“*SECRETARY OF LABOR, Complainant, V.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,Respondent. LOCAL 1- 2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO,Authorized Employee Representative.**Docket No. 89-3055**ORDER*This matter is before the Commission on a Direction for Review enteredby Commissioner Velma Montoya on December 7, 1990. The parties have nowfiled a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the Occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. See 29 U.S.C. ?? 659(c),660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated March 18, 1992*SECRETARY OF LABOR, Complainant, V.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,Respondent. LOCAL 1- 2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO,Authorized Employee Representative.**OSHRC Docket No.89-3055**STIPULATION AND SETTLEMENT AGREEMENT*In full settlement and disposition of the issues in this proceeding, itis hereby stipulated and agreed by and between the Complainant,Secretary of Labor, and the Respondent, Consolidated Edison Company ofNew York, Inc., that:1.This case is before the Commission upon the granting of respondent’sPetition for Discretionary Review seeking review of the AdministrativeLaw Judge’s Decision and Order dated October 18, 1990. Review wasgranted of serious\/repeat Citation 1 alleging a violation of 29 CFR1926.58(f)(2)(i). (No review was sought and none was granted for theaffirmance of other-than- serious citation 2 alleging a violation of 29CFR 1910.20(e)(1)(iii)).2. The Secretary hereby amends citation 1 to characterize the violationof 29 CFR 1926.58(f)(2)(1) as a violation of section 17 of theOccupational Safety and Health Act, 29 U.S.C.?666.3. Respondent hereby withdraws its notice of contest to citation 1 andto the notification of proposed penalty thereto.4. Respondent agrees to submit to the OSHA Area Office $1,600.00 in fulland complete payment of the penalty within 30 days of this Agreement.5.Respondent agrees that the above-mentioned violations have been abated.6. This Stipulation and Settlement agreement does not affect the judge’sdisposition of other-than-serious citation 2.7. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at the workplace on the 27th day of February 1992,in accordance with Rules 7 and 100 of the Commission’s Rules of Procedure.8. Complainant and respondent will bear their own litigation costs andexpenses.Anthony F Gil February 20, 1992 Counsel for the Secretary of LaborJonathan A. Fields February 18, 1992 Attorney for Respondent————————————————————————*SECRETARY OF LABOR, Complainant, V.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,Respondent. LOCAL 1- 2, UTILITY WORKERS UNION OF AMERICA, AFL-CIO,Authorized Employee Representative.**Docket No. 89-3055**APPEARANCE:*JANE SNELL BRUNNER, ESQUIRE U.S. Department of Labor Office of the SolicitorFor the ComplainantDAVID J. REILLY, ESQUIREFor the Respondent ARTHUR Z. SCHWARTZ, ESQUIREFor the Union_*DECISION AND ORDER*_SOMMER, JUDGE:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. 651 et seq., hereafter called the \”Act\” ).Consolidated Edison Company of New York, Inc. (Con Edison) at its IndianPoint location was issued two citations on September 9, 1989, alleging a\”Repeat\” violation of29 C. F. R. 1926.58(f) (2) (i) and an \”other than serious\”29 C. F. R. 1910.20(e) (2) (i). A hearing was held in New York, NewYork. Both parties were represented by counsel who filed post-hearingbriefs. No jurisdictional issues are in dispute, Respondent havingadmitted the jurisdictional allegations of the Complaint._*BACKGROUND*_Con Edison is a New York Corporation engaged in the business ofproviding electricity to consumers and related activities. During thetime at issue, employees at Respondent’s Indian Point station wereassigned \”to go up there and clean gaskets, the gasket material from theflanges\” on the No. 3 Air Ejector. (Tr. 7, 29)Citation No. 1 alleges: 29 C. F. R. 1926.58(f) (2) (i) : The employerdid not perform initial monitoring at the initiation of each asbestosjob to accurately determine the airborne concentration of asbestos towhich employees may have been exposed:(a) at the Steam Lift Eject System No. 23, 36 foot elevation, where twoemployees were replacing asbestos containing baskets on March 23, 1989.The standard at 29 C. F. R. 1926.58(f) (2) (i) provides:(f) Exposure monitoring(2) Initial monitoring. (i) Each employer who has a workplace or workoperation covered by this standard, except as provided for in paragraphs(f)(2)(ii) and (f)(2)(iii) of this section, shall perform initialmonitoring at the initiation of each asbestos,….job to accuratelydetermine the airborne concentrations of asbestos…. to which employeesmay be exposed.Paragraph (f)(2)(ii) provides in pertinent part: The employer maydemonstrate that employee exposures are below the action….level bymeans of objective data demonstrating that the product or materialcontaining asbestos….cannot release airborne fibers in concentrationsexceeding the level action under those work conditions having thegreatest potential for releasing asbestos….Paragraph (f)(2)(iii) provides: where the employer has monitored