“Docket No. 88-2268 SECRETARY OF LABOR,Complainant,v.AMERICAN ASBESTOS CONTROL CO.,Respondent.OSHRC Docket No. 88-2268ORDER The Occupational Safety and Health Review Commission, havingreceived the Secretary’s Notice to Withdraw Citations, dated September 7, 1990 and havingconcluded that no further matters remain before the Commission requiring furtherconsideration by the Commission, hereby orders the captioned action dismissed.Edwin G.Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 25, 1990SECRETARY 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 of Labor, Cleveland,Ohio, on behalf of complainant Robert W. Thomson, Esquire, Pittsburgh, Pennsylvania, on behalf of respondentDECISION AND ORDERSALYERS, Judge:The respondent, American Asbestos Control Co. (\”AACC\”), is a Pennsylvaniacorporation engaged in asbestos removal and abatement operations in a multi-state area.The company is a \”certified abatement contractor\”, and its employees arelicensed to perform asbestos removal and abatement in the various states where AACCoperates (Tr. 73-74). The company engages approximately 120 employees in its operations(Tr. 193).Armco is a large steel manufacturer with a plant located inMiddletown, Ohio, where it produces a variety of products for use in the auto industry. OnAugust 11, 1988, Mr. Patsy Izzo, together with Mr. Robert Wilson, were sent by AACC to theArmco plant to remove certain material from the inside of a large aluminizing pot (pot\”A\”) located in an area designated as \”Door 661.\” At the time inquestion, pot \”A\” had been taken out of service, was partially dismantled, andconsisted of a frame on a base supporting a number of vertical \”yokes\” (Exs.C-2, C-6). Izzo and 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 inthe vicinity of pot A. These samples were later analyzed by AGX, Inc., an independenttesting laboratory, and found to contain fibers at a concentration of .003 fibers percubic centimeter (Tr. 222-223, 232; Ex. R-4). Both Izzo, and Wilson wore appropriateprotective clothing and respirators at all times while they worked in the pot removinginsulation (Tr. 18-19, 40, 192). While performing the work inside the pot, Wilson wore apersonal air sampling monitor to measure the amount of airborne fibers during the periodthe work was performed (Tr. 224). These samples were also submitted to AGX, Inc., afterthe work was completed, and the results reflect a concentration of asbestos fibers in the.003 to .004 range (Tr. 224-227; Ex. R- 4).Izzo and Wilson began working inside pot A around 9:00 a.m. Thework consisted of pulling material off the yokes by hand, putting this material intoplastic bags, and then removing the bags by lifting them out the top of the pot by rope(Tr. 20-21, 24). Izzo described the material removed from the yokes as\”boardlike,\” resembling a plywood sheet, and testified it broke easily in hishand (Tr. 22-23, 28, 243). About 20 bags of this material were removed during the courseof the day (Tr. 25). While working in the pot, Izzo observed employees of Armco working inthe area just outside the pot. One of these employees, William Sparks, who was working inthe area along with other Armco employees, observed the removal operation from a vantagepoint about three to four feet away and described the conditions around the pot as\”very dusty\” (Tr. 54-55). Sparks also noted Armco employees had placed a fan atthe bottom of the pot blowing air from the outside into and through the pot (Tr. 69-70).None of the Armco employees working in the area were wearing respirators or protectiveclothing (Tr. 56). After removing the bags containing the material pulled from the yokes,Izzo and Wilson used a vacuum to remove any remaining particles of this material from thefloor of the pot (Tr. 22). The removal operation was concluded about 3:00 p.m.In response to a complaint received concerning the abovedescribed procedure, William Wilkerson, an industrial hygienist employed by theOccupational Safety and Health Administration, conducted an inspection of the removal site(Tr. 83). After an initial meeting with Armco officials, Wilkerson proceeded to the areain question about 2:45 p.m. and observed Izzo and Wilson walking out of Door 661 (Tr. 83).Wilkerson interviewed both Izzo and Wilson, determined from them the general nature of thework they had performed, and then proceeded to inspect the removal site and sketch out adiagram of the area (Tr. 85; Ex. C-6). He took a series of photographs which are containedin the record as Exhibits C-1 through C-5 (Tr. 88). Wilkerson also took a \”bulksample\” 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). Hedescribed