“Docket No. 88-1358 SECRETARY OF LABOR,Complainant,v.CLEVELAND ELECTRICILLUMINATING COMPANY,Respondent.OSHRC Docket No. 88-1358ORDERThe Occupational Safety and Health Review Commission hasreceived the parties’ Stipulation and Settlement Agreement in the captioned action. Thecase is before the Commission pursuant to a Direction for Review by Former Acting ChairmanLinda L. Arey on July 3, 1989.The Commission treats the parties’ Stipulation and SettlementAgreement as a Joint Motion to Approve Settlement Agreement. Having reviewed theSettlement Agreement, attached hereto, it is found that the Agreement disposes of allissues pending before the Commission in this matter.Therefore, the Commission grants the parties’ Joint Motion toApprove Settlement Agreement, affirms the citations as amended and assesses the proposedpenalties as amended.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. WisemanCommissionerDated: July 2, 1990ELIZABETH DOLSECRETARY OF LABOR,Complainant,v.THE CLEVELAND ELECTRIC ILLUMINATING COMPANY,Respondent.OSHRC DOCKET NO. 88-1358STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full and completesettlement and disposition of the issues in this proceeding which is currently pendingbefore the Commission.IIIt is hereby stipulated and agreed by between the Complainant,Secretary of Labor, and the Respondent, The Cleveland Electric Illuminating Company,that:1. Respondent represents that all of the alleged violations forwhich it was cited have been abated and shall remain abated.2. Respondent hereby agrees to withdraw its notice of contestpreviously filed in this case.3. The parties agree that in the future, when Respondentengages in boiler repairs, the provisions of ?1926.58(e)(6) need not be followed for theremoval of boiler skin casing so long as the work performed entails only the removal ofthe skin casing and not the intentional removal of asbestos-containing insulation.Prior to the removal of skin casing, the boiler insulation will be tested, if practicable,to determine if it contains asbestos. In accordance with Respondent’s Asbestos Abatement,Handling, and Disposal Procedure, if the sample reveals asbestos-containing insulation orif no sample is taken, the removal of skin casing will be considered an asbestos repairoperation and appropriate personal protective equipment, including appropriate respiratoryprotection and protective clothing, will be used.For the first skin-casing removal that involvesasbestos-containing insulation that is performed after the effective date of thissettlement agreement, employees will use powered air-purifying respirators withhigh-efficiency filters. Respondent will also provide employees engaged in such operationswith full disposable coveralls with disposable gloves and head coverings. Respondent willperform initial monitoring on the first skin-casing removal that involvesasbestos-containing insulation to determine the extent of employee exposure to asbestos,if any. In the absence of any initial monitoring during the first skin-casing removal,Respondent will provide employees engaged in skin-casing removal operations with fullfacepiece supplied air respirators equipped with an auxiliary positive pressureself-contained breathing apparatus. Air-monitoring results from the first such skin-casingremoval will, whenever appropriate under ?1926.58(f)(2)(iii), be relied upon to determinethe expected level of exposure and appropriate personal protective equipment forsubsequent skin-casing removal jobs.Respondent shall demarcate areas where boiler skin operations are conducted in any mannerthat minimizes the number of employees within the area and protects employees outside thearea whenever concentrations of asbestos exceed or can reasonably be expected to exceed0.2 fibers per cubic centimeter.After the boiler skin casing is removed, if asbestos-containinginsulation is present, the requirements of ?1926.58(e)(6) will be followed if suchinsulation is actually removed or otherwise substantially disturbed.4. Complainant hereby agrees to reduce the total penalty from$2,100, as assessed by Judge Salyers in his Decision and Order of May 4, 1989, to$1,500.5. Each party agrees to bear its own fees and other expensesincurred by such party in connection with any stage of this proceeding.6. None of the foregoing agreements, statements, stipulations,or actions taken by Respondent shall be deemed an admission by Respondent of theallegations contained in the citations or the complaint herein. The agreements,statements, stipulations, and actions herein are made solely for the purpose of settlingthis matter economically and amicably and they shall not be used for any other purpose,except for subsequent proceedings and matters brought by the Secretary of Labor directlyunder the provisions of the Occupational