UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 79–4080 & 79–4081
LUTZ, DAILY & BRAIN-CONSULTING ENGINEERS,
Respondent.

September 25, 1980

ORDER

These are cases under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In both cases, the Secretary of Labor (‘the Secretary’) issued to the Respondent citations alleging that Respondent committed nonserious violations of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with two standards concerning asbestos published at 29 C.F.R. § 1910.1001(f)(3)(i) and 29 C.F.R. § 1910.1001(g)(1)(i). The citations arose out of inspections of two separate worksites, the Kaw Valley Power Station (No. 79–4080), and the Nearman Creek Power Station (No. 79–4081), both located in Kansas City, Kansas. Following Respondent’s notices of contest to the citations, the two docket numbers were assigned and the cases were assigned to Administrative Law Judge Vernon Riehl. The judge scheduled the cases for hearing on the same day but, at the Secretary’s request immediately prior to the hearing, Judge Riehl consolidated the cases for hearing and decision.[1]

After the hearing, Judge Riehl issued a decision in which he entered factual findings, legal conclusions, and orders vacating the citations in both cases. The Secretary filed a petition for discretionary review in No. 79–4080 taking exception to certain findings and conclusions of the judge concerning the citation arising out of the Kaw Valley Power Station inspection. The petition also indicated that the Secretary believed the judge reached incorrect legal conclusions in No. 79–4081 as well, but that he was not seeking review of that case ‘because the facts therein may not establish the violations alleged.’ Commissioner Cottine granted the Secretary’s petition for review.

Because no issue involved in Docket No. 79–4081 was directed for review, that case is not before us on review. See Commission Rule of Procedure 92(c), 44 Fed. Reg. 70106, 70111 (1979), to be codified in 29 C.F.R. § 2200.92(c) [formerly Rule 91a(c), 29 C.F.R. § 2200.91a(c)]. Accordingly, pursuant to Commission Rule 10,[2] we hereby sever the two cases. In Docket No. 79–4081, the judge’s decision is the final order of the Commission. Docket No. 79–4080 remains before the Commission for review.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: SEP 25, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 79–4080 & 79–4081
LUTZ, DAILY & BRAIN-CONSULTING ENGINEERS,
Respondent.

August 4, 1980

APPEARANCES:

EUGENE F. DeSHAZO, Esquire, ELIEHUE C. BRUNSON, Esquire, U. S. Department of Labor, Office of the Solicitor, Kansas City, Missouri For the Complainant

JAMES N. NOWACKI, Esquire, Kirkland and Ellis, Chicago, Illinois For the Respondent

STATEMENT OF CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 contesting a citation issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act. The citation alleged that an inspection of a workplace under the operation and control of the respondent revealed the existence of workplace conditions that violated section 5(a)(2) of the Act for the reason that these conditions failed to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

Causes 79–4080 and 79–4081 have been consolidated.

The citations alleged that the violations resulted from a failure to comply with standards promulgated by publication in the Federal Register.

A description of the alleged violations contained in said citations states:

OSHRC Docket 79–4080

Item 1A, 29 CFR 1910.1001(f)(3)(i)

Samples were not collected from areas of a work environment which were representative of the airborne concentrations of asbestos fibers which may reach the breathing zone of employees:

Kaw Power Generation Station Construction site owned by the Board of Public Utilities located at 2015 Kansas Avenue, Kansas City, Kansas.

Employees in the construction area where pipes, structures and equipment were in the process of having asbestos insulation or coverings removed or demolished by the Board of Public Utilities or Industrial Clean Air.

Item 1B, 29 CFR 1910.1001(g)(1)(i)

Caution signs were not provided and displayed at all locations where airborne levels of asbestos fibers may be in excess of prescribed limits:

Kaw Power Generation Station construction site, owned by the Board of Public Utilities, located at 2015 Kansas Avenue, Kansas City, Kansas

Construction area where pipes, structures and equipment were in the process of having asbestos insulation or coverings removed or demolished by the Board of Public Utilities or Industrial Clean Air.

OSHRC DOCKET 79–4081

Item 1A, 29 CFR 1910.1001(f)(3)(i)

Samples were not collected from areas of a work environment which were representative of the airborne concentrations of asbestos fibers which may reach the breathing zone of employees.

Nearman Creek Power Station, Unit #1, owned by the Board of Public Utilities, located at 4245 North 55th Street, Kansas City, Kansas.

Cutting of Transite electrical ducts containing 20% asbestos with abrasive type cut-off wheel by employees at Sachs/Commonwealth, and Sanders/Capital Electric.

Item 1B, 29 CFR 1910.1001(g)(1)(i)

Caution signs were not provided and displayed at all locations where airborne levels of asbestos fibers may be in excess of prescribed limits.

Nearman Creek Power Station, Unit #1, owned by the Board of Public Utilities, located at 4245 North 55th Street, Kansas City, Kansas.

Areas where Transite electrical ducts containing 20% asbestos was cut with abrasive type cut-off wheels by employees of Sachs/Commonwealth and Sanders/Capital Electric.

The consolidated cases were heard on April 8, 1980, in Kansas City, Missouri.

Following the hearing respondent, on May 17, 1980, filed a Motion for Preclusion. The grounds given in the Motion for Preclusion were that complainant was one day late in forwarding to the Court the proposed findings of fact, conclusions of law, and brief.

This motion is overruled as there is no prejudice whatsoever to respondent. The time set forth in our order was a random figure, which we thought to be adequate under the circumstances.

Our decision, which is in favor of the respondent, to vacate the citation takes into full account the material set forth in complainant’s brief.

The complaint alleged that caution signs were not provided and displayed at all locations where airborne levels of asbestos fibers may be in excess of prescribed limits (29 CFR 1910.1001(g)(1)(i)).

This citation was for the construction area where pipes, structures and equipment were in the process of having asbestos insulation or coverings removed or demolished by the Board of Public Utilities or Industrial Clean Air.

Complainant alleged that respondent knew of the presence of airborne asbestos at two of its aforementioned work sites, but allowed its employees to become exposed to asbestos contaminates while failing to monitor the asbestos level or to post notices of the hazardous conditions.

