“SECRETARY OF LABOR,Complainant,v.AMERICAN ASBESTOS CONTROL CO.,Respondent.OSHRC Docket No. 88-2268_ORDER _The Occupational Safety and Health Review Commission, having receivedthe Secretary’s Notice to Withdraw Citations, dated September 7, 1990and having concluded that no further matters remain before theCommission requiring further consideration by the Commission, herebyorders the captioned action dismissed.Edwin G.Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 25, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.AMERICAN ASBESTOS CONTROL CO.,Respondent.OSHRC Docket No. 88-2268APPEARANCES:Bruce C. Heslop, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainantRobert W. Thomson, Esquire, Pittsburgh, Pennsylvania, on behalf ofrespondent_DECISION AND ORDER_SALYERS, Judge:The respondent, American Asbestos Control Co. (\”AACC\”), is aPennsylvania corporation engaged in asbestos removal and abatementoperations in a multi-state area. The company is a \”certified abatementcontractor\”, and its employees are licensed to perform asbestos removaland abatement in the various states where AACC operates (Tr. 73-74). Thecompany engages approximately 120 employees in its operations (Tr. 193).Armco is a large steel manufacturer with a plant located in Middletown,Ohio, where it produces a variety of products for use in the autoindustry. On August 11, 1988, Mr. Patsy Izzo, together with Mr. RobertWilson, were sent by AACC to the Armco plant to remove certain materialfrom the inside of a large aluminizing pot (pot \”A\”) located in an areadesignated as \”Door 661.\” At the time in question, pot \”A\” had beentaken out of service, was partially dismantled, and consisted of a frameon a base supporting a number of vertical \”yokes\” (Exs. C-2, C-6). Izzoand Wilson were instructed by an Armco foreman to remove insulationbelieved to contain asbestos from the inside of the yokes.Before the work began, Izzo took samples of the ambient air in thevicinity of pot A. These samples were later analyzed by AGX, Inc., anindependent testing laboratory, and found to contain fibers at aconcentration of .003 fibers per cubic centimeter (Tr. 222-223, 232; Ex.R-4). Both Izzo, and Wilson wore appropriate protective clothing andrespirators at all times while they worked in the pot removinginsulation (Tr. 18-19, 40, 192). While performing the work inside thepot, Wilson wore a personal air sampling monitor to measure the amountof airborne fibers during the period the work was performed (Tr. 224).These samples were also submitted to AGX, Inc., after the work wascompleted, and the results reflect a concentration of asbestos fibers inthe .003 to .004 range (Tr. 224-227; Ex. R- 4).Izzo and Wilson began working inside pot A around 9:00 a.m. The workconsisted of pulling material off the yokes by hand, putting thismaterial into plastic bags, and then removing the bags by lifting themout the top of the pot by rope (Tr. 20-21, 24). Izzo described thematerial removed from the yokes as \”boardlike,\” resembling a plywoodsheet, and testified it broke easily in his hand (Tr. 22-23, 28, 243).About 20 bags of this material were removed during the course of the day(Tr. 25). While working in the pot, Izzo observed employees of Armcoworking in the area just outside the pot. One of these employees,William Sparks, who was working in the area along with other Armcoemployees, observed the removal operation from a vantage point aboutthree to four feet away and described the conditions around the pot as\”very dusty\” (Tr. 54-55). Sparks also noted Armco employees had placed afan at the bottom of the pot blowing air from the outside into andthrough the pot (Tr. 69-70). None of the Armco employees working in thearea were wearing respirators or protective clothing (Tr. 56). Afterremoving the bags containing the material pulled from the yokes, Izzoand Wilson used a vacuum to remove any remaining particles of thismaterial from the floor of the pot (Tr. 22). The removal operation wasconcluded about 3:00 p.m.In response to a complaint received concerning the above describedprocedure, William Wilkerson, an industrial hygienist employed by theOccupational Safety and Health Administration, conducted an inspectionof the removal site (Tr. 83). After an initial meeting with Armcoofficials, Wilkerson proceeded to the area in question about 2:45 p.m.and observed Izzo and Wilson walking out of Door 661 (Tr. 83). Wilkersoninterviewed both Izzo and Wilson, determined from them the generalnature of the work they had performed, and then proceeded to inspect theremoval site and sketch out a diagram of the area (Tr. 85; Ex. C-6). Hetook a series of photographs which are contained in the record asExhibits C-1 through C-5 (Tr. 88). Wilkerson also took a \”bulk sample\”from the \”square base of the pot outside of the framework whichcontained the