” SECRETARY OF LABOR,\t Complainant,\t v.\t OSHRC Docket No. 06-0792CONTOUR ERECTION & SIDING SYSTEMS, INC.,\t Respondent.\t APPEARANCES:Lee Grabel, Attorney; Michael P. Doyle, Counsel for AppellateLitigation; Joseph M. Woodward, Associate Solicitor for OccupationalSafety and Health; Jonathan L. Snare, Acting Solicitor of Labor; U.S.Department of Labor, Washington, DC For the ComplainantThomas A. DeSimon, Esq.; Harris Beach PLLC, Pittsford, NY For the Respondent DECISIONBefore: THOMPSON, Chairman; ROGERS, Commissioner.BY THE COMMISSION:STATEMENT OF THE CASEOn April 12, 2006, the Occupational Safety and Health Administration(\u201cOSHA\u201d) issued a fourteen-item serious citation to Contour Erection &Siding Systems, Inc. (\u201cContour\u201d) alleging multiple violations of OSHA\u2019sasbestos standard, 29 C.F.R. \u00a7 1926.1101, and proposing a total penaltyof $42,000. The citation items relate to Contour\u2019s three days ofconstruction work performed at a worksite in Hamburg, New York, where abuilding had sustained a partial roof collapse. After a hearing,Administrative Law Judge Covette Rooney affirmed all of the citationitems and assessed the total proposed penalty. Contour timely petitionedfor review of the judge\u2019s decision, and Chairman Thompson directed thecase for review. For the following reasons, we affirm all the citationitems and assess a total penalty of $31,500.ISSUESUnder the citation items, the Secretary alleges that Contour failed toprovide its employees who were exposed to asbestos with the protectionsrequired by the asbestos standard. Contour does not disputenon-compliance with the cited provisions or employee exposure, butclaims it lacked knowledge of the cited conditions. The only issue onreview is whether Contour had constructive knowledge of the presence atthe worksite of Presumed Asbestos Containing Material, or PACM, asdefined in 29 C.F.R. \u00a7 1926.1101(b).^FootnoteFINDINGS OF FACTOn November 18, 2005, a portion of the roof at Leisureland Lanes\u2014acombination motel, restaurant, and bowling alley located in Hamburg, NewYork\u2014collapsed due to a heavy snowfall. The roof collapse caused some ofthe trusses supporting the roof to break and tilt. The building,constructed in 1960, contained sprayed and troweled-on surfacingmaterial used for sound-suppression and fire-retardant insulation. OnNovember 23, 2005, the building\u2019s owner contracted with Jansen-KienerConsulting Engineers, Inc. (\u201cJKC\u201d) to oversee and direct theconstruction repairs at the site. JKC, in turn, contracted with Contourto conduct the necessary shoring work for the truss system. That sameday, JKC\u2019s president and Contour\u2019s vice president, along with others,met at the worksite to observe the area of the roof collapse and inspectthe truss system. Contour\u2019s vice president observed that the buildingwas constructed with wooden trusses, which led him to believe that itmay have been built in the 1930\u2019s. At the time the men inspected theworksite, grayish, white-flaky debris\u2014which included structural andceiling materials\u2014was scattered everywhere throughout the area of thecollapse. In addition, this material was hanging from the ceiling.On the morning of November 25, 2005, Contour began its work on theproject. The majority of Contour\u2019s work consisted of shoring woodentrusses and building an enclosure wall. To complete this work, fourContour employees first cleared the area of the collapsed ceilingmaterial, which consisted of a fibrous material on steel mesh. They useda high-speed disc saw to cut and remove the ceiling material, thenhanded the material down to be further cut, shoveled, dry-swept, andpushed into piles. Contour\u2019s vice president visited the site a number oftimes during the course of the three-day project to take tools and otheritems to his employees. At no point did Contour conduct any testing ofthe ceiling material to determine whether it contained asbestos.On November 26, 2005, JKC contracted with Stohl Environmental (\u201cStohl\u201d)in order to have the ceiling debris tested. Stohl conducted the tests onthe following day, November 27\u2014the same day Contour\u2019s employees finishedtheir work at the site. On November 28, 2005, Stohl provided JKC withits test results, which showed that two of the three samples collectedhad concentrations of nearly 60 percent asbestos. That same day, work atthe site stopped, access was restricted, and the building was closed.On December 8, 2005, an OSHA industrial hygienist (\u201cIH\u201d) inspected theworksite after receiving a referral about the roof collapse and employeeexposure to asbestos. On January 5, 2006, the IH took his own sample ofthe ceiling material, which showed that the material contained more than90 percent asbestos.PRINCIPLES OF LAWTo establish that an employer has violated a specific standard, theSecretary must prove, \/inter alia\/, that the \u201cemployer knew or couldhave known with the exercise of reasonablediligenceof the conditionsconstituting the violation.\u201d \/See Diamond Installations, Inc.\/, 21 BNAOSHC 1688, 1690 (No. 02-2080, 2006) (consolidated case).^Footnote The actual orconstructive knowledge of a supervisor or foreman\u2014in this case,Contour\u2019s vice president and field operations manager\u2014can generally beimputed to the employer. \/See Kokosing Constr. Co.\/, 21 BNA OSHC 1629,1631, 2005 CCH OSHD \u00b6 32,838, p. 52,781 (No. 04-1665, 2006).Under the asbestos standard, presumed asbestos containing material(PACM) is defined as \u201cthermal system insulation and surfacing materialfound in buildings constructed no later than 1980.\u201d 29 C.F.R.\u00a7 1926.1101(b).