this sample as \”a white boardlike material. . . triangular in shape, aboutan eighth of an inch thick\” (Tr. 97). The sample was placed in a vial, sealed, markedand shipped to the OSHA laboratory in Salt Lake City, Utah, for analysis (Tr. 98-99). Theresults of the tests conducted on this sample (bulk sample #4) reflect an asbestos contentof 70 percent (Tr. 99; Exs. C-9, C-10).As a result of Wilkerson’s inspection, AACC was issued awillful citation [[1]] as follows:29 CFR 1926.58(e)(6)(i): The employer did not establishnegative pressure enclosures where feasible, before commencing removal, demolition andrenovation operations:(a) On August 11, 1988, employees [sic] removed asbestos containing material fromthe interior of pot A at door 661 at Armco, Inc.’s Middletown Works and a negativepressure enclosure was not constructed around the removal operation.29 CFR 1926.58(j)(2)(i): The employer did not establish adecontamination area consisting of an equipment room, shower area and clean room inseries, that is adjacent and connected to the regulated area for the decontamination ofemployees contaminated with asbestos:(a) On August 11, 1988 at Armco, Inc.’s Middletown Works,employees removed asbestos containing material from the interior of aluminizing pot A,door 661 and were not provided with appropriate decontamination facilities.It is undisputed in the record that AACC did not install anegative pressure enclosure nor a decontamination area at the site in question. However,AACC raises the following arguments in support of its position that such safeguards werenot required:1. There is no evidence that respondent handledasbestos-containing material.2. The area in question was not a \”regulated area\”requiring the use of negative pressure enclosures and decontamination facilities.3. The installation of negative pressure enclosures anddecontamination facilities was not feasible under the circumstances of this case.4. The work performed by AACC falls within the \”smallscale short duration exemption\” provided in the pertinent regulation.Respondent’s first argument is considered specious. It is incredulous that respondent, anasbestos removal specialist, would be called in by Armco to remove a totally neutralsubstance. Indeed, Mr. Barry Krieder, respondent’s vice-president and former operationsmanager, admitted under cross-examination that the principal activity performed at theArmco plant was \”insulation removal,\” a process in which you would reasonablyexpect to \”encounter asbestos\” (Tr. 221).The primary thrust of this argument is that the sample taken atthe site by Wilkerson (bulk sample #4, which was later determined to contain 70 percentasbestos), was not representative of the material removed from inside the pot. Wilkersonis an industrial hygienist with 14 years’ experience and extensive training in his field(Tr. 81). The sample he selected was taken from the base of the pot in the area depictedin Exhibit C-3 and was \”at most a foot and a half away from the yokesthemselves\” (Tr. 96). Prior to selecting the sample, he had obtained from Izzo andWilson a description of the material removed, and the sample fit the description (Tr. 97).Wilkerson did not obtain a sample from the bagged material pulled from the yokes becausethis material had already been removed from the site. His method of selecting the bulksample was reasonable under the circumstances of this case, and respondent’s argument thatthe material removed from the yokes contained no asbestos is rejected.Respondent’s remaining arguments are based upon its interpretations of the involvedstandards differing significantly from that of the Secretary. The first point of departurerelates to the term \”regulated area,\” which is defined at 29 C.F.R. ?1926.58(b) to mean:\”. . . [a]n area established by the employer to demarcateareas where airborne concentrations of asbestos, tremolite, anthophyllite, actinolite, ora combination of these minerals exceed or can reasonably be expected to exceed thepermissible exposure limit.\”Respondent asserts the facts of this case support a conclusionthat the airborne concentration of asbestos fibers did not exceed the permissible exposurelimit of 0.2 fiber per cubic centimeter of air nor could it have been reasonably expectedto exceed such limit. The Secretary does not challenge the results obtained in the airsampling performed by respondent during the removal procedures at \”pot A\” whichreflect a range (.003 to .004 fibers per cubic centimeter) well below the PEL.Accordingly, respondent urges that the Secretary can prevail on this issue only if therecord establishes that it was reasonable to expect the PEL would be exceeded during thecourse of the removal procedures. Respondent relies upon a subjective determination madeby Izzo prior to beginning the work that the removal operation would not produce aconcentration of asbestos fibers in excess of the PEL. In this regard, Izzo testified thatthe \”boardlike substance (to be removed) was already hanging from the yoke, and whenyou touch it, you can see that nothing was coming off of it; nothing friable was comingoff.