UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–4723
THE SHENANGO COMPANY,
Respondent.

April 30, 1982

DECISION

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Joe D. Sparks is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Judge Sparks vacated a citation in which the Secretary alleged that Respondent, The Shenango Company (‘Shenango’), violated 29 C.F.R. § 1910.1001(f)(1) [1] by failing to monitor for asbestos fibers. We reverse Judge Sparks and find that Shenango violated the monitoring standard.

The facts in this case have been stipulated. During an inspection of Shenango’s foundry, a compliance officer observed furnace relining operations in progress. Jackhammers, pneumatic chip hammers and rakes were used to remove the furnace linings in the minicast furnace area and the pillar furnace. Dust clouds were created by these operations.

In questioning Shenango’s representative, the compliance officer determined that Shenango knew or suspected that asbestos was in the fabric used to reline the furnaces, but no tests or monitoring were conducted to determine whether employee exposure to asbestos fibers was below permissible limits. Shenango concedes the presence of asbestos in the pillar furnace lining and, for purposes of this proceeding, Shenango also concedes the presence of asbestos in the material used in the minicast furnace lining. The compliance officer took samples of the material used to reline the furnaces and the material in the furnaces. The samples were subsequently analyzed for asbestos content and the results of the analysis showed that the materials contained from 70% to 90% asbestos. Wipe samples taken by the compliance officer from the face of an exposed employee and from the face plate of a furnace showed 0% asbestos present.

Upon these facts, Judge Sparks found that asbestos materials in some form were released into the air. He further found, however, that the Secretary had failed to demonstrate that the work practice in this case had released ‘asbestos fibers,’ i.e., fibers longer than 5 micrometers. See note 1 supra. Judge Sparks noted that the release of asbestos fibers must be established before monitoring is required. See Goodyear Tire and Rubber Co., 77 OSAHRC 82/A2, 5 BNA OSHC 1473 (No. 13442, 1977).

Commissioner Cottine directed review on the following questions:

(1) Whether the Administrative Law Judge erred in concluding that the initial monitoring requirement imposed by 29 C.F.R. § 1910.1001(f)(1) is conditioned on the release into the air of asbestos fibers longer than 5 micrometers.

(2) Whether the Administrative Law Judge erred in vacating the alleged violation of 29 C.F.R. § 1910.1001(f)(1).

Shenango argues that 29 C.F.R. § 1910.1001(f)(1) requires the Secretary to demonstrate some measurable amount of asbestos fibers was released. According to Shenango, the Secretary has not established an essential element of his case and the citation must be dismissed because the stipulated facts do not indicate that any measurable amount of asbestos fibers was released.

The Secretary agrees with the judge’s finding that asbestos was released into the air by Shenango’s work practices. He contends, however, that the judge improperly placed on him the burden of showing that some of the asbestos particles were fibers greater than 5 micrometers in length. According to the Secretary:

[s]imple reason dictates that an employer using asbestos should not be allowed to speculate as to whether the fibers in asbestos material it uses are longer than 5 micrometers. Indeed, the illogic of the judge’s holding is immediately evident since it is only by monitoring that the employer can and will know whether fibers of the specified length are in fact released and the quantity of such release.

The Secretary further argues that ‘whenever employees work with asbestos there is a presumption that they are exposed to asbestos fibers as defined in section 1910.1001(a)(2).’

III

In Goodyear Tire and Rubber Co., supra, a divided Commission stated that, to prove a violation of 29 C.F.R. § 1910.1001(f)(1), the Secretary ‘must establish that it is more likely than not that fibers were released.’ 5 BNA OSHC at 1475. Section 1910.1001(c)(2)(iii) states in relevant part that, ‘Employees engaged in . . . the removal or demolition of asbestos insulation or coverings shall be provided with respiratory equipment . . . and with special clothing. . . .’ As Commissioner Cleary observed in his separate opinion in Goodyear Tire and Rubber Co., supra:

The presence of such a requirement strongly suggests a finding by the Secretary of Labor during rulemaking that removal of asbestos insulation releases asbestos fibers. 5 BNA OSHC at 1476 (dissenting opinion) (emphasis added).