^Footnote The standardspecifies that certain materials, including sprayed or troweled onsurfacing materials in buildings built prior to 1981, are PACM unlessthe inspection or testing of the material required by 29 C.F.R.\u00a7 1926.1101(k)(5) shows that it does not contain asbestos. 29 C.F.R. \u00a71926.1101(k)(1). \/Odyssey Capital Group\/, 19 BNA OSHC 1252, 1253-55 (No.98-1745, 2000), \/aff\u2019d mem.\/, 19 BNA OSHC 1735 (D.C. Cir. 2001);\/JamesR. Howell & Co.\/, 19 BNA OSHC 1277, 1277-78 (No. 99-1348,2000).^Footnote ANALYSISIt is undisputed that Contour lacked actual knowledge the building wasbuilt prior to 1981 or that the ceiling material was surfacing materialas defined in the asbestos standard. However, based on the unrebuttedtestimony of the IH, statements made to the IH by Contour\u2019s vicepresident, and the vice president\u2019s visits to the worksite, includinghis initial inspection of the roof and truss damage, we conclude Contourhad constructive knowledge of these facts. Contour\u2019s vice president toldthe IH that, \u201che believed that the construction of the building beingwooden truss showed that it may have been built back in the30\u2019s . . . [and that] the building at one point may have been anairplane hangar that was used during World War II.\u201d Contour\u2019s vicepresident inspected the wooden truss system prior to his employeesstarting to work. The vice president also admitted that \u201call of thebuildings\u201d built prior to 1970 \u201cused asbestos in just about everything\u201dand, therefore, asbestos was \u201cprobably in this building too.\u201d The vicepresident\u2019s belief as to the age of the building put Contour on noticethat the building was built prior to 1981.In addition, during his initial walk-through with JKC and his subsequentvisits to the worksite, Contour\u2019s vice president was able to observe thegrayish, fibrous, white-flaky ceiling material (\u201csprayed, troweled-on\u201d\u201cmaterial\u201d that had been \u201capplied to\u201d the ceiling \u201csurfaces\u201d) that wasscattered throughout the worksite as a consequence of the roof collapse.Indeed, photographs of the worksite in evidence show that the grayish,white flaky material hanging from the ceiling and scattered everywherewas \u201creadily observable\u201d to anyone visiting the area of the collapse,including Contour\u2019s vice president. \/See Kokosing Constr\/. \/Co\/., 17 BNAOSHC 1869, 1871, 1995-96 CCH OSHD \u00b6 31,207, p. 43,723 (No. 92-2596,1996) (holding that \u201cthe conspicuous location, the readily observablenature of the violative condition, and the presence of Kokosing\u2019s crewsin the area warrant a finding of constructive knowledge\u201d); \/HamiltonFixture\/, 16 BNA OSHC 1073, 1089 (No. 88-1720, 1993) (findingconstructive knowledge where supervisory employee was in close proximityto readily apparent violation), \/aff\u2019d mem.\/, 28 F.3d 1213 (6th Cir.1994) (table).Based on this imputable evidence, we conclude Contour had constructiveknowledge that the ceiling material met the criteria under the asbestosstandard for being considered PACM. Because Contour failed to conductthe specific testing required in the asbestos standard that could haverebutted the presumption that the ceiling material contained asbestos,we conclude Contour was in violation of the cited standards and affirmall fourteen citation items as alleged.^Footnote PENALTYSection 17(j) of the Occupational Safety and Health Act, 29 U.S.C.\u00a7 666(j), requires the Commission to give \u201c\u2018due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.\u2019\u201d\/Schuler-Haas Elec\/.\/Corp\/., 21 BNA OSHC 1489, 1496, 2005 CCH OSHD\u00b6 32,816, p. 52,601 (No. 03-0322, 2006). The penalty factors need notbe accorded equal weight, and gravity is generally the primary elementfor consideration. \/Orion Constr\/.,\/Inc\/., 18 BNA OSHC 1867, 1868, 1999CCH OSHD \u00b6 31,896, p. 47,220 (No. 98-2014, 1999).In explaining the basis for the $3,000 penalty proposed by the Secretaryfor each violation here, the IH testified that the violations wereconsidered high gravity because Contour\u2019s four employees were exposed tohigh levels of asbestos for three \u201clong days[.]\u201d The record, however,does not support this characterization of the time Contour\u2019s employeesspent on asbestos-related work. Contour was hired primarily to constructshoring and secure wooden trusses for the collapsed building. Accordingto a project field report completed by JKC, the cutting and removal ofceiling material was performed by Contour on the first two days of itsthree-day project, and was only one of approximately fourteen tasks itsworkers completed on those days. Therefore, based on thereduced exposure time of Contour\u2019s employees to asbestos-related work,we find the gravity of the violations to be slightly lessened. \/SeeCaterpillar, Inc.\/, 15 BNA OSHC 2153, 2178, 1991-93 CCH OSHD \u00b6 29,962,p. 41,011 (No. 87-922, 1993)\/\/(stating that, with regard to gravity,Commission considers several factors including duration of exposure).Accordingly, we find a penalty of $2,250 to be appropriate for eachviolation, and assess a total penalty of $31,500.CONCLUSIONS OF LAW Under these circumstances, we conclude that Contour hadconstructive knowledge that the ceiling material in question was PACM.Because Contour failed to conduct the specific testing required in theasbestos standard that could have rebutted the presumption that theceiling material contained asbestos, we also conclude that the judge didnot err in affirming the fourteen citation items.ORDERWe affirm Items 1 through 14 of Serious Citation 1 as characterized andassess a total penalty of $31,500.SO ORDERED. \/s\/Horace A. Thompson III Chairman \/s\/Thomasina V. RogersCommissionerDated: December 13, 2007———————————————————————— ———————————————————————— SECRETARY OF LABOR, : : Complainant, : : v. : OSHRCDOCKET NO. 06-0792 :CONTOUR ERECTION & SIDING : SYSTEMS, INC., : : Respondent. :———————————————————————— Appearances: Jeffrey S. Rogoff,Esquire Thomas A. DeSimon, Esquire U.S. Department ofLabor Harris Beach PLLC New York, NewYork Pittsford, New York For theComplainant. For the Respondent. Before: Covette Rooney Administrative Law Judge \/DECISION AND ORDER\/ This proceeding is before the Occupational Safety and HealthReview Commission (\u201cthe Commission\u201d) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. \u00a7 651 \/et seq\/.