Docket No. 89-3055

SECRETARY OF LABOR, Complainant, V.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
Respondent. LOCAL 1- 2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO,
Authorized Employee Representative.

Docket No. 89-3055

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner Velma Montoya on December 7, 1990. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. งง 659(c),660(a) and (b).

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman Commissioner

Velma Montoya Commissioner

Dated March 18, 1992

SECRETARY OF LABOR, Complainant, V.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
Respondent. LOCAL 1- 2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO,
Authorized Employee Representative.

OSHRC Docket No.89-3055

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, Consolidated Edison Company of New York, Inc., that:

1.This case is before the Commission upon the granting of respondent's Petition for Discretionary Review seeking review of the Administrative Law Judge's Decision and Order dated October 18, 1990. Review was granted of serious/repeat Citation 1 alleging a violation of 29 CFR 1926.58(f)(2)(i). (No review was sought and none was granted for the affirmance of other-than- serious citation 2 alleging a violation of 29 CFR 1910.20(e)(1)(iii)).

2. The Secretary hereby amends citation 1 to characterize the violation of 29 CFR 1926.58(f)(2)(1) as a violation of section 17 of the Occupational Safety and Health Act, 29 U.S.C.ง
666.

3. Respondent hereby withdraws its notice of contest to citation 1 and to the notification of proposed penalty thereto.

4. Respondent agrees to submit to the OSHA Area Office $1,600.00 in full and complete payment of the penalty within 30 days of this Agreement.

5.Respondent agrees that the above-mentioned violations have been abated.

6. This Stipulation and Settlement agreement does not affect the judge's disposition of other-than-serious citation 2.

7. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 27th day of February 1992, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure.

8. Complainant and respondent will bear their own litigation costs and expenses.

Anthony F Gil February 20, 1992 Counsel for the Secretary of Labor

Jonathan A. Fields February 18, 1992 Attorney for Respondent

SECRETARY OF LABOR, Complainant, V.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
Respondent. LOCAL 1- 2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO,
Authorized Employee Representative.

Docket No. 89-3055

APPEARANCE:

JANE SNELL BRUNNER, ESQUIRE U.S. Department of Labor Office of the Solicitor
For the Complainant
DAVID J. REILLY, ESQUIRE
For the Respondent ARTHUR Z. SCHWARTZ, ESQUIRE
For the Union

DECISION AND ORDER

SOMMER, JUDGE:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the "Act" ).

Consolidated Edison Company of New York, Inc. (Con Edison) at its Indian Point location was issued two citations on September 9, 1989, alleging a "Repeat" violation of
29 C. F. R. 1926.58(f) (2) (i) and an "other than serious"
29 C. F. R. 1910.20(e) (2) (i). A hearing was held in New York, New York. Both parties were represented by counsel who filed post-hearing briefs. No jurisdictional issues are in dispute, Respondent having admitted the jurisdictional allegations of the Complaint.

BACKGROUND

Con Edison is a New York Corporation engaged in the business of providing electricity to consumers and related activities. During the time at issue, employees at Respondent's Indian Point station were assigned "to go up there and clean gaskets, the gasket material from the flanges" on the No. 3 Air Ejector. (Tr. 7, 29)

Citation No. 1 alleges: 29 C. F. R. 1926.58(f) (2) (i) : The employer did not perform initial monitoring at the initiation of each asbestos job to accurately determine the airborne concentration of asbestos to which employees may have been exposed:

(a) at the Steam Lift Eject System No. 23, 36 foot elevation, where two employees were replacing asbestos containing baskets on March 23, 1989.

The standard at 29 C. F. R. 1926.58(f) (2) (i) provides:

(f) Exposure monitoring

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

Paragraph (f)(2)(ii) provides in pertinent part: The employer may demonstrate that employee exposures are below the action....level by means of objective data demonstrating that the product or material containing asbestos....cannot release airborne fibers in concentrations exceeding the level action under those work conditions having the greatest potential for releasing asbestos....

Paragraph (f)(2)(iii) provides: where the employer has monitored each asbestos,....job, 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 employer may rely on such earlier monitoring results to satisfy the requirements of Paragraph (f) (2) (i) of this section.