yokes. . . at most a foot and a half away from the yokes\”(Tr. 96). He described this sample as \”a white boardlike material. . .triangular in shape, about an eighth of an inch thick\” (Tr. 97). Thesample was placed in a vial, sealed, marked and shipped to the OSHAlaboratory in Salt Lake City, Utah, for analysis (Tr. 98-99). Theresults of the tests conducted on this sample (bulk sample #4) reflectan asbestos content of 70 percent (Tr. 99; Exs. C-9, C-10).As a result of Wilkerson’s inspection, AACC was issued a willfulcitation [[1]] as follows:29 CFR 1926.58(e)(6)(i): The employer did not establish negativepressure enclosures where feasible, before commencing removal,demolition and renovation operations:(a) On August 11, 1988, employees [_sic_] removed asbestos containingmaterial from the interior of pot A at door 661 at Armco, Inc.’sMiddletown Works and a negative pressure enclosure was not constructedaround the removal operation.29 CFR 1926.58(j)(2)(i): The employer did not establish adecontamination area consisting of an equipment room, shower area andclean room in series, that is adjacent and connected to the regulatedarea for the decontamination of employees contaminated with asbestos:(a) On August 11, 1988 at Armco, Inc.’s Middletown Works, employeesremoved asbestos containing material from the interior of aluminizingpot A, door 661 and were not provided with appropriate decontaminationfacilities.It is undisputed in the record that AACC did not install a negativepressure enclosure nor a decontamination area at the site in question.However, AACC raises the following arguments in support of its positionthat such safeguards were not required:1. There is no evidence that respondent handled asbestos-containingmaterial.2. The area in question was not a \”regulated area\” requiring the use ofnegative pressure enclosures and decontamination facilities.3. The installation of negative pressure enclosures and decontaminationfacilities was not feasible under the circumstances of this case.4. The work performed by AACC falls within the \”small scale shortduration exemption\” provided in the pertinent regulation.Respondent’s first argument is considered specious. It is incredulousthat respondent, an asbestos removal specialist, would be called in byArmco to remove a totally neutral substance. Indeed, Mr. Barry Krieder,respondent’s vice-president and former operations manager, admittedunder cross-examination that the principal activity performed at theArmco plant was \”insulation removal,\” a process in which you wouldreasonably expect to \”encounter asbestos\” (Tr. 221).The primary thrust of this argument is that the sample taken at the siteby Wilkerson (bulk sample #4, which was later determined to contain 70percent asbestos), was not representative of the material removed frominside the pot. Wilkerson is an industrial hygienist with 14 years’experience and extensive training in his field (Tr. 81). The sample heselected was taken from the base of the pot in the area depicted inExhibit C-3 and was \”at most a foot and a half away from the yokesthemselves\” (Tr. 96). Prior to selecting the sample, he had obtainedfrom Izzo and Wilson a description of the material removed, and thesample fit the description (Tr. 97). Wilkerson did not obtain a samplefrom the bagged material pulled from the yokes because this material hadalready been removed from the site. His method of selecting the bulksample was reasonable under the circumstances of this case, andrespondent’s argument that the material removed from the yokes containedno asbestos is rejected.Respondent’s remaining arguments are based upon its interpretations ofthe involved standards differing significantly from that of theSecretary. The first point of departure relates to the term \”regulatedarea,\” which is defined at 29 C.F.R. ? 1926.58(b) to mean:\”. . . [a]n area established by the employer to demarcate areas whereairborne concentrations of asbestos, tremolite, anthophyllite,actinolite, or a combination of these minerals exceed or can reasonablybe expected to exceed the permissible exposure limit.\”Respondent asserts the facts of this case support a conclusion that theairborne concentration of asbestos fibers did not exceed the permissibleexposure limit of 0.2 fiber per cubic centimeter of air nor could ithave been reasonably expected to exceed such limit. The Secretary doesnot challenge the results obtained in the air sampling performed byrespondent during the removal procedures at \”pot A\” which reflect arange (.003 to .004 fibers per cubic centimeter) well below the PEL.Accordingly, respondent urges that the Secretary can prevail on thisissue only if the record establishes that it was reasonable to expectthe PEL would be exceeded during the course of the removal procedures.Respondent relies upon a subjective determination made by Izzo prior tobeginning the work that the removal operation would not produce aconcentration of asbestos fibers in excess of the PEL. In this regard,Izzo testified that the \”boardlike substance (to be removed) was alreadyhanging from the yoke, and when you touch it, you can see that nothingwas coming off of it; nothing friable was coming off.