The record shows that the employees were removing furnace linings which contained from 70% to 90% asbestos. The material was dry, and dust clouds were created by the operation. From these facts, the judge found that asbestos was being released into the air during the relining process. Judge Sparks stated,

We agree with these findings and conclude that they establish the need for Shenango to conduct monitoring pursuant to section 1910.1001(f)(1). Shenango’s operation involved the use of a jackhammer to remove material composed primarily of asbestos. A visible dust cloud was produced. It is reasonable to infer that this dust cloud was composed of various sizes and shapes of particles. Inasmuch as asbestos normally appears in fibrous form, we find that it is more likely than not that at least some of the particles in the dust cloud created during the relining operations were asbestos fibers longer than 5 micrometers.[2] Accordingly, Shenango was obligated to monitor for asbestos exposure. Since it failed to monitor, Shenango violated 29 C.F.R. § 1910.1001(f)(1).

The citation alleged that the violation was serious in nature. However, there is nothing in the stipulation of facts from which we can conclude that as a result of this violation employees have been or will be exposed to excessive amounts of asbestos fibers and therefore could suffer death or serious physical harm within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). Accordingly, we find the violation to be nonserious. See Research Cottrell, Inc., 81 OSAHRC 26/B13, 9 BNA OSHC 1489, 1981 CCH OSHD ¶25,284 (No. 11756, 1981). We conclude that a penalty of $100 is appropriate.

The citation is amended to allege a nonserious violation of 29 C.F.R. § 1910.1001(f)(1) and, as so amended, is affirmed. A penalty of $100 is assessed. SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 30, 1982

ROWLAND, Chairman, dissenting:

I would affirm Judge Sparks’ well-reasoned decision. The Secretary has failed to demonstrate a necessary element of a violation of the asbestos monitoring standard, the release of asbestos fibers.

In Goodyear Tire and Rubber Co., supra, the Commission held that,

The [monitoring] standard does not rely . . . on the mere possibility of release before triggering the monitoring requirement. It requires monitoring only ‘where asbestos fibers are released’ . . . [emphasis in the original]. . . . Thus, to prove a violation, Complainant must establish that it is more likely than not that fibers were released. [emphasis added]. . . . We therefore reject the argument that he need only show a ‘genuine possibility’ of release.

The standard specifically defines ‘asbestos’ and ‘asbestos fiber.’ 29 C.F.R. §§ 1910.1001(a)(1) and (a)(2). An asbestos fiber is a particle of asbestos that has both a minimum length of five micrometers and a minimum length-to-width ratio of three to one. Borg-Warner Corp, 78 OSAHRC 18/A2, 6 BNA OSHC 1393, 1398–99, 1978 CCH OSHD ¶22,555 at pp. 27,221–22 (No. 10757, 1978). The plain language of the standard indicates that a showing that asbestos fibers are being released is required before the duty to monitor arises. Compare 29 C.F.R. §§ 1910.1001(f)(1) with 1910.1001(c)(2)(i), (ii), and (iii). Therefore, the Secretary does not prove the presence of asbestos fibers merely by proving the presence of asbestos.

The preamble to the asbestos standard also demonstrates that the monitoring standard is triggered only by the release of asbestos fibers and not the mere presence of asbestos. There, the Secretary explained,

[The monitoring standard] requires periodic monitoring at intervals no longer than 6 months, thus allowing considerable time and discretion, and prescribes the use of the membrane filter method, which is an acceptable method for determination of asbestos fibers.

37 Fed. Reg. 11319 (1972) (emphasis added).

In this case, the Secretary cannot point to any tests to establish the presence of asbestos fibers. The Secretary chose to base his case on stipulated facts. These facts did not include any admission by Shenango or indication that it was more likely than not that asbestos fibers in some measurable amount were released during the relining operations.[3] In fact, wipe samples which one might expect to contain asbestos fibers if the employees were exposed to asbestos fibers did not contain any trace of asbestos.

