Road in Cleveland (Tr. 196-198). The inspection was pursuant to a formal health complaint arising from incidents that occurred at the plant on March 26 and 28, 1988 (Tr. 197).

The Lakeshore plant contains six boilers: four oil-fired boilers, one coal- fired boiler, and a package boiler used for heating the plant (Tr. 12). Boilers 93 and 94 are oil-fired units that were converted from coal-fired units in 1977 (Tr. 22, 148). They are each approximately seven stories high and 22 feet wide. The boilers, which are about 100 feet apart, are used to supply steam to the turbine generators for the production of electricity (Tr. 13-14, 139, 143).

The outer walls of the boilers are steel, approximately 1/8 inch thick, and are referred to as the skin casing. Behind the skin casing is insulation. Behind the insulation are steel tubes which run along the sides of the boilers and along the floor (Tr. 14-15).

It is common knowledge among the personnel at CEI that at one time insulation containing asbestos was installed in the plant (Tr. 18). CEI has since discontinued the installation of asbestos-containing insulation, but some of the original insulation remains. CEI replaces the insulation in a piecemeal fashion, removing the asbestos-containing insulation when a repair is made and replacing it with asbestos-free insulation. CEI has developed a procedure to deal with asbestos removal, which is detailed in a company memorandum entitled "The Cleveland Electric Illuminating Company Asbestos Abatement, Handling and Disposal Procedure" (Exhibit C-2). Rule 14.0(A) of that memorandum provides: "Plant Maintenance General Supervisor shall maintain the plant records for identification of types of insulation on existing and new equipment." On the fourteenth page of C-2 is the following "General Rule": "All insulation removal work is to be performed as if it contains asbestos, unless it is determined otherwise."

Beginning on March 24 or 25, 1988, boiler 94 was closed down for repairs for a three-week period. CEI had been experiencing an increasing number of leaks from the boiler and it was determined that replacing each tube as it developed a leak was inefficient. Therefore, all of the tubes would be removed from boiler 94 and replaced with new ones (Tr. 13, 297-298).

SATURDAY, MARCH 26, 1988

On Saturday, March 26, 1988, a crew was assigned to begin work on boiler 94. Willie Simmons has worked for CEI for 11 years, and has attained the position of maintenance mechanic "A," the highest mechanic classification (Tr. 11). He and an assistant were working on the south side of boiler 94 (Ex. R-2. area #2; Tr. 13-14, 21).

Simmons testified that, due to knowledge that asbestos insulation was present in the plant, "it is always a common practice to ask the supervisor if the work that we're going to be doing has been checked for asbestos especially if we're going to be around the boiler or any type of piping or valves or anything like that" (Tr. 18). Simmons inquired of his supervisor, Ted Zielaskiewicz, whether they would be working with asbestos. Zielaskiewicz told Simmons he would check with the general supervisor, Daniel Tirabasso, and then reported back that the insulation in the area where he would be working was asbestos-free (Tr. 20).

Simmons and his assistant began work on the boiler. They removed the skin casing on the boiler using cutting torches and then removed the insulation covering the tubes. The assistant cut about four and a half feet of the skin casing and Simmons would use a pinch bar and hammer to knock the skin away from the boiler and to knock the insulation out. They cut about three- quarters of the way across the 20-foot-wide boiler before ending that day (Tr. 15-16).

While Simmons worked on the south side of boiler 94, another crew of maintenance mechanics, including maintenance mechanic "A" Nathan Wilson, who has been with CEI for over 18 years, was removing skin casing at the base of the southeast corner of boiler 94, immediately above the wet ash pit (Ex. R-2, area #1; Tr. 73-75). Beneath the skin casing was block insulation that originally had been held in place by metal clamps. As the skin casing was removed, most of the insulation fell out of the boiler. The remaining insulation was removed by hand or with tools (Tr. 117). A third crew was working in the dry ash pit of boiler 93, approximately 100 feet away from boiler 94 (Tr. 139). A total of 11 or 12 employees were working in the areas around boilers 93 and 94 (Tr. 17-18).

The Lakeshore plant generally has a dusty environment while the boilers are working. When coal is burned, it leaves a residue called fly ash, which is a dark gray, granular substance. Even though four of the boilers had been converted from coal-burning units in 1977, a great deal of the fly ash was left in the boilers' systems (Tr. 19, 22, 307-309).