eachasbestos,….job, and the data were obtained during work operationsconducted under workplace conditions closely resembling the processes,type of material, control methods, work practices, and environmentalconditions used and prevailing in the employer’s current operations, theemployer may rely on such earlier monitoring results to satisfy therequirements of Paragraph (f) (2) (i) of this section._*SUMMARY OF EVIDENCE*_On March 21, 1989 two employees of the Respondent at its Indian Pointlocation were assigned to remove J tubes on the No. 23 Air Ejector. Thejob required breaking apart the flanges removing the gaskets andscraping the gasket material off. In scraping the material off it splitsinto pieces andthe material appearing is \”hard to see\”. ( Tr. 10) On March 23while carrying out this work the employees noted that the Igasket material might be asbestos. They stopped work, notified asuperior, which resulted in the material being sent out for evaluationwhich showed it was largely asbestos. Thereafter, cleaning of theflanges was assigned to an outside asbestos removal company. Girardi,one of the mechanics doing the work testified no initial monitoring forasbestos had been carved out prior to the work assignment. (Tr. 8)_*Alleged Violation of 29 C.F.R. 1926.58 (f)2)(i)*_The standard at issue in this case requires that an employer who has aworkplace or work operation covered therein must do initial monitoringof airborne concentrations of asbestos and other specified toxicmaterials to determine the airborne concentrations which employees maybe exposed to, except where the employer has 1) demonstrated thatemployee exposures are below the action level by means of objective datademonstrating the asbestos carrying material cannot release airbornefibers in concentrations exceeding the action level or 2) where theemployer has monitored each asbestos job, and the data obtained wereunder work operations and conditions closely resembling the processes,type of material, control methods, work practices and other conditionsprevailing currently, such results may satisfy the requirements ofinitial monitoring.Both employees, and Mayer, the maintenance supervisor, testified that noinitial monitoring was done. None of the exceptions which would qualifythe Respondent for relief from the initial monitoring requirement wasmet. No objective data was produced showing that employee exposure whileremoving the gasket material was below the \”action level,\” [[1]] or thatthis material could not release airborne fibers in concentrationsexceeding the action level under conditions existent. Additionally,while some evidence of monitoring was present, this did not meet therequirements of 1926.58 f(2)(i). The June 1989 monitoring does notqualify being subsequent to the gasket removal project herein. The March1988 monitoring does not qualify as an exception since a) the airsamples evaluated were of a different plant and area that involvedtherein, and were not personal sampling of employees’ breathing zones(see appendix A to ? 1926.58, Sampling and Analytical Procedure,paragraph 7) and b) there was no evidence produced demonstrating themonitoring data results in the other plant (Ravenswood) were obtainedunder conditions closely resembling processes, type of material, controlmethods, work practices and environmental conditions existing at theIndian Head plant. The evidence fully demonstrates that the citedstandard applies and that the Respondent failed to comply. Bothemployees who were removing the gaskets were in a zone of danger fromthe asbestos. The Respondent knew or could reasonably have known of thedangerous violative condition present. Management had previously testedand found asbestos present in one of its plants. (March 1988 areatesting). The Respondent’s foreman Joseph Mayer testified that while hewas not aware removing gaskets was an asbestos abatement job, in thepast flanges had been removed, wetted down and scrapped, _and if wesuspected asbestos, putting them with the asbestos _(underlining added)(Tr. 108). In short, the evidence is persuasive that Con Edison knew orwith the exercise of reasonable diligence based on past experience couldhave known of the hazardous exposure present in doing this job.Respondent was in violation of 1926.58 (f)(2)(i)._*Alleged Character of the Violation*__**_The further issue to be determine is whether the violation of 1926.58(f) (2) (i) was serious\/repeat under the Act.A serious violation exists \”if there is a substantial probability thatdeath or serious physical harm could result.\” 29 U.S.C. 666(k). Iconclude that the citation alleging a serious violation of 1926. 