“Docket No. 79-1682 SECRETARY OF LABOR, Complainant,v.DUQUESNE LIGHT COMPANY, Respondent, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 142,Authorized Employee Representative.OSHRC Docket No. 79-1682DECISION Before:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 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 judge vacated chargesthat Duquesne Light Company violated OSHA asbestos standards requiring initial monitoringof the workplace and annual medical exams for exposed employees, 29 C.F.R. ??1910.1001(f)(1) and (j)(3).[[1]]\u00a0 The Secretary also takes exception to Judge Usher’sfinding that Duquesne’s violation of certain other provisions of the asbestos standardshould be characterized as nonserious.\u00a0 The Secretary alleges that all the violationswere serious and that some were willful.\u00a0 Duquesne argues that the judge erred infinding any violations because the evidence was insufficient that Duquesne knew orreasonably could have known its employees were working with asbestos.\u00a0 We affirm thejudge’s decision on all these matters for the reasons given below.FACTS On September 12, 1978, several Duquesne employees removed insulation from thetop half of a turbine as part of a major overhaul of turbine #3 at Duquesne’s PhillipsPower Station in South Heights, Pa.\u00a0 The overhaul had been scheduled about a year inadvance.\u00a0 Duquesne usually has large insulation jobs like this performed by anindependent contractor.\u00a0 The record does not indicate why that was not done here.\u00a0Duquesne maintenance mechanics and janitors used tools to chop the dry insulationaway and threw the pieces into open cardboard drums.\u00a0 The testimony indicated thatthese were approximately the same procedures used during previous insulation removal jobs.There are four turbines in the plant and they ordinarily are overhauled everyfive years.\u00a0 Some of the Duquesne employees involved in the cited project had beenengaged in previous turbine insulation removal operations.\u00a0 One employee, Pash,testified that he had been a maintenance mechanic with Duquesne for 16 to 17 years; thathe had worked on turbine overhauls before September 12, 1978; that insulation must beremoved each time an overhaul is done; and that he understood that the insulation wasasbestos because some of it was labeled \”asbestos\” in the storeroom.\u00a0 Noother content labels appeared on any insulation.\u00a0 He also testified that he removedand replaced insulation whenever steam lines or hot water lines were repaired.[[2]]Another employee, Dabney, who had worked for Duquesne for 28 years and hadbeen a mechanic at Phillips Station for 10 years, testified that he had removed what hecalled \”asbestos\” insulation from turbines on two occasions.\u00a0 The jobs wereat a different station and each job took perhaps four hours.\u00a0 He also testified thathe remembered removing insulation from valves on an unspecified number of occasions.\u00a0Dabney did not know for a fact that the insulation removed was asbestos, and therecord reflects that many employees used the term \”asbestos\” in a generic senseto refer to all insulation.It is undisputed on review that the operation did not comply with the asbestos standard inthe following respects:\u00a0 the permissible ceiling exposure limit was exceeded as tothree employees and the permissible eight-hour time-weighted average (\”TWA\”)exposure limit was exceeded as to one employee;[[3]] the asbestos was not wetted to reduceairborne asbestos fibers; the appropriate respirators were not used; Duquesne’s respiratorprogram was not sufficient; sufficient protective clothing was not provided or required tobe used; separate lockers or containers for asbestos-contaminated clothing and streetclothes were not provided; closed, impermeable containers with proper warning labels werenot used to transport the contaminated clothing; and caution signs were not posted atapproaches to the area around the turbine.\u00a0 It also is undisputed on review thatDuquesne never had done monitoring for asbestos in Phillips Station and that the employeesinvolved here had not had physical exams annually during their employment.\u00a0 Theissues before us are whether compliance with the asbestos standard was required and, ifso, whether the violations were serious and whether some of them were willful.An OSHA compliance officer (\”CO\”) testified that Phillips Stationsuperintendent Phillip DeSalle was among a group of Duquesne management officials whodiscussed the question of insulation removal with him on August 4, 1978, in the course ofan earlier inspection of an insulating contractor that had worked at Duquesne’s PhillipsStation.\u00a0 The CO testified that certain Duquesne management employees showed him awritten 10-step procedure that its employees were to follow in removing insulation thatwas considered to be asbestos.[[4]]\u00a0 The CO also testified that DeSalle told him thatif Duquesne employees removed insulation, they would assume they were working withasbestos.The 10-step procedure was not followed during the September 12 operationalthough the two employees in charge of the operation, DeSalle and Ralph Nelson, knew ofit.\u00a0 They testified that the procedure was not followed because they did not believethe insulation being removed contained asbestos.\u00a0 DeSalle, who had overallresponsibility for that operation, was aware that asbestos was considered unsafe andNelson, Duquesne’s engineer in charge of the September 12 project, was aware that asbestoswas a suspected carcinogen.Before the September 12 operation, DeSalle and Nelson both had inspected theinsulation on turbine #3 and concluded that the insulation on the upper portion of theturbine was mineral wool.\u00a0 Nelson noted its \”wooly, jaggy\” feel andbelieved asbestos to be a softer material.\u00a0 DeSalle noted it was grayish tan incolor, whereas asbestos normally was white.\u00a0 Crane, an OSHA physical scientist,testified that it would be extremely difficult to determine whether or not asbestos waspresent in insulation based on a visual examination.DeSalle’s belief that the material was mineral wool was reinforced by hisobservation that the insulation was sprayed-on and his recollection that all thesprayed-on insulation had been mineral wool.\u00a0 Both men also based their conclusionthat the insulation was mineral wool in part on their recollection that use of asbestosproducts had been discontinued some years before.