“Docket No. 87-1522 SECRETARY OF LABOR, Complainant, v. ASBESTOS ABATEMENT CONSULTATION AND ENGINEERING, Respondent.OSHRC Docket No. 87-1522ORDERThe Commission construes the Secretary’s notice to withdrawcitation sub-items as a motion, and grants the Secretary’s motion. The Judge’s report isset aside insofar as it affirmed citation sub-items (b) and (c) of item 1, and the Judge’sreport vacating sub-item (a) is hereby a final order.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary Dated: February 2, 1989SECRETARY OF LABOR, Complainant, v. ASBESTOS ABATEMENT CONSULTATION & ENGINEERING, Respondent.OSHRC DOCKET NO. 87-1522DECISION AND ORDERAppearances:E. Jeffery Story, Esq., of Dallas, Texas, for the ComplainantB. Harrison Moore, of Hainesport, New Jersey, for the Respondent, pro se.PROCEDURAL HISTORY BLYTHE, Judge:This case is before the Occupational Safety and Health Review Commission(\”Commission\”) under ? 10(c) of the Occupational Safety and Health Act of 1970,29 U.S.C. ? 651-678 (\”the Act\”). As the result of an inspection by anindustrial hygienist of the Occupational Safety and Health Administration(\”OSHA\”), of a workplace in Austin, Texas, where Respondent was performingasbestos monitoring services for Falcon Associates, which was removing asbestos fromHighland Mall, one citation was issued September 1, 1987, to Respondent alleging willfulviolations of ? 5(a)(2) of the Act and the health standard codified at 29 C.F.R.1926.58(f)(5)(i) and Appendix A thereto and proposing an aggregate penalty of $8,000.Respondent timely contested the citation and proposed penalty,and thereafter a formal complaint and answer were filed.Respondent’s answer, which neither admitted nor denied thejurisdiction and coverage allegations of the complaint, is deemed to have admitted themunder Rule 36(a). In addition, Respondent’s answer admits elsewhere that it is engaged inbusiness throughout the United States. Issues remaining to be determined are whetherRespondent was in willful violation of paragraphs 6 and 9 of the Sampling and AnalyticalProcedure and paragraph 3 of the Quality Control Procedures of Appendix A to C.F.R.1926.58, and, if so, the appropriate penalty therefor.DISCUSSION AND OPINIONThe standard cited for all of these alleged violations, 29C.F.R. 1926.58(f)(5)(i), provides:(5) Method of monitoring.[i] All samples taken to satisfy the monitoring requirements ofparagraph (f) of this section shall be personal samples collected following the proceduresspecified in Appendix A.The applicable provisions of Appendix A are: Sampling and Analytical Procedure6. Calibrate each personal sampling pump before and after use with a representative filtercassette installed between the pump and the calibration devices.9. The microscope shall be fitted with a Walton-Beckett eyepiece graticule calibrated fora field diameter of 100 centimeters (+\/-2 micrometers).Quality Control Procedures3. All individuals performing asbestos, tremolite, anthophyllite, and actinolite analysismust have taken the NIOSH course for sampling and evaluating airborne asbestos, tremolite,anthophyllite, and actinolite dust or an equivalent course.All of the provisions of Appendix A are labeled\”Mandatory\” although a general statement seems to allow more latitude than theword \”mandatory\” might indicate; it states:The sampling and analytical methods described below representthe elements of the available monitoring methods (such as the NIOSH 7400 method) whichOSHA considers to be essential to achieve adequate employee exposure monitoring whileallowing employers to use methods that are already established within their organizations.All employers who are required to conduct air monitoring under paragraph (f) of thestandard are required to utilize analytical laboratories that use this procedure, or anequivalent method, for collecting and analyzing samples.With regard to paragraph 6, the Citation alleges:Personal sampling pumps were last calibrated with a primarycalibration device approximately 5 weeks ago. Pump rotometers are being used to calibratethe pumps.According to Respondent, each air pump used by Respondent totake samples was equipped with a built-in, or \”inherent,\” rotometer, which wasused to calibrate the pump. The question is whether a more sophisticated\”primary\” calibration device was required for this purpose. Complainant broughtin as an expert witness the author of Appendix A, Daniel Thomas Crane, the supervisoryphysical scientist supervising the microscopy branch at OSHA’s Analytical Laboratory atSalt Lake City, Utah. Mr. Crane testified that a small rotometer attached to an air pumpis not really a calibration device and that a bubble burette should be used (Tr. 143,144). The short answer is that Appendix A does not require or define a primary calibrationdevice. Respondent was not put on notice that air pumps had to be calibrated with aprimary device. Although Appendix A is very specific in other respects, it is not in thisinstance.The Complainant argues that, in the absence of interpretation of Appendix A by theCommission or the courts, the testimony of Mr. Crane, as its author, must be given greatweight; this is true, but it cannot supply what has been omitted.With regard to paragraph 9 of the Sampling and AnalyticalProcedure of Appendix A, the citation alleges that a Bausch & Lomb microscope used byRespondent \”was not fitted with a Walton-Beckett graticule,\” as specificallyrequired by paragraph 9. This allegation is admitted by Respondent, but it contends thatthe microscope was used in a \”pre-analysis\” not covered by Appendix A. Thisrequires a rather detailed explanation.Bernard Cohn, son