\” He further testified that since he considered the material was not\”friable\”, he did not believe the removal operation would generate much dustand, therefore, the PEL would not be exceeded (Tr. 39-40). Since Izzo is experienced inasbestos removal, respondent urges that his determination satisfied the \”reasonableexpectations\” provisions contained in the foregoing definition of \”regulatedarea\” and relieved respondent of any requirement for installing an enclosure ordecontamination area.The Secretary takes a decidedly different position in the casebased primarily upon OSHA Instruction CPL 2-2.40 issued by the Assistant Secretary ofLabor for Occupational Safety and Health (Ex. C-8). The pertinent part of this instructionreads as follows:3. Regulated Areas. Paragraph 29 CFR 1926.58(e)(1)requires employers to establish regulated areas where airborne concentrations of asbestos,tremolite, anthophyllite, actinolite or a combination of these minerals exceed or can beexpected to exceed the PEL. Paragraph 29 CFR 1910.1001(e) of the General Industry Standardrequires the same.a. The construction standard describes two distinctly differenttypes of regulated areas which must be established based on the type of work beingperformed. Employers performing general construction operations, such as the cutting ofasbestos-cement sheets, the lathing of asbestos-cement pipes or the removal ofasbestos-containing floor tiles, are required to establish regulated areas in accordancewith 29 CFR 1926.58(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, andrenovation operations to establish negative-pressure enclosures before starting theirwork, wherever feasible.Under this interpretation, the Secretary urges that the workperformed by respondent’s employees was asbestos removal which brings respondent withinthe ambit of ? 1926.58(e)(6) and requires the installation of a negative-pressureenclosure before beginning the removal process unless such installation is not feasible.In support of her position, the Secretary refers to the preamble to the revised asbestosstandard for the construction industry (51 Federal Register 22705, et seq.,June 20, 1986), which sets forth increasingly stringent requirements for those operationsfound to be associated with the highest levels of asbestos exposure:As the record demonstrates, employees engaged in asbestosremoval, demolition, and renovation operations generally have the highest asbestosexposures of all construction workers (51 Fed. Reg. 22706).The Secretary further notes ? 1926.58(e) provides for twotypes of regulated areas requirements explained in the preamble as follows:The definition of \”regulated area\” in the revisedasbestos standard covers two types of regulated areas; the negative-pressure enclosuresmandated in paragraph (e)(6) for major asbestos abatement operations, and the restrictedaccess required wherever airborne asbestos concentrations exceed the PEL. The fact thatthe revised standard contains requirements for two types of regulated areas reflects boththe wide differences in construction worksites and OSHA’s approach in this standard todealing with this wide range in exposure conditions. . . . The negative pressure enclosurethat constitutes the second type of regulated area defined and required by the revisedrule (paragraph (e) (6)) is intended to provide employees engaged in the most hazardousasbestos operations – asbestos abatement projects – with the greatest possible amount ofprotection, and also to protect members of the public and other workers on site who arenot directly involved in the abatement project from bystander exposure to asbestos. (51 Fed.Reg. 22707-22708).The law is clear that the Secretary’s interpretations ofDepartment of Labor regulations are controlling unless unreasonable. UnitedSteelworkers v. Schuylkill Metals, 828 F.2d 314 (5th Cir. 1987); Usery HermitageConcrete Pipe Co., 584 F.2d 127 (6th Cir. 1978). It is concluded that the Secretary’sinterpretation of the requirements under ? 