\u00a0 DeSalle testified that thematerial on turbine #3 looked like the insulation removed earlier in 1978 from turbine #4.\u00a0That material had been applied in 1976, after Duquesne had issued a directive inearly 1975 which read:\u00a0 \”[I]t is important that all future insulation productsbe asbestos free where feasible.\”\u00a0 Not only were the men aware of the 1975directive, but they also knew that in the latter half of 1972, AC & S, Inc., aninsulation contractor to Duquesne which had installed the asbestos insulation on turbine#3 in March of that year, had discontinued applying asbestos insulation.\u00a0 And bynotice of July 19, 1972, Duquesne’s Transmission and Distribution Department haddiscontinued use of \”asbestoment cement and asbestos tape used forfireproofing.\”\u00a0 There is no evidence that DeSalle, Nelson or any other employeeknew that the insulation on the top portion of the turbine was asbestos.During the initial inspection, DeSalle concluded that the insulation on thelower half of the turbine probably did contain asbestos.[[5]]\u00a0 However, on the day ofthe inspection, only the insulation on the top part of the turbine was being removed,which was believed to be mineral wool.\u00a0 The older insulation on the bottom was to beremoved at a later date using different procedures applicable to work with asbestos.Dr. Parkinson, a medical expert presented by the Secretary, testified thatmedical science has not determined a safe level of exposure to asbestos, and that there issome low possibility of contracting cancer based on any amount of exposure.\u00a0 Dr.Parkinson’s testimony also indicated that it has not been established that there is nosafe level of asbestos exposure.\u00a0 To his knowledge, no studies involving the effectsof one day of exposure have been done. He testified concerning numerous studies that havelinked intermittent or vicarious asbestos exposures to cancers.\u00a0 However, all thosestudies dealt with exposures repeated over a period of time.\u00a0 Dr. Parkinson gave hisopinion that employees who had a one-time exposure to asbestos for three or four hours atthe highest levels measured by the compliance officer faced a very low potential ofdeveloping cancer.JUDGE’S DECISIONThe judge vacated the charge that Duquesne had failed to perform initialmonitoring as required by ? 1910.1001(f)(1) on the ground that the standard does notapply to a workplace like Duquesne’s where asbestos fibers were not ordinarily releasedand where installation or removal of asbestos insulation was unrelated to Duquesne’sprincipal business.\u00a0 The judge vacated the charge that Duquesne failed to provideannual medical exams under ? 1910.1001(j)(3) on the related ground that that standarddoes not apply where, as here, employees are not usually engaged in working with asbestos.The judge found violations based on the employees’ measured exposures abovethe ceiling and 8-hour TWA permissible limits.\u00a0 He also affirmed the items of thecitation based on Duquesne’s failure to use wet methods, appropriate respirators,sufficient protective clothing, properly sealed containers for contaminated clothes andcaution signs at approaches to the asbestos removal area.\u00a0 He also found a violationbased on the inadequacy of Duquesne’s respirator program and its failure to provideseparate lockers for contaminated and non-contaminated clothing.\u00a0 Judge Usherrejected Duquesne’s argument that the company could not have known with the exercise ofreasonable diligence that the insulation on turbine #3 was asbestos.\u00a0 He pointed toevidence that a mere check of its own records or a phone call to AC & S would haveprovided that information.\u00a0 The judge found that Duquesne had \”proceeded on theblind presumption that its employees were not working with a potentially lethalsubstance.\”The judge found that the Secretary had failed to demonstrate that any of theviolations were serious.\u00a0 Judge Usher found there was no proof of exposure of anyemployees apart from this specific operation.\u00a0 He interpreted the definition of aserious violation in section 17(k) of the Act, 29 U.S.C. ? 666(j),[[6]] to require ashowing of a substantial probability of death or serious physical harm resulting fromthese isolated exposures in order to establish a serious violation.\u00a0 He noted thatDr. Parkinson had testified only that there was a \”potential health hazard\” fromthe isolated exposures and that these employees faced a very low probability of developingany asbestos-related disease in the future.\u00a0 He rejected the Secretary’s argumentthat because there is no known safe level of asbestos exposure, any excessive exposure toasbestos must be considered serious.\u00a0 The judge concluded that such an argument isspeculative and does not substitute for factual proof on the issue.The judge also rejected the Secretary’s claim that certain of the violationswere willful.\u00a0 The willful allegations were based on the allegedly lax attitude ofDuquesne’s management toward known cancer risks.\u00a0 Judge Usher ruled that Duquesne’sconduct was simply thoughtless reliance on a supposition that asbestos was not present –a presumption that he found had some basis in fact. He concluded that Duquesne had notexhibited the level of defiance, disregard, or indifference to the Act’s requirementswhich would justify calling the violations willful.OPINION 1.\u00a0 Knowledge issueDuquesne urges in its brief that we vacate all items of both citations, including thoseitems affirmed by the judge, on the ground that the Secretary failed to prove thatDuquesne knew or could have known of the violations with the exercise of reasonablediligence. However, we agree with the judge that Duquesne did not exercise reasonablediligence in failing to properly identify the insulation’s content.\u00a0 The insulationon the top of turbine #3 had been installed early in 1972, before either Duquesne or AC& S had begun to discontinue the use of asbestos products.\u00a0 Nelson had negotiatedthe contract for installation of the insulation and had not specified that non-asbestosinsulation be used.\u00a0 Thus, Duquesne’s supervisors could not rely an any policy todiscontinue the use of asbestos and should have known that a more thorough check of theinsulation’s content was necessary.\u00a0 As the judge noted, a mere check of Duquesne’sown records or a telephone call to the contractor who had installed the insulation wouldhave sufficed.\u00a0 Since the job had been planned a year in advance, no sudden urgencyprecluded a more diligent effort than was expended to ascertain the presence of asbestos.