SUMMARY OF EVIDENCE

On March 21, 1989 two employees of the Respondent at its Indian Point location were assigned to remove J tubes on the No. 23 Air Ejector. The job required breaking apart the flanges removing the gaskets and scraping the gasket material off. In scraping the material off it splits into pieces and
the material appearing is "hard to see". ( Tr. 10) On March 23
while carrying out this work the employees noted that the I
gasket material might be asbestos. They stopped work, notified a superior, which resulted in the material being sent out for evaluation which showed it was largely asbestos. Thereafter, cleaning of the flanges was assigned to an outside asbestos removal company. Girardi, one of the mechanics doing the work testified no initial monitoring for asbestos had been carved out prior to the work assignment. (Tr. 8)

Alleged Violation of 29 C.F.R. 1926.58 (f)2)(i)

The standard at issue in this case requires that an employer who has a workplace or work operation covered therein must do initial monitoring of airborne concentrations of asbestos and other specified toxic materials to determine the airborne concentrations which employees may be exposed to, except where the employer has 1) demonstrated that employee exposures are below the action level by means of objective data demonstrating the asbestos carrying material cannot release airborne fibers in concentrations exceeding the action level or 2) where the employer has monitored each asbestos job, and the data obtained were under work operations and conditions closely resembling the processes, type of material, control methods, work practices and other conditions prevailing currently, such results may satisfy the requirements of initial monitoring.

Both employees, and Mayer, the maintenance supervisor, testified that no initial monitoring was done. None of the exceptions which would qualify the Respondent for relief from the initial monitoring requirement was met. No objective data was produced showing that employee exposure while removing the gasket material was below the "action level," [[1]] or that this material could not release airborne fibers in concentrations exceeding the action level under conditions existent. Additionally, while some evidence of monitoring was present, this did not meet the requirements of 1926.58 f(2)(i). The June 1989 monitoring does not qualify being subsequent to the gasket removal project herein. The March 1988 monitoring does not qualify as an exception since a) the air samples evaluated were of a different plant and area that involved therein, and were not personal sampling of employees' breathing zones (see appendix A to ถ 1926.58, Sampling and Analytical Procedure, paragraph 7) and b) there was no evidence produced demonstrating the monitoring data results in the other plant (Ravenswood) were obtained under conditions closely resembling processes, type of material, control methods, work practices and environmental conditions existing at the Indian Head plant. The evidence fully demonstrates that the cited standard applies and that the Respondent failed to comply. Both employees who were removing the gaskets were in a zone of danger from the asbestos. The Respondent knew or could reasonably have known of the dangerous violative condition present. Management had previously tested and found asbestos present in one of its plants. (March 1988 area testing). The Respondent's foreman Joseph Mayer testified that while he was not aware removing gaskets was an asbestos abatement job, in the past flanges had been removed, wetted down and scrapped, and if we suspected asbestos, putting them with the asbestos (underlining added) (Tr. 108). In short, the evidence is persuasive that Con Edison knew or with the exercise of reasonable diligence based on past experience could have known of the hazardous exposure present in doing this job. Respondent was in violation of 1926.58 (f)(2)(i).

Alleged Character of the Violation

The further issue to be determine is whether the violation of 1926.58 (f) (2) (i) was serious/repeat under the Act.

A serious violation exists "if there is a substantial probability that death or serious physical harm could result." 29 U.S.C. 666(k). I conclude that the citation alleging a serious violation of 1926. 58 (f) (2) (i) is supported by the record. Compliance officer Franklin, holder of advanced degrees in chemistry, with a past history of inspections of worksites wherein asbestos was present testified without contradiction that exposure to asbestos could cause death or serious physical harm. The Secretary has proven that death or serious physical likely could have resulted from asbestos exposure.

The allegation by Respondent that it cannot be charged with a serious violation since the citation does not so allege is rejected. The citation merely serves to notify the employer that the Secretary alleges a violation has been committed. If the employer files a notice of contest the jurisdiction of the Commission is invoked. Thereafter the Secretary must file a Complaint which is the first pleading commencing the action; the Complaint gives the Respondent actual notice of the Secretary's allegations. The Respondent herein was duly apprised by the Complaint that the Secretary was charging that a serious/repeat violation had occurred, and had full opportunity to form a defense thereto.