Complainant states that the respondent, in essence, carried out project management functions which included design of all improvements on new construction, administration and coordination of construction on behalf of the Board of Public Utilities, and daily inspections of the work by its resident engineers who provided continual evaluation of the construction activities. Respondent also allegedly held weekly construction meetings which required that all prime contractors submit reports and construction schedules for review and comment.

The evidence establishes there were asbestos contaminates at both the Kaw Valley Power Station and the Nearman Creek Power Station. The credible evidence also is that the respondent performed no tests to determine asbestos levels, posted no notice of the presence of the contaminates, nor did it see that the Board of Public Utilities did the same. The record further shows that at least five other prime contractors, tractors, performing work for the Public Utilities at the aforementioned site, were cited for the same violations. None of the contractors contested the citations and promptly abated the hazards.

The complainant contends that the respondent was very much in control of construction activities and had contracted to keep the Board of Public Utilities informed as to defects or deficiencies in the work of the contractors. In addition, complainant states that the respondent had the power to disapprove or reject work that failed to conform to the contract (exhibits R–1; T. 85).

Although the respondent, in effect, prepared designs and specifications which made up the contract between the Board of Public Utilities and the prime contractors (T. 88–90), respondent states that they did not supervise the job but had control over the finished product.

In support of its contention, the complainant cites Marshall v. Bechtel Power Corp., 548 F.2d 248. In that case we affirmed a citation for four nonserious violations and the proposed penalties. The employer had contended that it could not be cited under 29 CFR 1926 because it was not engaged in construction. We ruled that the employees, on the production site, were engaged in construction although more or less in a supervisory capacity within the meaning of the Act. The employer was judged to be a integral part of the total construction going on at the site at the time of inspection, and was, therefore, subject to standards designed to protect any employee working on the project. We still feel that this decision is sound, but it does not apply to the instant case because the evidence does not indicate exposure nor sufficient facts to make a violation of the standard involved.

In the Bechtel case we adopted a broad interpretation of the terms ‘work for construction’ and ‘engaged in construction,’ so as to reach beyond workers doing manual labor and to cover individuals performing vital functions in the total activities of the construction project This decision, which was upheld by the Review Commission, was affirmed by the United States Court of Appeals for the Eighth Circuit.

In the instant case we do have a project management function which included design of the facilities, administration and coordination of construction on behalf of the Board of Public Utilities, and daily inspection of the work.

DISCUSSION

Respondent in its brief stated that it provided professional engineering services for the design of a new coal-fired, electrical power generation station in Kansas City, Kansas, known as the Nearman Creek Power Project. Respondent’s engineering duties were set forth in its October 11, 1972, written contract with the Board of Public Utilities of the City of Kansas City, Kansas (Board of Public Utilities), a quasimunicipal corporation. Respondent’s engineers prepared plans and specification which describe, through drawings and written specifications, the composition of the completed Nearman Creek Project. Respondent states that these plans and specifications were then incorporated into the contracts between the Board of Public Utilities and various construction contractors. Among those contractors was Saunders Plumbing and Heating, Incorporated, whose subcontractor was Capital Electric Company (together Saunders/Capital) who was responsible for constructing yard piping for the Nearman Creek Project. Another contractor was the joint venture of Sachs Electric Company and Commonwealth Electric Company (Sachs/Commonwealth). That contractor was responsible for installing electric power and lighting for the Nearman Creek Project. Both Sanders/Capital and Sachs/Commonwealth, as part of their work, were to install certain Transite electrical duct along the ground.

Transite electrical duct is manufactured by John-Manville and contains asbestos. It is uncontested that there is no danger from the asbestos in the Transite electrical duct unless it is discharged into the air by cutting it with a power saw or abrasive cut-off wheels. Any other form of cutting the duct is harmless. The Transite electrical duct was laid in long runs across the ground at Nearman Creek Project. This Transite electrical duct is basically a small pipe or conduit through which at a later point electrical wire is to be placed. In installing the Transite electrical duct the different pieces are bound together in fitted sections without cutting. The only cutting that occurs is at the end of the run where the last piece must be cut to fit the remaining space available (T. 60, 109).

Respondent states that on June 20, 1979, an OSHA inspector, Lionel Olson, arrived at the Nearman Creek Project site. He asked Robert Follmer, chief resident engineer for respondent, to show him one of the ends of the run where Transite electrical duct would be expected to be cut. The two men walked to that area and each observed debris on the ground where apparently cutting had occurred. Neither man observed any actual cutting of the Transite Electrical duct (T. 55). Lionel Olson took samples of the debris with him for subsequent analysis. At no time before or after did Robert Follmer, or any other employee of the engineer, ever see this debris (T. 120–121, 123–124, 127, 133, 136). The evidence establishes that the employees of the engineer did not spend time in the area where Transite electrical duct was being cut, nor did they ever see it being cut (T. 110, 120, 122, 131, 133).

Subsequent analysis by OSHA officials indicated that the debris on the ground on June 20 did contain asbestos fibers. However, no tests were taken by the OSHA officials of the amount of asbestos, if any, in the air (T. 18, 23, 54, 58–59; exhibit C–2). No tests were taken of the respondent’s employees (T. 56, 121). Nevertheless, an OSHA citation was issued to the respondent for itself failing to have tested for asbestos in the air and for failing to post warning signs of asbestos (29 CFR 1910.1001(f)(3)(i) and (g)(1)(i)).

Because none of respondent’s employees had noticed there was any asbestos hazard, the respondent cannot be liable. In Secretary of Labor v. Anning-Johnson Co., 1975–76 CCH OSHD ¶20,690 (1976), the Commission reviewed in detail the principles of law applicable to a multiple employer setting. The Commission held that it was an affirmative defense if the employer and his employees did not have notice or with reasonable diligence would not have had notice of the hazardous condition. It is undisputed that improper cutting with power saws or abrasive cut-off wheels is the only source of an asbestos hazard from Transite electrical duct. The evidence of record establishes that no one employed by respondent ever observed any cutting of Transite electrical duct (T. 55, 120–121, 123–124, 127, 133, 136). The only occasion when any debris from cutting the Transite electrical duct was observed, in one instance, was when the OSHA compliance officer asked to see the end of a duct run where cutting would normally occur. But, it was unknown when that debris was first there or if the cutting that caused it had even occurred during normal working hours. No employee of the respondent ever observed any power saws or abrasive cut-off wheels in the vicinity of any of the Transite electrical duct at any time (T. 136). The respondent’s engineers had no duty to observe the construction methods employed by Saunders/Capital and Sachs/Commonwealth. Respondent’s employees had no reason to know in the exercise of their duties that there was any improper cutting of Transite electrical duct (T. 82, 90; R–2, R–2A). Accordingly, the citations must be dismissed.