Simmons testified that, as they worked, the air became exceedingly dusty. At times he and his assistant could not see each other even though they were working in close proximity (Tr. 17). Bernard Zebrowski, a maintenance mechanic "A" with CEI for 21 years, was working on boiler 93 in the dry ash pit while Simmons was removing the insulation on boiler 94. Zebrowski testified that, as he worked, an unusual amount of dust was produced by the work being done on boiler 94. "It was so thick that you couldn't see. We had to get out of there. I couldn't believe it and I even called the guys who were working on 94 Boiler to find out what was going on. And they told me they were taking a paneling off and all that dust and debris was falling out of there, . . ." (Tr. 141).

Jay Fine, a maintenance mechanic "B," was working in the dry ash pit of boiler 93 with Zebrowski on March 26. Fine stated that as they worked, they became engulfed in ash "like a gray cloud almost that came up inside of the ash pit, and at that time we had to leave the ash pit because the air became unfit to breathe" (Tr. 458). Fine testified that the dust was coming from the south side of boiler 94 where Simmons was working (Tr. 459). Fine observed insulation falling out of the boiler where it had been opened, and he observed Simmons pulling it off (Tr. 465). Both Zebrowski and Fine stated that the cloud was a light gray color ("light color, whitish," "grayish white cloud") that was unlike the darker gray of fly ash (Tr. 140, 458).

Simmons testified that he had worked with asbestos before and could identify it by sight. He stated that when insulation blocks containing asbestos break down, they give off a fibrous dust that is white or a light gray. It was Simmons' opinion that the dust cloud that enveloped him and his co-workers on March 26, 1988, was a half and half mixture of fly ash and asbestos (Tr. 19, 24-27).

Wilson, who was working on the underside of boiler 94, stated that he, too, could identify asbestos by sight. "[I]n the insulation it's white. After being in the boiler for a while, it's probably an off-white type of material" (Tr. 83). It was Wilson's opinion that the debris falling from the boiler as he cut away the skin casing was "deteriorated asbestos, dust" (Tr. 84).

Zebrowski also thought the dust coming out of boiler 94 looked like asbestos dust. He asked Simmons during a break if he was sure that there was no asbestos in the area. Simmons told him that Tirabasso had assured him it was not asbestos (Tr. 142). Despite Tirabasso's assurances, Simmons was uneasy working amid the thick dust. He asked Tirabasso six times over the course of the day whether he was sure the area had been checked for asbestos. Each time he was told the area had been checked and that it was safe for work (Tr. 20).

The employees working in the boiler area were wearing dust masks but not respirators. No asbestos-related safety precautions were taken prior to the commencement of the job. No negative-pressure enclosures were erected and no personal air monitoring was conducted. The employees were wearing their regular work clothes, which they took home with them to wash after changing at the plant. No asbestos-related warning signs were posted in the area (Tr. 27-29).

MONDAY, MARCH 28, 1988

On Monday, March 28, 1988, work resumed on the south side of boiler 94 where Simmons and his assistant had been working on March 26. Jay Fine was also assigned to work with them. Zebrowski was working in the basement on a boiler 94 pump (Tr. 33, 162, 460). They began work at 7:00 a.m. and stopped for a coffee break at 9:00. At that time, the general manager of maintenance, Fred Lewis, spoke with Fine. Fine showed Lewis the inside of the boiler where the insulation was exposed. Lewis commented that the insulation looked suspicious. Lewis halted work on the boiler until samples of the insulation could be tested for the presence of asbestos (Tr. 462).[[2]]

Keith Thompson, CEI's plant environmentalist, took samples from the south side of boiler 94, as well as from its southeastern underside (Ex. R-2, areas #1 and #2; Tr. 336-337). He hand-delivered the samples to the plant laboratory. Sometime after noon that day, he received the results, which indicated that all of the samples contained asbestos (Ex. C-1; Tr. 351).[[3]] After Lewis was informed of the presence of asbestos, an abatement contractor was brought in to remove the insulation (Tr. 353).

The week before the asbestos was detected, Tirabasso had taken samples on boiler 93 and the dry ash pit on boiler 94. The results of both samples indicated that it was non-asbestos material (Ex. R-3; Tr. 303-304). Boilers 93 and 94 are "sister" boilers, of the same age and style. Tirabasso assumed that such similar boilers would have similarly non- asbestos insulation. Using this reasoning, Tirabasso concluded that boiler 94 did not contain asbestos material and assured the employees he supervised that it was safe for them to work in this location (Tr. 311, 317-318). Tirabasso does not keep records of where the asbestos containing insulation is located or where new insulation has been installed (Tr. 317).