(\u201cthe Act\u201d). The Occupational Safety and Health Administration (\u201cOSHA\u201d)conducted an inspection of a work site from December 8, 2005 to April12, 2006; the work site was a building located in Hamburg, New York,where Respondent, Contour Erection & Siding Systems, Inc. (\u201cRespondent\u201dor \u201cContour\u201d), had been engaged in putting in temporary shoring tosupport trusses of the building\u2019s roof. As a result of the inspection,on April 12, 2006, OSHA issued to Contour a 14-item serious citationalleging violations of OSHA\u2019s asbestos standard. Contour contested thecitation, bringing this matter before the Commission, and on February 7,2007, a hearing was held in Buffalo, New York. Both parties havesubmitted post-hearing briefs. \/The Relevant Facts\/ The facts in this case are essentially undisputed. Thosefacts show that on November 18, 2005, a portion of the roof of abuilding located in Hamburg, New York collapsed due to a heavy snowfallin that area; the building, which was constructed in 1960, was acombination motel, restaurant and bowling alley, and the roof collapseoccurred in a portion of the bowling alley. Footnote After the collapse,James Eberhardt, a building inspector with the Town of Hamburg, wasdispatched to the site at about 4:30 a.m. on November 18 to investigatethe situation. Mr. Eberhardt viewed the part of the bowling alley wherethe collapse had taken place and then went upstairs to the roofstructure so that he could look at the truss system and the extent ofthe damage; while there, he saw that two of the approximately 16 trussesin that area had come down. Later that same day, in the afternoon, ameeting took place at the site. Mr. Eberhardt was there, as were JayPatel, the owner of the building, and Edward Tredo, an engineer retainedby Nova Casualty (\u201cNova\u201d), the building\u2019s insurer. The purpose of themeeting was to discuss what should be done to prevent a further collapseof the building\u2019s roof; at no time did anyone at the meeting mention thepossibility that the building\u2019s ceiling material could contain asbestos.(Tr. 17, 37, 92, 94, 97-100, 108-09, 136-46). \/See also\/ Parties\u2019 JointPre-Hearing Statement (\u201cJoint Statement\u201d), pp. 6-7, 12. On November 23, 2005, Mr. Tredo and Paul Freitag, arepresentative of Nova, phoned Thomas Kiener, another engineer, Footnote to tell him aboutthe roof collapse and that they needed someone to determine if thestructure was stable, as only the damaged part of the facility was notoperating; if Mr. Kiener agreed to become involved, his job would be todetermine if shoring was required and to find a company to put in theshoring. Footnote After the phone call, Mr. Kiener called Daniel Szvoren, Contour\u2019svice-president and field operations manager, to discuss the job withhim; Mr. Kiener had worked on many projects with Contour and believed itwas the best company for the job. At about 3:30 p.m. on November 23, Mr.Kiener, Mr. Szvoren and Mr. Tredo met at the site. They looked at thecollapsed area, and there was debris containing ceiling materialeverywhere; they then went upstairs to view the trusses above theceiling. Based on what they saw, they concluded the two trusses closestto the two that had fallen required shoring, as there was already snowon the roof and another snowstorm was forecast for the coming weekend.Footnote Mr. Kienerand Mr. Szvoren came up with a rough plan for the job at the site, andMr. Kiener designed the formal plans later that evening. Mr. Kienerarranged for a second company to deliver the truss shoring to the siteon November 25, which is when Contour was to begin the job; he alsoarranged for a third company, Clarence Wall & Ceiling (\u201cClarence\u201d), togo to the site on November 25 to begin building a shear wall at the edgeof the collapsed area. Footnote No one involvedin the project on November 23, either in phone calls or at the site,discussed the possibility of asbestos in the ceiling material. (Tr. 19,152-72, 198, 201-11; C-9, C-13). \/See also\/ Joint Statement, pp. 6-7, 12. On the morning of November 25, 2005, Mr. Kiener went to thesite and met with the Contour employees who were involved in theproject; these included Mr. Szvoren as well as Foreman Richard Chudzikand Ironworkers Robert McNermy, Mark Shanks and William Brown. Mr.Kiener showed his plans to Mr. Szvoren and Mr. Chudzik, and he discussedthe job with them. Mr. Kiener then left but returned several times thatday and the following two days. Mr. Szvoren also left but returnedvarious times that day and the next to take tools and other items to theworkers. Clarence employees also began their job on November 25, and Mr.Kiener and Mr. Szvoren both saw them working at the site. At some point,Mr. Kiener noticed the Clarence employees were wearing dust masks, and,on November 26, he called Stohl Environmental (\u201cStohl\u201d) in order to havethe ceiling debris tested. Mr. Kiener met Tony Franjoine of Stohl at thesite on November 27; Mr. Franjoine took samples of the debris and left.The Contour employees