The Secretary of Labor has not proved that the respondent’s employees had access to the areas where the claimed hazardous condition was created. In Gilles and Cotting, Inc., 1975–76 CCH OSHD ¶20,448 (1976), on remand from 504 F.2d 1255 (4th Cir. 1974), ‘access’ was defined by the Commission as follows:

We would expect the proof to show that employees either while in the course of their assigned working duties their personal comfort activities while on the job, or their normal means of ingress/egress to their assigned workplaces, will be, or, or have been in a zone of danger.

The evidence establishes that the employees of the respondent did not have any assigned working duties that included observing the cutting of Transite electrical duct or being in the vicinity where that activity was occurring (T. 82–86, exhibit C–1). The credible evidence establishes that Robert Follmer, and others employed by the respondent at the Nearman Creek Project, did not enter or leave the worksite near any area where Transite electrical duct has been cut (T. 130, 135). The testimony was that at no time during the exercise of their normal duties, personal activities, or ingress or egress from their assigned work areas, did any of respondent’s employees encounter the areas where Transite electrical duct was being cut (T. 93, 121, 130, 134–135, 136).

The Secretary of Labor did not present any proof as to when any improper cutting of Transite electrical duct occurred. It is possible (perhaps not probable) that such work was done outside of normal working hours when the employees or the engineer were not present at the Nearman Creel Project site. It is the burden of the Secretary of Labor to prove respondent’s employees had access to the hazard. It is clear that, in this case, the complaint cannot be sustained as to the respondent. See Secretary of Labor v. Anning-Johnson Company, 1975–1976 CCH OSHD ¶20,690 (1976).

It is to be noted that on cross-examination, Lionel Olson, the OSHA inspector testified there was no proof that the respondent’s employees had even been exposed to asbestos (T. 63–64).

Respondent’s engineer on the Kaw Project designed filtration baghouses for an existing coal-fired, electrical generating station. As part of that project, the engineer designed designed a new breeching which resembles large ventilating duct work that connected the existing boilers to each of the baghouses to be constructed.

Plans and specifications were prepared by the engineer under respondent’s contract with the Board of Public Utilities of October 11, 1972. These plans and specifications were then incorporated by the Board of Public Utilities and the contracts with various construction contractors.

Before beginning the work of construction of the baghouses and the new breeching, the Board of Public Utilities and one of its contractors, Industrial Clean Air Company (ICA), first needed to demolish the old breeching including removal of its insulation. None of this work had been specified by the respondent’s engineer.

During early April 1979, when this work first began, two of respondent’s engineers were at the Kaw Station Project site. They worked out of a field office, which was approximately 260 feet from the area where the demolition work on the existing breeching and insulation was being performed by the Board of Public Services and ICA (T. 100–101). Between that area and the field office, there was a large building shielding the field office area (T. 100–101).

During the course of the demolition work, a construction worker brought to the attention of Gary Schuman that the insulation appeared to contain asbestos. Schuman advised that the contractors were responsible to follow proper procedures (T. 139–140) although the respondent’s engineer did not assume any responsibilities for the safety of the contractors or their methods for demolition work (T. 96–97–98; exhibit R–1).

Gary Schuman was aware of the contractual obligation of the contractors to perform their work in a safe manner (T. 145; exhibits R–1, R–2C) Schuman also took precautions, on his own, to avoid the area where he had been told asbestos was being destroyed. He was aware of the dangers of asbestos, and therefore specifically walked routes away from the demolition site (T. 142–143, 145–147). Schuman spent approximately 30 percent of his time in the field office and only a few minutes during the entire period near the area where the demolition was occurring. He spent the remainder of his time at the other areas of the project site (T. 67, 100–101, 141; exhibit R–2C). The other employee of the engineer, Joseph Kliethemes, had no responsibilities in the area where the demolition work was occurring on existing breeching (T. 144, 148). Therefore, he avoided that area as well (T. 144, 148). Also during this period, he wore a protective mask over his nose and mouth (T. 71, 149).

At no time was the respondent, either through the compliance officer or any other source, advised that asbestos concentration ever reached the prohibited levels of 2 fibers per cubic centimeter of air under 29 CFR 1910.1001(b) at the Kaw Station Project (T. 18, 23, 47; exhibits R–10, C2). None of the employees of the respondent were ever tested by OSHA officials to determine if they had ever been exposed to asbestos (T. 56).

Under the circumstances, we hold that the efforts of Gary Schuman to avoid the site where demolition was occurring, his instructions to a contractor to do his duty, and the efforts of Joseph Kliethermes to protect himself by wearing a face mask was a reasonable alternative to literal compliance with the regulations. In Secretary of Labor v. Anning-Johnson, supra, the Commission has held that on a multi-employer worksite, as in the instant case, where the engineer had not created the hazardous conditions by doing any of the asbestos demolition work, nor did it have control over these conditions, realistic alternative measures are acceptable. The Commission also stated that what is reasonable might depend upon the level of hazard.

In the instant case, the complaint was only for failure to test or post signs. A realistic alternative to posting signs and testing for asbestos would be simply to stay out of the area where the asbestos demolition was being carried out by the contractors as respondent did, and as indicated by the evidence. The respondent cannot be held liable for failing to test or post signs when he took the aforementioned realistic alternative measures.

In Secretary of Labor v. Anning-Johnson, supra, the Commission held that an employer can only be cited for a violation if his employees would be expected to be within the zone of danger exposing them to the hazards. In the instant case the credible evidence shows that the engineer did not design or specify any of the demolition work on the existing breeching or its insulation nor did the engineer have any responsibility for the methods of performance of that work (T. 96–98; exhibit R–1, R–2B). Respondent’s employees were merely on the site to observe that the project conformed in in general to the plans and specifications. They had no duty to observe the demolition of existing breeching or its insulation. It is therefore apparent that the vicinity of that work was not their workplace, and they had made every effort to avoid it. Therefore, they were not within the zone of danger.