1926.58(e) is reasonable and consistent withboth the language of the regulations and the overall purpose of the Act.To allow an employer engaged in asbestos removal to forego theinstallation of negative-pressure enclosures and decontamination areas based upon purespeculation that the PEL will not be exceeded would nullify the preventive purposes of theAct. Even though the test results in this case established, after the fact, that the PELwas not exceeded, each asbestos removal site presents its own particular circumstances andthere appears to be no reliable method to determine in advance whether a removal operationwill or will not produce fibers in excess of the PEL (Tr. 164-167). To apply theregulations as respondent urges would, as the Secretary suggests, be \”akin to playingRussian roulette\” and place at risk the health of asbestos workers and other personsin the area, in the event of a miscalculation.Having determined that asbestos removal operations arecontrolled by ? 1926.58(e)(6) of the regulations, as those regulations are interpreted bythe Secretary, it is now necessary to consider whether the installation ofnegative-pressure enclosures was \”feasible\”[[2]] as that term is used in theregulations. CPL 2-2.40 (Ex. C-8) recites the following:Negative pressure enclosures are considered to be feasible inall situations, except where space limitations prohibit the construction of the enclosure,or where the erection of a negative-pressure enclosure would create a greater hazard(e.g., toxic gases present in area). (At page 7)The Secretary relies upon the testimony of Industrial HygienistWilkerson to support her position that the installation of a negative-pressure enclosurewas feasible in this case. Wilkerson testified the enclosure could have been constructedusing two by four lumber, six- mil plastic sheeting, and a filtering system as describedin Appendix F of ? 1926.58 (Tr. 106, 111). The framework of the pot and yokes could havebeen utilized to support the enclosure (Tr. 106-108, 136). It was his opinion that adecontamination area, including a portable shower, could have been located in the pitopposite the location of pot B (Tr. 117-119, 138; see also Ex. C-6). Any speciallimitations imposed by the configuration of the area could have been eliminated by movingpot A since it could be moved on a track to various locations (Tr. 15, 116).[[3]]Respondent’s evidence consisted of the testimony of Izzo andMr. Barry Krieder, respondent’s current vice-president and former operations manager (Tr.190). Izzo considered it \”impractical\” to install an enclosure (Tr. 40) and gavethe opinion that there was no appropriate location to install a decontamination chamber(Tr. 41) but conceded the construction of a negative-pressure enclosure was \”apossibility\” (Tr. 42). Krieder visited the site in question the day before thehearing, 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 of an enclosure and deconchamber was \”unfeasible\” (Tr. 196) because (1) the location of the pot at thetime of the removal operation did not permit the fitting of the poly-sheeting between theouter sides of the yokes and the walls of the pit (Tr. 199, 201-202), and (2) enclosingthe pot would require employees to remove the stripped insulation from the top of the potwhile standing on its narrow rim, thereby creating a falling hazard to these employees(greater hazard) (Tr. 197, 200-202). Krieder also testified that constructing theenclosure and decon chamber would be a time-consuming and expensive undertakingturning\” a very small job into a major project\” (Tr. 204).Respondent’s argument that the position of the pot at the timeof the removal operation prevented the installation of an enclosure overlooks the factthat the pot was movable (Tr. 220-221) and could have been placed in a location whichwould have afforded sufficient space to construct both the enclosure and the decon chamberoutlined in Appendix F, and as described in the testimony of Wilkerson. The argument thatthe use of an enclosure would expose respondent’s employees to a falling hazard whilestanding on the rim removing material from inside the pot is unconvincing since any hazardcreated by moving the pot away from the walls of the pit could be compensated for byinstalling temporary railings to protect against falls (Tr. 215).Respondent’s argument that construction of an enclosure anddecon chamber would be difficult, expensive and time-consuming does not warrant aconclusion that this factor makes compliance with the standard infeasible. In AmericanTextile Mfg. Institute, Inc. v. Donovan, 101 S. Ct. 2478 (1981), representatives ofthe cotton industry challenged the validity of the cotton dust standard on\”feasible\” grounds. In that case, the Supreme Court held the plain meaning ofthe word \”feasible\” in a standard dealing with toxic or harmful physical agentsis \”capable of being done\” (Id. at 2490). The court further held that acost-benefit analysis is valid only if the \”benefit\” of the worker’s health isplaced above all other considerations save those making attainment of this\”benefit\” unachievable. See also Sun Ship, Inc., 82 OSAHRC 69\/A2, 11 BNAOSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982); Harmony Blue granite Co., 83OSAHRC 14\/A2, 11 BNA OSHC 1277, 1983-84 CCH OSHD ? 