Safety and Health Act of 1970.7. No authorized employee representative elected party status in this case.III Respondent agrees to post this Stipulation and SettlementAgreement in accordance with Commission Rules 2200.7 and 2200.100.WHEREFORE, the parties request that this Stipulation andSettlement Agreement be approved by the Commission.ORLANDO J. PANNOCHIA (Date)Attorney for the Secretary of LaborKENNETH B. STARK\u00a0 (Date)Attorney for The Cleveland Electric IlluminatingCompanySECRETARY OF LABOR,Complainant,v.CLEVELAND ELECTRICILLUMINATING COMPANY,Respondent.OSHRC Docket No. 88-1358APPEARANCES: Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor,Cleveland, Ohio, on behalf of complainant. Kenneth B. Stark, Esquire, Duvin, Cahn and Barnard, Cleveland, Ohio, and David R. Percio,Esquire, Cleveland Electric Illuminating Company, Cleveland, Ohio, on behalf ofrespondent.DECISION AND ORDERSALYERS, JUDGE: Respondent, Cleveland Electric IlluminatingCompany (\”CEI\”), contests a citation charging a serious violation of 29 C.F.R.? 1926.58(e)(6)(i) for failure to establish a negative-pressure enclosure beforecommencing an asbestos removal or renovation operation; of 29 C.F.R. ? 1926.58(e)(6)(ii)for failure of its designated competent person to perform his duties in accordance withthe standard; of 29 C.F.R. ? 1926.58(f)(1)(i) for failure to monitor the airborneconcentrations of asbestos to which its employees may have been exposed; of 29 C.F.R. ?1926.58(f)(2)(i) for failure to initially monitor the airborne concentrations of asbestosto which its employees may have been exposed; of 29 C.F.R. ? 1026.58(h)(2) for failure toprovide appropriate respirators for its employees; and of 29 C.F.R. ? 1926.58(i)(3) forfailure to transport contaminated clothing in sealed, impermeable containers. CEI alsocontests a citation for an other-than-serious violation of 29 C.F.R. ? 1926.58(k)(1)(i)for failure to post warning signs in a regulated area where airborne levels of asbestosmay have been in excess of the permissible exposure limit (PEL).[[1]]FACTSCEI is the major power company for northeastern Ohio. On April 22, 1988, OccupationalSafety and Health (\”OSHA\”) Industrial Hygienist Julie Weis conducted aninspection of CEI’s Lakeshore plant located on South Marginal Road in Cleveland (Tr.196-198). The inspection was pursuant to a formal health complaint arising from incidentsthat occurred at the plant on March 26 and 28, 1988 (Tr. 197).The Lakeshore plant contains six boilers: four oil-firedboilers, one coal- fired boiler, and a package boiler used for heating the plant (Tr. 12).Boilers 93 and 94 are oil-fired units that were converted from coal-fired units in 1977(Tr. 22, 148). They are each approximately seven stories high and 22 feet wide. Theboilers, which are about 100 feet apart, are used to supply steam to the turbinegenerators for the production of electricity (Tr. 13-14, 139, 143).The outer walls of the boilers are steel, approximately 1\/8inch thick, and are referred to as the skin casing. Behind the skin casing is insulation.Behind the insulation are steel tubes which run along the sides of the boilers and alongthe floor (Tr. 14-15).It is common knowledge among the personnel at CEI that at onetime insulation containing asbestos was installed in the plant (Tr. 18). CEI has sincediscontinued the installation of asbestos-containing insulation, but some of the originalinsulation remains. CEI replaces the insulation in a piecemeal fashion, removing theasbestos-containing insulation when a repair is made and replacing it with asbestos-freeinsulation. CEI has developed a procedure to deal with asbestos removal, which is detailedin a company memorandum entitled \”The Cleveland Electric Illuminating CompanyAsbestos Abatement, Handling and Disposal Procedure\” (Exhibit C-2). Rule 14.0(A) ofthat memorandum provides: \”Plant Maintenance General Supervisor shall maintain theplant records for identification of types of insulation on existing and newequipment.\” On the fourteenth page of C-2 is the following \”General Rule\”:\”All insulation removal work is to be performed as if it contains asbestos, unless itis determined otherwise.