On May 5 and 26, 1979, a private testing agency for the Board of Public Utilities tested for asbestos and found no hazardous amounts (T. 143; exhibits R–10). The respondent knew about those tests and had no duty to duplicate them (T. 43).

At the Nearman Creek Project the compliance officer never tested for levels of asbestos in the atmosphere (T. 18, 23, 54–59; exhibit C–2). The only samples taken were of the debris on the ground to determine whether it was composed of asbestos (T. 18, 23, 54, 58–59). No employees of respondent or other employees on the site were ever monitored for asbestos exposure (T. 56, 121). However, at the Kaw Station Project there was testing of construction workers by OSHA officials to determine the levels of asbestos in the air (T. 8–9; exhibit C–2). Lionel Olson, the OSHA inspector, testified that only one-tenth of a fiber per cubic centimeter on an 8-hour time weighted average was shown to exist (T. 47). No testing whatsoever was done on the respondent’s employees (T. 66).

In the absence of any evidence of prohibited levels of asbestos, it accordingly follows that the citations by the Secretary of Labor cannot be sustained. First, 29 CFR 1910.1001(g)(1)(i), which the engineer is claimed to have violated, provides for warning signs as follows:

(i) Caution signs shall be provided and displayed at each location where airborne concentrations of asbestos fibers may be in excess of exposure limits prescribed in paragraph (b) of this citation.

Therefore, warning signs are only required if concentrations of asbestos may be in excess of the exposure limits prescribed in paragraph (b) of 29 CFR 1910.1001. That paragraph (b) provides as follows:

a (ii) Standard effective July 1, 1976. The 8-hour time weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed two fibers, longer than five micrometers, per cubic centimeter of air . . ..

It is evident therefore that there must be some showing that asbestos levels in the air were sufficient to warrant that there may be more than two fibers per cubic centimeter of air on an 8-hour time weighted average.

At the Nearman Creek Project there is no proof of any asbestos fibers in the air, and on the Kaw Station Project the Secretary of Labor offered proof of no more than one-tenth of a fiber per cubic centimeter of air. There is no reason to post caution signs for such a small amount of asbestos, if any, in the area. This is more apparent in the case of respondent’s employees who were not near the area where the asbestos was claimed to have been released.

The testing requirement could only have violated if the respondent should reasonably have believed that the two fiber per limit had been exceeded. In these cases, however, there is no proof that there ever was two fibers per cubic centimeter of air at any location on either of the projects. Therefore there was no reason for anyone to believe, even if they had taken a test, that the two fiber limit had been exceeded. There can be no violation for failing to test for the two fiber limit where the two fiber limit was never shown to have been exceeded.

To put it another way there could be no violation by the respondent for exposing its employees to a hazard from asbestos if there was no proof of any asbestos hazards ever existing as set forth by the standard. The failure to take a test is not of itself hazardous. It is only the failure to take a test that would have shown hazardous levels of asbestos that can be a violation of section 5(b) of the Occupational Safety and Health Act (29 U.S.C. § 654(b). No such hazardous levels were shown to exist at either project.

In Dravo Corporation, 1979 CCH OSHD, ¶23,388 (1979) affirmed in part, reversed in part, on other grounds, 613 F.2d 1227 (3rd Cir. 1980), the judge held that a complaint against the employer for failure to post caution signs (29 CFR 1910.1001(g)(1)(i)) and conduct tests (29 CFR 1910.1001(f)(3)(i)) for asbestos must be dismissed where the Secretary of Labor failed to offer proof that prohibited levels of asbestos were present in the air.

In the instant case there is no evidence of record that the two fiber limit had been exceeded at either the Nearman Creek or the Kaw Power Station.

Respondent, in its brief, argues because the Board of Public Utilities is exempt from OSHA coverage, therefore, it follows respondent is exempt because it was obligated to perform its design and observation services under that contract at two project sites.

This is not a correct statement of the law.

The respondent is liable for failing to provide a safe workplace for its employees no matter what the situation is in regard to either a main contractor or other subs employed at the same location.

There is no way an employer can contract away his responsibility, under the Act, to provide his employees a safe worksite.

Respondent also cites the delay of 26 days on the Kaw Station Project, and 62 days after the last inspection before a citation was issued in defense of the citation. We see no prejudice to the respondent because of the delay of the citation and it will not be a factor in the decision.

We are somewhat puzzled concerning the persistence with which the Government has pursued this case. The respondent has a perfect safety record. The controlling force in this case is a municipal body (Board of Public Utilities) which is exempt from the Act.

The respondent informed the contractor (who is responsible to take appropriate measures to avoid hazards from asbestos) that this was the contractor’s responsibility. Herein we have a situation where the respondent did not create any of the conditions that were causing the hazards, if any (the evidence does not show, from testing, that there was a hazard within the meaning of the Act). The respondent in the instant case took reasonable precautionary measures to protect its employees although someone else created hazard, if any. The other contractor, who created the hazard, was in total control of the work situation in the area.

There were never any test results showing airborne concentrations of asbestos at the Kaw Station Project that exceeded two fibers per cubic centimeter of air.

The credible evidence of record establishes a whole set of circumstances in which the respondent took necessary precautions, in as many areas as it possibly could, to protect its workers from the derelictions of other contractors.

The Secretary thought so little of the severity, from the respondent’s standpoint, that there was no penalty.

The Department of Labor has been too aggressive in this case in a situation that was abated almost instantly. We cite the following testimony of record to indicate that there are other cases where the Government is not nearly so concerned or in fact not concerned at all. This testimony is as follows:

JUDGE RIEHL: I’m a little bit concerned that the government is so overly concerned with this case that these people are just more or less at a distance observing it, when I worked at the 212 [210] Office in St. Louis, which is owned by the government, and the late Sid Levalds, who was the OSHA Area Director, ran a test and found asbestos going all through the building at a certain count, I forget what it was, 3, 4, 5, reported it to Dr. Bingham, reported it and actually tried to shut the building down and I understand his order was countermanded, that they didn’t have to leave. The government knew all that and knew I was under acts [attacks]. I had a heart attack while they were protesting, between that and the fumes.

Why Mrs. Bingham and the rest of the government shows such a concern for a case like this, which is very remote compared to what I was daily taking in dosages, why they didn’t go after this building? Is there something about the owners of that building that made them sacrosanct and nobody could touch them? Just what was it? Can you tell me why while we’re here? I’ve been pondering that for ten years now.