\” He furthertestified that since he considered the material was not \”friable\”, hedid not believe the removal operation would generate much dust and,therefore, the PEL would not be exceeded (Tr. 39-40). Since Izzo isexperienced in asbestos removal, respondent urges that his determinationsatisfied the \”reasonable expectations\” provisions contained in theforegoing definition of \”regulated area\” and relieved respondent of anyrequirement for installing an enclosure or decontamination area.The Secretary takes a decidedly different position in the case basedprimarily upon OSHA Instruction CPL 2-2.40 issued by the AssistantSecretary of Labor for Occupational Safety and Health (Ex. C-8). Thepertinent part of this instruction reads as follows:3. _Regulated Areas. _Paragraph 29 CFR 1926.58(e)(1) requires employersto establish regulated areas where airborne concentrations of asbestos,tremolite, anthophyllite, actinolite or a combination of these mineralsexceed or can be expected to exceed the PEL. Paragraph 29 CFR1910.1001(e) of the General Industry Standard requires the same.a. The construction standard describes two distinctly different types ofregulated areas which must be established based on the type of workbeing performed. Employers performing general construction operations,such as the cutting of asbestos-cement sheets, the lathing ofasbestos-cement pipes or the removal of asbestos-containing floor tiles,are required to establish regulated areas in accordance with 29 CFR1926.58(e)(1) and demarcated in accordance with 29 CFR 1926.58(e)(2).b. 29 CFR 1926.58(e)(6) requires employers performing asbestos removal,demolition, and renovation operations to establish negative-pressureenclosures before starting their work, wherever feasible.Under this interpretation, the Secretary urges that the work performedby respondent’s employees was asbestos removal which brings respondentwithin the ambit of ? 1926.58(e)(6) and requires the installation of anegative-pressure enclosure before beginning the removal process unlesssuch installation is not feasible. In support of her position, theSecretary refers to the preamble to the revised asbestos standard forthe construction industry (51 _Federal Register _22705, _et_ _seq.,_June 20, 1986), which sets forth increasingly stringent requirements forthose operations found to be associated with the highest levels ofasbestos exposure:As the record demonstrates, employees engaged in asbestos removal,demolition, and renovation operations generally have the highestasbestos exposures of all construction workers (51 Fed. Reg. 22706).The Secretary further notes ? 1926.58(e) provides for two types ofregulated areas requirements explained in the preamble as follows:The definition of \”regulated area\” in the revised asbestos standardcovers two types of regulated areas; the negative-pressure enclosuresmandated in paragraph (e)(6) for major asbestos abatement operations,and the restricted access required wherever airborne asbestosconcentrations exceed the PEL. The fact that the revised standardcontains requirements for two types of regulated areas reflects both thewide differences in construction worksites and OSHA’s approach in thisstandard to dealing with this wide range in exposure conditions. . . .The negative pressure enclosure that constitutes the second type ofregulated area defined and required by the revised rule (paragraph (e)(6)) is intended to provide employees engaged in the most hazardousasbestos operations – asbestos abatement projects – with the greatestpossible amount of protection, and also to protect members of the publicand other workers on site who are not directly involved in the abatementproject from bystander exposure to asbestos. (51 _Fed._ _Reg._ 22707-22708).The law is clear that the Secretary’s interpretations of Department ofLabor regulations are controlling unless unreasonable. _UnitedSteelworkers v. Schuylkill Metals,_ 828 F.2d 314 (5th Cir. 1987); _UseryHermitage Concrete Pipe Co.,_ 584 F.2d 127 (6th Cir. 1978). It isconcluded that the Secretary’s interpretation of the requirements under? 