\”Beginning on March 24 or 25, 1988, boiler 94 was closed downfor repairs for a three-week period. CEI had been experiencing an increasing number ofleaks from the boiler and it was determined that replacing each tube as it developed aleak was inefficient. Therefore, all of the tubes would be removed from boiler 94 andreplaced with new ones (Tr. 13, 297-298).SATURDAY, MARCH 26, 1988On Saturday, March 26, 1988, a crew was assigned to begin workon boiler 94. Willie Simmons has worked for CEI for 11 years, and has attained theposition of maintenance mechanic \”A,\” the highest mechanic classification (Tr.11). He and an assistant were working on the south side of boiler 94 (Ex. R-2. area #2;Tr. 13-14, 21).Simmons testified that, due to knowledge that asbestosinsulation was present in the plant, \”it is always a common practice to ask thesupervisor if the work that we’re going to be doing has been checked for asbestosespecially if we’re going to be around the boiler or any type of piping or valves oranything like that\” (Tr. 18). Simmons inquired of his supervisor, Ted Zielaskiewicz,whether they would be working with asbestos. Zielaskiewicz told Simmons he would checkwith the general supervisor, Daniel Tirabasso, and then reported back that the insulationin the area where he would be working was asbestos-free (Tr. 20).Simmons and his assistant began work on the boiler. Theyremoved the skin casing on the boiler using cutting torches and then removed theinsulation covering the tubes. The assistant cut about four and a half feet of the skincasing and Simmons would use a pinch bar and hammer to knock the skin away from the boilerand to knock the insulation out. They cut about three- quarters of the way across the20-foot-wide boiler before ending that day (Tr. 15-16).While Simmons worked on the south side of boiler 94, anothercrew of maintenance mechanics, including maintenance mechanic \”A\” Nathan Wilson,who has been with CEI for over 18 years, was removing skin casing at the base of thesoutheast corner of boiler 94, immediately above the wet ash pit (Ex. R-2, area #1; Tr.73-75). Beneath the skin casing was block insulation that originally had been held inplace by metal clamps. As the skin casing was removed, most of the insulation fell out ofthe boiler. The remaining insulation was removed by hand or with tools (Tr. 117). A thirdcrew was working in the dry ash pit of boiler 93, approximately 100 feet away from boiler94 (Tr. 139). A total of 11 or 12 employees were working in the areas around boilers 93and 94 (Tr. 17-18).The Lakeshore plant generally has a dusty environment while theboilers are working. When coal is burned, it leaves a residue called fly ash, which is adark gray, granular substance. Even though four of the boilers had been converted fromcoal-burning units in 1977, a great deal of the fly ash was left in the boilers’ systems(Tr. 19, 22, 307-309).Simmons testified that, as they worked, the air becameexceedingly dusty. At times he and his assistant could not see each other even though theywere working in close proximity (Tr. 17). Bernard Zebrowski, a maintenance mechanic\”A\” with CEI for 21 years, was working on boiler 93 in the dry ash pit whileSimmons was removing the insulation on boiler 94. Zebrowski testified that, as he worked,an unusual amount of dust was produced by the work being done on boiler 94. \”It wasso thick that you couldn’t see. We had to get out of there. I couldn’t believe it and Ieven called the guys who were working on 94 Boiler to find out what was going on. And theytold me they were taking a paneling off and all that dust and debris was falling out ofthere, . . .\” (Tr. 141).Jay Fine, a maintenance mechanic \”B,\” was working inthe dry ash pit of boiler 93 with Zebrowski on March 26. Fine stated that as they worked,they became engulfed in ash \”like a gray cloud almost that came up inside of the ashpit, and at that time we had to leave the ash pit because the air became unfit tobreathe\” (Tr. 458). Fine testified that the dust was coming from the south side ofboiler 94 where Simmons was working (Tr. 459). Fine observed insulation falling out of theboiler where it had been opened, and he observed Simmons pulling it off (Tr. 465). BothZebrowski and Fine stated that the cloud was a light gray color (\”light color,whitish,\” \”grayish white cloud\”) that was unlike the darker gray of fly ash(Tr. 140, 458).Simmons testified that he had worked with asbestos before andcould identify it by sight. He stated that when insulation blocks containing asbestosbreak down, they give off a fibrous dust that is white or a light gray. It was Simmons’opinion that the dust cloud that enveloped him and his co-workers on March 26, 1988, was ahalf and half mixture of fly ash and asbestos (Tr. 19, 24-27).Wilson, who was working on the underside of boiler 94, statedthat he, too, could identify asbestos by sight. \”[I]n the insulation it’s white.After being in the boiler for a while, it’s probably an off-white type of material\”(Tr. 83). It was Wilson’s opinion that the debris falling from the boiler as he cut awaythe skin casing was \”deteriorated asbestos, dust\” (Tr. 84).Zebrowski also thought the dust coming out of boiler 94 lookedlike asbestos dust. He asked Simmons during a break if he was sure that there was noasbestos in the area. Simmons told him that Tirabasso had assured him it was not asbestos(Tr. 142). Despite Tirabasso’s