MR. DESHAZO: Your Honor, I have no idea. I know when that particular inspection was made, I know the individual that did the testing.

JUDGE RIEHL: I talked to Mr. Levald. He ruminate [ran] the test right at the source and he’d protest it. He wrote articles to it. I’ve seen the Area Director from St. Louis [who] wrote in protesting that OSHA does everything but follow that lead and do something about it and finds excuses for it and then I get this case, which is one-one thousands less than what they exposed me and Judge Dixon to, and Judge Wienman to in that building, and it just defies my imagination to see that this is the same Secretary, Mrs. Bingham, who blended [extended] authority through you and official agencies of this case and that one was, in effect, covered up. It’s beyond me.

JUDGE RIEHL (interrupting): The gasoline case, I went out of my way because I thought it was ridiculous that OSHA pursued that. Later on Mrs. Bingham said, ‘We’ re not going to handle these kind of cases. They’re ricky ticky. They don’t belong here. We ought to go after serious things like carcinogens’. And so, with that case, now, here, with these cases, I assume, rather conversely, I’m supposed to hear this one. This would almost be in that category. (T. 21–23)

We quote the above testimony to show the tremendous range of concern by the Department of Labor concerning asbestos cases.

It is to be noted that the 210 N. 12th Street Building, which Mr. Sid Levalds tried to have closed for Federal employees because of the danger of asbestos poisoning, is a Government facility not subject to the Act. We had predicted in the Illinois Terminal case, several years ago, that all such Government directives in regard to OSHA type safety in Government building would be a total flop insofar as correction of abuses. We note that there are a number of Federal Employees’ Unions and others concerned with safety who have brought up the question of workplace conditions, but up until this date there is no conformance to OSHA regulations for Government people. They are, in effect, disfranchised orphans in the whole safety movement in America.

In this case we have an employer (respondent) who is a part of the business community that is covered by OSHA. It seems to us a complete travesty to abandon any attempt to help the employees at 210 N. 12th Street from being exposed to asbestos up until the present date and to then, when dealing with an employer covered under the Act, so vigorously prosecute this case at considerable expense to both the employer and the Government.

SUMMATION

We have stated in some detail the various reasons wherein credible evidence establishes that the respondent is not in violation of the Act.

We think a letter from attorney James Nowacki, representing respondent, dated June 18, 1980, addressed to us, summarizes the situation for the most part as follows:

Most importantly, however, the central undisputed fact remains that there was never any proof offered by anyone that the level of asbestos in the atmosphere at either project exceeded permissible limits. Thus, there was no violation for failing to erect caution signs . . . or conduct atmospheric tests . . . in a confused metaphor that fails to grasp the issue, stated:

If one drives past a red light, it does little good to stop twice next time. (Complainant’s Brief, p. 6)

To state that metaphor correctly:

If one fails to check for a traffic light, it is nevertheless not a violation so long as the light was green.

In this case, the ‘light was green’ because there is no evidence whatsoever there was ever an impermissible amount of asbestos in the atmosphere on either project. * * *

Very truly yours,

James N. Nowacki

As far as we are concerned this pretty well sums it up. There was no violation because there was never any credible evidence sustaining a violation on the part of the respondent.

FINDINGS OF FACT

1. The Nearman Creek Power Station Project (Nearman Creek Project) was located at 4245 North 55th Street, Kansas City, Kansas.

2. The Nearman Creek Project was involved in the construction of a new coal-fired, electric power generating plant (T. 81).

3. The Respondent provided professional engineering services to design the Nearman Creek Project under a written contract dated October 11, 1972, between the respondent and the Board of Public Utilities of the City of Kansas City, Kansas (Board of Public Utilities) (T. 81; exhibit R–1).

4. The Board of Public Utilities, herein mentioned, is a quasimunicipal corporation (T. 11–12).

5. As a part of its professional engineering services, the respondent prepared plans and specifications for the Nearman Creek Project that described through drawings and written specification the composition of the completed Nearman Creek Power Generating Station (T. 89–90.

6. The Board of Public Utilities then incorporated the plans and specifications into the contracts between the Board of Public Utilities and specific contractors who were to construct the Nearman Creek Project (T. 89).

7. These plans and specifications as prepared by the respondent did not describe the means, methods, techniques or procedures the contractors were to use to construct the Nearman Creek Project (T. 82, 90).

8. Pursuant to respondent’s contract with the Board of Public Utilities, it was to have engineering personnel present at the Nearman Creek Project site who would resport their observations to the Board of Public Utilities as to whether the Nearman Creek Project was being completed by the contractors in general accordance with the plans and specifications (T. 83–96; exhibit C–1).

9. The contract between the respondent and the Board of Public Utilities and the general conditions of the contracts between the contractors and the Board of Public Utilities stated that the respondent had no duties or responsibilities concerning the construction means, methods, techniques, procedures, or safety measures, or programs of the contractors for the Nearman Creek Project (T. 82; exhibits R–2, R–2A).

10. The Board of Public Utilities entered into a construction contract with Saunders Plumbing and Heating, Inc., whose subcontractor was Capital Electric Company (together Saunders/Capital), as the mechanical and electrical contractor responsible to construct the yard piping for the Nearman Creek Project (T. 115; exhibit R–2). The work of Saunders/Capital included installation of Transite electrical duct or pipe along the ground (T. 86–87).

11. The Board of Utilities also entered into a construction contract with Sachs Electric Company and Commonwealth Electric Company, a joint venture (Sachs/Commonwealth), by Sachs/Commonwealth was to install the electric power and lighting for the Nearman Creek Project (exhibit R–2A). As part of their work, they would also install certain Transite electrical duct along the ground (T. 87–88).

12. An OSHA compliance officer, Lionel Olson, visited the Nearman Creek Project site for inspection (T. 27–29, 123).

13. Robert L. Follmer was the chief resident mechanical-electrical engineer for the respondent for the Nearman Creek Project at the time of the compliance officer’s visit (T. 115).

14. Another employee of respondent, at the Nearman Creek Project site, was Gordon William Miller, a resident civil engineer, who had a similar duty to observe whether Saunders/Capital appeared to be completing their work in general accordance with the plans and specifications (T. 132–133).