finished their work by early evening on November27, but the Clarence employees had not finished their work. Mr. Kienerdid not discuss the possibility of the ceiling material containingasbestos with anyone from Contour or Clarence on any of the three daysthat Contour worked at the site, and no one from Contour or Clarenceraised that concern with him or with Mr. Franjoine. (Tr. 171-81, 214-19;C-9, C-13). \/See also\/ Joint Statement, pp. 7-8, 12. At about 11:30 a.m. on November 28, 2005, Stohl faxed thetest results to Mr. Kiener; the results were that two of the threesamples had concentrations of nearly 60 percent asbestos. Mr. Kienerimmediately sent a fax to Clarence to advise it to remove its employeesfrom the site due to safety concerns; he did not send a fax to Contouras its work at the site was done. At about 1 p.m. that day, Mr. Kienermet with several individuals at the site, including Mr. Patel and Mr.Freitag. He passed out copies of the Stohl report and stated that theshoring was completed but that Clarence could do no more work because ofthe asbestos at the site; he also told Mr. Freitag that he should engageStohl directly for additional testing. After this point, Mr. Kiener hadno further involvement in the project. Further testing at the site byStohl, and subsequent testing by IsleChem and the State of New York,revealed results consistent with Stohl\u2019s initial report. Once Stohlfinished its testing, it recommended that the entire building be closed;the State of New York also directed the building to be vacated due tothe presence of asbestos. The building was in fact closed. (Tr. 180-86;C-1, pp. 4, 9, C-8, C-15). \/See also\/ Joint Statement, pp. 8, 12. Albert Stutz, an industrial hygienist (\u201cIH\u201d) with OSHA, wentto the site on December 8, 2005, after his office received a referralabout the roof collapse and employee exposure to asbestos. Afterentering the building, he met first with Roj Patel, Jay Patel\u2019s brother.He also met with various other people who were at the site, includingMr. Tredo, Mr. Eberhardt, Pete Cambio, who operated the bowling alleyand restaurant, a representative of IsleChem, and two representatives ofNFA, the adjuster for Nova. Footnote The IH held anopening conference and explained why he was there, after which helearned that Contour and Clarence had worked at the site after thecollapse, as had employees of the motel, restaurant and bowling alley;he also learned the State of New York had directed the building to beevacuated, due to the asbestos at the site, upon which he suggested thatthe meeting be moved to another location. On December 21, 2005, the IHwent to Contour\u2019s offices and held an opening conference; he spoke toMark Patton, Contour\u2019s president, and he also spoke to Mr. Szvoren, Mr.Chudzik and the ironworkers who had been at the site. Footnote The IH learnedthe dates Contour employees had worked at the site and what they hadbeen doing; he also learned, upon reviewing the various testing reports,that the ceiling material contained asbestos. Footnote The IH returnedto the site on January 5, 2006, and took his own sampling, and OSHA\u2019slab results of the ceiling material were consistent with those of theother entities that had tested it. Footnote In addition,another OSHA inspector who was with the IH took photos that showed thearea of the collapse and the ceiling material on the floor. Footnote Based on hisinspection, the IH determined Contour had not had actual knowledge theceiling material contained asbestos. The IH concluded, however, thatContour could have known of the presence of the asbestos and that it wastherefore in violation of the standards set out in the citation. (Tr.13-29, 35-90, 94-95, 101-04, 109-10, 114-24; C-1).\/The Secretary\u2019s Burden of Proof\/ To prove a violation of an OSHA standard, the Secretary mustprove by a preponderance of the evidence that: (1) the cited standardapplies, (2) the employer failed to comply with the terms of the citedstandard, (3) employees had access to the violative condition, and (4)the employer either knew or could have known with the exercise ofreasonable diligence of the violative condition. \/Astra PharmaceuticalProd., Inc.\/, 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981). \/Whether the Asbestos Standard Applies to Contour\u2019s Work at the Site \/ OSHA\u2019s asbestos standard is set out at 29 C.F.R. 1926.1101\/et seq\/. The asbestos standard \u201cregulates asbestos exposure in all workas defined in 29 CFR 1910.12(b), including but not limited to thefollowing: … (3) Construction, alteration, repair, maintenance, orrenovation of structures, substrates, or portions thereof, that containasbestos.\u201d Footnote \/See\/ 29 C.F.R.1926.1101(a). \u201cAsbestos-containing material\u201d (\u201cACM\u201d) is defined as \u201canymaterial containing more than one percent asbestos. \u201d \/See\/ 29 C.F.R.1926.1101(b). \u201cPresumed asbestos-containing material\u201d (\u201cPACM\u201d), on theother hand, is defined as follows:[T]hermal system insulation and surfacing material found in buildingsconstructed no later than 1980. The designation of a material as \u201cPACM\u201dmay be rebutted pursuant to paragraph (k)(5) of this section.\/Id\/. Finally, \u201csurfacing material\u201d is defined as:[M]aterial that is sprayed, troweled-on or otherwise applied to surfaces(such as acoustical plaster on ceilings and fireproofing materials onstructural members, or other material on surfaces for acoustical,fireproofing, and other purposes).