Another issue is whether the violation of 1926.58 (f) (2) (i) was a repeat one as alleged both in the citation and Complaint. Under Commission precedent,

A violation is repeated....if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHDถ 23,294, p.28,171 (No. 16183, 1979).
The Secretary establishes a prima facie case by showing that both violations are of the same standard. The employer then has the burden of demonstrating that past and present violations are not substantially similar.

The record shows that the Respondent was issued a citation for violation of 1926.58(f)(1)(i) on January 25, 1988, which was not contested and thusly became final. 1926.58(f) (1)(i) requires employers to perform "monitoring to determine accurately the airborne concentration of asbestos....to which employees may be exposed". In this case the standard violated was 1926.58(f)(2)(i) which requires that an employer perform "initial monitoring at the initiation of each asbestos....job to accurately determine the airborne concentrations of asbestos....to which employees may be exposed". Both standards are concerned with preventing employee exposure to the toxicity of asbestos by requiring employers to conduct air monitoring of the workplace. This requirement for exposure monitoring under 1926.58(f) in both the prior citation and the citation at issue herein is substantially similar. It is concluded that the violation of 29 C.F.R. 1926.58(f)(2)(i) as alleged herein was repeated. The Respondent's contention that these citations which are directed to "exposure monitoring" are not substantially similar is without merit and given no evidence. In short, the totality of the evidence of record supports a finding that the Respondent committed a serious/repeat violation of 29 C.F.R. 1926.58(f) (2) (i) .

The next question for determination concerns the amount of penalty to be assessed for the violation. Consistent with the criteria set forth in 17(J) of the Act, a penalty of $1,000 is appropriate herein.

Alleged Violation of 29 C.F.R. 1910.20(e)(1)(iii) (as amended by Complaint)

The standard at issue, 29 C.F.R. 1910.20(e)(1)(iii), requires that whenever an employee requests a copy of a record, the employer shall assure that either:

(A) A copy of the record is provided without cost to the employee or representative.

(B) The necessary mechanical copying facilities (e.g. photocopying) are made available without cost to the employee or representatives for copying the record, or

On June 9, 1989, three of the Respondent's employees requested "pre- abatement and final clearance air samples results for asbestos abatement job "carried out by Respondent in an area where employees were present. (Exh. C1)

The testimony of Mr. Riner, the Respondent's safety coordinator, to whom the record request was made shows that the Respondent failed to provide the employees with access to the records sought as required under the standard at 29 C.F.R. 1910.20(e) (1) (iii) . None of the provisions under the standard which cover employee requests for a copy of a relevant record sought were complied with. (Tr. 121-2) The Respondent was in other than serious violation of 29 C.F.R. 1910.20(e) (1) (iii). No penalty is assessed.

FINDINGS OF FACT

All facts relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure.

CONCLUSIONS OF LAW

1. The Secretary of Labor established by a preponderance of the evidence that Con Edison committed a serious/repeat violation of 29 C.F.R. ถ1926.58(f)(2)(i).

2. The Secretary of Labor established by a preponderance of the evidence that Con Edison committed an other than serious violation of 29 C. F. R. 1910. 20 (d) (1) (iii)

ORDER

Based on the findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. Citation No. 1 alleging a violation of
29 C.F.R. 1926.58(f) (2) (i) is AFFIRMED, and a penalty of $1,000 ASSESSED.

2. Citation No. 2, as amended by the Complaint, alleging a violation of 29 C.F.R. 1920.20(e) (1) (iii) is AFFIRMED and no penalty is ASSESSED.

IRVING SOMMER
Judge, CSHRC

DATED: NOV 7, 1990
Washington, D.C.

FOOTNOTES:
[[1]] "Action level" means an airborne concentration of asbestos....or a combination of....minerals of 0.1 fiber per cubic centimeter (f/cc) of air calculated as an eight (8)- hour time-weighted average.