“SECRETARY OF LABOR,Complainant,v.DUQUESNE LIGHT COMPANY,Respondent,INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, LOCAL 142,AuthorizedEmployeeRepresentative.OSHRC Docket No. 79-1682_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor has petitioned us to reverse that part ofAdministrative Law Judge Benjamin G. Usher’s decision in which the judgevacated charges that Duquesne Light Company violated OSHA asbestosstandards requiring initial monitoring of the workplace and annualmedical exams for exposed employees, 29 C.F.R. ?? 1910.1001(f)(1) and(j)(3).[[1]] The Secretary also takes exception to Judge Usher’sfinding that Duquesne’s violation of certain other provisions of theasbestos standard should be characterized as nonserious. The Secretaryalleges that all the violations were serious and that some werewillful. Duquesne argues that the judge erred in finding any violationsbecause the evidence was insufficient that Duquesne knew or reasonablycould have known its employees were working with asbestos. We affirmthe judge’s decision on all these matters for the reasons given below._FACTS_On September 12, 1978, several Duquesne employees removed insulationfrom the top half of a turbine as part of a major overhaul of turbine #3at Duquesne’s Phillips Power Station in South Heights, Pa. The overhaulhad been scheduled about a year in advance. Duquesne usually has largeinsulation jobs like this performed by an independent contractor. Therecord does not indicate why that was not done here. Duquesnemaintenance mechanics and janitors used tools to chop the dry insulationaway and threw the pieces into open cardboard drums. The testimonyindicated that these were approximately the same procedures used duringprevious insulation removal jobs.There are four turbines in the plant and they ordinarily are overhauledevery five years. Some of the Duquesne employees involved in the citedproject had been engaged in previous turbine insulation removaloperations. One employee, Pash, testified that he had been amaintenance mechanic with Duquesne for 16 to 17 years; that he hadworked on turbine overhauls before September 12, 1978; that insulationmust be removed each time an overhaul is done; and that he understoodthat the insulation was asbestos because some of it was labeled\”asbestos\” in the storeroom. No other content labels appeared on anyinsulation. He also testified that he removed and replaced insulationwhenever steam lines or hot water lines were repaired.[[2]]Another employee, Dabney, who had worked for Duquesne for 28 years andhad been a mechanic at Phillips Station for 10 years, testified that hehad removed what he called \”asbestos\” insulation from turbines on twooccasions. The jobs were at a different station and each job tookperhaps four hours. He also testified that he remembered removinginsulation from valves on an unspecified number of occasions. Dabneydid not know for a fact that the insulation removed was asbestos, andthe record reflects that many employees used the term \”asbestos\” in ageneric sense to refer to all insulation.It is undisputed on review that the operation did not comply with theasbestos standard in the following respects: the permissible ceilingexposure limit was exceeded as to three employees and the permissibleeight-hour time-weighted average (\”TWA\”) exposure limit was exceeded asto one employee;[[3]] the asbestos was not wetted to reduce airborneasbestos fibers; the appropriate respirators were not used; Duquesne’srespirator program was not sufficient; sufficient protective clothingwas not provided or required to be used; separate lockers or containersfor asbestos-contaminated clothing and street clothes were not provided;closed, impermeable containers with proper warning labels were not usedto transport the contaminated clothing; and caution signs were notposted at approaches to the area around the turbine. It also isundisputed on review that Duquesne never had done monitoring forasbestos in Phillips Station and that the employees involved here hadnot had physical exams annually during their employment. The issuesbefore us are whether compliance with the asbestos standard was requiredand, if so, whether the violations were serious and whether some of themwere willful.An OSHA compliance officer (\”CO\”) testified that Phillips Stationsuperintendent Phillip DeSalle was among a group of Duquesne managementofficials who discussed the question of insulation removal with him onAugust 4, 1978, in the course of an earlier inspection of an insulatingcontractor that had worked at Duquesne’s Phillips Station. The COtestified that certain Duquesne management employees showed him awritten 10-step procedure that its employees were to follow in removinginsulation that was considered to be asbestos.[[4]] The CO alsotestified that DeSalle told him that if Duquesne employees removedinsulation, they would assume they were working with asbestos.The 10-step procedure was not followed during the September 12 operationalthough the two employees in charge of the operation, DeSalle and RalphNelson, knew of it. They testified that the procedure was not followedbecause they did not believe the insulation being removed containedasbestos. DeSalle, who had overall responsibility for that operation,was aware that asbestos was considered unsafe and Nelson, Duquesne’sengineer in charge of the September 12 project, was aware that asbestoswas a suspected carcinogen.Before the September 12 operation, DeSalle and Nelson both had inspectedthe insulation on turbine #3 and concluded that the insulation on theupper portion of the turbine was mineral wool. Nelson noted its \”wooly,jaggy\” feel and believed asbestos to be a softer material. DeSallenoted it was grayish tan in color, whereas asbestos normally was white. Crane, an OSHA physical scientist, testified that it would be extremelydifficult to determine whether or not asbestos was present in insulationbased on a visual examination.DeSalle’s belief that the material was mineral wool was reinforced byhis observation that the insulation was sprayed-on and his recollectionthat all the sprayed-on insulation had been mineral wool. Both men alsobased their conclusion that the insulation was mineral wool in part ontheir recollection that use of asbestos products had been discontinuedsome years before. DeSalle testified that the material on turbine #3looked like the insulation removed earlier in 1978 from turbine #4. That material had been applied in 1976, after Duquesne had issued adirective in early 1975 which read: \”[I]t is important that all futureinsulation products be asbestos free where feasible.