assurances, Simmons was uneasy working amid the thick dust.He asked Tirabasso six times over the course of the day whether he was sure the area hadbeen checked for asbestos. Each time he was told the area had been checked and that it wassafe for work (Tr. 20).The employees working in the boiler area were wearing dustmasks but not respirators. No asbestos-related safety precautions were taken prior to thecommencement of the job. No negative-pressure enclosures were erected and no personal airmonitoring was conducted. The employees were wearing their regular work clothes, whichthey took home with them to wash after changing at the plant. No asbestos-related warningsigns were posted in the area (Tr. 27-29).MONDAY, MARCH 28, 1988On Monday, March 28, 1988, work resumed on the south side ofboiler 94 where Simmons and his assistant had been working on March 26. Jay Fine was alsoassigned to work with them. Zebrowski was working in the basement on a boiler 94 pump (Tr.33, 162, 460). They began work at 7:00 a.m. and stopped for a coffee break at 9:00. Atthat time, the general manager of maintenance, Fred Lewis, spoke with Fine. Fine showedLewis the inside of the boiler where the insulation was exposed. Lewis commented that theinsulation looked suspicious. Lewis halted work on the boiler until samples of theinsulation could be tested for the presence of asbestos (Tr. 462).[[2]]Keith Thompson, CEI’s plant environmentalist, took samples from the south side of boiler94, as well as from its southeastern underside (Ex. R-2, areas #1 and #2; Tr. 336-337). Hehand-delivered the samples to the plant laboratory. Sometime after noon that day, hereceived the results, which indicated that all of the samples contained asbestos (Ex. C-1;Tr. 351).[[3]] After Lewis was informed of the presence of asbestos, an abatementcontractor was brought in to remove the insulation (Tr. 353).The week before the asbestos was detected, Tirabasso had takensamples on boiler 93 and the dry ash pit on boiler 94. The results of both samplesindicated that it was non-asbestos material (Ex. R-3; Tr. 303-304). Boilers 93 and 94 are\”sister\” boilers, of the same age and style. Tirabasso assumed that such similarboilers would have similarly non- asbestos insulation. Using this reasoning, Tirabassoconcluded that boiler 94 did not contain asbestos material and assured the employees hesupervised that it was safe for them to work in this location (Tr. 311, 317-318).Tirabasso does not keep records of where the asbestos containing insulation is located orwhere new insulation has been installed (Tr. 317).Following the inspection of OSHA Industrial Hygienist JulieWeis on April 22, 1988, CEI was issued two citations for a number of violations. CEI doesnot dispute that it failed to take any of the steps that the allegedly violated standardsdictate. Instead, CEI argues that for various reasons, it was not required to comply withthe asbestos standards.NEGATIVE-PRESSURE ENCLOSURES AND A COMPETENT PERSON Section 1926.58 (e)(6)(i) of 29 C.F.R. provides: Wherever feasible, the employer shall establish negative-pressure enclosures beforecommencing removal, demolition, and renovation operations. Section 1926.58(e)(6)(ii) of 29 C.F.R. provides:The employer shall designate a competent person to perform orsupervise the following duties:(A) Set up the enclosure;(B) Ensure the integrity of the enclosure;(C) Control entry to and exit from the enclosure;(D) Supervise all employee exposure required by this section;(E) Ensure that employees working within the enclosure wear protective clothing andrespirators as required by paragraphs (i) and (h) of this section and;(F) Ensure that employees are trained in the use of engineering controls, work practices,and personal protective equipment;(G) Ensure that employees use the hygiene facilities and observe the contaminationprocedures specified in paragraph (j) of this section; and(H) Ensure that engineering controls are functioning properly.CEI argues that the operation on March 26, 1988, was neither an asbestos removal,demolition, or renovation operation, thus excluding it from compliance with thesesections. At the hearing, Leslie Grove, an OSHA industrial hygienist supervisor, statedthat work done on boiler 94 could qualify as either a removal or a renovation operation(Tr. 233, 272).Section 1926.58(b) defines \”removal\” as \”thetaking out or stripping of asbestos. . . or materials containing asbestos. . . ,\” and\”renovation\” as \”the modifying of any existing structure, or portionthereof, where exposure to airborne asbestos. . . may result.\” \”Repair,\”which is not mentioned in ? 1926.58(e)(6)(i), is defined as \”overhauling,rebuilding, reconstructing, or reconditioning of structures or substrates where asbestos.. . is present.