15. The only other engineering employee of the respondent at the Nearman Creek Project site was Alfred Frank Burkle whose duties were to observe the work of Sachs/Commonwealth for the same purpose (T. 136–137).

16. None of respondent’s employees performed any construction work nor directed the means, methods, techniques, or procedures of construction work used by these contractors (T. 82, 93, 121).

17. On June 20, Lionel Olson requested that Robert Follmer show him those places where Transite electrical duct had been cut by any of the contractors (T. 123). The only locations on the Nearman Creek Project where such ducts would be cut would be at the ends of the long runs across the ground (T. 60, 109).

18. Robert Follmer took Lionel Olsen to the end of one of these runs (T. 123). Both Follmer and Olson observed that there was debris on the ground, which would indicate that the Transite electrical duct had been cut at that location (T. 123, 127). No actual cutting of Transite electrical duct was observed by either man (T. 55). Also, Robert Follmer had never seen the debris before (T. 120–121).

19. The compliance officer, Olson, then requested any information the respondent had on the Transite electrical duct (T. 128). Robert Follmer gave Olson approved shop drawings, submitted by Sachs/Commonwealth, which consisted of a brochure from Johns-Mansville Corporation, the manufacturer of the Transcite electrical duct (T. 123; exhibit C–1). This brochure stated that Transite electrical duct contained asbestos (T. 128; exhibit C–1). The brochure did not show improper methods of cutting Transite electrical duct that might release asbestos into the air nor did it contain any warnings concerning asbestos (T. 32, 41, 122; exhibit C–1).

20. The debris on the ground, which was observed by Olson on June 20, was later tested in a laboratory (T. 31). OSHA officials then determined that the debris contained asbestos (T. 41). There was no evidence as to whether or not any asbestos fibers exceeded five micrometers in length.

21. No employee of the respondent was ever monitored by OSHA officials to determine whether they had been exposed to asbestos in the air (T. 56, 121). The compliance officer, Olson, admitted he did not know whether the respondent’s employees had been exposed to asbestos (T. 63–64).

22. No tests were ever conducted by OSHA officials anywhere at the Nearman Creek Project to determine the amount of asbestos fibers in the air, if any, on an 8-hour time weighted average (T. 18, 23, 54, 58–59; exhibit C–2).

23. Robert Follmer and the other employees of the respondent did not perform any duties in the areas where Transite electrical duct had been cut nor did they use these areas for normal ingress or egress to the Nearman Creek Project site (T. 130, 135).

24. On July 17, 1979, a citation was issued to the respondent. The violation described in the citation alleged that on June 20 and 21, 1979, the respondent had failed to test samples of the air for airborne concentrations of asbestos fibers, and no caution signs had been displayed as required by 29 CFR 1910.1001(f)(3)(i) and (g)(1)(i). The citation alleged that there had been cutting of Transite electrical ducts containing 20 percent asbestos with abrasive type cut-off wheels by employees of Saunders/Capital and Sachs/Commonwealth. No penalty was assessed. Citations were also issued to Saunders/Capital and Sachs/Commonwealth (T. 53).

25. The respondent had never before been cited for any safety violations (T. 42).

26. At no time, when Rober Follmer and Lionel Olson observed the debris on the ground on June 20 at the end of a Transite electrical duct, did any employee of the respondent ever observe any such debris near any Transite electrical duct (T. 120–121, 123–124, 127, 133, 136).

27. At no time did the respondent’s employees, Robert Follmer, Gordon Williams or Alfred Frank Burkle, ever observe any cutting of Transite electrical ducts by anyone in any manner (T. 110, 120, 122, 131, 133).

28. There is no asbestos hazard from Transite electrical duct unless it is cut by an abrasive type cut-off wheel or power saw (T. 34–35). No employee of the respondent ever saw such equipment being used in the vicinity of the Transite electrical duct at the Nearman Creek Project at anytime (T. 136).

29. No employee, supervisor, or principal of the respondent at the Nearman Creek Project ever had reason to believe anyone had been exposed to any asbestos fibers in the air (T. 93, 121, 134, 136).

30. The fact that abrasive cut-off wheels or power saws were not proper means, methods, or techniques for cutting asbestos was not disclosed on any documents in the possession of the respondent (exhibit C–1).

31. The type of devices or procedures used by Saunders/Capital and Sachs/Commonwealth to cut Transite electrical duct constitute means, methods, techniques, or procedures of construction over which the respondent had no control or knowledge.

32. The Nearman Creek Project site was under the control of the Board of Public Utilities. Each area of construction work around the Transite electrical ducts was under the control of Saunders/Capital and Sachs/Commonwealth, who were responsible for the maintenance of those areas and their own means, methods, techniques, and procedures of construction.

33. The respondent performed its services for the Nearman Creek Project in conformity with normal professional standards (T. 93–95).

NEARMAN CREEK POWER STATION PROJECT

CONCLUSIONS OF LAW

1. The citation against the respondent on the Nearman Creek Project, alleging failure by the respondent to comply with 29 CFR 1910.101(f)(3)(i) (environmental monitoring for asbestos) and 29 CFR 1910.1001(g)(1)(i) (caution signs for asbestos), involved nonserious violations under section 5(b) of the Occupational Safety and Health Act (29 U.S.C. § 654(b)).

2. The respondent was not in violation of the standard calling for the posting of signs of conducting tests for asbestos, because the respondent did not have notice of nor in the exercise of its duties with due diligence should it have had notice of any improper cutting of Transite electrical ducts to cause a hazard from asbestos at the Nearman Creek Project. The respondent did not create the conditions causing the hazard, if any, from asbestos nor did it have any control over or power to abate the means, methods, techniques, or procedures used in cutting the Transite electrical duct at the Nearman Creek Project.

3. Under the circumstances prevailing, there was no legal duty to post signs warning of asbestos, because there was no evidence of any airborne asbestos ever reaching a level requiring such signs. Chapter 29 CFR 1910.1001(g)(1)(i). The standard with which respondent is charged with violating provides:

(i) Caution signs shall be provided and displayed at each location where airborne concentrations of asbestos fibers may be in excess of the exposure limits prescribed in paragraph (b) of this section.