of Respondent’s owner, was sent fromRespondent’s home office in New Jersey to collect air samples from the Highland Mallasbestos removal job. This he did daily, analyzing the slides in his hotel room with amicroscope fitted with a Porton graticule. The results of this analysis were immediatelymade known to Falcon, the asbestos removal contractor, so that Falcon could decide whatrespirators were required or take other steps to protect its employees. Cohn then shippedthe cassettes to Respondent’s New Jersey laboratory for final analysis, and the results ofthis final analysis were communicated to Falcon.It is Respondent’s position that the \”pre-analysis\”was not required and that it should not be penalized for doing more than required by thestandard.Complainant contends that since the \”preanalysis\”results were given to Falcon it was an analysis covered by the cited standard, includingthe microscope graticule requirement. This requirement alone does not seem verysignificant, especially since Bernard Cohn apparently secured accurate results with thePorton graticule, but it is part of an integrated plan to secure uniformity inasbestos-monitoring procedure. The hazard of non-compliance is that laboratories engagedin this monitoring, if allowed to use unauthorized methods and equipment, might notachieve the accuracy and uniformity for which the standard is designed.I am convinced that the so-called \”pre-analysis\” isin fact an analysis subject to the standard. There appears to be no reason why Respondentcould not comply with this and the following subitem pertaining to education of themicroscopist. In the final subitem it is alleged:Employee performing asbestos analysis did not have NIOSH orequivalent course for sampling and evaluating asbestos. This could cause inaccurateasbestos counting and results.Here again, Respondent’s answer admits the truth of theallegation except that it denies that the employee, Bernard Cohn, was engaged in workcovered by the standard. Apparently this employee had on-the-job training, but Respondentdid not attempt to prove (as permitted by Appendix A) that this training was\”equivalent\” to the NIOSH course. I find that this lack of training was aviolation, also.The next. question is whether these violations were willful. A violation is willful if it was committed voluntarily witheither an intentional disregard for the requirements of the Act or with plain indifferenceto employee safety.A. C. Dellovade, Inc., 86 OSAHRC, 13 BNA OSHC 1017, 1986 CCHOSHD ? 27,785 (No. 83-1189, 1987).Respondent specializes in asbestos removal monitoring and wasaware of ? 1926.58 and Appendix A. It apparently in good faith thought it was not inviolation because of its \”pre-analysis\” theory. The crux of this matter iswhether Respondent’s interpretation of the standard’s application was unreasonable. KecoIndustries, Inc., 87 OSAHRC, 13 BNA OSHC 1161, 1987 CCH OSHD ? 27,860 (No. 81-263, 1987).It contended forcefully that its methodology was superior to and offered greaterprotection to employees than OSHA’s and that its \”pre-analysis\” was anadditional service for which it should not be penalized. Although I do not agree with thisposition, I do not believe that the violations were willful. Good faith can negatewillfulness. Keco Industries, supra.Since Complainant did not plead that the violations were \”willful serious,\”the characterization must be reduced to \”other than serious.\” Id.After considering the penalty criteria set forth in ? 17(j) of the Act, I find anaggregate penalty of $500 to be appropriate.FINDINGS OF FACT1. Respondent has a laboratory in Mt. Laurel, New Jersey, foranalyzing air samples containing asbestos filters. On August 24, 1987, its fieldrepresentative, Bernard Cohn, was engaged in gathering such air samples at Highland mallin Austin, Texas, where Falcon Associates was removing asbestos. Cohn analyzed thesesamples in his hotel room, informing Falcon immediately of the analysis results, thensending the cassettes from the air pumps to the New Jersey laboratory for furtheranalysis. The laboratory then communicated the results of its analysis to Falcon.2. Each air pump used by Bernard Cohn was equipped with arotometer which he used to calibrate each pump before and after each use. 3. The microscope used by Bernard Cohn was fitted with a Portongraticule, not a Walton-Beckett graticule.4. Bernard Cohn had not taken the NIOSH course for sampling andevaluating airborne asbestos, tremolite, anthophyllite and actinolite, or an equivalentcourse.5. The appropriate penalty is $500.CONCLUSIONS OF LAW1. The Commission has jurisdiction of the parties and of thesubject matter of this proceeding.2. Respondent is an employer engaged in a business affectingcommerce within the meaning of ? 3(5) of the Act.3. The evaluation of samples of airborne asbestos performed byBernard Cohn was an analysis subject to 29 C.F.R. 1926.58(f)(5)(i).4. On August 24, 1987, Respondent was not in violation ofparagraph 6 of the Sampling and Analytical Procedure of Appendix A to ? 1926.58.5. On August 24, 1987, Respondent was in violation of paragraph9 of said Sampling and Analytical Procedure of Appendix A.6. On August 24, 1987, Respondent was in violation of paragraph3 of the Quality Control Procedures of said Appendix A.7. Respondent’s violations of ? 1926.58(f)(5)(i) were notwillful but were \”other than serious.\”ORDERItem 1 of citation 1, for willful violation of C.F.R1926.58(f)(5)(i), is amended to allege an other-than-serious violation, and, as soamended. it is AFFIRMED and a penalty of $500 is ASSESSED.So ORDERED.DEE C. BLYTHE Administrative Law Judge Date: September 7, 1988″