\”The operation planned for boiler 94 was to remove the old tubesfrom inside the boiler and to replace them with new tubes. Grove maintained that theremoval of original parts and the replacement with new ones constitutes a modification,which brings the operation within the standard’s definition of renovation. CEI maintainsthat Grove’s position would serve to destroy any distinction between the standard’sdefinitions of \”renovation\” and \”repair,\” and would render the\”repair\” definition redundant. No renovation was planned on boiler 94.CEI argues that the boiler assignment was not an asbestosremoval operation because it did not intend for any asbestos to be removed, and in fact,the asbestos insulation was not actively removed. The company contends Simmons’ testimonythat he knocked off insulation with a pinch bar was rebutted by Tirabasso, becauseTirabasso stated that he did not observe any employee removing insulation. This argumentis based on Tirabasso’s testimony that he visited the area where Simmons was working oncein the morning before work actually began and \”two or three times during the courseof the day, and I did not see people removing insulation from Area 2\” (Tr. 313). Thefact that Tirabasso did not actually observe Simmons removing insulation during his two orthree visits does not in any way refute Simmons’ testimony, as well as Fine’s testimony,that Simmons did so.CEI contends that both Tirabasso and Thompson observed theblock insulation on the south side of boiler 94, and saw no gaps or missing blocks. CEIalso questions the veracity of its employees who stated that they either removed orobserved the removal of insulation.Both Willie Simmons and Jay Fine testified in a sincere,straightforward manner concerning their work activities on the days in question. Theydisplayed no bias and their testimony was entirely reasonable and credible. On the otherhand, Tirabasso and Thompson showed an understandable inclination to minimize the amountof insulation involved in the operation. This inclination led to questionable testimony,such as Tirabasso’s statement that there was not an abnormal amount of dust in the air onMarch 26, despite an abundance of more credible evidence to the contrary (Tr. 307; seealso footnote 2).Moreover, no motivation is apparent as to why the employeewitnesses would fabricate their part in the insulation removal. CEI would have it believedthat Simmons was mistaken when he said he removed the insulation and that Fine was alsomistaken when he said he observed Simmons removing the insulation. CEI further suggeststhat Simmons, Fine, and Zebrowski were in error when they said they worked on boiler 94for two hours on March 28; and that Simmons, Fine, Zebrowski, and Wilson exaggerated whenthey stated that, in their combined experience of over 30 years, the dust was unusuallyheavy on March 26. Absent any motivation for this alleged insulation conspiracy, thetestimony of these men is accepted as the most credible.CEI also argues that the primary goal of the assigned tasks on March 26 was not theremoval of asbestos. CEI intended to remove the skin casing from the south side of boiler94 and the skin casing and the four-inch mineral wool blanket from the underside of boiler94 (Ex. R-4, pp. 4-5). Section 1926.58(e)(6)(iv) of 29 C.F.R. provides:For small-scale, short-duration operations, such as piperepair, valve replacement, installing electrical conduits, installing or removing drywall,roofing, and other general building maintenance or renovation, the employer is notrequired to comply with the requirements of paragraph (e)(6) of this section. (Refer toAppendix G.)The operation at issue in the present case is neithersmall-scaled, nor of short duration. When Simmons was asked if his work on boiler 94 was a\”large-scale job,\” he responded, \”[s]ure it was\” (Tr. 16). Boiler 94,which is seven stories high and twenty feet wide, was to be shut down for three weeks toperform this operation. At least 11 men worked on the operation the first day of thethree-week time frame. The work on boiler 94 was not an exception to the standard within? 1926.58(e)(6)(iv).CEI also claims that it was not required to comply with theasbestos standard because it did not know that the insulation on the south side of boiler94 contained asbestos. CEI contends that Tirabasso reasonably believed that the insulationdid not contain asbestos based on the absence of asbestos in the samples taken from boiler93. The record establishes, however, that Tirabasso reached a decidedly unreasonableconclusion.It was common knowledge among plant personnel that asbestosinsulation had originally been used in the plant, and that it had been replaced only in apiecemeal fashion and not according to any organized plan. Tirabasso, who had 25 years ofexperience at CEI, had to be aware of this