Following the inspection of OSHA Industrial Hygienist Julie Weis on April 22, 1988, CEI was issued two citations for a number of violations. CEI does not dispute that it failed to take any of the steps that the allegedly violated standards dictate. Instead, CEI argues that for various reasons, it was not required to comply with the asbestos standards.

NEGATIVE-PRESSURE ENCLOSURES AND A COMPETENT PERSON

Section 1926.58 (e)(6)(i) of 29 C.F.R. provides:

Wherever feasible, the employer shall establish negative-pressure enclosures before commencing removal, demolition, and renovation operations.

Section 1926.58(e)(6)(ii) of 29 C.F.R. provides:

The employer shall designate a competent person to perform or supervise the following duties:

(A) Set up the enclosure;
(B) Ensure the integrity of the enclosure;
(C) Control entry to and exit from the enclosure;
(D) Supervise all employee exposure required by this section;
(E) Ensure that employees working within the enclosure wear protective clothing and respirators as required by paragraphs (i) and (h) of this section and;
(F) Ensure that employees are trained in the use of engineering controls, work practices, and personal protective equipment;
(G) Ensure that employees use the hygiene facilities and observe the contamination procedures specified in paragraph (j) of this section; and
(H) Ensure that engineering controls are functioning properly.

CEI argues that the operation on March 26, 1988, was neither an asbestos removal, demolition, or renovation operation, thus excluding it from compliance with these sections. At the hearing, Leslie Grove, an OSHA industrial hygienist supervisor, stated that work done on boiler 94 could qualify as either a removal or a renovation operation (Tr. 233, 272).

Section 1926.58(b) defines "removal" as "the taking out or stripping of asbestos. . . or materials containing asbestos. . . ," and "renovation" as "the modifying of any existing structure, or portion thereof, where exposure to airborne asbestos. . . may result." "Repair," which is not mentioned in 1926.58(e)(6)(i), is defined as "overhauling, rebuilding, reconstructing, or reconditioning of structures or substrates where asbestos. . . is present."

The operation planned for boiler 94 was to remove the old tubes from inside the boiler and to replace them with new tubes. Grove maintained that the removal of original parts and the replacement with new ones constitutes a modification, which brings the operation within the standard's definition of renovation. CEI maintains that Grove's position would serve to destroy any distinction between the standard's definitions of "renovation" and "repair," and would render the "repair" definition redundant. No renovation was planned on boiler 94.

CEI argues that the boiler assignment was not an asbestos removal operation because it did not intend for any asbestos to be removed, and in fact, the asbestos insulation was not actively removed. The company contends Simmons' testimony that he knocked off insulation with a pinch bar was rebutted by Tirabasso, because Tirabasso stated that he did not observe any employee removing insulation. This argument is based on Tirabasso's testimony that he visited the area where Simmons was working once in the morning before work actually began and "two or three times during the course of the day, and I did not see people removing insulation from Area 2" (Tr. 313). The fact that Tirabasso did not actually observe Simmons removing insulation during his two or three visits does not in any way refute Simmons' testimony, as well as Fine's testimony, that Simmons did so.

CEI contends that both Tirabasso and Thompson observed the block insulation on the south side of boiler 94, and saw no gaps or missing blocks. CEI also questions the veracity of its employees who stated that they either removed or observed the removal of insulation.

Both Willie Simmons and Jay Fine testified in a sincere, straightforward manner concerning their work activities on the days in question. They displayed no bias and their testimony was entirely reasonable and credible. On the other hand, Tirabasso and Thompson showed an understandable inclination to minimize the amount of insulation involved in the operation. This inclination led to questionable testimony, such as Tirabasso's statement that there was not an abnormal amount of dust in the air on March 26, despite an abundance of more credible evidence to the contrary (Tr. 307; see also footnote 2).

Moreover, no motivation is apparent as to why the employee witnesses would fabricate their part in the insulation removal. CEI would have it believed that Simmons was mistaken when he said he removed the insulation and that Fine was also mistaken when he said he observed Simmons removing the insulation. CEI further suggests that Simmons, Fine, and Zebrowski were in error when they said they worked on boiler 94 for two hours on March 28; and that Simmons, Fine, Zebrowski, and Wilson exaggerated when they stated that, in their combined experience of over 30 years, the dust was unusually heavy on March 26. Absent any motivation for this alleged insulation conspiracy, the testimony of these men is accepted as the most credible.