\/Id\/. The parties have stipulated that the ceiling material anddebris at the site was PACM as defined by 29 C.F.R. 1926.1101(b). \/See\/Joint Statement, p. 13, \u00b6 E. The parties have also stipulated that theasbestos-containing material at the site was sprayed on and troweled onand used for sound insulation and fire insulation. \/Id\/., p. 8, \u00b6 26.Further, the parties have stipulated that Contour\u2019s employees handledthe ceiling material, that they cut through and removed sections of theceiling material with a saw, and that they dry-swept and shoveled theceiling material. \/Id\/., p. 8, \u00b6\u00b6 19-21. Footnote The IH testifiedthat Contour\u2019s employees were performing \u201cClass I asbestos work\u201d astheir work involved removing surfacing ACM and PACM, and his testimonymatches the definition of \u201cClass I asbestos work\u201d set out in thestandard. (Tr. 40-41). \/See also\/ 29 C.F.R. 1926.1101(b). Based on the foregoing, and the relevant facts set out\/supra\/, I find that the asbestos standard applies to the work Contour\u2019semployees were doing at the site. They were performing construction workand, in so doing, were removing and handling asbestos-containingmaterial. They were also performing \u201cClass I asbestos work\u201d because theywere removing surfacing ACM and PACM. The Secretary has accordingly mether burden of proving the applicability of the asbestos standard.\/Whether Contour Failed to Comply with the Cited Standards\/ The parties have stipulated that Contour did not take any ofthe regulatory actions required by the standards cited in the citationand complaint while Contour employees were working in the presence ofasbestos at the site; Contour asserts, however, it had no knowledge ofor reason to know of the asbestos at the site. \/See\/ Joint Statement, p.13, \u00b6 D. The cited standards are set out below, along with theparticular Joint Statement paragraph specifically relevant to each citedstandard. Footnote The transcriptcites of the testimony of IH Stutz relative to each item are also setout below.Item 1 Item 1 alleges a violation of 29 C.F.R. 1926.1101(d)(1),which provides that:On multi-employer worksites, an employer performing work requiring theestablishment of a regulated work area shall inform other employers onthe site of the nature of the employer\u2019s work with asbestos and\/or PACM,of the existence of and requirements pertaining to regulated areas, andthe measures taken to ensure that employees of such other employers arenot exposed to asbestos. Page 9, \u00b6 46 of the Joint Statement states that:Prior to completing work on November 27, 2005, Respondent did not informemployees of other employers at the worksite (e.g. Clarence Wall andCeiling) about the work that Respondent was doing in the presence ofasbestos or potentially asbestos-causing materials. The testimony of the IH as to Item 1 appears at pages 39-46of the transcript.Item 2 Item 2 alleges a violation of 29 C.F.R. 1926.1101(e)(1),which states, in pertinent part, that:All Class I, II and III asbestos work shall be conducted withinregulated areas. Page 10, \u00b6 47 of the Joint Statement provides that:While working at the worksite, Respondent did not establish a specificarea where Respondent\u2019s employees working in the presence of asbestoswere supposed to work. The testimony of IH Stutz in regard to this item is at pages50-53 of the transcript.Item 3 Item 3 alleges a violation of 29 C.F.R. 1926.1101(f)(1)(i),which states as follows:Each employer who has a workplace or work operation where exposuremonitoring is required under this section shall perform monitoring todetermine accurately the airborne concentrations of asbestos to whichemployees may be exposed. Page 10, \u00b6 48 of the Joint Statement provides that:Prior to completing work on November 27, 2005, Respondent did notperform exposure monitoring at the worksite to determine the airborneconcentrations of asbestos to which its employees might be exposed. The testimony of the IH as to Item 3 is at pages 54-56 ofthe transcript.Items 4a and 4b Item 4a alleges a violation of 29 C.F.R.1926.1101(g)(1)(ii), which requires the use of:Wet methods, or wetting agents, to control employee exposures duringasbestos handling, mixing, removal, cutting, application, and cleanup…. Page 9, \u00b6 49 of the Joint Statement provides as follows:While working at the worksite, Respondent\u2019s employees did not use wetmethods or wetting agents to control employee exposure while working inthe presence of asbestos. Item 4b alleges a violation of 29 C.F.R. 1926.1101(g)(5),which states that:In addition, Class I asbestos work shall be performed using one of moreof the following control methods pursuant to the limitations statedbelow: (i) Negative Pressure Enclosure (NPE) systems … (ii) Glove bagsystems … (iii) Negative pressure glove bag systems … (iv) Negativepressure glove box systems … (v) Water spray process system … (vi) Asmall walk-in enclosure … (mini-enclosure)…. There is no Joint Statement paragraph specifically relevantto this particular standard; however, as noted above, the parties havestipulated that Respondent did not comply with any of the standards setout in the citation and complaint. \/See\/ Joint Statement, p. 13, \u00b6 D.The testimony of IH Stutz with respect to Items 4a and 4b appears atpages 56-61 of the transcript.Item 5 Item 5 alleges a violation of 29 C.F.R. 1926.1101(g)(3)(i),which prohibits the use of:High-speed abrasive disc saws that are not equipped with point of cutventilator or enclosures with HEPA filtered exhaust air. Page 10, \u00b6 50 of the Joint Statement provides as follows:While working at the worksite, Respondent\u2019s employees used a high-speeddisc saw which was not equipped with point-of-cut ventilators orcharcoal HEPA filter exhaust air. The testimony of the IH relating to this item is at pages61-63 of the transcript.Item 6 Item 6 alleges a violation of 29 