1926.58(e) is reasonable and consistent with both the language of theregulations and the overall purpose of the Act.To allow an employer engaged in asbestos removal to forego theinstallation of negative-pressure enclosures and decontamination areasbased upon pure speculation that the PEL will not be exceeded wouldnullify the preventive purposes of the Act. Even though the test resultsin this case established, after the fact, that the PEL was not exceeded,each asbestos removal site presents its own particular circumstances andthere appears to be no reliable method to determine in advance whether aremoval operation will or will not produce fibers in excess of the PEL(Tr. 164-167). To apply the regulations as respondent urges would, asthe Secretary suggests, be \”akin to playing Russian roulette\” and placeat risk the health of asbestos workers and other persons in the area, inthe event of a miscalculation.Having determined that asbestos removal operations are controlled by ?1926.58(e)(6) of the regulations, as those regulations are interpretedby the Secretary, it is now necessary to consider whether theinstallation of negative-pressure enclosures was \”feasible\”[[2]] as thatterm is used in the regulations. CPL 2-2.40 (Ex. C-8) recites the following:Negative pressure enclosures are considered to be feasible in allsituations, except where space limitations prohibit the construction ofthe enclosure, or where the erection of a negative-pressure enclosurewould create a greater hazard (e.g., toxic gases present in area). (Atpage 7)The Secretary relies upon the testimony of Industrial HygienistWilkerson to support her position that the installation of anegative-pressure enclosure was feasible in this case. Wilkersontestified the enclosure could have been constructed using two by fourlumber, six- mil plastic sheeting, and a filtering system as describedin Appendix F of ? 1926.58 (Tr. 106, 111). The framework of the pot andyokes could have been utilized to support the enclosure (Tr. 106-108,136). It was his opinion that a decontamination area, including aportable shower, could have been located in the pit opposite thelocation of pot B (Tr. 117-119, 138; see also Ex. C-6). Any speciallimitations imposed by the configuration of the area could have beeneliminated by moving pot A since it could be moved on a track to variouslocations (Tr. 15, 116).[[3]]Respondent’s evidence consisted of the testimony of Izzo and Mr. BarryKrieder, respondent’s current vice-president and former operationsmanager (Tr. 190). Izzo considered it \”impractical\” to install anenclosure (Tr. 40) and gave the opinion that there was no appropriatelocation to install a decontamination chamber (Tr. 41) but conceded theconstruction of a negative-pressure enclosure was \”a possibility\” (Tr.42). Krieder visited the site in question the day before the hearing,took photographs (Exs. R-2, R-3), and prepared a sketch of the area (Ex.R-1). Based upon his observations, Krieder concluded the construction ofan enclosure and decon chamber was \”unfeasible\” (Tr. 196) because (1)the location of the pot at the time of the removal operation did notpermit the fitting of the poly-sheeting between the outer sides of theyokes and the walls of the pit (Tr. 199, 201-202), and (2) enclosing thepot would require employees to remove the stripped insulation from thetop of the pot while standing on its narrow rim, thereby creating afalling hazard to these employees (greater hazard) (Tr. 197, 200-202).Krieder also testified that constructing the enclosure and decon chamberwould be a time-consuming and expensive undertaking turning\” a verysmall job into a major project\” (Tr. 204).Respondent’s argument that the position of the pot at the time of theremoval operation prevented the installation of an enclosure overlooksthe fact that the pot was movable (Tr. 220-221) and could have beenplaced in a location which would have afforded sufficient space toconstruct both the enclosure and the decon chamber outlined in AppendixF, and as described in the testimony of Wilkerson. The argument that theuse of an enclosure would expose respondent’s employees to a fallinghazard while standing on the rim removing material from inside the potis unconvincing since any hazard created by moving the pot away from thewalls of the pit could be compensated for by installing temporaryrailings to protect against falls (Tr. 215).Respondent’s argument that construction of an enclosure and deconchamber would be difficult, expensive and time-consuming does notwarrant a conclusion that this factor makes compliance with the standardinfeasible. In _American Textile Mfg. Institute, Inc. v. Donovan, _101S. Ct. 2478 (1981), representatives of the cotton industry challengedthe validity of the cotton dust standard on \”feasible\” grounds. In thatcase, the Supreme Court held the plain meaning of the word \”feasible\” ina standard dealing with toxic or harmful physical agents is \”capable ofbeing done\” (_Id._ at 2490). The court further held that a cost-benefitanalysis is valid only if the \”benefit\” of the worker’s health is placedabove all other considerations save those making attainment of this\”benefit\” unachievable. _See also Sun Ship, Inc., _82 OSAHRC 69\/A2, 11BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982); _Harmony Bluegranite Co.,_ 83 OSAHRC 14\/A2, 11 BNA OSHC 1277, 1983-84 CCH OSHD ?26,467 (No. 14189, 1983);_Ace Sheeting and Repair v. OSHRC,_ 555 F.2d439 (5th Cir. 1977); _Bratton Furniture Manufacturing Co.,_ 83 OSAHRC30\/A2, 11 BNA OSHC 1433, 1983 CCH OSHD ? 