26,467 (No. 14189, 1983); AceSheeting and Repair v. OSHRC, 555 F.2d 439 (5th Cir. 1977); Bratton FurnitureManufacturing Co., 83 OSAHRC 30\/A2, 11 BNA OSHC 1433, 1983 CCH OSHD ? 26,538 (No.81-799, 1983). In this case, respondent did not establish that the installation of therequired facilities was unachievable or impossible. At most, respondent’s evidence showsonly that implementing the procedures required by the standard would be time-consuming andcostly. These factors, 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 particularwork site falls within the exception provided in ? 1926.58(e)(6)(iv) as follows:(iv) Exception: For small-scale, short-durationoperations, such as pipe repair, valve replacement, installing electrical conduits,installing or removing drywall, roofing, and other general building maintenance orrenovation, the employer is not required to comply with the 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 be performed rather than in termsof the size of the job or the time required to complete it.Although OSHA finds it impossible to specify with precision theexact size of a \”small-scale\” maintenance job or to pinpoint the time involvedin a \”short-duration\” task, the Agency believes that providing employers withexamples of the type of operations that OSHA considers to be included in this class ofoperations will provide employers with the guidance needed to use the rule’s exemptionsappropriately. Paragraph (e)(6) enumerates several of these operations including: Piperepair, valve replacement, installation of telephone circuits, electrical conduits, anddrywall; and other general building maintenance and renovation tasks. (51 Fed. Reg.22706).Appendix G to ? 1926.58 defines \”short-term, small-scaleoperations\” in terms of renovation and maintenance activities which are tasks suchas, but not limited to:- Removal of asbestos-containing insulation on pipes- Removal of small quantities of asbestos-containing insulation on beams or 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 to asbestos-containingmaterialsIn similar fashion, OSHA Instruction CPL 2-2.40 defines\”small-scale, short-duration\” to mean:(1) Maintenance or renovation tasks, where the removal of asbestos-containing materials isnot the primary goal of the job (e.g., repairing a valve which entails the removal ofasbestos, installing electrical conduit which must be fastened to asbestos-cement siding,etc.).(2) Activities where employees’ exposures to asbestos can bekept below the action level via worker isolation techniques, such as glove bags or othermethods described in Appendix G.(3) An operation which has been included in the employer’sasbestos maintenance program (as required in Appendix G) of all employers who are claimingan exemption from the requirements of 29 CFR 1926.58(e)(6).(4) Nonrepetitive operations (viz.: not a series of small-scalejobs, which if performed at one time would have resulted in a large-scale removal). Wilkerson considered the possible application of the exceptionto respondent’s operations (Tr. 119) but concluded that the exception did not applybecause the \”primary goal of (respondent’s) work was to remove asbestos\” (Tr.121). He also considered whether respondent utilized isolation techniques such as glovebags or other methods described in Appendix G and concluded none of these procedures hadbeen followed[[4]] (Tr. 122-124).In summary, the Secretary urges that the exception is limitedin scope to certain maintenance tasks and not to asbestos removal operations, whichoperations fall within the upper limits of exposure to asbestos fibers (Secretary’s Brief,pgs. 21-23). Respondent counters that such an interpretation is a blatant attempt by theSecretary to amend the standard by administrative fiat without regard to the notice andcomments provisions of the Administrative Procedures Act (5 U.S.C. ? 