\u00a0 The record indicates that Duquesne could have known of the existence of theasbestos violations with the exercise of reasonable diligence.2.\u00a0 Alleged initial monitoring violationThe Secretary argues that the judge’s interpretation of the cited standard, ?1910.1001(f)(1), as being limited to workplaces where asbestos fibers\”ordinarily\” are released is contrary to its plain meaning as well as Commissionprecedent.\u00a0 He cites Research-Cottrell, Inc., 81 OSAHRC 26\/B13, 9 BNA OSHC1489, 1497, 1981 CCH OSHD ? 25,284, pp. 31,263-64 (No. 11756, 1981), and GAF Corp.,75 OSAHRC 3\/A2, 3 BNA OSHC 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 that monitoring isrequired in any workplace where employees are exposed to any measurable concentration ofasbestos fibers.\u00a0 The Secretary notes that no monitoring had been done at PhillipsStation even though there had been repair work and turbine overhauls at five-yearintervals and Duquesne’s policy was to assume it was working with asbestos when removinginsulation.Duquesne argues that the Commission need not read GAF and Research-Cottrellto cover workplaces where asbestos fibers are not ordinarily released, as both those casesinvolved regular exposure to asbestos as a function of the employee’s occupation.\u00a0 Itargues that the judge’s interpretation of the standard is consistent with its plainmeaning, pointing to the statement in the standard that monitoring must be done\”[w]ithin 6 months of the publication of this section\” (which occurred in1972)[[7]] and the requirement of periodic representative monitoring following the initialmonitoring under ?? 1910.1001(f)(2)(ii) and (f)(3)(ii).\u00a0 Duquesne argues that theserequirements imply that monitoring requirements apply only to workplaces with regularemployee exposure.In GAF, the Commission held-that the provisions of the asbestosstandard requiring initial monitoring and medical examinations applied to employees inoccupations that \”were, by their nature, regularly exposed to airborne concentrationsof asbestos fibers\” even though the concentrations were within permissible exposurelevels.\u00a0 3 BNA OSHC at 1692, 1975-76 CCH OSHD at 23,982. The parties in that casestipulated that the employees were regularly exposed to asbestos by the nature of theirjobs.\u00a0 Similarly, in Research-Cottrell, the cited employer’s employees wereregularly exposed to airborne concentrations of asbestos in the course of installingasbestos sheets in the construction of large cooling towers at nuclear plants.\u00a0 Theinstallation of the asbestos sheets took approximately eight months.In this case, the removal of insulation from the top of turbine #3 took lessthan five hours.\u00a0 Removal of insulation on the four turbines occurred once every fiveyears and there is no evidence to suggest that in each case the insulation removedcontained asbestos.\u00a0 No previous Commission or court decision has considered whetherthe initial monitoring and medical exam requirements apply to an isolated one-dayoperation such as in this case involving employees in an occupation not regularly exposedto asbestos. [[8]] Read as a coherent whole, the monitoring provisions of the asbestos standarddo not apply here.\u00a0 We therefore affirm the judge’s decision.\u00a0 Following initialmonitoring, employers are required to do periodic monitoring.\u00a0 In no case is thissampling to be done at intervals greater than six months, where employee exposures mayreasonably be foreseen to exceed permissible limits.\u00a0 Sections 1910.1001(f)(2)(ii)and (f)(3)(ii).\u00a0 Even if we were to accept the Secretary’s argument that Duquesneemployees were exposed to asbestos each time a turbine overhaul operation was done — andwe do not accept that argument — those operations occurred once every five years on thefour turbines.\u00a0 Section 1910.1001(f) does not contemplate that employers must monitorsuch sporadic operations.[[9]]3.\u00a0 Alleged annual medical exam violationThe Secretary again attacks the judge’s limitation of the scope of the cited standard, ?1910.1001(j)(3), to occupations \”ordinarily\” or \”usually\” exposed toasbestos fibers.\u00a0 In this regard the Secretary cites Research-Cottrell, supra,and Anaconda Aluminum Co., 81 OSAHRC 27\/A2, 9 BNA OSHC 1460, 1981 CCH OSHD ?25,300 (No. 13102, 1981).\u00a0 Duquesne argues that the judge’s interpretation isconsistent with the express language of the standard, applying it only to occupationsexposed to airborne concentrations of asbestos fibers.\u00a0 Duquesne also argues that noviolation was shown on the facts because the cited standard allows one year for compliancefrom the time the employees first are exposed to airborne concentrations of asbestosfibers.The judge also properly disposed of this item.\u00a0 The standard appliesonly to \”employees engaged in occupations exposed to airborne concentrations ofasbestos fibers.\”\u00a0 \”Occupation\” in this sense means a person’s usualor principal business or employment.\u00a0 E.g., Random House Dictionary of theEnglish Language 996 (1971).\u00a0 Thus, an occupation exposed to asbestos fibers mustbe one with at least some degree of regular asbestos exposure.\u00a0 No previousCommission or court decision, including Anaconda, has applied the medical examprovisions to exposures found to be isolated, and we believe that would be unreasonable.\u00a0Only one day of asbestos exposure was proven in this case for any of the employeesinvolved (see n. 8 supra).\u00a0 Since there was no showing of recurring employeeexposure to asbestos outside of this isolated project, employees were not shown to beengaged in an occupation that was exposed to asbestos fibers.4.\u00a0 Alleged SeriousnessThe Secretary points to Dr. Parkinson’s testimony that the employees’ exposures onSeptember 12, 1978, posed a potential health problem.\u00a0 The Secretary argues that toestablish a serious violation under Commission precedent he need not show a substantialprobability that the violations would lead to a serious disease, but only asubstantial probability that they could lead to a serious disease.\u00a0 He arguesthat under Anaconda he need not show more than one excessive exposure on one dayfor a serious violation. Even assuming he must show chronic excessive exposures, theSecretary argues he has done so here.Duquesne criticizes the definition of seriousness in Anaconda as a perse rule that virtually every overexposure to a toxic substance is a seriousviolation no matter how trifling or transitory.