C.F.R.1926.1101(g)(3)(iii), which prohibits:Dry sweeping, shoveling or other dry clean-up of dust and debriscontaining ACM and PACM. Page 10, \u00b6 51 of the Joint Statement provides that:While working at the worksite, Respondent\u2019s employees removed dust anddebris at the worksite by pushing aside the debris into piles withoutusing wet methods. The testimony of IH Stutz as to Item 6 appears at pages63-65 of the transcript.Item 7 Item 7 alleges a violation of 29 C.F.R. 1926.1101(g)(4)(i),which provides that:All Class I work, including the installation and operation of thecontrol system shall be supervised by a competent person as defined inparagraph (b) of this section. Page 10, \u00b6 53 of the Joint Statement states as follows:While working at the worksite, Respondent did not employ a competentperson who was capable of supervising employees who were working in thepresence of and\/or handling and removing asbestos. The testimony of IH Stutz regarding Item 7 is at pages 65-69of the transcript.Items 8a and 8b Item 8a alleges a violation of 29 C.F.R. 1926.1101(h)(1)(i),which states that:For employees who use respirators required by this section, the employermust provide respirators that comply with the requirements of thisparagraph. Respirators must be used during: (i) Class I asbestos work. Page 10, \u00b6\u00b6 60 and 61 of the Joint Statement provide that:60. While working at the worksite, Respondent did not provide itsemployees with respirators.61. While working at the worksite, Respondent\u2019s employees did not userespirators. Item 8b alleges a violation of 29 C.F.R. 1926.1101(h)(2)(i),Footnote whichstates as follows:The employer must implement a respiratory protection program inaccordance with 29 CFR 1910.134 (b) through (d) (except (d)(1)(iii)),and (f) through (m). Page 10, \u00b6 56 of the Joint Statement provides that:While working at the worksite Respondent did not implement a respiratoryprotection plan which complied with the OSHA asbestos standards. The testimony of the IH as to Items 8a and 8b is set out atpages 69-74 of the transcript.Item 9 Item 9 alleges a violation of 29 C.F.R. 1926.1101(i)(1),which states that: The employer shall provide or require the use of protectiveclothing…. Page 10, \u00b6 57 of the Joint Statement provides that:While working at the worksite, Respondent did not require each employeeworking in the presence of asbestos to use any special clothingprotections for asbestos. The testimony of the IH in regard to this item is at pages74-77 of the transcript.Item 10 Item 10 alleges a violation of 29 C.F.R. 1926.1101(i)(3),which states as follows:Contaminated clothing shall be transported in sealed impermeable bags,or other closed, impermeable containers, and be labeled in accordancewith paragraph (k) of this section. Page 10, \u00b6 58 of the Joint Statement provides that:While working at the worksite, Respondent did not require each employeeworking in the presence of asbestos to transport clothes in labeled andsealed impermeable bags or other labeled and closed containers. The testimony of IH Stutz relating to this item appears atpages 77-80 of the transcript.Item 11 Item 11 alleges a violation of 29 C.F.R. 1926.1101(j)(1)(i),which provides that:The employer shall establish a decontamination area that is adjacent andconnected to the regulated area for the decontamination of suchemployees. The decontamination area shall consist of an equipment room,shower area, and clean room in series. The employer shall ensure thatemployees enter and exit the regulated area through the decontaminationarea. Page 11, \u00b6 59 of the Joint Statement states that:While working at the worksite, Respondent did not establish an area witha shower and a clean room for decontamination of workers, material, andequipment that were contaminated with asbestos. The testimony of the IH as to Item 11 is set out at pages80-83 of the transcript.Item 12 Item 12 alleges a violation of 29 C.F.R. 1926.1101(k)(3)(i),which states as follows:Before work in areas containing ACM and PACM is begun; employers shallidentify the presence, location, and quantity of ACM, and\/or PACMtherein pursuant to paragraph (k)(1) of this section. Page 9, \u00b6 36 of the Joint Statement provides that:Prior to completing work on November 27, 2005, Respondent did notdetermine whether there was asbestos or potentially asbestos containingmaterials at the worksite. The testimony of the IH in regard to this item is at pages83-85 of the transcript.Item 13 Item 13 alleges a violation of 29 C.F.R. 1926.1101(k)(9)(i),which provides that:The employer shall, at no cost to the employee, institute a trainingprogram for all employees who are likely to be exposed in excess of aPEL and for all employees who perform Class I through IV asbestosoperations, and shall ensure their participation in the program. Page 10, \u00b6 52 of the Joint Statement states that:Prior to completing work on November 27, 2005, Respondent\u2019s employeeswere not trained how to recognize asbestos or implement asbestos controls. The testimony of IH Stutz with respect to this item is atpages 85-88 of the transcript.Item 14 Item 14 alleges a violation of 29 C.F.R.1926.1101(l)(4)(ii), Footnote which requireswaste and debris containing surfacing ACM\/PACM to be: [P]romptly cleaned up and disposed of in leak tight containers. Page 11, \u00b6 62 of the Joint Statement provides as follows:While working at the worksite, Respondent\u2019s employees did not dispose ofdebris in leak-tight containers. The testimony of IH Stutz as to Item 14 appears at pages88-90 of the transcript. In view of the foregoing, the Secretary has met her burdenof demonstrating that Contour failed to comply with the terms of all ofthe cited standards.