26,538 (No. 81-799, 1983). Inthis case, respondent did not establish that the installation of therequired facilities was unachievable or impossible. At most,respondent’s evidence shows only that implementing the proceduresrequired by the standard would be time-consuming and costly. Thesefactors, when balanced against the health of employees, cannot serve toexcuse respondent from compliance with the mandate of the standard.Finally, respondent urges that its operation at this particular worksite falls within the exception provided in ? 1926.58(e)(6)(iv) as follows:(iv) _Exception: _For small-scale, short-duration operations, such aspipe repair, valve replacement, installing electrical conduits,installing or removing drywall, roofing, and other general buildingmaintenance or renovation, the employer is not required to comply withthe requirements of paragraph (e) of this section.Both the preamble and Appendix G of the standard define the\”small-scale, short-duration\” exception in terms of the tasks to beperformed rather than in terms of the size of the job or the timerequired to complete it.Although OSHA finds it impossible to specify with precision the exactsize of a \”small-scale\” maintenance job or to pinpoint the time involvedin a \”short-duration\” task, the Agency believes that providing employerswith examples of the type of operations that OSHA considers to beincluded in this class of operations will provide employers with theguidance needed to use the rule’s exemptions appropriately. Paragraph(e)(6) enumerates several of these operations including: Pipe repair,valve replacement, installation of telephone circuits, electricalconduits, and drywall; and other general building maintenance andrenovation tasks. (51 _Fed._ _Reg._ 22706).Appendix G to ? 1926.58 defines \”short-term, small-scale operations\” interms of renovation and maintenance activities which are tasks such as,but not limited to:- Removal of asbestos-containing insulation on pipes- Removal of small quantities of asbestos-containing insulation on beamsor above ceilings- Replacement of an asbestos-containing gasket on a valve- Installation or removal of a small section of drywall- Installation of electrical conduits through or proximate toasbestos-containing materialsIn similar fashion, OSHA Instruction CPL 2-2.40 defines \”small-scale,short-duration\” to mean:(1) Maintenance or renovation tasks, where the removal ofasbestos-containing materials is not the primary goal of the job (e.g.,repairing a valve which entails the removal of asbestos, installingelectrical conduit which must be fastened to asbestos-cement siding, etc.).(2) Activities where employees’ exposures to asbestos can be kept belowthe action level via worker isolation techniques, such as glove bags orother methods described in Appendix G.(3) An operation which has been included in the employer’s asbestosmaintenance program (as required in Appendix G) of all employers who areclaiming an exemption from the requirements of 29 CFR 1926.58(e)(6).(4) Nonrepetitive operations (viz.: not a series of small-scale jobs,which if performed at one time would have resulted in a large-scaleremoval).Wilkerson considered the possible application of the exception torespondent’s operations (Tr. 119) but concluded that the exception didnot apply because the \”primary goal of (respondent’s) work was to removeasbestos\” (Tr. 121). He also considered whether respondent utilizedisolation techniques such as glove bags or other methods described inAppendix G and concluded none of these procedures had been followed[[4]](Tr. 122-124).In summary, the Secretary urges that the exception is limited in scopeto certain maintenance tasks and not to asbestos removal operations,which operations fall within the upper limits of exposure to asbestosfibers (Secretary’s Brief, pgs. 21-23). Respondent counters that such aninterpretation is a blatant attempt by the Secretary to amend thestandard by administrative fiat without regard to the notice andcomments provisions of the Administrative Procedures Act (5 U.S.C. ?553, et seq.) and results in unconstitutional discrimination againstasbestos removal contractors (Respondent’s Brief, pgs. 21-29).On balance, it is concluded that the Secretary’s position relating tothe nonapplication of the exception provided in sections 58(e)(6)(iv)and 58(j)(2)(i) to those engaged in asbestos removal is a reasonableinterpretation of the standard and is in accord with the overallpurposes of the Act. The very nature of asbestos removal places thoseengaged in