\u00a0 Duquesne points out that in Useryv. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978), the court rejected theproposition that any excessive exposure to a substance that can cause cancer is a seriousviolation.\u00a0 584 F.2d at 132-33.\u00a0 Duquesne argues that the better test is thatstated by Chairman Rowland in his dissent in Seaboard Foundry, Inc., 11 BNA OSHC1398, 1983 CCH OSHD ? 26,522 (No. 77-3964, 1983), under which the Secretary generallymust establish by specific evidence a substantial probability that a life-threateningdisease could result from the exposure in question.In Anaconda, the Commission held that OSHA standards must beinterpreted and applied in a manner consistent with the Secretary’s intent in promulgatingthem, and that, in deciding whether a violation is serious, the Commission must look tothe hazard which the standard is designed to prevent.\u00a0 The Commission found that aviolation of a permissible exposure level was a serious violation where the purpose inlimiting exposure to the substance involved [coal tar pitch volatiles] was to protectagainst contraction of a life-threatening disease–cancer.\u00a0 Although seriousness wasfound based on measurements of one day’s exposure, the operations involved there wereregular and ongoing.\u00a0 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 BNA OSHC 1517, 1982CCH OSHD ? 25,975 (No. 4678, 1982), the Commission indicated that no finding ofseriousness would be warranted based on one day’s violative exposure to a potentiallylife-threatening air contaminant, silica dust, if the evidence showed those one-dayexposures were (1) insufficient by themselves to cause serious consequences and (2) notrepresentative of exposures on other days.\u00a0 Thus, reading Hermitage and Anacondatogether, an isolated one-day exposure would not be considered serious unless thatisolated exposure were shown to be sufficient to cause serious consequences.No such showing has been made here.\u00a0 We previously have found that thereis insufficient evidence that any employees involved in the September 12, 1978 operationwere exposed to asbestos at other times.\u00a0 In order for these violations to becharacterized as serious under the Act, there must be evidence of a substantialprobability that a serious disease could result from these isolated exposures.\u00a0 TheSecretary’s medical expert testified that these isolated exposures resulted in a very lowprobability of cancer and the medical testimony gave no firm, positive basis on which toconclude that the exposures could cause or contribute to any asbestos-related disease.\u00a0So far as the record shows, no studies have been done of isolated exposures similarto those proven here. We interpret the testimony regarding the possibility of contractingcancer from any amount of asbestos exposure as meaning that such possibility cannot beruled out because it has been neither proven nor disproven.\u00a0 The fact that sciencehas been unable to find a safe level of exposure to asbestos does not establishaffirmatively that an isolated exposure can cause serious consequences.\u00a0 It was theSecretary’s burden to make such an affirmative showing in this case.\u00a0 The evidencehere raises only a speculative possibility that the isolated exposures could lead toasbestos-related disease.Our conclusion that the alleged violations are not serious is consistent with both theSecretary’s and the Commission’s past treatment of asbestos standard violations.\u00a0 Forexample, in Research-Cottrell the Commission affirmed a citation involving anemployer’s failure to initially monitor asbestos levels or to administer medicalexaminations under the same standards at issue here.\u00a0 In that case, involvingexposure of employees to asbestos for up to eight months, the Secretary specificallydetermined that the violations were nonserious.\u00a0 The Administrative Law Judgecharacterized the citation as involving \”low gravity\” violations and theCommission agreed, affirming the Judge’s decision not to assess a penalty for thosenon-serious violations.\u00a0 9 BNA OSHC at 1499, 1981 CCH OSHD at p. 31,265.\u00a0 Seealso Hull Pottery 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 BNA OSHC1572, 1982 CCH OSHD ? 25,980 (No. 78-741, 1982).5.\u00a0 Alleged WillfulnessThe Secretary argues that Duquesne’s management acted with plain indifference to the Act’srequirements by failing to take substantial measures to protect its employees, despiteknowing of the OSHA requirements and the grave hazards involved.\u00a0 The Secretaryrelies on the Commission’s test of willfulness stated in Anaconda:\u00a0 \”weconsider a violation to be willful if it is done consciously and intentionally.\”\u00a09 BNA OSHC at 1479, 1981 CCH OSHD at p. 31,351.\u00a0 The Secretary also arguesthat, while a violation is not willful if the employer in good faith believed that he wasin compliance, the test of good faith is an objective test: whether the belief wasreasonable in the circumstances.\u00a0 The Secretary argues that since Duquesne knew ofthe standard and the hazards involved and failed to enforce a workrule regarding thehazards, it cannot claim that it acted in good faith.\u00a0 The Secretary also argues thatthe conclusion by Duquesne’s supervisors that the insulation was not asbestos was notbased on a reasonable investigation, particularly in view of the severe hazards.\u00a0 TheSecretary argues that the supervisors’ reckless disregard of the asbestos hazards shouldbe imputed to the company.Duquesne notes that the judge, in finding the violations not willful, statedthat the presumption by Duquesne’s supervisors that the insulation was not asbestos\”clearly had some basis in fact.\”\u00a0 Duquesne characterizes the supervisors’decision regarding the insulation’s content not as a presumption but as a reasoneddecision following a factual investigation.The Commission will find a violation to be willful where the employer hasacted voluntarily \”with either an intentional disregard of, or plain indifference to,the Act’s requirements.\”\u00a0 Kus-Tum Builders, Inc., 81 OSAHRC 97\/B2, 10 BNAOSHC 1128, 1131, 1981 CCH OSHD ? 25,738, p. 32,105 (No. 76-2644, 1981); GeneralElectric Co., 77 OSHRC 88\/A2, 5 BNA OSHC 1448, 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).\u00a0 We agree with the judge that Duquesne’s conduct was not shown to be willful.Duquesne’s management had instituted a 10-step procedure designed to gaincompliance with the asbestos standard, and DeSalle and Nelson knew about the procedure.