Paragraph (b) of 29 CFR 1910.1001 prescribes the exposure limit as follows:

(ii) Standard effective July 1, 1976. The 8-hour time weighted average airborne concentrations of asbestos fibers to which any employee may be exposed shall not exceed two fibers, longer than 5 micrometers, per cubic centimeter of air . . ..

4. Since there was never any testing for airborne concentrations of asbestos at the Nearman Creek Project by OSHA officials nor was any evidence offered as to the amount of asbestos, if any, in the atmosphere there was no basis for requiring warning signs under 29 CFR 1910.1001(g)(1)(i) shown.

5. When there are fewer than 2 fibers per cubic centimeter of air no warning signs are required (T. 50).

6. As a matter of law, there can be no finding of violation of 29 CFR 1910.1001(f)(3)(i) where there has been no proof that there were ever concentrations of asbestos in excess of two fibers per cubic centimeter of air on an 8-hour time weighted average as stated in 29 CFR 1910.1001(b).

7. There can be no violation under section 5(b) of the Occupational Safety and Health Act (29 U.S.C. § 654(b)) unless the employees of an employer are shown to have been exposed to a health or safety hazard. Because of the absence of proof that the exposure limits of 29 CFR 1910.1001(b) were ever exceeded to create a hazard, there can be no violation by the respondent under the Act.

8. There was no duty existing on the part of the respondent to post warning signs or test for asbestos, because there was no credible evidence of record of any of respondent’s employees being in a zone of danger exposing them to prohibited levels of asbestos. The regulations required testing and signs at the employees’ workplace. The area where the Transite electrical duct was cut was not the workplace of the respondent’s employees nor an area of ingress or egress for them.

9. Because there was no hazardous concentration of asbestos shown, there can be no purpose served in citing the respondent for failing to test for asbestos or post signs. (See Secretary of Labor v. Anning-Johnson Company, 1975–76 CCH OSHD, ¶20,690 (1976)).

KAW POWR GENERATION STATION PROJECT

FINDINGS OF FACT

1. The Kaw Power Generation Station Project (Kaw Station Project) was located at 2015 Kansas Avenue, Kansas City, Kansas.

2. The Kaw Station Project involved the construction of antipollution devices to filter coal smoke emissions from an existing electric power generating plant (T. 98–99). The antipollution devices included three large baghouse buildings for filtration of the emissions from each of three existing boilers identified as K1, K2, and K3 (T. 102–103). The new design intended that coal smoke emissions would be carried from the three boilers to the filtration baghouses by large air ducts called breeching.

3. The respondent provided professional engineering services to design the Kaw Station Project under a written contract dated October 11, 1972, between the respondent and the Board of Public Utilities (T. 96, exhibit R–1).

4. The Board of Public Utilities is a quasi-municipal corporation (T. 11–12).

5. A part of the respondent’s professional engineering services was the preparing of plans and specifications for the Kaw Station Project that described, through drawings and written specifications, the composition of the completed baghouses and new breeching for the Kaw Station Project (exhibit R–2B, R–2C).

6. The Board of Public Utilities incorporated the plans and specifications into the contracts between the Board of Public Utilities and specific contractors who were to construct the Kaw Station Project (T. 94; exhibit R–2B).

7. The plans and specifications prepared by the respondent did not describe the means, methods, techniques, or procedures of construction of the Kaw Station Project (T. 96, 98). These plans did not describe how the old existing breeching (or its covering insulation) was to be demolished and removed (T. 97–98).

8. Respondent was not a party to any of the construction contracts (T. 103; exhibit 2–B).

9. Pursuant to the respondent’s own contract with the Board of Public Utilities, it was to have engineering personnel present at the Kaw Station Project site who would report their observations to the Board of Public Utilities as to whether the Kaw Station Project was being completed by the contractors in general accordance with the plans and specification (exhibit R–1).

10. The specific language of the respondent’s own contract with the Board of Public Utilities and the general conditions of the contracts between the contractors and the Board of Public Utilities stated that the respondent had no duties or responsibilities concerning the construction means, methods, techniques, procedures, or safety measures, or programs of the contractors (T. 96–97; exhibit R–2B).

11. The Board of Public Utilities entered into a contract with Industrial Clean Air Company (ICA) who was to construct the three new baghouses and the new breeching (exhibit R–2B).

12. Prior to beginning that work, the Board of Public Utilities and ICA began demolishing existing breeching, including removal of the insulation that covered it (T. 5, 11, 138). That demolition began with the breeching for K1, the first boiler (T. 5). The demolition of the breeching for the other two boilers, K2 and K3, was to follow later (T. 66, 139).

13. The two employees of respondent at the Kaw Station Project site, Gary Schuman and Joseph Kliethermas, had been told that the insulation being removed from the old breeching by the Board of Public Utilities and ICA contained asbestos (T. 138). They were also aware of the hazards of asbestos (T. 145).

14. On April 2, 1979, Gary Schuman told a construction worker and a foreman that the contractors should exercise responsibility to protect from any asbestos hazards (T. 139–140). Gary Schuman was also aware that the contract between the Board of Public Utilities and ICA required ICA to perform its work in compliance with OSHA regulations (T. 145; exhibit R–1, R–2C).

15. At that time, Gary Schuman was the Chief resident civil engineer for the respondent at the Kaw Station Project Site (T. 138). As such, his duties were to observe whether the contractors appeared to complete the new baghouses and new breeching in general conformity with the design shown on the plans and specifications and to report his observations to the Board of Public Utilities (exhibit R–1). He had no duty to observe the demolition of the old breeching and the removal of its insulation (T. 97–98; exhibit R–1).

16. Gary Schuman spent approximately 30 percent of his time in the Engineer’s Field Office that was 260 feet (with a building separation as well) from the location of K1 where the insulation was being removed from the old breeching (T. 100–101, 141; exhibit R–2C). He spent no more than a few minutes during the entire period in the vicinity of the removal of insulation from the old breeching (T. 67, 141). He spent the rest of his time at other locations on the Kaw Station Project site. He specifically walked routes through the Kaw Station Project site to avoid the vicinity where the insulation was being removed (T. 142–143, 145–147).

17. The other employee of the respondent at the Kaw Station Project site, Joe Kliethermas, was an electrical engineer (T. 148). He had no responsibilities to observe any work in the vicinity of the demolition of the K1 breeching and its insulation (T. 144, 148). At all times Joe Kliethermas wore a protective mask over his mouth and nose while at the Kaw Station Project site (T. 71, 149).