\” Not only were themen aware of the 1975 directive, but they also knew that in the latterhalf of 1972, AC & S, Inc., an insulation contractor to Duquesne whichhad installed the asbestos insulation on turbine #3 in March of thatyear, had discontinued applying asbestos insulation. And by notice ofJuly 19, 1972, Duquesne’s Transmission and Distribution Department haddiscontinued use of \”asbestoment cement and asbestos tape used forfireproofing.\” There is no evidence that DeSalle, Nelson or any otheremployee knew that the insulation on the top portion of the turbine wasasbestos.During the initial inspection, DeSalle concluded that the insulation onthe lower half of the turbine probably did contain asbestos.[[5]] However, on the day of the inspection, only the insulation on the toppart of the turbine was being removed, which was believed to be mineralwool. The older insulation on the bottom was to be removed at a laterdate using different procedures applicable to work with asbestos.Dr. Parkinson, a medical expert presented by the Secretary, testifiedthat medical science has not determined a safe level of exposure toasbestos, and that there is some low possibility of contracting cancerbased on any amount of exposure. Dr. Parkinson’s testimony alsoindicated that it has not been established that there is no safe levelof asbestos exposure. To his knowledge, no studies involving theeffects of one day of exposure have been done. He testified concerningnumerous studies that have linked intermittent or vicarious asbestosexposures to cancers. However, all those studies dealt with exposuresrepeated over a period of time. Dr. Parkinson gave his opinion thatemployees who had a one-time exposure to asbestos for three or fourhours at the highest levels measured by the compliance officer faced avery low potential of developing cancer._JUDGE’S DECISION_The judge vacated the charge that Duquesne had failed to perform initialmonitoring as required by ? 1910.1001(f)(1) on the ground that thestandard does not apply to a workplace like Duquesne’s where asbestosfibers were not ordinarily released and where installation or removal ofasbestos insulation was unrelated to Duquesne’s principal business. Thejudge vacated the charge that Duquesne failed to provide annual medicalexams under ? 1910.1001(j)(3) on the related ground that that standarddoes not apply where, as here, employees are not usually engaged inworking with asbestos.The judge found violations based on the employees’ measured exposuresabove the ceiling and 8-hour TWA permissible limits. He also affirmedthe items of the citation based on Duquesne’s failure to use wetmethods, appropriate respirators, sufficient protective clothing,properly sealed containers for contaminated clothes and caution signs atapproaches to the asbestos removal area. He also found a violationbased on the inadequacy of Duquesne’s respirator program and its failureto provide separate lockers for contaminated and non-contaminatedclothing. Judge Usher rejected Duquesne’s argument that the companycould not have known with the exercise of reasonable diligence that theinsulation on turbine #3 was asbestos. He pointed to evidence that amere check of its own records or a phone call to AC & S would haveprovided that information. The judge found that Duquesne had \”proceededon the blind presumption that its employees were not working with apotentially lethal substance.\”The judge found that the Secretary had failed to demonstrate that any ofthe violations were serious. Judge Usher found there was no proof ofexposure of any employees apart from this specific operation. Heinterpreted the definition of a serious violation in section 17(k) ofthe Act, 29 U.S.C. ? 666(j),[[6]] to require a showing of a substantialprobability of death or serious physical harm resulting from theseisolated exposures in order to establish a serious violation. He notedthat Dr. Parkinson had testified only that there was a \”potential healthhazard\” from the isolated exposures and that these employees faced avery low probability of developing any asbestos-related disease in thefuture. He rejected the Secretary’s argument that because there is noknown safe level of asbestos exposure, any excessive exposure toasbestos must be considered serious. The judge concluded that such anargument is speculative and does not substitute for factual proof on theissue.The judge also rejected the Secretary’s claim that certain of theviolations were willful. The willful allegations were based on theallegedly lax attitude of Duquesne’s management toward known cancerrisks. Judge Usher ruled that Duquesne’s conduct was simply thoughtlessreliance on a supposition that asbestos was not present — a presumptionthat he found had some basis in fact. He concluded that Duquesne had notexhibited the level of defiance, disregard, or indifference to the Act’srequirements which would justify calling the violations willful._OPINION_1. _Knowledge issue_Duquesne urges in its brief that we vacate all items of both citations,including those items affirmed by the judge, on the ground that theSecretary failed to prove that Duquesne knew or could have known of theviolations with the exercise of reasonable diligence. However, we agreewith the judge that Duquesne did not exercise reasonable diligence infailing to properly identify the insulation’s content. The insulationon the top of turbine #3 had been installed early in 1972, before eitherDuquesne or AC & S had begun to discontinue the use of asbestosproducts. Nelson had negotiated the contract for installation of theinsulation and had not specified that non-asbestos insulation be used. Thus, Duquesne’s supervisors could not rely an any policy to discontinuethe use of asbestos and should have known that a more thorough check ofthe insulation’s content was necessary. As the judge noted, a merecheck of Duquesne’s own records or a telephone call to the contractorwho had installed the insulation would have sufficed. Since the job hadbeen planned a year in advance, no sudden urgency precluded a morediligent effort than was expended to ascertain the presence of asbestos. The record indicates that Duquesne could have known of the existenceof the asbestos violations with the exercise of reasonable diligence.2. _Alleged initial monitoring violation_The Secretary argues that the judge’s interpretation of the citedstandard, ? 1910.1001(f)(1), as being limited to workplaces whereasbestos fibers \”ordinarily\” are released is contrary to its plainmeaning as well as Commission precedent. He cites _Research-Cottrell,Inc_., 81 OSAHRC 26\/B13, 9 BNA OSHC 1489, 1497, 1981 CCH OSHD ? 