Despite its protests to the contrary, the majority has presumed that the employees in this case were exposed to asbestos fibers because ‘asbestos normally appears in fibrous form.’ The majority points to no authority for this presumption, which is not reflected in the monitoring standard or in Commission precedent. Likewise, the majority does not, and indeed cannot, point to anything in the facts to demonstrate asbestos fibers were released.

Finally, Shenango is entitled to depend on the stipulated facts. See Wigmore on Evidence § 2590. It is grossly unfair for the Commission to declare, as it does with this decision, that the presence of asbestos will give rise to a presumption that employees are exposed to asbestos fibers. Under this presumption, it is very doubtful that Shenango would have stipulated to the facts it did. In all likelihood, Shenango would have exercised its right to a hearing on the alleged asbestos violation. By its decision, the Commission has effectively denied Shenango its right to a hearing, guaranteed under the Act.

For these reasons, I dissent.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–4723
THE SHENANGO COMPANY,
Respondent.

July 9, 1979

DECISION AND ORDER

On September 27, 1978, two citations were issued to respondent. One, alleging repeated violations of standards regulating noise levels, has been amicably resolved by a stipulation and settlement agreement filed April 13, 1979.

The only issue remaining for determination is whether asbestos fibers were released at respondent’s place of employment. If asbestos fibers were released, respondent was required to initiate a monitoring program ‘. . . to determine whether every employee’s exposure to asbestos fibers is below the limits prescribed . . ..’1

In lieu of a hearing, the parties submitted a proposed stipulation of facts which has been signed by attorneys for both parties. Having been executed by both parties, the stipulation of facts constitutes the established operative facts of record. The facts, as stipulated, are as follows:

From July 26, 1978 to August 10, 1978, compliance officers of the Occupational Safety and Health Administration conducted an inspection of the place of employment of the Shenango Company located at 465 West Third Street in Dover, Ohio, pursuant to Section 8(a)(1)(2) of the Occupational Safety and Health Act of 1970.

On August 3, 1978 during the course of the inspection, Compliance Officer Lionel Reynolds observed furnace relining operations in the foundry. The linings of all of the furnaces consist of a heat resistant paper or cloth applied to the inner refractory brick, which paper or cloth is then covered with a heat resistant mortor-like [sic] substance which hardens and forms the inner surface of the furnace. In relining operations, this mortor [sic] surface and the paper or cloth are removed and replaced.

At the minicast area, he observed an employee jack-hammering the old lining and then using a rake and his hand to pull the debris out. During this operation a dust cloud was created.

Suspecting the material used to reline the furnace to be asbestos, the inspector took samples of the material inside the furnace, samples of the loose material debris from the furnace, and an AA filter wipe of the employee’s face.

He then observed this same operation at ‘facility 26’ pillar furnace. There an employee was using a pneumatic chip hammer to remove the lining, creating an obvious dust cloud.

Here the inspector took two samples of the raw unused material. He also took a wipe from the face plate of the furnace.

In questioning employer representative Mr. Flynn, it was determined that the employer knew or suspected asbestos was in the fabric used to reline the furnaces, but no tests or monitoring had been conducted to determine whether employee exposure to asbestos fibers is below the prescribed limits.

On August 4, 1978, Compliance Officer Reynolds continued his inspection.

In the scrap cutting area he observed material he suspected of containing asbestos being cut on the scrap cutting saws to make ‘skim boards.’ He took a sample of this material for analysis.

All seven of the samples taken were marked, identified and sent to the Occupational Safety and Health Administration Analytical Laboratory for analysis.

The results of the analysis are attached hereto and marked Exhibit A.