\/Whether Contour\u2019s Employees had Access to the Violative Conditions\/ It is clear from the Joint Statement and the relevant factsof this case, set out \/supra\/, that Contour\u2019s employees had access tothe violative conditions while working at the site. The Secretary hasthus met her burden of showing the employee access element of her case.\/Whether Contour had Knowledge of the Violative Conditions\/ There is no dispute that Contour did not have actualknowledge that there was asbestos in the building and that,consequently, it was required to comply with the cited standards. \/See\/the relevant facts, set out above. \/See also\/ Joint Statement, p. 9, \u00b6\u00b635-45, p. 12, \u00b6\u00b6 2-12, p. 13, \u00b6 D. The issue, therefore, is whetherContour had constructive knowledge, that is, whether it could have knownof the asbestos in the building and the cited conditions with theexercise of reasonable diligence. \/Astra Pharmaceutical Prod., Inc.\/, 9BNA OSHC 2126, 2129 (No. 78-6247, 1981). The Secretary contends Contourcould have known of the asbestos in the building, based on thebuilding\u2019s age, the ceiling debris at the site, and the language of theasbestos standard. Contour contends, however, that it had no reason toknow about the asbestos in the building. It points out that neither itnor anyone else involved in the project had any knowledge of theasbestos in the building. It further points out that it is an erectioncontractor and does not work with asbestos-containing materials. IH Stutz testified that Contour could have known there wasasbestos in the building due to the presence of the ceiling debris, awhite flaky material that could be seen throughout the work area; heagreed, however, that non-asbestos sprayed-on ceiling material has thesame appearance. He further testified that it was apparent the buildingwas older and that older buildings typically contain asbestos; Contourcould have asked the owner the building\u2019s age, done an internet search,or gone to the assessor\u2019s office in Hamburg, or Contour could have hadthe ceiling material tested. The IH noted that Mr. Szvoren had told himhe thought the building was older due to its wooden trusses, somethingthat is not seen in more recent construction; in fact, Mr. Szvoren toldhim he believed the building could have been built in the thirties andthat it might have been an airplane hangar that was used during WorldWar II. (Tr. 38-39, 124-25). Mr. Szvoren testified that he never asked about asbestos atthe site because Contour is a steel erection company and does not dealwith asbestos; he indicated that in any project involving asbestos, theowner or general contractor advises Contour in advance, any asbestoswork is taken care of by another contractor, and Contour has nothing todo with it. Mr. Szvoren also testified that Mr. Kiener told him theproject was an emergency because people were in the building and anotherheavy snowfall could cause a further roof collapse. He noted that thesubject of asbestos never came up at the site and that he was not awareof the Stohl report until he was deposed before the hearing. He agreedhe had said at his deposition that there is a higher likelihood ofasbestos in buildings built before 1970 as asbestos use then wasprevalent. (Tr. 201-02, 205, 208-10, 214-19, 221-24). I find that Contour, through Mr. Szvoren, could have knownof the presence of the asbestos at the site with the exercise ofreasonable diligence. Commission precedent is well settled that\u201c[r]easonable diligence involves several factors, including anemployer\u2019s \u2018obligation to inspect the work area, to anticipate hazardsto which employees may be exposed, and to take measures to prevent theoccurrence.\u2019\u201d \/Pride Oil Well Serv.\/, 15 BNA OSHC 1809, 1814 (No.87-692, 1992), citing to \/Frank Swidzinski Co.\/, 9 BNA OSHC 1230, 1233(No. 76-4627, 1981). Moreover, in other cases similar to this one thatinvolved exposure to health hazards, where the employer argued it had noreason to know of the cited hazard, the Commission found that theemployer could have known of the hazard had it exercised reasonablediligence. \/See, e.g., Greenleaf Motor Express, Inc.\/, 21 BNA OSHC 1872,1874-75 (No. 03-1305, 2007);\/Continental Elec. Co.\/, 13 BNA OSHC 2153,2154 (No. 83-0921, 1989); \/Hermitage Concrete Pipe Co.\/, 10 BNA OSHC1517, 1518-19 (No. 4678, 1982); \/Mahone Grain Corp.\/, 10 BNA OSHC 1275,1277, 1278-79 (No. 77-3041, 1981). Here, Mr. Szvoren knew the building was older, based on whathe told the IH; he also knew there was a higher likelihood of asbestosin older buildings. Footnote (Tr. 38, 224).Further, at the subject site, Mr. Szvoren saw ceiling debris hanging\u201ceverywhere\u201d in the area of the collapse. (Tr. 207). As the IHindicated, the presence of the debris should have alerted Mr. Szvoren tothe possibility of the ceiling material containing asbestos, especiallysince Mr. Szvoren knew the building was older; in my view, thatnon-asbestos sprayed-on ceiling material has the same appearance doesnot excuse an employer, in these circumstances, from investigatingfurther. In addition, Mr. Kiener testified that he saw Clarenceemployees using dust masks while working at the site, which caused himto contact Stohl to test the ceiling material; as Mr. Kiener put it, \u201cIwanted to know what it was for myself.