18. None of the respondent’s employees performed any construction work nor did they direct the means, methods, techniques, or procedures of construction work used by the Board of Public Utilities or ICA (T. 139, 144; exhibits R–1, R–2C).

19. The OSHA compliance officer, Lionel Olsen, first visited the Kaw Station Project on April 19, 1979, at the request of one or more construction workers who claimed the Board of Public Utilities and ICA were releasing asbestos fibers into the air when removing the insulation from the old breeching as it was demolished (T. 6).

20. The following day, April 20, Compliance Office Olson placed monitoring devices on certain construction workers to determine whether they were being exposed to hazardous amounts of asbestos fibers in the atmosphere (exhibit C–2). No such devices were placed on any employees of respondent (T. 56). As a consequence, Olson admitted he did not know whether the respondent’s employees had been exposed to asbestos (T. 64).

21. Olson testified that only one-tenth fiber per cubic centimeter of air was found present at the Kaw Station Project where the construction workers were removing the insulation from the old breeching (T. 18, 23, 47). There was no evidence as to whether or not any asbestos fibers exceeded five micrometers in length.

22. Tests were also conducted on May 5 and 26, 1979, by Stewart Industrial Hygiene, Inc., of employees of the Board of Public Utilities (exhibit R–10). Those tests also showed fewer than two fibers per cubic centimeter of air on an 8-hour time weighted average.

23. There were no test results conducted by anyone at any time at the Kaw Station Project which showed asbestos in concentrations exceeding two fibers per cubic centimeter of air on an 8-hour time weighted average (T. 27).

24. On July 17, 1979, on OSHA citation was issued to the respondent. The citation alleged that, on April 19 through May 16, 1979, the respondent had failed to test samples of the air for airborne concentrations of asbestos fibers, and no caution signs and been displayed as required by 29 CFR 1910.1001(f)(3)(i) and (g)(1)(i). The citation alleged that asbestos insulation or coverings were being removed or demolished by the Board of Public Utilities and Industrial Clean Air. No penalty was assessed. A citation was also issued to ICA (T. 17, 53).

25. The respondent had never before been cited for any safety violations (T. 42).

26. No employee, supervisor, or principal of the respondent at the Kaw Station Project ever believed that anyone employed by respondent had breathed any of the asbestos (T. 104, 144, 149).

27. The Kaw Station Project site was under the control of the Board of Public Utilities. The area of construction where the insulation on the old breeching was being removed was under the control of the Board of Public Utilities and ICA (T. 104, 113, 139).

28. The respondent performed its services for the Kaw Station Project in conformity with normal professional standards (T. 104–106).

CONCLUSIONS OF LAW

1. The citation against the respondent on the Kaw Station Project alleging failure by the respondent to comply with 29 CFR 1910.1001(f)(3)(i) (environmental monitoring for asbestos) and 29 CFR 1910.1001(g)(1)(i) (caution signs for asbestos) involved nonserious violations under section 5(b) of the Occupational Safety and Health Act (29 U.S.C. § 654(b)).

2. By avoiding the vicinity where the insulation was being removed. by informing a contractor that it was responsible to take appropriate protective steps to avoid hazards from asbestos, by knowing ICA had agreed in its contract with the Board of Public Utilities to comply with OSHA regulations in doing its work, and by one employee wearing a face mask, respondent established that it took reasonable measures for protection of its employees and, therefore, cannot be liable. The respondent did not create the conditions causing a hazard, if any, from asbestos nor did it have any control over or power to abate the means, methods, techniques or procedures used in removing insulation from old breeching at the Kaw Station Project.

3. Under the circumstances prevailing at the time of the inspections, there was no legal duty to post signs warning of asbestos because there was no evidence of any airborne asbestos ever reaching a level requiring such signs. The credible evidence establishes that there were never any test results showing any concentrations of asbestos at the Kaw Station Project that exceeded 2 fibers per cubic centimeter of air. Therefore, there was never any requirement for warning signs under 29 CFR 1910.1001(g)(1)(i).

4. As a matter of law there can be no finding of violation of 29 CFR 1910.1001(f)(3)(i) where there has been no proof that there were ever any concentrations of asbestos in excess of two fibers per cubic centimeter of air on an 8-hour time weighted average as stated in 29 CFR 1910.1001(b). There can be no violation for not reasonably foreseeing that this two fiber limit was exceeded if there is no proof by the Secretary of Labor that there ever were two fibers per cubic centimeter of air on an 8-hour time weighted average basis. Therefore, as a matter of law, no one can be held liable for failing to test for asbestos under 29 CFR 1910.1001(f)(4)(i) if there is no proof that there was ever a prohibited level of asbestos in the first place.

5. It is well settled as a matter of law that there can be no violation under section 5(b) of the Occupational Safety and Health Act (29 U.S.C. 654(b)) unless the employees of an employer are shown to have been exposed to a health or safety hazard. In this case the credible evidence does not show such exposure. Because of the absence of proof that the exposure limits of 29 CFR 1910.1001(b) were ever exceeded, creating a hazard, there can be no violation by the respondent under the Act.

6. No duty existed on the part of the respondent to post warning signs or test for asbestos because there was no evidence that any of respondent’s employees were in a zone of danger exposing them to prohibited levels of asbestos. The regulations required testing and signs at the employee’s workplace in the area where the insulation was being removed from the old breeching was not the workplace of the respondent’s employees nor an area of ingress or egress for them.

7. Because there were no hazardous concentrations of asbestos, there can be no purpose served in citing the respondent for failing to test for asbestos or post signs.

DECISION

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED: The citations issued on docket numbers 79–4080 and 79–4081 are hereby vacated.

Vernon Riehl, Judge, OSHRC

Dated: August 4, 1980

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[1] Commission Rule 9, 29 C.F.R. § 2200.9, provides:

Rule 9 Consolidation.

Cases may be consolidated on the motion of any party, on the Judge’s own motion, or on the Commission’s own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the Act require.

[2] Commission Rule 10, 29 C.F.R. § 2200.10, provides:

Rule 10 Severance.

Upon its own motion, or upon motion of any party or intervenor, the Commission or the Judge may, for good cause, order any proceeding severed with respect to some or all issues or parties.