\u00a0The supervisors did not follow the procedure because they believed the insulationdid not contain asbestos.\u00a0 Their determination had some basis in fact, as the judgefound.\u00a0 They both physically inspected the insulation and concluded that it wasmineral wool.\u00a0 There had been a company policy in effect for years to discontinueinstallation of asbestos insulation, and station superintendent DeSalle thought theinsulation involved here looked like other insulation that had been installed after thatpolicy took effect.\u00a0 Moreover, DeSalle did not permit removal of insulation hebelieved contained asbestos from the lower part of the same turbine without the use ofprocedures applicable to asbestos.\u00a0 Although the supervisors should have investigatedfurther to determine whether all of the insulation was asbestos, their failure to do sodoes not constitute willfulness.\u00a0 The evidence does not show a willful disregard ofOSHA requirements or employee health.In summary, we reject all the parties’ challenges to the judge’s decision forthe reasons given above, and we affirm that decision.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUN 29 1984CLEARY, Commissioner, concurring in part and dissenting in part:I concur in the majority’s ruling against Duquesne on the knowledge issue.\u00a0 However, the majority’s disposition of the issues raised by the Secretary is basedon erroneous legal tests and unsupportable factual findings.I The majority’s reading of the initial monitoring and annual medical examstandards, 29 C.F.R. ?? 1910.1001(f)(1) and (j)(3), is strained and contrary to theplain meaning and the purposes of those standards, as well as the previous interpretationsof them.\u00a0 The Supreme Court has noted that safety regulations are to be construed toeffectuate the Congressional purpose underlying the Act, which is to assure so far aspossible safe and healthful working conditions for working men and women.\u00a0 WhirlpoolCorp. v. Marshall, 445 U.S. 1 (1980).\u00a0 This rule is especially applicableto health regulations designed to protect employees against the possibility of contractingcancer.\u00a0 Restrictive readings of OSHA health regulations, carving out impliedexceptions to their coverage contrary to their express language, are unreasonable andimpermissible.\u00a0 Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir.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 the Act.\u00a0 SeeGAF Corp., 75 OSAHRC 3\/A2, 3 BNA OSHC 1686.\u00a0 1975-76 CCH OSHD ? 20,163 (No.3203, 1975), aff’d, 561 F.2d 913 (D.C. Cir. 1977).\u00a0 Thus, the provisions ofthe asbestos standard apply whenever employees are exposed to airborne asbestos in anymeasurable concentration.\u00a0 GAF Corp. v. OSHRC, [supra]; cf. Marshallv. Western Electric, Inc., [supra]. Respondent, whose employees were exposed toairborne asbestos in measurable concentrations, is required to comply with the provisionsof the standards. . . . It is enough that [the Secretary] show employee exposure tomeasurable concentrations of airborne asbestos and a concomitant failure on the part ofRespondent to monitor or provide medical examinations.\u00a0 Research-Cottrell, Inc.,81 OSAHRC 26\/B13, 9 BNA OSHC 1489, 1497, 1981 CCH OSHD ? 25,284, pp. 31,263-64 (No.11756, 1981).[[1]]\u00a0 In Industrial Union Dep’t, AFL-CIO v. American PetroleumInstitute , 448 U.S. 637, 658 n. 65 (1980), the Supreme Court interpreted the D.C.Circuit’s opinion in GAF Corp., supra, to require employers to providemedical exams for employees exposed to any asbestos fibers, even below thepermissible exposure limit.Despite the authoritative interpretations of the broad scope of the twostandards involved here, the majority reads an implied \”regular exposure\”restriction into them.\u00a0 As to the initial monitoring standard, ? 1001(f)(1), themajority states that when read together with ?? 1001(f)(2)(ii) and (f)(3)(ii), thatstandard is limited in scope to operations that take place at least every six months. Thepertinent provisions are given below. [[2]]\u00a0 Sections 1001(f)(2) and (f)(3)(ii), innearly identical language, call for subsequent monitoring after the initial monitoring,with sufficient frequency and pattern as to represent employee exposure levels withreasonable accuracy.\u00a0 They also call for samples at least every six months foremployees whose exposure may reasonably be foreseen to exceed permissible levels.\u00a0The obvious purpose of those provisions is to assure that measured employeeexposures accurately represent actual exposures, not to nullify the explicit andunambiguous requirement of ? 1910.1001(f)(1) that an employer monitor every workplacewhere asbestos fibers are released to determine whether every employee’s exposure iswithinpermissible limits.\u00a0 The implied exception that the majority reads into the standard,contrary to its express language, is impermissible.\u00a0 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 that its application toemployees \”engaged in occupations exposed to airborne concentrations of asbestosfibers\” excludes employees not regularly exposed as part of their occupation. \u00a0However, the only limitation warranted by that phrase is that medical exams need not begiven to employees who never are exposed to airborne concentrations of asbestos fibersduring the course of their occupation.\u00a0 Here, the employees were exposed as part oftheir occupation on September 12, 1978.\u00a0 Thus, they are entitled to the protection ofannual medical exams under the plain language of the standard.\u00a0 In fact, the evidenceindicates that certain employees were also exposed numerous times previously, as discussedin Part II infra.\u00a0 Again, the implied exception found by the majority,resulting in the denial of the protection of the standard to these employees, isunreasonable and impermissible.\u00a0 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 permissible exposure limits areeffective, and in removing unusually susceptible workers before they suffer permanentdamage. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, supra,448 U.S. at 657-58 and n. 67.\u00a0 The latter purpose is particularly important where, ashere, the employees are exposed to concentrations of asbestos far above permissiblelimits.[[5]]\u00a0 The evidence shows that Duquesne employees could contract cancer as aresult of the exposures proven here (see Part II infra).