haphazard method of replacement (Tr. 286). Themere fact that one boiler tested asbestos-free gave no reasonable basis for the beliefthat an adjacent boiler would contain similar insulation. Despite the explicit language ofrule 14.0(A) of CEI’s asbestos procedure, requiring CEI to maintain plant records of thetypes of insulation on existing equipment, no such plans were kept. Given thesecircumstances, a person exercising reasonable diligence would have concluded that an areadid not contain asbestos insulation only after testing that specific area.Furthermore, even if CEI had a reasonable belief at thecommencement of the operation that no asbestos was involved, it was repeatedly put onnotice once the project began that it was highly likely that asbestos was present in thearea. Simmons, Wilson, and Zebrowski all claimed that they could recognize asbestos duston sight. Tirabasso, Thompson, and Dr. Antone Lott, an industrial hygienist hired by CEI,all stated that it was impossible to identify asbestos dust with the naked eye, and thatmicroscopic analysis was required (Tr.329, 366, 432). While it may be true that themaintenance mechanics could not state with absolute accuracy that the dust they wereworking in contained asbestos, their knowledge and experience led them logically to assumethat it did.The mechanics had worked previously with insulation that theyknew contained asbestos, and they knew that when the asbestos insulation became friable itappeared to be a white or grayish white dust containing fibrous particles. They knew thatfly ash appeared as a dark gray, granular dust. Despite assurances that the area wherethey were working on boiler, 94 did not contain asbestos insulation, the appearance of thedust cloud raised their suspicions that asbestos was present, which in fact it was. Afterbeing asked six times whether the insulation being worked on was indeed asbestos, thereasonable response for CEI would have been to halt work and take samples of theinsulation, not to blandly reassure the employees and tell them to continue working.CEI raises the defense of unpreventable employee misconductwith regard to Tirabasso’s actions, relying on Floyd S. Pike Electrical Contractor.Inc., 78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH O SHD ? 22,805 (No. 3069, 1978). Inthat case, the Commission held that a supervisor, whose knowledge and actions aregenerally imputed to the employer, could be found to have engaged in unpreventablemisconduct for which the employer is not liable. The Commission set out the following aselements of the defense:(1) A demonstration of the employer’s commitment to employee safety reflected by theestablishment of work rules that effectively implement the requirements of the standard atissue;(2) the effective communication of the work rules to employees;and,(3) the effective enforcement of these work rules throughsupervision adequate to detect failures to comply with the rules and discipline sufficientto discourage such violations. (Footnotes omitted.)Id. at 1978 CCH OSHD ? 22,805, p. 27,543.In the present case, CEI had established a detailed, specificprocedure that implemented the requirements of the asbestos standard. Weis characterizedit as \”a fairly thorough safety program. . .\” (Tr. 225). The first element ofthe defense is met.The record also establishes that the work rules wereeffectively communicated to the employees. The employee witnesses, without exception,testified that they were aware of the company’s work rules regarding asbestos. They wereaware that insulation should be tested before beginning work. Their testimony reflects ahigh level of awareness and concern regarding the asbestos procedure. CEI has establishedthe second element of the defense.CEI falters on the third element, however, which calls for\”the effective enforcement of these work rules through supervision adequate to detectfailures to comply with the rules and discipline sufficient to discourage suchviolations.\” Id. The record is silent on any discipline meted out to Tirabasso forhis part in the violations.The record does disclose that on Friday, March 25, 1988 aplanning meeting was held to discuss the weekend operation. Presumably other supervisorypersonnel besides Tirabasso were present, but Tirabasso testified that the possibility ofasbestos insulation in boiler 94 was not discussed (Tr. 297-298). Simmons testified thatwhen he initially suspected the presence of asbestos, he reported it to anothersupervisor, Ted Zielaskiewicz, who in turn went to Tirabasso (Tr. 19). The company’swritten asbestos procedure provides that the Plant Maintenance General Supervisor keeprecords for the identification of types of insulation in existing equipment. Fred Lewiswas identified at the hearing as the general supervisor of maintenance (Tr. 165, 461).Apparently, he did not maintain such records, or if he did, he failed to make themavailable to Tirabasso.The record does not support CEI’s claim that it had\”supervision adequate to detect failures to comply with the rules.