CEI also argues that the primary goal of the assigned tasks on March 26 was not the removal of asbestos. CEI intended to remove the skin casing from the south side of boiler 94 and the skin casing and the four-inch mineral wool blanket from the underside of boiler 94 (Ex. R-4, pp. 4-5). Section 1926.58(e)(6)(iv) of 29 C.F.R. provides:

For small-scale, short-duration operations, such as pipe repair, valve replacement, installing electrical conduits, installing or removing drywall, roofing, and other general building maintenance or renovation, the employer is not required to comply with the requirements of paragraph (e)(6) of this section. (Refer to Appendix G.)

The operation at issue in the present case is neither small-scaled, nor of short duration. When Simmons was asked if his work on boiler 94 was a "large-scale job," he responded, "[s]ure it was" (Tr. 16). Boiler 94, which is seven stories high and twenty feet wide, was to be shut down for three weeks to perform this operation. At least 11 men worked on the operation the first day of the three-week time frame. The work on boiler 94 was not an exception to the standard within 1926.58(e)(6)(iv).

CEI also claims that it was not required to comply with the asbestos standard because it did not know that the insulation on the south side of boiler 94 contained asbestos. CEI contends that Tirabasso reasonably believed that the insulation did not contain asbestos based on the absence of asbestos in the samples taken from boiler 93. The record establishes, however, that Tirabasso reached a decidedly unreasonable conclusion.

It was common knowledge among plant personnel that asbestos insulation had originally been used in the plant, and that it had been replaced only in a piecemeal fashion and not according to any organized plan. Tirabasso, who had 25 years of experience at CEI, had to be aware of this haphazard method of replacement (Tr. 286). The mere fact that one boiler tested asbestos-free gave no reasonable basis for the belief that an adjacent boiler would contain similar insulation. Despite the explicit language of rule 14.0(A) of CEI's asbestos procedure, requiring CEI to maintain plant records of the types of insulation on existing equipment, no such plans were kept. Given these circumstances, a person exercising reasonable diligence would have concluded that an area did not contain asbestos insulation only after testing that specific area.

Furthermore, even if CEI had a reasonable belief at the commencement of the operation that no asbestos was involved, it was repeatedly put on notice once the project began that it was highly likely that asbestos was present in the area. Simmons, Wilson, and Zebrowski all claimed that they could recognize asbestos dust on sight. Tirabasso, Thompson, and Dr. Antone Lott, an industrial hygienist hired by CEI, all stated that it was impossible to identify asbestos dust with the naked eye, and that microscopic analysis was required (Tr.329, 366, 432). While it may be true that the maintenance mechanics could not state with absolute accuracy that the dust they were working in contained asbestos, their knowledge and experience led them logically to assume that it did.

The mechanics had worked previously with insulation that they knew contained asbestos, and they knew that when the asbestos insulation became friable it appeared to be a white or grayish white dust containing fibrous particles. They knew that fly ash appeared as a dark gray, granular dust. Despite assurances that the area where they were working on boiler, 94 did not contain asbestos insulation, the appearance of the dust cloud raised their suspicions that asbestos was present, which in fact it was. After being asked six times whether the insulation being worked on was indeed asbestos, the reasonable response for CEI would have been to halt work and take samples of the insulation, not to blandly reassure the employees and tell them to continue working.

CEI raises the defense of unpreventable employee misconduct with regard to Tirabasso's actions, relying on Floyd S. Pike Electrical Contractor. Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH O SHD 22,805 (No. 3069, 1978). In that case, the Commission held that a supervisor, whose knowledge and actions are generally imputed to the employer, could be found to have engaged in unpreventable misconduct for which the employer is not liable. The Commission set out the following as elements of the defense:

(1) A demonstration of the employer's commitment to employee safety reflected by the establishment of work rules that effectively implement the requirements of the standard at issue;

(2) the effective communication of the work rules to employees; and,

(3) the effective enforcement of these work rules through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations. (Footnotes omitted.)

Id. at 1978 CCH OSHD

22,805, p. 27,543.

In the present case, CEI had established a detailed, specific procedure that implemented the requirements of the asbestos standard. Weis characterized it as "a fairly thorough safety program. . ." (Tr. 225). The first element of the defense is met.

The record also establishes that the work rules were effectively communicated to the employees. The employee witnesses, without exception, testified that they were aware of the company's work rules regarding asbestos. They were aware that insulation should be tested before beginning work. Their testimony reflects a high level of awareness and concern regarding the asbestos procedure. CEI has established the second element of the defense.