\u00a0 At a minimum, theyare entitled to the protection of the medical exam provisions.IIThe majority’s holding that the massive exposures proven here should becharacterized as nonserious also rests on overly restrictive views of the law and theevidence.\u00a0 In determining whether a violation involving exposure to toxic chemicalsis serious, we must look to \”the harm the regulation was intended to prevent, and ifthat harm is death or serious physical injury, a violation of the regulation is serious perse.\”\u00a0 Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir.1984).\u00a0 The asbestos standard is expressly designed to afford employees protectionagainst contracting lung cancer, mesothelioma and asbestosis.\u00a0 Preamble to theAsbestos Standard, 37 Fed.Reg. 11318 (1972).\u00a0 Thus, the standard’s purpose isto protect employees against life-threatening diseases, and the violations of it hereclearly are serious.Even if specific evidence is demanded that the exposures proven in this casecould result in serious consequences, as the majority does, the evidence of recordindicates that (1) the exposures on September 12, 1978, could result in cancers bythemselves and (2) in any event, Duquesne employees had been exposed to asbestospreviously a number of times.\u00a0 The majority’s findings to the contrary are notsupportable.Dr. Parkinson specifically testified that the available evidence indicatesthere is a possibility of contracting cancer based on any amount of exposure to asbestos.\u00a0He testified that even assuming that the only exposure was on September 12, 1978,the employees still faced a real possibility of contracting mesothelioma, an incurableform of lung and abdominal cancer.\u00a0 He specifically referred to a 1976 study ofmesothelioma in which the author studied quite small asbestos exposures to determine ifthere was any exposure level below which persons would be safe from the disease.\u00a0 Theauthor found no such level.\u00a0 This is specific scientific research supporting theSecretary’s position.\u00a0 There was no evidence rebutting the possibility of seriousharm resulting from one-time expo- sures.\u00a0 Thus, the Secretary’s specific evidence issufficient to establish a substantial probability that death or serious physical harmcould result from the September 12, 1978, exposures alone.[[6]]Furthermore, Duquesne employees had been previously exposed to asbestos anumber of times.\u00a0 First, Duquesne’s efforts to end asbestos use and its adoption of a10-step asbestos handling procedure indicate that asbestos insulation in fact had beenapplied previously.\u00a0 Second, Pash testified that he had worked for Duquesne as amaintenance mechanic for 16 or 17 years; that he had worked on various turbine overhaulsthroughout that period; that insulation must be removed each time an overhaul is done; andthat some of the insulation he worked with was labeled \”asbestos\” in Duquesne’sstoreroom (no other content labels appeared on any insulation).\u00a0 Pash testified thatthe procedures used in removing the insulation on September 12, 1978, were no differentfrom those used during the previous jobs in which he had participated.\u00a0 The onlyreasonable inference is that Pash previously had been exposed to asbestos on numerousoccasions.\u00a0 There was no rebuttal evidence to show that the asbestos he had workedwith previously (some of it marked \”asbestos\”) really wasn’t asbestos, or thatadequate precautions ever had been taken to protect employees from asbestos exposure.\u00a0 The evidence is clear that Duquesne employees including Pash had been exposed toasbestos on a number of previous occasions.\u00a0 This is consistent with the testimony ofDr. Parkinson, the Secretary’s medical expert, that any assumption that a worker’sexposure to asbestos can be limited to one or two days is artificial.\u00a0 The repeatedexposure of certain employees can only add to the danger of serious asbestos-relateddisease.Where, as here, the unrebutted evidence establishes a substantial probabilitythat the violations could result in serious consequences, a serious violation should befound, even under a specific evidence requirement.\u00a0 Hermitage Concrete Pipe Co.,82 OSAHRC 14\/A2, 10 BNA OSHC 1517, 1982 CCH OSHD ? 25,975 (No. 4678, 1982).\u00a0 Themajority’s restrictive view of the evidence suggests that it would require scientificcertainty that cancer or other serious consequences could result.\u00a0 That would beinconsistent with the plain language of section 17(k) of the Act, 29 U.S.C. ?666(j),[[7]] which defines a serious violation in terms of a \”substantial probabilitythat death or serious physical harm could result.\”\u00a0 Also, cases upholding theSecretary’s authority to regulate suspected carcinogens including asbestos have noted hisauthority and duty to do so in the absence of scientific certainty.[S]ome of the questions involved in the promulgation of these standards areon the frontiers of scientific knowledge, and consequently as to them insufficient data ispresently available to make a fully informed factual determination. . . . For example, in this case the evidence indicated that reliable data is notcurrently available with respect to the precisely predictable health effects of variouslevels of exposure to asbestos dust; nevertheless, the Secretary was obligated toestablish some specific level as the maximum permissible exposure.\u00a0 After consideringall the conflicting evidence, the Secretary [adopted] a relatively low limit . . . .Inasmuch as the protection of the health of employees is the overriding concern 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, 509F.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 respect towhether intermittent (or even isolated) asbestos exposures can cause or contribute tocancers.\u00a0 However, sound choices must be made based on the available evidence.\u00a0Here the specific evidence establishes a substantial probability that such exposures canlead to cancer.\u00a0 Thus, consistent with section 17(k) of the Act, the violations hereshould be found to be serious even under a specific evidence requirement.The majority’s assertion that its nonserious characterization is consistentwith the Secretary’s and the Commission’s past treatment of asbestos standard violationsdoes not support its conclusions here.\u00a0 The Commission has affirmed a seriousviolation of an asbestos personal protective equipment standard in at least one case since1981.