\” Rather, therecord establishes that CEI’s supervisory personnel as a whole disregarded the company’swritten safety policy. It was the employees who suspected a failure to comply with thework rules, but who were unable to persuade their supervisors to follow the properprocedure. CEI has failed to make out a defense of unpreventable supervisory misconduct.The Secretary has proven that CEI did not establish negative-pressure enclosures beforecommencing asbestos removal, nor did its designated competent person [Keith Thompson (Tr.331)] perform his duties in compliance with the asbestos standard. CEI was in violation of29 C.F.R. ? 1926.58(e)(6)(i) and (ii).EXPOSURE AND INITIAL MONITORINGSection 1926.58(f)(1)(i) of 29 C.F.R. provides:Each employer who has a workplace or work operation covered bythis standard shall perform monitoring to determine accurately the airborne concentrationsof asbestos, tremolite, anthophyllite, actinolite or a combination of these minerals towhich employees may be exposed.Section 1926.58(f)(2)(i) of 29 C.F.R. provides:Each employer who has a workplace or work operation covered bythis standard, except as provided for in paragraphs (f)(2)(ii) and (f)(2)(iii) of thissection, shall perform initial monitoring at the initiation of each asbestos, tremolite,anthophyllite, or actinolite job to accurately determine the airborne concentrations ofasbestos, tremolite, anthophyllite, or actinolite to which employees may be exposed.CEI argues that it had no knowledge that the insulation in boiler 94 contained asbestos,therefore, it was not required to comply with the monitoring standards. As discussed inthe negative-enclosure and competent person section, supra, CEI could have known of thepresence of asbestos with the exercise of reasonable diligence. It is undisputed that CEIdid not perform initial monitoring or exposure monitoring. CEI was in violation of 29C.F.R. ? 1926.58(f)(1)(i) and (2)(i).RESPIRATORY PROTECTIONSection 1926.58(h)(2)(i) of 29 C.F.R. provides: Where respirators are used, the employer shall select and provide, at no cost to theemployee, the appropriate respirator as specified in Table D-4, and shall ensure that theemployee uses the respirator provided.Table D-4 specifies that, for unknown concentrations ofasbestos, employees shall be provided with a \”[f]ull facepiece supplied airrespirator operated in pressure demand mode equipped with an auxiliary positive pressureself contained breathing apparatus.\” CEI argues that the standard only applies whenemployees are expected to be exposed to asbestos above the PEL. As noted, supra, CEIfailed to monitor for airborne concentrations of asbestos, therefore the concentration isunknown. In the absence of any knowledge of the concentration of airborne asbestos on thatday, CEI was required to provide the highest level of respiratory protection to itsemployees, not the dust masks which they wore. CEI was in violation of 29 C.F.R. ?1926.58(h)(2).PROTECTIVE CLOTHINGSection 1926.58(i)(3) of 29 C.F.R. provides: Contaminated clothing shall be transported in sealedimpermeable bags, or other closed, impermeable containers, and be labeled in accordancewith paragraph (k) of this section.CEI argues that the Secretary failed to prove that the employees were exposed above theemployees were exposed above the PEL, and thus that the clothes were contaminated. Weisdid not take air samples during her inspection because it had been almost a month sincethe incidents at issue and any samples would not be representative of the airborneconcentration on those days (Tr. 199). Dr. Lott conducted air monitoring on March 29,1988, and based on his results, concluded that the employees were not exposed above thePEL on March 26, 1988 (Tr. 400-403). Grove concluded, based on employee interviews andCEI’s test results on March 28, 1988, that the employees were exposed above the PEL (Tr.268).It is, of course, not possible to determine the airborneconcentration of asbestos on the days in question. This impossibility is due to CEI’sfailure to comply with the monitoring standards. While the Secretary normally has theburden of showing exposure above the PEL, it would be unjust, under the circumstances ofthis case, to impose such a strict burden on the Secretary when such a determination wassolely under the control of CEI. Given the fact that the employees described the dust asabnormally thick, and the fact that the samples taken by Thompson showed results of overone percent asbestos, it is more likely than not that the employees were exposed above thePEL on March 26 and March 28, 1988, and that their clothes were contaminated. It isundisputed that the employees’ clothing was not handled in accordance with the provisionsof the standard. CEI was in violation of 29 C.F.R. ? 