553, et seq.) andresults in unconstitutional discrimination against asbestos removal contractors(Respondent’s Brief, pgs. 21-29).On balance, it is concluded that the Secretary’s positionrelating to the nonapplication of the exception provided in sections 58(e)(6)(iv) and58(j)(2)(i) to those engaged in asbestos removal is a reasonable interpretation of thestandard and is in accord with the overall purposes of the Act. The very nature ofasbestos removal places those engaged in this activity, as well as those working in closeproximity thereto at high risk of exposures to hazardous asbestos fibers. Asbestoscontractors who hold themselves out to the general public and to those who engage theirservices as professional removers of such hazardous substance must make every reasonableeffort to insure that exposure is kept to a minimum even if these efforts increase thetime and costs to achieve the desired results of protecting workers from the hazard. It isappropriate for the Secretary to require a higher standard of performance from those whoengage in asbestos removal and to restrict the application of the exception in question tothose engaged in activities less likely to result in high levels of exposure.Respondent’s argument that the Secretary’s interpretationunconstitutionally discriminates against asbestos removal contractors has been noted butis rejected. Since the Act’s inception, the Review Commission has issued decisions holdingthat it lacks the authority to consider the constitutionality of OSHA standards or toquestion their wisdom. Divesco Roofing & Insulation Co., 73 OSAHRC 35\/F6, 1 BNAOSHC 1279, 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, 4 BNA OSHC 1151, 1975-76 CCHOSHD ? 20,633 (No. 5007,1976); Hana Shoe Corporation, 77 OSAHRC 69\/B4, 5 BNA OSHC1552, 1976-77 CCH OSHD ? 21,033 (No. 76-392, 1977).The final question for resolution is whether the actions ofrespondent constitute a willful violation of the Act’s provisions. The Secretary takes theposition that respondent, as a result of a conscious decision by its foreman at thejobsite not to install a negative pressure enclosure and decontamination chamber whileengaged in asbestos removal, committed an intentional, knowing or voluntary disregard forthe requirements of the Act. In support of her position, the Secretary cites inter aliaAsbestos Textile Co., 84 OSAHRC 48\/B12, 12 BNA OSHC 1062, 1984-85 CCH OSHD ?24,763 (No. 79-3831, 1984); Intercounty Construction Co. v. OSHRC, 522 F.2d 777(4th Cir. 1977); Georgia Electric 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 goodfaith belief that its actions at the work site did not contravene the Act’s requirements.Respondent relies on Secretary v. Keco Industries, Inc., 13 BNA OSHC 1161 (No.81-263) and Secretary v. RSR Corporation, 11 BNA OSHC 1163, aff’d, 764 F.2d 355(5th Cir. 1985).After giving due consideration to the argument of both parties,it is concluded that respondent’s actions on the day in question did not constitute awillful violation of the Act. This is a case of first impression. So far as this court hasbeen able to ascertain, there are no reported cases which have dealt with or construed theinvolved standards or the Secretary’s interpretation of these standards. Even though thiscourt has concluded that the Secretary’s interpretation of these standards is reasonableunder the circumstances, neither the standards nor the Secretary’s interpretations are soclearly drawn as to render respondent’s asserted position indefensible or implausible.Respondent was at liberty to test its position through judicial review without running therisk of being declared in willful violation of the Act. Accordingly, the violations willbe characterized as serious and a penalty of $2,000.00 will be assessed.ORDERThe foregoing constitutes my findings of fact and conclusions of law. Based on theforegoing, it is ORDERED:1. Willful Citation No. 1, item 1, is affirmed as a seriouscitation and a penalty of $1,000.00 is assessed.2. Willful Citation No. 1, item 2, is affirmed as a seriouscitation with 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) wasalso issued but was not contested and has become a final order of the Review Commission byprocess of law.[[2]] The Secretary notes in her brief that ? 1926.58(j)(2)(i)relating to decontamination facilities does not contain a reference to\”feasible\”. It is, therefore, her position that respondent has the burden ofproof in this regard.[[3]] William Sparks, respondent’s maintenance millwright, alsoconfirmed that the pot could be and was actually moved ten feet from the wall prior to theremoval operation (Tr. 220-224).[[4]] This aspect of the case is not in dispute. Izzo testifiedno \”mini-enclosures\” or \”glove bags\” were used (Tr. 26). He testifiedthat some attempt had been made to \”sponge wet\” the insulation, but he was\”not permitted to dowse it with water\” sufficiently to prevent the escape offibers (Tr. 27-28).”