The results from the analysis show:

99–24 fabric removed from furnace—70% asbestos

99–25 loose debris in furnace—.1 of 1% asbestos

99–23 face wipe of employee—0% asbestos

99–20) new materials for—90% asbestos

99–21) relining furnace—75% asbestos

99–22 face place [sic] of furnace—0% asbestos

99–26 board cut on scrap cutting saws—5% asbestos

After receiving the results of the analysis, Compliance Officer Reynolds recommended that a Citation be issued to the Shenango Company for a serious violation of 29 CFR 1910.1001(f)(1) which reads:

Initial monitoring was not conducted in such a manner to determine whether every employee’s exposure to airborne asbestos fibers is below the prescribed limits:

a) In the foundry. The furnace relining operations which involved the use of asbestos paper and/or fabric including the process of tearing out the old lining. For example, the Pillar furnaces and the Ajax high frequency furnaces.

b) At the scrap cutting area where material containing asbestos is cut on the scrap cutting saws to make ‘skim boards’.

He also proposed that the penalty for violation be $640.00, and that the violation be abated within two months of the date of the issuance of the complaint.

The Citation was issued on September 27, 1978 and on October 6, 1978, the employer filed a notice of contest to the Citation, its penalty and abatement date.

The matter was placed before the Occupational Safety and Health Review Commission for a hearing.

During pre-hearing discussions the parties determined that as to this Citation there was no real dispute of the facts and agreed to waive the hearing, stipulate the facts and submit briefs for a determination of law. Respondent disputes the presence of asbestos in the material used at the minicast furnace, but concedes the presence of asbestos in the Pillar furnace lining and in the skim boards. However, for purposes of this proceeding, Respondent concedes the presence of asbestos in material used at the minicast.

Complaint contends that ‘. . . Respondent knew or should have known that [the ‘dust cloud’] contained a substantial amount of asbestos and that it was probable that some asbestos fibers were being released into the air . . ..’ Complainant further states that ‘. . . Surely when fabric containing from 70 to 95% asbestos material is pulled apart causing the release of particulate matter into the air, some of these particles are asbestos fibers.’ (Brief, p. 4)

The stipulated facts establish that analysis of samples taken from work areas show concentration of asbestos ranging from 0% to 70% for old materials and up to 90% for new materials. The precise percentage of asbestos being released into the air is not significant, for the release of asbestos fibers in any concentration is sufficient to trigger the protective requirements of the regulations. GAF Corp., 75 OSHRC 3/A2, 3 BNA OSHC 1686, 1975–76 CCH OSHD ¶ 20,163 (1975).

A reasonable inference can be drawn from the stipulated facts that asbestos material was being released into the air during the removal of furnace linings. The linings, consisting of a paper or cloth covered by a mortar-like substance, contained asbestos and were removed by means of a jackhammer. During such operations dust clouds were created. In addition, the compliance officer observed a material containing 5% asbestos being cut by scrap cutting saws. The reasonable inference to be drawn from these facts is that the loose debris collected in the furnace after having been released into the air. Likewise, the common experience teaches that sawdust is customarily released into the air when material is sawed. The analysis of the loose debris found in the furnace and of the material being sawed establish the presence of asbestos. The reasonable conclusion is that asbestos was released into the air.

The amount of asbestos material released is established to be very small as shown by the negative samples taken from the face plate of the furnace and the face wipe of the employee, and the very small amount detected in the loose debris in the furnace. The evidence is sufficient, however, to show that some asbestos material was released.

The plan language of the regulation does not trigger the monitoring requirement upon the release of asbestos material in general, but upon release of asbestos ‘fibers’. The term ‘asbestos fibers’ is defined in 29 C.F.R. § 1910.1001(a)(2) as follows:

“Asbestos fibers” means asbestos fibers longer than 5 micrometers.’

Having been specifically defined to mean fibers longer than 5 micrometers, it is clear that the term ‘asbestos fibers’ is not intended as a generic term to include all asbestos material. Neither is the term surplusage. Consideration of the regulatory scheme shows that the word ‘fibers’, defined to mean fibers longer than 5 micrometers, is not irrelevant. Subsections (b)(1), (2) and (3) measure the permissible exposure to asbestos in terms of airborne concentrations of fibers longer than 5 micrometers.