1926.58(i)(3).WARNING SIGNSSection 1926.58(k)(1)(i) of 29 C.F.R. provides:Warning signs that demarcate the regulated area shall beprovided and displayed at each location where airborne concentrations of asbestos,tremolite, anthophyllite, actinolite, or a combination of these minerals may be in excessof the exposure limit prescribed in paragraph (c) of this section. Signs shall be postedat such a distance from such a location that an employee may read the signs and takenecessary protective steps before entering the area marked by the signs.CEI argues again that the Secretary failed to prove that theemployees were exposed above the PEL. As discussed, supra, it is likely that the employeeswere exposed above the PEL. CEI posted no warning signs and thus was in violation of 29C.F.R. ? 1926.58(k)(1)(i).CLASSIFICATION OF THE VIOLATIONSGrove testified that exposure to asbestos can result inasbestosis, mesothelioma, lung cancer, and gastrointestinal cancer (Tr. 252, 256). Suchrisks warrant a classification of serious for the violations of 29 C.F.R. ??1926.58(e)(6)(i), (e)(6)(ii), (f)(1)(i), (f)(2)(i), (h)(2), and (i)(3). Section1926.58(k)(1)(i) is properly classified as other-than-serious.PENALTIES Under section 17(j) of the Occupational Safety and Health Actof 1970 (\”Act\”), the determination of the appropriate penalty is within thediscretion of the Commission. Due consideration must be given with respect to the size ofthe employer, the gravity of the violation, the good fait, of the employer, and thehistory of the previous violations. The gravity of the offense is the principal factor tobe considered. Nacirema Operating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73CCH OSHD ? 15,032 (No. 4, 1972).Upon due consideration, it is decided the Secretary’s proposedpenalty of $700 is appropriate for the violations of 1926. 58(e)(6)(i) and (e)(6)(ii); atotal of $700 is appropriate for the violations of ? 1926.58(f)(1)(i) and (f)(2)(i); anda total penalty of $700 is appropriate for the violations of ? 1926.58(h)(2) and(i)(3).The foregoing constitutes the findings of fact and conclusionsof law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.ORDERIt is hereby ORDERED:1. That items 1b and 1c of the serious citation are affirmedand a penalty of $700 is assessed;2. That items, 2a and 2b of the serious citation are affirmedand a penalty of $700 is assessed;3. That items 3 and 4 of the serious citation are affirmed anda penalty of $700 is assessed; and4. That item 1 of the other-than-serious citation is affirmed and no penalty isassessed.Dated this 24th day of May, 1989.EDWIN G. SALYERSJudgeFOOTNOTES: [[1]] At the hearing, the Secretary moved to vacate three items of citation one chargingserious violations of 29 C.F.R. ? 1926.58(e)(1), 29 C.F.R. ? 1926.58(g)(1)(i), and 29C.F.R. ? 1926.58(k)(3)(i) (Tr. 5). The Secretary’s motion was granted (Tr. 6).[[2]] Curiously, at the hearing CEI contended that no work wasperformed on boiler 94 on March 28, 1988 (Tr. 167) and it omits any mention in itspost-hearing brief of possible employee exposure on that day. This is in direct conflictwith the testimony of Simmons, Fine, and Zebrowski, who all testified that they workedapproximately two hours before the job was halted.Apparently CEI’s contention is based on Thompson’s testimonythat on March 28 he observed the south side of boiler 94 and took three samples of theinsulation there between 7:30 a.m. and 8:00 a.m., and did not see any employees working.Fine, a credible witness, testified that while he was working on boiler 94, he sawThompson in the area sometime between 7:00 a.m. and 9:00 a.m. (Tr. 463).Furthermore, Simmons and Fine’s assignment that day was tocontinue work on the south side of boiler 94. The work shift begins at 7:00 a.m. It ishighly unlikely that CEI supervisors would have permitted Simmons and Fine to remain idlefor a two-hour period. Thompson’s testimony on this point is discounted and it is foundthat work was performed on boiler 94 for approximately two hours on the morning of March28, 1988.[[3]] Although Exhibit C-1 concludes that \”[a]ll four insulation samples containedover one percent asbestos[,]\” the actual percentage of asbestos present in thesamples is unknown. Thompson testified that the standard method for reporting the presenceof asbestos is whether it is over one percent \”[b]ecause greater than one percentasbestos constitutes an ACM asbestos containing material, and with polarized lightmicroscopy, that’s the best and quickest determination to find out the percentage over oneof asbestos in the material\” (Tr. 352).”