25,284,pp. 31,263-64 (No. 11756, 1981), and _GAF Corp_., 75 OSAHRC 3\/A2, 3 BNAOSHC 1686, 1975-76 CCH OSHD ? 20,163 (Nos. 3203 _et al_., 1975),_aff’d_, 561 F.2d 913 (D.C. Cir. 1977), for the proposition thatmonitoring is required in any workplace where employees are exposed toany measurable concentration of asbestos fibers. The Secretary notesthat no monitoring had been done at Phillips Station even though therehad been repair work and turbine overhauls at five-year intervals andDuquesne’s policy was to assume it was working with asbestos whenremoving insulation.Duquesne argues that the Commission need not read _GAF_ and_Research-Cottrell_ to cover workplaces where asbestos fibers are notordinarily released, as both those cases involved regular exposure toasbestos as a function of the employee’s occupation. It argues that thejudge’s interpretation of the standard is consistent with its plainmeaning, pointing to the statement in the standard that monitoring mustbe done \”[w]ithin 6 months of the publication of this section\” (whichoccurred in 1972)[[7]] and the requirement of periodic representativemonitoring following the initial monitoring under ?? 1910.1001(f)(2)(ii)and (f)(3)(ii). Duquesne argues that these requirements imply thatmonitoring requirements apply only to workplaces with regular employeeexposure.In _GAF_, the Commission held-that the provisions of the asbestosstandard requiring initial monitoring and medical examinations appliedto employees in occupations that \”were, by their nature, regularlyexposed to airborne concentrations of asbestos fibers\” even though theconcentrations were within permissible exposure levels. 3 BNA OSHC at1692, 1975-76 CCH OSHD at 23,982. The parties in that case stipulatedthat the employees were regularly exposed to asbestos by the nature oftheir jobs. Similarly, in _Research-Cottrell_, the cited employer’semployees were regularly exposed to airborne concentrations of asbestosin the course of installing asbestos sheets in the construction of largecooling towers at nuclear plants. The installation of the asbestossheets took approximately eight months.In this case, the removal of insulation from the top of turbine #3 tookless than five hours. Removal of insulation on the four turbinesoccurred once every five years and there is no evidence to suggest thatin each case the insulation removed contained asbestos. No previousCommission or court decision has considered whether the initialmonitoring and medical exam requirements apply to an isolated one-dayoperation such as in this case involving employees in an occupation notregularly exposed to asbestos. [[8]]Read as a coherent whole, the monitoring provisions of the asbestosstandard do not apply here. We therefore affirm the judge’s decision. Following initial monitoring, employers are required to do periodicmonitoring. In no case is this sampling to be done at intervals greaterthan six months, where employee exposures may reasonably be foreseen toexceed permissible limits. Sections 1910.1001(f)(2)(ii) and(f)(3)(ii). Even if we were to accept the Secretary’s argument thatDuquesne employees were exposed to asbestos each time a turbine overhauloperation was done — and we do not accept that argument — thoseoperations occurred once every five years on the four turbines. Section1910.1001(f) does not contemplate that employers must monitor suchsporadic operations.[[9]]3. _Alleged annual medical exam violation_The Secretary again attacks the judge’s limitation of the scope of thecited standard, ? 1910.1001(j)(3), to occupations \”ordinarily\” or\”usually\” exposed to asbestos fibers. In this regard the Secretarycites _Research-Cottrell_, _supra_, and _Anaconda Aluminum Co._, 81OSAHRC 27\/A2, 9 BNA OSHC 1460, 1981 CCH OSHD ? 25,300 (No. 13102,1981). Duquesne argues that the judge’s interpretation is consistentwith the express language of the standard, applying it only tooccupations exposed to airborne concentrations of asbestos fibers. Duquesne also argues that no violation was shown on the facts becausethe cited standard allows one year for compliance from the time theemployees first are exposed to airborne concentrations of asbestos fibers.The judge also properly disposed of this item. The standard appliesonly to \”employees engaged in occupations exposed to airborneconcentrations of asbestos fibers.\” \”Occupation\” in this sense means aperson’s usual or principal business or employment. _E.g_., _RandomHouse Dictionary of the English Language_ 996 (1971). Thus, anoccupation exposed to asbestos fibers must be one with at least somedegree of regular asbestos exposure. No previous Commission or courtdecision, including _Anaconda_, has applied the medical exam provisionsto exposures found to be isolated, and we believe that would beunreasonable. Only one day of asbestos exposure was proven in this casefor any of the employees involved (see n. 8 _supra_). Since there wasno showing of recurring employee exposure to asbestos outside of thisisolated project, employees were not shown to be engaged in anoccupation that was exposed to asbestos fibers.4. _Alleged Seriousness_The Secretary points to Dr. Parkinson’s testimony that the employees’exposures on September 12, 1978, posed a potential health problem. TheSecretary argues that to establish a serious violation under Commissionprecedent he need not show a substantial probability that the violations_would_ lead to a serious disease, but only a substantial probabilitythat they _could_ lead to a serious disease. He argues that under_Anaconda_ he need not show more than one excessive exposure on one dayfor a serious violation. Even assuming he must show chronic excessiveexposures, the Secretary argues he has done so here.Duquesne criticizes the definition of seriousness in _Anaconda_ as a_per_ _se_ rule that virtually every overexposure to a toxic substanceis a serious violation no matter how trifling or transitory. Duquesnepoints out that in _Usery v. Hermitage Concrete Pipe Co._, 584 F.2d 127(6th Cir. 1978), the court rejected the proposition that any excessiveexposure to a substance that can cause cancer is a serious violation. 584 F.2d at 132-33. Duquesne argues that the better test is that statedby Chairman Rowland in his dissent in _Seaboard Foundry, Inc_., 11 BNAOSHC 1398, 1983 CCH OSHD ? 