\u00a0 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,is unfounded, as is its reference to Hull Pottery Co., 82 OSAHRC 18\/D9, 10 BNA OSHC1575, 1982 CCH OSHD ? 25,972 (No. 78-555, 1982), and Baldwin Industries, Inc., 82OSAHRC 19\/A2, 10 BNA OSHC 1572, 1982 CCH OSHD ? 25,980 (No. 78-741, 1982).\u00a0 Unlikethose three cases, here it is established that certain employees had been exposed toimpermissible ceiling and 8-hour time weighted average exposures to asbestos fibers, andthere was specific testimony of cancer hazards as a result of the measured exposuresalone.\u00a0 It also should be noted that the seriousness of all\u00a0 theviolations alleged by the Secretary is on review, not just the monitoring and medical examitems.\u00a0 The seriousness of each violation must be determined in light of the entirerecord here, even under a specific evidence test.\u00a0 Research-Cottrell, Hulland Baldwin do not support the majority’s position.IIIThe majority correctly states that the Commission will find willfulness where the employeracts voluntarily with either intentional disregard of, or plain indifference to, OSHArequirements.\u00a0 E.g., Mel Jarvis Construction Co., 81 OSAHRC 89\/B13, 10BNA OSHC 1052, 1981 CCH OSHD ? 25,713 (No. 77-2100, 1981).\u00a0 Here, Duquesne’ssupervisors responsible for the September 12, 1978, insulation removal knew that asbestoswas unsafe (engineer Nelson actually knew it was a suspected carcinogen).\u00a0 They knewthat Duquesne had a 10-step procedure for protecting employees when working with it.\u00a0 They failed to use those procedures because they thought from their inspection thatit was not asbestos.\u00a0 However, that belief was unreasonable, as even the majorityfinds. [[9]]Theoretically, the supervisors’ action might be attributed to merecarelessness except for the statements made by a group of Duquesne supervisors includingDeSalle to an OSHA compliance officer at Phillips Station on August 4, 1978.\u00a0 Thegroup advised the compliance officer that if Duquesne ever had its employees removeinsulation, they would assume they were working with asbestos and would useDuquesne’s 10-step protective procedure, which they showed the compliance officer.\u00a0Thus, DeSalle knew that no chances were to be taken with insulation.DeSalle had no way of knowing whether the insulation removed on September 12, 1978,contained asbestos.\u00a0 Duquesne never had trained him or Nelson how to identifyasbestos, and neither supervisor indicated any reason to believe he could make thatdetermination with any degree of certainty. [[10]]\u00a0 In fact, when the complianceofficer consulted with Duquesne’s supervisors including DeSalle on August 4, 1978,concerning whether there was asbestos insulation on another turbine in the plant, theysaid they would have no way of knowing.DeSalle’s explanation that he \”thought\” from a cursory examinationthat it was not asbestos is no explanation at all, because he knew the policy to assumeit was asbestos until proven otherwise, and he had no reasonable basis to conclude it didnot contain asbestos. DeSalle had not even taken the easy steps of having Duquesne’srecords checked or calling the contractor which had installed the insulation to confirmits content.In the circumstances, it must be concluded that DeSalle and Nelsonintentionally or plainly disregarded the possibility that the insulation might containasbestos.\u00a0 This gambling with the employees’ health involved an element of consciousrefusal to take precautions mandated under known policies and is properly characterized aswillful.\u00a0 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 in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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.\u00a0 Within 6 months ofthe publication of this section, every employer shall cause every place of employmentwhere asbestos fibers are released to be monitored in such a way as to determine whetherevery employee’s exposure to asbestos fibers is below the limits prescribed in paragraph(b) of this section.\u00a0 If the limits are exceeded, the employer shall immediatelyundertake a compliance program in accordance with paragraph (c) of this section.(j) Medical examinations(3) Annual examinations.\u00a0 On or before January 31, 1973, and at least annuallythereafter, every employer shall provide, or make available, comprehensive medicalexaminations to each of his employees engaged in occupations exposed to airborneconcentrations of asbestos fibers.\u00a0 Such annual examination shall include, as aminimum, a chest roentgenogram (posterior-anterior 14 x 17 inches), a history to elicitsymptomatology of 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 as 1972.\u00a0 Therefore, the repair of steam and water lines or the overhaul of turbines in whichthe asbestos insulation had been replaced with non-asbestos products after 1972 would notinvolve the danger of employee exposure to airborne asbestos since the replacementinsulation did not contain asbestos.[[3]] OSHA industrial hygienist (IH) Francis Voycik took measurements of theexposures of four employees with sampling pumps and measuring devices during a 45-minuteperiod on Sept. 12.\u00a0 The measurements showed that employee Schomburger was exposed toa concentration of 51.5 asbestos fibers per cubic centimeter of air (fibers\/cc) for 28minutes, 99.5 fibers\/cc for 7 minutes and an overall TWA of 4.45 fibers\/cc for a projected8-hour period.\u00a0 (The ceiling concentration allowed is 10 fibers\/cc and the 8-hour TWAallowed is 2 fibers\/cc.\u00a0 Sections 1910.1000(b)(2), (3).\u00a0 All references to\”asbestos fibers\” in this decision are to the term as defined in ?1910.1001(a)(2) – \”asbestos fibers longer than 5 micrometers.\”)\u00a0 Foremployee Pash, the measurements showed exposure to 14.8 fibers\/cc during one 32-minuteperiod, and for employee Hendricks, 15.2 fibers\/cc during a 25-minute period.\u00a0 Allother measurements were within allowable limits.\u00a0 The insulation removal operationresumed on Sept. 18, 1978, and OSHA again inspected, but no citations were issued relativeto that day.[[4]] Duquesne’s 10-step procedure included the following requirements:\u00a0 employee useof single-use dust respirators, proper eye protection and coveralls or similar protectiveclothing; vacuuming the protective clothing at day’s end; roping off the work area andrestricting entry by posting; placing canvas over grates to prevent dust falling to lowerlevels in the station; wetting down asbestos or wrapping it with wet rags; collectingasbestos waste in sealed, properly marked containers; and cleanup of asbestos by vacuumingor wet methods.