CEI falters on the third element, however, which calls for "the effective enforcement of these work rules through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations." Id. The record is silent on any discipline meted out to Tirabasso for his part in the violations.

The record does disclose that on Friday, March 25, 1988 a planning meeting was held to discuss the weekend operation. Presumably other supervisory personnel besides Tirabasso were present, but Tirabasso testified that the possibility of asbestos insulation in boiler 94 was not discussed (Tr. 297-298). Simmons testified that when he initially suspected the presence of asbestos, he reported it to another supervisor, Ted Zielaskiewicz, who in turn went to Tirabasso (Tr. 19). The company's written asbestos procedure provides that the Plant Maintenance General Supervisor keep records for the identification of types of insulation in existing equipment. Fred Lewis was identified at the hearing as the general supervisor of maintenance (Tr. 165, 461). Apparently, he did not maintain such records, or if he did, he failed to make them available to Tirabasso.

The record does not support CEI's claim that it had "supervision adequate to detect failures to comply with the rules." Rather, the record establishes that CEI's supervisory personnel as a whole disregarded the company's written safety policy. It was the employees who suspected a failure to comply with the work rules, but who were unable to persuade their supervisors to follow the proper procedure. CEI has failed to make out a defense of unpreventable supervisory misconduct.

The Secretary has proven that CEI did not establish negative-pressure enclosures before commencing asbestos removal, nor did its designated competent person [Keith Thompson (Tr. 331)] perform his duties in compliance with the asbestos standard. CEI was in violation of 29 C.F.R. 1926.58(e)(6)(i) and (ii).

EXPOSURE AND INITIAL MONITORING

Section 1926.58(f)(1)(i) of 29 C.F.R. provides:

Each employer who has a workplace or work operation covered by this standard shall perform monitoring to determine accurately the airborne concentrations of asbestos, tremolite, anthophyllite, actinolite or a combination of these minerals to which employees may be exposed.

Section 1926.58(f)(2)(i) of 29 C.F.R. provides:

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

CEI argues that it had no knowledge that the insulation in boiler 94 contained asbestos, therefore, it was not required to comply with the monitoring standards. As discussed in the negative-enclosure and competent person section, supra, CEI could have known of the presence of asbestos with the exercise of reasonable diligence. It is undisputed that CEI did not perform initial monitoring or exposure monitoring. CEI was in violation of 29 C.F.R. 1926.58(f)(1)(i) and (2)(i).

RESPIRATORY PROTECTION

Section 1926.58(h)(2)(i) of 29 C.F.R. provides:

Where respirators are used, the employer shall select and provide, at no cost to the employee, the appropriate respirator as specified in Table D-4, and shall ensure that the employee uses the respirator provided.

Table D-4 specifies that, for unknown concentrations of asbestos, employees shall be provided with a "[f]ull facepiece supplied air respirator operated in pressure demand mode equipped with an auxiliary positive pressure self contained breathing apparatus." CEI argues that the standard only applies when employees are expected to be exposed to asbestos above the PEL. As noted, supra, CEI failed to monitor for airborne concentrations of asbestos, therefore the concentration is unknown. In the absence of any knowledge of the concentration of airborne asbestos on that day, CEI was required to provide the highest level of respiratory protection to its employees, not the dust masks which they wore. CEI was in violation of 29 C.F.R. 1926.58(h)(2).

PROTECTIVE CLOTHING

Section 1926.58(i)(3) of 29 C.F.R. provides:

Contaminated clothing shall be transported in sealed impermeable bags, or other closed, impermeable containers, and be labeled in accordance with paragraph (k) of this section.

CEI argues that the Secretary failed to prove that the employees were exposed above the employees were exposed above the PEL, and thus that the clothes were contaminated. Weis did not take air samples during her inspection because it had been almost a month since the incidents at issue and any samples would not be representative of the airborne concentration on those days (Tr. 199). Dr. Lott conducted air monitoring on March 29, 1988, and based on his results, concluded that the employees were not exposed above the PEL on March 26, 1988 (Tr. 400-403). Grove concluded, based on employee interviews and CEI's test results on March 28, 1988, that the employees were exposed above the PEL (Tr. 268).

It is, of course, not possible to determine the airborne concentration of asbestos on the days in question. This impossibility is due to CEI's failure to comply with the monitoring standards. While the Secretary normally has the burden of showing exposure above the PEL, it would be unjust, under the circumstances of this case, to impose such a strict burden on the Secretary when such a determination was solely under the control of CEI. Given the fact that the employees described the dust as abnormally thick, and the fact that the samples taken by Thompson showed results of over one percent asbestos, it is more likely than not that the employees were exposed above the PEL on March 26 and March 28, 1988, and that their clothes were contaminated. It is undisputed that the employees' clothing was not handled in accordance with the provisions of the standard. CEI was in violation of 29 C.F.R. 1926.58(i)(3).