26,522 (No. 77-3964, 1983), under which theSecretary generally must establish by specific evidence a substantialprobability that a life-threatening disease could result from theexposure in question.In _Anaconda_, the Commission held that OSHA standards must beinterpreted and applied in a manner consistent with the Secretary’sintent in promulgating them, and that, in deciding whether a violationis serious, the Commission must look to the hazard which the standard isdesigned to prevent. The Commission found that a violation of apermissible exposure level was a serious violation where the purpose inlimiting exposure to the substance involved [coal tar pitch volatiles]was to protect against contraction of a life-threateningdisease–cancer. Although seriousness was found based on measurementsof one day’s exposure, the operations involved there were regular andongoing. _Id_., 9 BNA OSHC at 1462, 1981 CCH OSHD at pp. 31,334-35.Conversely, in _Hermitage Concrete Pipe Co._, 82 OSAHRC 14\/A2, 10 BNAOSHC 1517, 1982 CCH OSHD ? 25,975 (No. 4678, 1982), the Commissionindicated that no finding of seriousness would be warranted based on oneday’s violative exposure to a potentially life-threatening aircontaminant, silica dust, if the evidence showed those one-day exposureswere (1) insufficient by themselves to cause serious consequences and(2) not representative of exposures on other days. Thus, reading_Hermitage_ and _Anaconda_ together, an isolated one-day exposure wouldnot be considered serious unless that isolated exposure were shown to besufficient to cause serious consequences.No such showing has been made here. We previously have found that thereis insufficient evidence that any employees involved in the September12, 1978 operation were exposed to asbestos at other times. In orderfor these violations to be characterized as serious under the Act, theremust be evidence of a substantial probability that a serious diseasecould result from these isolated exposures. The Secretary’s medicalexpert testified that these isolated exposures resulted in a very lowprobability of cancer and the medical testimony gave no firm, positivebasis on which to conclude that the exposures could cause or contributeto any asbestos-related disease. So far as the record shows, no studieshave been done of isolated exposures similar to those proven here. Weinterpret the testimony regarding the possibility of contracting cancerfrom any amount of asbestos exposure as meaning that such possibilitycannot be ruled out because it has been neither proven nor disproven. The fact that science has been unable to find a safe level of exposureto asbestos does not establish affirmatively that an isolated exposurecan cause serious consequences. It was the Secretary’s burden to makesuch an affirmative showing in this case. The evidence here raises onlya speculative possibility that the isolated exposures could lead toasbestos-related disease.Our conclusion that the alleged violations are not serious is consistentwith both the Secretary’s and the Commission’s past treatment ofasbestos standard violations. For example, in _Research-Cottrell_ theCommission affirmed a citation involving an employer’s failure toinitially monitor asbestos levels or to administer medical examinationsunder the same standards at issue here. In that case, involvingexposure of employees to asbestos for up to eight months, the Secretaryspecifically determined that the violations were nonserious. TheAdministrative Law Judge characterized the citation as involving \”lowgravity\” violations and the Commission agreed, affirming the Judge’sdecision not to assess a penalty for those non-serious violations. 9BNA OSHC at 1499, 1981 CCH OSHD at p. 31,265. _See_ _also_ _HullPottery Co_., 82 OSAHRC 18\/D9, 10 BNA OSHC 1575, 1982 CCH OSHD ? 25,972(No. 78-555, 1982); _Baldwin Industries, Inc._, 82 OSAHRC 19\/A2, 10 BNAOSHC 1572, 1982 CCH OSHD ? 25,980 (No. 78-741, 1982).5. _Alleged Willfulness_The Secretary argues that Duquesne’s management acted with plainindifference to the Act’s requirements by failing to take substantialmeasures to protect its employees, despite knowing of the OSHArequirements and the grave hazards involved. The Secretary relies onthe Commission’s test of willfulness stated in _Anaconda_: \”we considera violation to be willful if it is done consciously and intentionally.\” 9 BNA OSHC at 1479, 1981 CCH OSHD at p. 31,351. The Secretary alsoargues that, while a violation is not willful if the employer in goodfaith believed that he was in compliance, the test of good faith is anobjective test: whether the belief was reasonable in the circumstances. The Secretary argues that since Duquesne knew of the standard and thehazards involved and failed to enforce a workrule regarding the hazards,it cannot claim that it acted in good faith. The Secretary also arguesthat the conclusion by Duquesne’s supervisors that the insulation wasnot asbestos was not based on a reasonable investigation, particularlyin view of the severe hazards. The Secretary argues that thesupervisors’ reckless disregard of the asbestos hazards should beimputed to the company.Duquesne notes that the judge, in finding the violations not willful,stated that the presumption by Duquesne’s supervisors that theinsulation was not asbestos \”clearly had some basis in fact.\” Duquesnecharacterizes the supervisors’ decision regarding the insulation’scontent not as a presumption but as a reasoned decision following afactual investigation.The Commission will find a violation to be willful where the employerhas acted voluntarily \”with either an intentional disregard of, or plainindifference to, the Act’s requirements.\” _Kus-Tum Builders, Inc_., 81OSAHRC 97\/B2, 10 BNA OSHC 1128, 1131, 1981 CCH OSHD ? 25,738, p. 32,105(No. 76-2644, 1981); _General Electric Co_., 77 OSHRC 88\/A2, 5 BNA OSHC1448, 1450, 1977-78 CCH OSHD ? 