58 (f)(2) (i) is supported by the record. Compliance officer Franklin, holderof advanced degrees in chemistry, with a past history of inspections ofworksites wherein asbestos was present testified without contradictionthat exposure to asbestos could cause death or serious physical harm.The Secretary has proven that death or serious physical likely couldhave resulted from asbestos exposure.The allegation by Respondent that it cannot be charged with a seriousviolation since the citation does not so allege is rejected. Thecitation merely serves to notify the employer that the Secretary allegesa violation has been committed. If the employer files a notice ofcontest the jurisdiction of the Commission is invoked. Thereafter theSecretary must file a Complaint which is the first pleading commencingthe action; the Complaint gives the Respondent _actual notice_ of theSecretary’s allegations. The Respondent herein was duly apprised by theComplaint that the Secretary was charging that a serious\/repeatviolation had occurred, and had full opportunity to form a defense thereto.Another issue is whether the violation of 1926.58 (f) (2) (i) was arepeat one as alleged both in the citation and Complaint. UnderCommission precedent,A violation is repeated….if, at the time of the alleged repeatedviolation, there was a Commission final order against the same employerfor a substantially similar violation. _Potlatch Corp._, 79 OSAHRC 6\/A2,7 BNA OSHC 1061, 1063, 1979 CCH OSHD? 23,294, p.28,171 (No. 16183, 1979).The Secretary establishes a prima facie case by showing that bothviolations are of the same standard. The employer then has the burden ofdemonstrating that past and present violations are not substantiallysimilar.The record shows that the Respondent was issued a citation for violationof 1926.58(f)(1)(i) on January 25, 1988, which was not contested andthusly became final. 1926.58(f) (1)(i) requires employers to perform\”monitoring to determine accurately the airborne concentration ofasbestos….to which employees may be exposed\”. In this case thestandard violated was 1926.58(f)(2)(i) which requires that an employerperform \”initial monitoring at the initiation of each asbestos….job toaccurately determine the airborne concentrations of asbestos….to whichemployees may be exposed\”. Both standards are concerned with preventingemployee exposure to the toxicity of asbestos by requiring employers toconduct air monitoring of the workplace. This requirement for exposuremonitoring under 1926.58(f) in both the prior citation and the citationat issue herein is substantially similar. It is concluded that theviolation of 29 C.F.R. 1926.58(f)(2)(i) as alleged herein was repeated.The Respondent’s contention that these citations which are directed to\”exposure monitoring\” are not substantially similar is without merit andgiven no evidence. In short, the totality of the evidence of recordsupports a finding that the Respondent committed a serious\/repeatviolation of 29 C.F.R. 1926.58(f) (2) (i) .The next question for determination concerns the amount of penalty to beassessed for the violation. Consistent with the criteria set forth in17(J) of the Act, a penalty of $1,000 is appropriate herein._Alleged Violation of 29 C.F.R. 1910.20(e)(1)(iii) (as amended by Complaint)_The standard at issue, 29 C.F.R. 1910.20(e)(1)(iii), requires thatwhenever an employee requests a copy of a record, the employer shallassure that either:(A) A copy of the record is provided without cost to the employee orrepresentative.(B) The necessary mechanical copying facilities (e.g. photocopying) aremade available without cost to the employee or representatives forcopying the record, or(C) The record is loaned to the employee or representative for areasonable time to enable a copy to be made.On June 9, 1989, three of the Respondent’s employees requested \”pre-abatement and final clearance air samples results for asbestos abatementjob \”carried out by Respondent in an area where employees were present.(Exh. C1)The testimony of Mr. Riner, the Respondent’s safety coordinator, to whomthe record request was made shows that the Respondent failed to providethe employees with access to the records sought as required under thestandard at 29 C.F.R. 1910.20(e) (1) (iii) . None of the provisionsunder the standard which cover employee requests for a copy of arelevant record sought were complied with. (Tr. 121-2) The Respondentwas in other than serious violation of 29 C.F.R. 1910.20(e) (1) (iii).No penalty is assessed._*FINDINGS OF FACT*_All facts relevant and necessary to a determination of the contestedissues have been found specially and appear in the decision above. SeeRule 52(a) of the Federal Rules of Civil Procedure.*_CONCLUSIONS OF LAW_*1. The Secretary of Labor established by a preponderance of the evidencethat Con Edison committed a serious\/repeat violation of 29 C.F.R.?1926.58(f)(2)(i).2. The Secretary of Labor established by a preponderance of the evidencethat Con Edison committed an other than serious violation of 29 C. F. R.1910. 20 (d) (1) (iii)*ORDER*Based on the findings of fact, conclusions of law, and the entirerecord, it is ORDERED:1. Citation No. 1 alleging a violation of29 C.F.R. 1926.58(f) (2) (i) is AFFIRMED, and a penalty of $1,000 ASSESSED.2. Citation No. 2, as amended by the Complaint, alleging a violation of29 C.F.R. 1920.20(e) (1) (iii) is AFFIRMED and no penalty is ASSESSED.IRVING SOMMERJudge, CSHRCDATED: NOV 7, 1990Washington, D.C.FOOTNOTES:[[1]] \”Action level\” means an airborne concentration of asbestos….or acombination of….minerals of 0.1 fiber per cubic centimeter (f\/cc) ofair calculated as an eight (8)- hour time-weighted average.”