WARNING SIGNS

Section 1926.58(k)(1)(i) of 29 C.F.R. provides:

Warning signs that demarcate the regulated area shall be provided and displayed at each location where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, or a combination of these minerals may be in excess of the exposure limit prescribed in paragraph (c) of this section. Signs shall be posted at such a distance from such a location that an employee may read the signs and take necessary protective steps before entering the area marked by the signs.

CEI argues again that the Secretary failed to prove that the employees were exposed above the PEL. As discussed, supra, it is likely that the employees were exposed above the PEL. CEI posted no warning signs and thus was in violation of 29 C.F.R. 1926.58(k)(1)(i).

CLASSIFICATION OF THE VIOLATIONS

Grove testified that exposure to asbestos can result in asbestosis, mesothelioma, lung cancer, and gastrointestinal cancer (Tr. 252, 256). Such risks warrant a classification of serious for the violations of 29 C.F.R. 1926.58(e)(6)(i), (e)(6)(ii), (f)(1)(i), (f)(2)(i), (h)(2), and (i)(3). Section 1926.58(k)(1)(i) is properly classified as other-than-serious.

PENALTIES

Under section 17(j) of the Occupational Safety and Health Act of 1970 ("Act"), the determination of the appropriate penalty is within the discretion of the Commission. Due consideration must be given with respect to the size of the employer, the gravity of the violation, the good fait, of the employer, and the history of the previous violations. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972).

Upon due consideration, it is decided the Secretary's proposed penalty of $700 is appropriate for the violations of 1926. 58(e)(6)(i) and (e)(6)(ii); a total of $700 is appropriate for the violations of 1926.58(f)(1)(i) and (f)(2)(i); and a total penalty of $700 is appropriate for the violations of 1926.58(h)(2) and (i)(3).

The foregoing constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

It is hereby ORDERED:

1. That items 1b and 1c of the serious citation are affirmed and a penalty of $700 is assessed;

2. That items, 2a and 2b of the serious citation are affirmed and a penalty of $700 is assessed;

3. That items 3 and 4 of the serious citation are affirmed and a penalty of $700 is assessed; and

4. That item 1 of the other-than-serious citation is affirmed and no penalty is assessed.

Dated this 24th day of May, 1989.

EDWIN G. SALYERS
Judge


FOOTNOTES:

[[1]] At the hearing, the Secretary moved to vacate three items of citation one charging serious violations of 29 C.F.R. 1926.58(e)(1), 29 C.F.R. 1926.58(g)(1)(i), and 29 C.F.R. 1926.58(k)(3)(i) (Tr. 5). The Secretary's motion was granted (Tr. 6).

[[2]] Curiously, at the hearing CEI contended that no work was performed on boiler 94 on March 28, 1988 (Tr. 167) and it omits any mention in its post-hearing brief of possible employee exposure on that day. This is in direct conflict with the testimony of Simmons, Fine, and Zebrowski, who all testified that they worked approximately two hours before the job was halted.

Apparently CEI's contention is based on Thompson's testimony that on March 28 he observed the south side of boiler 94 and took three samples of the insulation there between 7:30 a.m. and 8:00 a.m., and did not see any employees working. Fine, a credible witness, testified that while he was working on boiler 94, he saw Thompson in the area sometime between 7:00 a.m. and 9:00 a.m. (Tr. 463).

Furthermore, Simmons and Fine's assignment that day was to continue work on the south side of boiler 94. The work shift begins at 7:00 a.m. It is highly unlikely that CEI supervisors would have permitted Simmons and Fine to remain idle for a two-hour period. Thompson's testimony on this point is discounted and it is found that work was performed on boiler 94 for approximately two hours on the morning of March 28, 1988.

[[3]] Although Exhibit C-1 concludes that "[a]ll four insulation samples contained over one percent asbestos[,]" the actual percentage of asbestos present in the samples is unknown. Thompson testified that the standard method for reporting the presence of asbestos is whether it is over one percent "[b]ecause greater than one percent asbestos constitutes an ACM asbestos containing material, and with polarized light microscopy, that's the best and quickest determination to find out the percentage over one of asbestos in the material" (Tr. 352).