21,853, p. 26,320 (No. 11344, 1977),_rev’d in part on other grounds_, 583 F.2d 61 (2d. Cir. 1978). We agreewith the judge that Duquesne’s conduct was not shown to be willful.Duquesne’s management had instituted a 10-step procedure designed togain compliance with the asbestos standard, and DeSalle and Nelson knewabout the procedure. The supervisors did not follow the procedurebecause they believed the insulation did not contain asbestos. Theirdetermination had some basis in fact, as the judge found. They bothphysically inspected the insulation and concluded that it was mineralwool. There had been a company policy in effect for years todiscontinue installation of asbestos insulation, and stationsuperintendent DeSalle thought the insulation involved here looked likeother insulation that had been installed after that policy took effect. Moreover, DeSalle did not permit removal of insulation he believedcontained asbestos from the lower part of the same turbine without theuse of procedures applicable to asbestos. Although the supervisorsshould have investigated further to determine whether all of theinsulation was asbestos, their failure to do so does not constitutewillfulness. The evidence does not show a willful disregard of OSHArequirements or employee health.In summary, we reject all the parties’ challenges to the judge’sdecision for the reasons given above, and we affirm that decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUN 29 1984CLEARY, Commissioner, concurring in part and dissenting in part:I concur in the majority’s ruling against Duquesne on the knowledgeissue. However, the majority’s disposition of the issues raised by theSecretary is based on erroneous legal tests and unsupportable factualfindings.IThe majority’s reading of the initial monitoring and annual medical examstandards, 29 C.F.R. ?? 1910.1001(f)(1) and (j)(3), is strained andcontrary to the plain meaning and the purposes of those standards, aswell as the previous interpretations of them. The Supreme Court hasnoted that safety regulations are to be construed to effectuate theCongressional purpose underlying the Act, which is to assure so far aspossible safe and healthful working conditions for working men andwomen. _Whirlpool Corp. v_. _Marshall_, 445 U.S. 1 (1980). This ruleis especially applicable to health regulations designed to protectemployees against the possibility of contracting cancer. Restrictivereadings of OSHA health regulations, carving out implied exceptions totheir coverage contrary to their express language, are unreasonable andimpermissible. _Marshall v. Western Electric, Inc_., 565 F.2d 240 (2dCir. 1977).The previous interpretations of the standards involved here by thisCommission and the courts have been uniform and cover this case:We interpret the requirements of 29 C.F.R. ? 1910.1001(f)(1) and ?1910.1001(j) in order to best effectuate the remedial purpose of theAct. _See_ _GAF Corp_., 75 OSAHRC 3\/A2, 3 BNA OSHC 1686. 1975-76 CCHOSHD ? 20,163 (No. 3203, 1975), _aff’d_, 561 F.2d 913 (D.C. Cir. 1977). Thus, the provisions of the asbestos standard apply whenever employeesare exposed to airborne asbestos in any measurable concentration. _GAFCorp. v. OSHRC_, [_supra_]; _cf_. _Marshall v. Western Electric, Inc._,[_supra_]. Respondent, whose employees were exposed to airborne asbestosin measurable concentrations, is required to comply with the provisionsof the standards. . . . It is enough that [the Secretary] show employeeexposure to measurable concentrations of airborne asbestos and aconcomitant failure on the part of Respondent to monitor or providemedical examinations. _Research-Cottrell, Inc._, 81 OSAHRC 26\/B13, 9BNA OSHC 1489, 1497, 1981 CCH OSHD ? 25,284, pp. 31,263-64 (No. 11756,1981).[[1]] In I_ndustrial Union Dep’t, AFL-CIO v. American PetroleumInstitute_ , 448 U.S. 637, 658 n. 65 (1980), the Supreme Courtinterpreted the D.C. Circuit’s opinion in _GAF Corp_., _supra_, torequire employers to provide medical exams for employees exposed to_any_ asbestos fibers, even below the permissible exposure limit.Despite the authoritative interpretations of the broad scope of the twostandards involved here, the majority reads an implied \”regularexposure\” restriction into them. As to the initial monitoring standard,? 1001(f)(1), the majority states that when read together with ??1001(f)(2)(ii) and (f)(3)(ii), that standard is limited in scope tooperations that take place at least every six months. The pertinentprovisions are given below. [[2]] Sections 1001(f)(2) and (f)(3)(ii),in nearly identical language, call for subsequent monitoring after theinitial monitoring, with sufficient frequency and pattern as torepresent employee exposure levels with reasonable accuracy. They alsocall for samples at least every six months for employees whose exposuremay reasonably be foreseen to exceed permissible levels. The obviouspurpose of those provisions is to assure that measured employeeexposures accurately represent actual exposures, not to nullify theexplicit and unambiguous requirement of ? 1910.1001(f)(1) that anemployer monitor _every workplace where asbestos fibers are released_ todetermine whether every employee’s exposure is withinpermissible limits. The implied exception that the majority reads intothe standard, contrary to its express language, is impermissible. _Marshall v. Western Electric, Inc_., _supra_.As to the annual medical exam standard,[[3]] the majority restricts theauthoritative interpretations referred to above on the rationale thatits application to employees \”engaged in occupations exposed to airborneconcentrations of asbestos fibers\” excludes employees not regularlyexposed as part of their occupation. However, the only limitationwarranted by that phrase is that medical exams need not be given toemployees who never are exposed to airborne concentrations of asbestosfibers during the course of their occupation. Here, the employees wereexposed as part of their occupation on September 12, 1978. Thus, theyare entitled to the protection of annual medical exams under the plainlanguage of the standard. In fact, the evidence indicates that certainemployees were also exposed numerous times previously, as discussed inPart II _infra_. Again, the implied exception found by the majority,resulting in the denial of the protection of the standard to theseemployees, is unreasonable and impermissible. _Marshall v. Western__Electric, Inc._, _supra_.[[4]]In this regard, the Supreme Court has noted the importance of asbestosmedical exam requirements in evaluating whether existing permissibleexposure limits are effective, and in removing unusually susceptibleworkers before they suffer permanent damage. _Industrial Union Dept.,AFL-CIO v. American Petroleum Institute_, _supra_, 448 U.S. at 657-58and n. 67. The latter purpose is particularly important where, as here,the employees are exposed to concentrations of asbestos far abovepermissible limits.[[5]] The evidence shows that Duquesne employeescould contract cancer as a result of the exposures proven here (see PartII _infra_). At a minimum, they are entitled to the protection of themedical exam provisions.IIThe majority’s holding that the massive exposures proven here should becharacterized as nonserious also rests on overly restrictive views ofthe law and the evidence. In determining whether a violation involvingexposure to toxic chemicals is serious, we must look to \”the harm theregulation was intended to prevent, and if that harm is death or seriousphysical injury, a violation of the regulation is serious _per_ _se_.