\u201d (Tr. 178). Mr. Szvoren alsotestified that he saw the Clarence employees working when he visited thesite, and it is reasonable to infer that he saw them wearing dust masks;this observation should have prompted him to ask questions about theceiling material\u2019s contents. (Tr. 216-18). There is a further reason for finding that Contour hadconstructive knowledge of the asbestos at the site. The asbestosstandard states at section 1926.1101(k)(1) as follows:\/Communication of hazards\/. (1) This section applies to thecommunication of information concerning asbestos hazards in constructionactivities to facilitate compliance with this standard. Mostasbestos-related construction activities involve previously installedbuilding materials. Building owners often are the only and\/or bestsources of information concerning them. Therefore, they, along withemployers of potentially exposed employees, are assigned specificinformation conveying and retention duties under this section. InstalledAsbestos Containing Building Material. Employers and building ownersshall identify TSI and sprayed or troweled on surfacing materials inbuildings as asbestos-containing, unless they determine in compliancewith paragraph (k)(5) of this section that the material is notasbestos-containing. Asphalt and vinyl flooring material installed nolater than 1980 must also be considered as asbestos containing unlessthe employer, pursuant to paragraph (g)(8)(i)(I) of this sectiondetermines that it is not asbestos-containing. If the employer\/buildingowner has actual knowledge, or should have known through the exercise ofdue diligence, that other materials are asbestos-containing, they mustbe treated as such. When communicating information to employees pursuantto this standard, owners and employers shall identify \u201cPACM\u201d as ACM. As I read the foregoing, the standard requires buildingowners and employers of potentially-exposed employees to identifycertain materials (including sprayed- or troweled-on surfacingmaterials) in buildings built before 1981 as asbestos-containing,\/unless\/ the building owner or employer shows, pursuant to section1926.1101(k)(5), that the PACM does not contain asbestos; section1926.1101(k)(5) requires this showing to be made by a \u201ccompletedinspection\u201d pursuant to 40 C.F.R. Part 763, subpart E, or by testingpursuant to 40 C.F.R. 763.86, that demonstrates the material is not ACM.Stated another way, the standard creates a presumption that certainmaterials in buildings built before 1981 are asbestos-containing unlessinspection or testing of the materials as required shows they do notcontain asbestos. The Commission has upheld the presumption, finding ina decision issued in 2000 that, because the employer did not perform therequired testing or inspection of the PACM to rebut the presumption thecited material contained asbestos, the employer violated the citedstandards. \/Odyssey Capital Group\/, 19 BNA OSHC 1252 (No. 98-1745,2000). \/See also James R. Howell & Co.\/, 19 BNA OSHC 1277 (No. 99-1348,2000). The building in this case was built in 1960, creating apresumption that the ceiling material contained asbestos. No testing ofthe material was done until after Contour finished its work at the site;therefore, Contour was required to comply with the cited standards.Based on the facts of this case, the language of the standard and theCommission precedent set out above, I find that Contour had constructiveknowledge of the asbestos at the site. Footnote I further findthat, as the Secretary has shown employer knowledge, the final elementof her case, Contour was in violation of the cited standards. In sofinding, I have considered Contour\u2019s arguments that no one involved inthe project knew there was asbestos in the building and that, as anerection contractor, it does not deal with asbestos at its work sites.These arguments do not change the fact that Contour\u2019s employees wereexposed to asbestos at the site and that, under the standard andCommission precedent, Contour could have known of the asbestos with theexercise of reasonable diligence. Items 1 through 14 of Citation 1 areaffirmed. The items are affirmed as serious violations in light of theserious illnesses, and even death, that can result from exposure toasbestos. (Tr. 44).\/Penalty Determination\/ The Secretary has proposed a penalty of $3,000.00 for eachof the 14 citation items. In assessing penalties, the Commission isrequired to give due consideration to the gravity of the violations andto the employer\u2019s size, history and good faith. \/J.A. Jones Constr.Co.\/, 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors arenot necessarily accorded equal weight, and the gravity of the violationsis generally the most important factor. \/Trinity Indus., Inc.\/, 15 BNAOSHC 1481, 1483 (No. 88-2691, 1992). IH Stutz testified the violationswere considered to have high gravity due to Contour\u2019s employees beingexposed to asbestos for three full days at the site; in addition, nocontrol measures or precautions were taken, and the asbestos content ofthe ceiling material was high. The IH said the unadjusted base penaltywas $5,000.00 and that a 40 percent reduction was given for theemployer\u2019s size, resulting in a proposed penalty of $3,000.00 for eachitem; however, no reduction was given for history because of the seriouscitations Contour had received in the past three years, and no reductionfor good faith was given because of the lack of any control measures orprecautions to protect employees. (Tr. 44-50; C-17-22). In view of thetestimony of IH Stutz, I find that a penalty of $3,000.00 for eachcitation item, resulting in a total penalty of $42,000.00, isappropriate. The total proposed penalty of $42,000.00 is accordinglyassessed.\/ORDER\/ Based on the foregoing findings of fact and conclusions oflaw, it is ORDERED that: Items 1 through 14 of Serious Citation 1, allegingviolations as set out in the body of this decision, are AFFIRMED. Apenalty of $3,000.00 is assessed for each item, resulting in a totalassessed penalty of $42,000.00. \/s\/ CovetteRooney Judge,OSHRC Dated: April 16, 2007 Washington, D.C.”