The definition of the term ‘asbestos fibers’ and the regulatory scheme compel the conclusion that the release of airborne fibers longer than 5 micrometers is essential to trigger the monitoring requirements of section 1001(f).

A careful search of the stipulated facts fails to reveal any evidence that fibers longer than 5 micrometers were contained in the asbestos material. The laboratory analysis shows that materials containing asbestos were used at respondent’s work place, but fails to show that any of the material contained ‘asbestos fibers’ as defined in the pertinent section.

This case is clearly distinguishable from that in GAF Corp. and United Engineers & Constructors, 75 OSHRC 3/A2, 3 BNA OSHC 1686, CCH OSHD ¶20, 163 (Docket Nos. 3203, 4008 and 7355), where both employers stipulated that employees were regularly exposed to asbestos fibers. The present situation is also distinguishable from that in Goodyear Tire & Rubber Co., 77 OSHRC 82/A2, 5 BNA OSHC 1473, CCH OSHD ¶20,412, in which the majority of the Review Commission held that the testimony was inadequate to establish that asbestos fibers were released, although Commissioner Clearly (now Chairman) would have found such testimony sufficient. The record in the instant case, however, is devoid of any evidence that asbestos fibers were present in materials used by respondent or released into the air.

Complainant, in his brief, suggests that release of asbestos fibers should be presumed from the nature of the operation. Such presumption would, of course, transfer the burden of proof from the Secretary to the respondent. Having written the regulations and defined the terms, the Secretary must be prepared to prove the essential elements of an alleged violation.

In summary, based on the analysis of the debris in furnace and material subjected to sawing operations, it will be found as a fact that asbestos material in some form was released. It will not, however, be presumed or officially noticed that such material included asbestos fibers.

There being no evidence that asbestos fibers were released, complainant has failed to establish an essential element of the alleged violation and the charges must be vacated.

FINDINGS OF FACT

The stipulation of facts executed by the parties constitute the facts found in connection with the allegation of a serious violation.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction of the parties and the subject matter.

2. Respondent did not violate the standard at 29 C.F.R. § 1910.1001(f)(1) as alleged in the serious citation (designated as Citation No. 4).

3. The repeated citation (designated as Citation No. 5) is amended to conform to the settlement agreement filed April 13, 1979.

ORDER

1. Citation No. 4, alleging a serious violation, is vacated.

2. Citation No. 5, alleging a repeated violation, as amended, is affirmed.

3. Civil penalties of $640.00 are assessed.

4. The abatement date for Item 1b of Citation No. 5 is April 1, 1980.

Dated this 9th day of July, 1979.

JOE D. SPARKS

[1] 29 C.F.R. § 1910.1001(f)(1) provides that:

§ 1910.1001 Asbestos.

(f) Monitoring—

(1) Initial determinations.

Within 6 months of the publication of this section, every employer shall cause every place of employment where asbestos fibers are released to be monitored in such a way as to determine whether every employee’s exposure to asbestos fibers is below the limits prescribed in paragraph (b) of this section. If the limits are exceeded, the employer shall immediately undertake a compliance program in accordance with paragraph (c) of this section.

Section 1910.1001(a)(2) defines ‘asbestos fibers’ as ‘asbestos fibers longer than 5 micrometers.’

[2] Because the Secretary has met his burden to demonstrate that it was more likely than not that asbestos fibers were released in this case, we do not need to consider the Secretary’s argument that a presumption exists that employees are exposed to asbestos fibers whenever they work with asbestos.

[3] Judge Sparks also reasoned along these lines. He said,

A careful search of the stipulated facts fails to reveal any evidence that fibers longer than 5 micrometers were contained in the asbestos material. The laboratory analysis shows that materials containing asbestos were used at Respondent’s workplace, but fails to show that any of the material contained ‘asbestos fibers’ as defined in the pertinent section.