\” _Phelps Dodge Corp. v. OSHRC_, 725 F.2d 1237, 1240 (9th Cir. 1984). Theasbestos standard is expressly designed to afford employees protectionagainst contracting lung cancer, mesothelioma and asbestosis. _Preambleto the_ _Asbestos Standard_, 37 Fed.Reg. 11318 (1972). Thus, thestandard’s purpose is to protect employees against life-threateningdiseases, and the violations of it here clearly are serious.Even if specific evidence is demanded that the exposures proven in thiscase could result in serious consequences, as the majority does, theevidence of record indicates that (1) the exposures on September 12,1978, could result in cancers by themselves and (2) in any event,Duquesne employees had been exposed to asbestos previously a number oftimes. The majority’s findings to the contrary are not supportable.Dr. Parkinson specifically testified that the available evidenceindicates there is a possibility of contracting cancer based on anyamount of exposure to asbestos. He testified that even assuming thatthe only exposure was on September 12, 1978, the employees still faced areal possibility of contracting mesothelioma, an incurable form of lungand abdominal cancer. He specifically referred to a 1976 study ofmesothelioma in which the author studied quite small asbestos exposuresto determine if there was any exposure level below which persons wouldbe safe from the disease. The author found no such level. This isspecific scientific research supporting the Secretary’s position. Therewas no evidence rebutting the possibility of serious harm resulting fromone-time expo- sures. Thus, the Secretary’s specific evidence issufficient to establish a substantial probability that death or seriousphysical harm could result from the September 12, 1978, exposuresalone.[[6]]Furthermore, Duquesne employees had been previously exposed to asbestosa number of times. First, Duquesne’s efforts to end asbestos use andits adoption of a 10-step asbestos handling procedure indicate thatasbestos insulation in fact had been applied previously. Second, Pashtestified that he had worked for Duquesne as a maintenance mechanic for16 or 17 years; that he had worked on various turbine overhaulsthroughout that period; that insulation must be removed each time anoverhaul is done; and that some of the insulation he worked with waslabeled \”asbestos\” in Duquesne’s storeroom (no other content labelsappeared on any insulation). Pash testified that the procedures used inremoving the insulation on September 12, 1978, were no different fromthose used during the previous jobs in which he had participated. Theonly reasonable inference is that Pash previously had been exposed toasbestos on numerous occasions. There was no rebuttal evidence to showthat the asbestos he had worked with previously (some of it marked\”asbestos\”) really wasn’t asbestos, or that adequate precautions everhad been taken to protect employees from asbestos exposure. Theevidence is clear that Duquesne employees including Pash had beenexposed to asbestos on a number of previous occasions. This isconsistent with the testimony of Dr. Parkinson, the Secretary’s medicalexpert, that any assumption that a worker’s exposure to asbestos can belimited to one or two days is artificial. The repeated exposure ofcertain employees can only add to the danger of serious asbestos-relateddisease.Where, as here, the unrebutted evidence establishes a substantialprobability that the violations could result in serious consequences, aserious violation should be found, even under a specific evidencerequirement. _Hermitage Concrete Pipe Co_., 82 OSAHRC 14\/A2, 10 BNAOSHC 1517, 1982 CCH OSHD ? 25,975 (No. 4678, 1982). The majority’srestrictive view of the evidence suggests that it would requirescientific certainty that cancer or other serious consequences couldresult. That would be inconsistent with the plain language of section17(k) of the Act, 29 U.S.C. ? 666(j),[[7]] which defines a seriousviolation in terms of a \”substantial probability that death or seriousphysical harm could result.\” Also, cases upholding the Secretary’sauthority to regulate suspected carcinogens including asbestos havenoted his authority and duty to do so in the absence of scientificcertainty.[S]ome of the questions involved in the promulgation of these standardsare on the frontiers of scientific knowledge, and consequently as tothem insufficient data is presently available to make a fully informedfactual determination. . . .For example, in this case the evidence indicated that reliable data isnot currently available with respect to the precisely predictable healtheffects of various levels of exposure to asbestos dust; nevertheless,the Secretary was obligated to establish some specific level as themaximum permissible exposure. After considering all the conflictingevidence, the Secretary [adopted] a relatively low limit . . . .Inasmuch as the protection of the health of employees is the overridingconcern of OSHA, this choice is doubtless sound . . . ._Industrial Union Dep’t. AFL-CIO v. Hodgson_, 499 F.2d 467, 474-75 (D.C.Cir. 1974); _see_ _Society of the Plastics Industry, Inc. v._ _OSHA_,509 F.2d 1301 (2d Cir. 1975), _cert_. _denied_ _sub_ _nom_ _FirestonePlastics Corp. v. Department of Labor_, 421 U.S. 992 (1975).Similarly here, scientific certainty has not been achieved with respectto whether intermittent (or even isolated) asbestos exposures can causeor contribute to cancers. However, sound choices must be made based onthe available evidence. Here the specific evidence establishes asubstantial probability that such exposures can lead to cancer. Thus,consistent with section 17(k) of the Act, the violations here should befound to be serious even under a specific evidence requirement.The majority’s assertion that its nonserious characterization isconsistent with the Secretary’s and the Commission’s past treatment ofasbestos standard violations does not support its conclusions here. TheCommission has affirmed a serious violation of an asbestos personalprotective equipment standard in at least one case since 1981. _Johns-Manville Corp_., 81 OSAHRC 67\/A12, 9 BNA OSHC 2039, 1981 CCH OSHD? 25,491 (No. 78-2419, 1981) (? 1001 (c)(2)(iii)). [[8]]Furthermore, the majority’s analogy to _Research-Cottrell,_ _supra_, isunfounded, as is its reference to _Hull Pottery Co_., 82 OSAHRC 18\/D9,10 BNA OSHC 1575, 1982 CCH OSHD ? 25,972 (No. 78-555, 1982), and_Baldwin Industries, Inc_., 82 OSAHRC 19\/A2, 10 BNA OSHC 1572, 1982 CCHOSHD ? 