this activity, as well as those working in close proximitythereto at high risk of exposures to hazardous asbestos fibers. Asbestoscontractors who hold themselves out to the general public and to thosewho engage their services as professional removers of such hazardoussubstance must make every reasonable effort to insure that exposure iskept to a minimum even if these efforts increase the time and costs toachieve the desired results of protecting workers from the hazard. It isappropriate for the Secretary to require a higher standard ofperformance from those who engage in asbestos removal and to restrictthe application of the exception in question to those engaged inactivities less likely to result in high levels of exposure.Respondent’s argument that the Secretary’s interpretationunconstitutionally discriminates against asbestos removal contractorshas been noted but is rejected. Since the Act’s inception, the ReviewCommission has issued decisions holding that it lacks the authority toconsider the constitutionality of OSHA standards or to question theirwisdom. _Divesco Roofing & Insulation Co.,_ 73 OSAHRC 35\/F6, 1 BNA OSHC1279, 1973-74 CCH OSHD ? 16,443 (No. 345, 1973); _Carpenter Rigging &Contracting Corp.,_ 75 OSAHRC 32\/D13, 2 BNA OSHC 1544, 1974-75 CCH OSHD? 19,252 (No. 1399, 1975); _Van Raalte Co., Inc.,_ 76 OSAHRC 48\/B8, 4BNA OSHC 1151, 1975-76 CCH OSHD ? 20,633 (No. 5007,1976); _Hana ShoeCorporation, _77 OSAHRC 69\/B4, 5 BNA OSHC 1552, 1976-77 CCH OSHD ?21,033 (No. 76-392, 1977).The final question for resolution is whether the actions of respondentconstitute a willful violation of the Act’s provisions. The Secretarytakes the position that respondent, as a result of a conscious decisionby its foreman at the jobsite not to install a negative pressureenclosure and decontamination chamber while engaged in asbestos removal,committed an intentional, knowing or voluntary disregard for therequirements of the Act. In support of her position, the Secretarycites_inter_ _alia_ _Asbestos Textile Co., _84 OSAHRC 48\/B12, 12 BNAOSHC 1062, 1984-85 CCH OSHD ? 24,763 (No. 79-3831, 1984); _IntercountyConstruction Co. v. OSHRC,_ 522 F.2d 777 (4th Cir. 1977); _GeorgiaElectric Co. v. OSHRC_, 595 F.2d 309 (5th Cir. 1979); _WilliamsEnterprises, Inc., _1986-87 CCH OSHD ? 27,787 (No. 85-1415, 1986).Respondent contends that it acted reasonably and in the good faithbelief that its actions at the work site did not contravene the Act’srequirements. Respondent relies on _Secretary v. Keco Industries, Inc.,_13 BNA OSHC 1161 (No. 81-263) and _Secretary v. RSR Corporation,_ 11BNA OSHC 1163, aff’d, 764 F.2d 355 (5th Cir. 1985).After giving due consideration to the argument of both parties, it isconcluded that respondent’s actions on the day in question did notconstitute a willful violation of the Act. This is a case of firstimpression. So far as this court has been able to ascertain, there areno reported cases which have dealt with or construed the involvedstandards or the Secretary’s interpretation of these standards. Eventhough this court has concluded that the Secretary’s interpretation ofthese standards is reasonable under the circumstances, neither thestandards nor the Secretary’s interpretations are so clearly drawn as torender respondent’s asserted position indefensible or implausible.Respondent was at liberty to test its position through judicial reviewwithout running the risk of being declared in willful violation of theAct. Accordingly, the violations will be characterized as serious and apenalty of $2,000.00 will be assessed._ORDER_The foregoing constitutes my findings of fact and conclusions of law.Based on the foregoing, it is ORDERED:1. Willful Citation No. 1, item 1, is affirmed as a serious citation anda penalty of $1,000.00 is assessed.2. Willful Citation No. 1, item 2, is affirmed as a serious citationwith a penalty of $1,000.00 assessed.EDWIN G. SALYERSJudgeDate: September 18, 1989FOOTNOTES:[[1]] An \”other\” citation alleging a violation of 29 C.F.R. ? 1904.5(b)was also issued but was not contested and has become a final order ofthe Review Commission by process of law.[[2]] The Secretary notes in her brief that ? 1926.58(j)(2)(i) relatingto decontamination facilities does not contain a reference to\”feasible\”. It is, therefore, her position that respondent has theburden of proof in this regard.[[3]] William Sparks, respondent’s maintenance millwright, alsoconfirmed that the pot could be and was actually moved ten feet from thewall prior to the removal operation (Tr. 220-224).[[4]] This aspect of the case is not in dispute. Izzo testified no\”mini-enclosures\” or \”glove bags\” were used (Tr. 26). He testified thatsome attempt had been made to \”sponge wet\” the insulation, but he was\”not permitted to dowse it with water\” sufficiently to prevent theescape of fibers (Tr. 27-28).”