25,980 (No. 78-741, 1982). Unlike those three cases, here it isestablished that certain employees had been exposed to impermissibleceiling and 8-hour time weighted average exposures to asbestos fibers,and there was specific testimony of cancer hazards as a result of themeasured exposures alone. It also should be noted that the seriousnessof _all_ the violations alleged by the Secretary is on review, not justthe monitoring and medical exam items. The seriousness of eachviolation must be determined in light of the entire record here, evenunder a specific evidence test. _Research-Cottrell_, _Hull_ and_Baldwin_ do not support the majority’s position.IIIThe majority correctly states that the Commission will find willfulnesswhere the employer acts voluntarily with either intentional disregardof, or plain indifference to, OSHA requirements. _E.g_., _Mel JarvisConstruction Co_., 81 OSAHRC 89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ?25,713 (No. 77-2100, 1981). Here, Duquesne’s supervisors responsiblefor the September 12, 1978, insulation removal knew that asbestos wasunsafe (engineer Nelson actually knew it was a suspected carcinogen). They knew that Duquesne had a 10-step procedure for protecting employeeswhen working with it. They failed to use those procedures because theythought from their inspection that it was not asbestos. However, thatbelief was unreasonable, as even the majority finds. [[9]]Theoretically, the supervisors’ action might be attributed to merecarelessness except for the statements made by a group of Duquesnesupervisors including DeSalle to an OSHA compliance officer at PhillipsStation on August 4, 1978. The group advised the compliance officerthat if Duquesne ever had its employees remove insulation, they would_assume_ they were working with asbestos and would use Duquesne’s10-step protective procedure, which they showed the compliance officer. Thus, DeSalle knew that no chances were to be taken with insulation.DeSalle had no way of knowing whether the insulation removed onSeptember 12, 1978, contained asbestos. Duquesne never had trained himor Nelson how to identify asbestos, and neither supervisor indicated anyreason to believe he could make that determination with any degree ofcertainty. [[10]] In fact, when the compliance officer consulted withDuquesne’s supervisors including DeSalle on August 4, 1978, concerningwhether there was asbestos insulation on another turbine in the plant,they said they would have no way of knowing.DeSalle’s explanation that he \”thought\” from a cursory examination thatit was not asbestos is no explanation at all, because he knew the policyto _assume_ it was asbestos until proven otherwise, and he had noreasonable basis to conclude it did not contain asbestos. DeSalle hadnot even taken the easy steps of having Duquesne’s records checked orcalling the contractor which had installed the insulation to confirm itscontent.In the circumstances, it must be concluded that DeSalle and Nelsonintentionally or plainly disregarded the possibility that the insulationmight contain asbestos. This gambling with the employees’ healthinvolved an element of conscious refusal to take precautions mandatedunder known policies and is properly characterized as willful. _E.g_.,_Mel Jarvis_, _supra_; _Babcock & Wilcox_ _Co. v. OSAHRC_ 622 F.2d 1160(3d Cir. 1980).————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] ? 1910.1001 _Asbestos_(f) _Monitoring – (1) initial determinations_. Within 6 months of thepublication of this section, every employer shall cause every place ofemployment where asbestos fibers are released to be monitored in such away as to determine whether every employee’s exposure to asbestos fibersis below the limits prescribed in paragraph (b) of this section. If thelimits are exceeded, the employer shall immediately undertake acompliance program in accordance with paragraph (c) of this section.(j) _Medical examinations_(3) _Annual examinations_. On or before January 31, 1973, and at leastannually thereafter, every employer shall provide, or make available,comprehensive medical examinations to each of his employees engaged inoccupations exposed to airborne concentrations of asbestos fibers. Suchannual examination shall include, as a minimum, a chest roentgenogram(posterior-anterior 14 x 17 inches), a history to elicit symptomatologyof respiratory disease, and pulmonary function tests to include forcedvital capacity (FVC) and forced expiratory volume at 1 second (FEV1.0).[[2]] Duquesne discontinued the use of asbestos insulation as early as1972. Therefore, the repair of steam and water lines or the overhaulof turbines in which the asbestos insulation had been replaced withnon-asbestos products after 1972 would not involve the danger ofemployee exposure to airborne asbestos since the replacement insulationdid not contain asbestos.[[3]] OSHA industrial hygienist (IH) Francis Voycik took measurements ofthe exposures of four employees with sampling pumps and measuringdevices during a 45-minute period on Sept. 12. The measurements showedthat employee Schomburger was exposed to a concentration of 51.5asbestos fibers per cubic centimeter of air (fibers\/cc) for 28 minutes,99.5 fibers\/cc for 7 minutes and an overall TWA of 4.45 fibers\/cc for aprojected 8-hour period. (The ceiling concentration allowed is 10fibers\/cc and the 8-hour TWA allowed is 2 fibers\/cc. Sections1910.1000(b)(2), (3). All references to \”asbestos fibers\” in thisdecision are to the term as defined in ? 1910.1001(a)(2) – \”asbestosfibers longer than 5 micrometers.\”) For employee Pash, the measurementsshowed exposure to 14.8 fibers\/cc during one 32-minute period, and foremployee Hendricks, 15.2 fibers\/cc during a 25-minute period. All othermeasurements were within allowable limits. The insulation removaloperation resumed on Sept. 18, 1978, and OSHA again inspected, but nocitations were issued relative to that day.[[4]] Duquesne’s 10-step procedure included the following requirements: employee use of single-use dust respirators, proper eye protection andcoveralls or similar protective clothing; vacuuming the protectiveclothing at day’s end; roping off the work area and restricting entry byposting; placing canvas over grates to prevent dust falling to lowerlevels in the station; wetting down asbestos or wrapping it with wetrags; collecting asbestos waste in sealed, properly marked containers;and cleanup of asbestos by vacuuming or wet methods.[[5]] DeSalle testified that insulation is removed from only the toppart of the turbine unless a major overhaul is undertaken, in which caseinsulation is removed from both the top and the bottom of the turbine. He also testified that the insulation on the top part of the turbine hadbeen removed and replaced since the insulation on the bottom of theturbine had been applied, accounting for his conclusion that only someof the insulation contained asbestos.[[6]] Section 17(k) provides:For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[7]] 37 Fed. Reg. 11318 (1972).[[8]] The judge found no reliable evidence that any employees wereexposed to asbestos at any time prior to the Sept. 12, 1978 operation,and we agree. No one at the hearing was able to say that any insulationpreviously removed by Duquesne employees actually was asbestos. Also,station superintendent DeSalle had been ordering non-asbestos insulationfor most of the 1970’s. AC & S, the contractor which in 1972 installedthe insulation involved in the Sept. 12, 1978 operation, had ceasedusing asbestos insulation in the station as of the latter part of 1972,and in early 1975 the company had issued a policy against use ofasbestos insulation. The Secretary’s evidence of previous exposurebefore Sept. 12, 1978, simply is too speculative.[[9]] In view of our disposition of this item, we do not reach the otherissues raised by Duquesne regarding whether the item should be vacatedsince the six-month compliance period for initial monitoring had expiredor whether, in the alternative, citation was premature because the citedstandard allows six months for compliance after initial asbestos exposure.[[1]] In _Research-Cottrell_, the employer was required to determine theexposure of every employee, even though some or most of the employeeswere transient. The case did not distinguish between long-term andshort-term employees.[[2]] ? 1910.1001 _Asbestos_(f) _Monitoring_* * *(2) _Personal monitoring_* * *(ii) _Sampling frequency and patterns_. After the initialdeterminations required by paragraph (f)(1) of this section, samplesshall be of such frequency and pattern as to represent with reasonableaccuracy the levels of exposure of employees. In no case shall thesampling be done at intervals greater than 6 months for employees whoseexposure to asbestos may reasonably be foreseen to exceed the limitsprescribed by paragraph (b) of this section.(3) _Environmental monitoring_* * *(ii) _Sampling frequency and patterns_. After the initialdeterminations required by paragraph (f)(1) of this section, samplesshall be of such frequency and pattern as to represent with reasonableaccuracy the levels of exposure of the employees. In no case shall thesampling be at intervals greater than 6 months for employees whoseexposures to asbestos may reasonably be foreseen to exceed the exposurelimits prescribed in paragraph (b) of this section.[[3]] The annual medical exam standard, ? 1001(j)(3), provides inpertinent part:_Annual examinations_. On or before January 31, 1973, and at leastannually thereafter, every employer shall provide, or make available,comprehensive medical examinations to each of his employees engaged inoccupations exposed to airborne concentrations of asbestos fibers………[[4]] Indeed, it was predictable that maintenance employees would beexposed to asbestos as part of their regularly scheduled turbineoverhaul work. Why else would Duquesne’s supervisors have implemented apolicy to _assume_ the insulation was asbestos and use the 10-stepprocedure automatically?[[5]] For example, the industrial hygienist’s monitoring results showedthat one employee was exposed to almost 10 times the permissible ceilingconcentration of asbestos fibers during one sampling and that anotheremployee was exposed to more than 5 times the permissible ceilingconcentration during another sampling. Clouds of dust were createdduring the operation due to the manner in which the asbestos was throwninto waste containers.[[6]] The criteria document on asbestos published by the NationalInstitute for Occupational Safety and Health (NIOSH), which formed partof the basis for the current asbestos standard, also indicates thepotential dangers of isolated or short-term asbestos exposures. U.S.Dep’t of Health, Education and Welfare, NIOSH, _Recommendations For AnOccupational Exposure Standard For_ _Asbestos_ (1972). The criteriadocument noted a study of 232 former insulation plant employees by Dr.Irving Selikoff, which reported positive X-ray findings amongindividuals having known asbestos exposures as short as one day. _Id_.at III -7 and Table XXVII. NIOSH also cited a report finding an excessof lung cancer in a study of over 4,500 male workers employed at anasbestos factory making both textile and insulation products. Thisexcess of lung cancer was demonstrated among workers whose jobs entailedheavy exposure, regardless of the duration of employment. _Id_. at III-7 & 8. NIOSH concluded that the effect after several decades of aone-time acute dose of limited duration which overwhelms the clearingmechanism, and is retained in the lungs, may be as harmful as many yearsof work at lower daily levels of exposure. _Id_. at V -3. In thiscase, Dr. Parkinson testified that he considered certain of theemployees’ exposures on September 12, 1978, to be very high. _See_ n. 5_supra_. NIOSH concluded that the initiation of cancer is possiblefollowing single small exposures to asbestos, although of a lowprobability. _Id_. at V -12.[[7]] Section 17(k) provides:For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[8]] Moreover, the past treatment of asbestos cases by the Secretary isirrelevant because he is not bound by his discretionary enforcementactions in other cases. _Fleming Foods of Nebraska, Inc_., 77 OSAHRC196\/C12, 6 BNA OSHC 1233, 1978 CCH OSHD ? 22,889 (No. 14484, 1977);_see_ _Columbian Art Works, Inc_., 81 OSAHRC 96\/F5, 10 BNA OSHC 1132,1981 CCH OSHD ? 25,737 (No. 78-29, 1981). In any event, the Secretarypreviously has cited standards at issue here as serious. _See__Shenango Co_., 82 OSAHRC 25\/A2, 10 BNA OSHC 1613, 1982 CCH OSHD ?26,051 (No. 78-4723, 1982) (? 1001(f)(1)); _General Engineering andMachine Works_, 81 OSAHRC 52\/B12, 9 BNA OSHC 1936, 1981 CCH OSHD ?25,402 (No. 80-2196, 1981, (ALJ) (? 1001(j)(3)).[[9]] Thus, no \”good faith\” exception to a finding of willfulness iswarranted. Where an employer believes in good faith that he is incompliance with an OSHA regulation, no willful violation may be found. However, the test of good faith is objective. The belief must bereasonable in the circumstances. _Mel Jarvis_, _supra_.[[10]] Other testimony by an OSHA physical scientist, Crane, confirmedthat untrained persons like DeSalle and Nelson could not make such adetermination with any degree of certainty.”