[[5]] DeSalle testified that insulation is removed from only the top part ofthe turbine unless a major overhaul is undertaken, in which case insulation is removedfrom both the top and the bottom of the turbine.\u00a0 He also testified that theinsulation on the top part of the turbine had been removed and replaced since theinsulation on the bottom of the turbine had been applied, accounting for his conclusionthat only some of the insulation contained asbestos.[[6]] Section 17(k) provides:For purposes of this section, a serious violation shall be deemed to exist ina place of employment if there is a substantial probability that death or serious physicalharm could result from a condition which exists, or from one or more practices, means,methods, operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.[[7]] 37 Fed. Reg. 11318 (1972).[[8]] The judge found no reliable evidence that any employees were exposed toasbestos at any time prior to the Sept. 12, 1978 operation, and we agree.\u00a0 No one atthe hearing was able to say that any insulation previously removed by Duquesne employeesactually was asbestos.\u00a0 Also, station superintendent DeSalle had been orderingnon-asbestos insulation for most of the 1970’s.\u00a0 AC & S, the contractor which in1972 installed the insulation involved in the Sept. 12, 1978 operation, had ceased usingasbestos insulation in the station as of the latter part of 1972, and in early 1975 thecompany had issued a policy against use of asbestos insulation.\u00a0 The Secretary’sevidence of previous exposure before 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 vacated since the six-monthcompliance period for initial monitoring had expired or whether, in the alternative,citation was premature because the cited standard allows six months for compliance afterinitial asbestos exposure.[[1]] In Research-Cottrell, the employer was required to determine theexposure of every employee, even though some or most of the employees were transient.\u00a0 The case did not distinguish between long-term and short-term employees.[[2]] ? 1910.1001 Asbestos(f) Monitoring* * *(2) Personal monitoring* * * (ii) Sampling frequency and patterns.\u00a0 After the initial determinationsrequired by paragraph (f)(1) of this section, samples shall be of such frequency andpattern as to represent with reasonable accuracy the levels of exposure of employees.\u00a0In no case shall the sampling be done at intervals greater than 6 months foremployees whose exposure to asbestos may reasonably be foreseen to exceed the limitsprescribed by paragraph (b) of this section.(3) Environmental monitoring* * * (ii) Sampling frequency and patterns.\u00a0 After the initial determinationsrequired by paragraph (f)(1) of this section, samples shall be of such frequency andpattern as to represent with reasonable accuracy the levels of exposure of the employees.\u00a0 In no case shall the sampling be at intervals greater than 6 months for employeeswhose exposures to asbestos may reasonably be foreseen to exceed the exposure limitsprescribed in paragraph (b) of this section.[[3]] The annual medical exam standard, ? 1001(j)(3), provides in pertinentpart:Annual examinations.\u00a0 On or before January 31, 1973, and at leastannually thereafter, every employer shall provide, or make available, comprehensivemedical examinations to each of his employees engaged in occupations exposed to airborneconcentrations of asbestos fibers………[[4]] Indeed, it was predictable that maintenance employees would be exposedto asbestos as part of their regularly scheduled turbine overhaul work.\u00a0 Why elsewould Duquesne’s supervisors have implemented a policy to assume the insulation wasasbestos and use the 10-step procedure automatically?[[5]] For example, the industrial hygienist’s monitoring results showed thatone employee was exposed to almost 10 times the permissible ceiling concentration ofasbestos fibers during one sampling and that another employee was exposed to more than 5times the permissible ceiling concentration during another sampling.\u00a0 Clouds of dustwere created during the operation due to the manner in which the asbestos was thrown intowaste containers.[[6]] The criteria document on asbestos published by the National Institute forOccupational Safety and Health (NIOSH), which formed part of the basis for the currentasbestos standard, also indicates the potential dangers of isolated or short-term asbestosexposures.\u00a0 U.S. Dep’t of Health, Education and Welfare, NIOSH, RecommendationsFor An Occupational Exposure Standard For Asbestos (1972).\u00a0 The criteriadocument noted a study of 232 former insulation plant employees by Dr. Irving Selikoff,which reported positive X-ray findings among individuals having known asbestos exposuresas short as one day.\u00a0 Id. at III -7 and Table XXVII.\u00a0 NIOSH also cited areport finding an excess of lung cancer in a study of over 4,500 male workers employed atan asbestos factory making both textile and insulation products.\u00a0 This excess of lungcancer was demonstrated among workers whose jobs entailed heavy exposure, regardless ofthe duration of employment.\u00a0 Id. at III -7 & 8.\u00a0 NIOSH concluded thatthe effect after several decades of a one-time acute dose of limited duration whichoverwhelms the clearing mechanism, and is retained in the lungs, may be as harmful as manyyears of work at lower daily levels of exposure.\u00a0 Id. at V -3.\u00a0 In thiscase, Dr. Parkinson testified that he considered certain of the employees’ exposures onSeptember 12, 1978, to be very high.\u00a0 See n. 5 supra.\u00a0 NIOSHconcluded that the initiation of cancer is possible following single small exposures toasbestos, although of a low probability.\u00a0 Id. at V -12.[[7]] Section 17(k) provides:For purposes of this section, a serious violation shall be deemed to exist ina place of employment if there is a substantial probability that death or serious physicalharm could result from a condition which exists, or from one or more practices, means,methods, operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.[[8]] Moreover, the past treatment of asbestos cases by the Secretary is irrelevantbecause he is not bound by his discretionary enforcement actions in other cases.\u00a0 FlemingFoods of Nebraska, Inc., 77 OSAHRC 196\/C12, 6 BNA OSHC 1233, 1978 CCH OSHD ? 22,889(No. 14484, 1977); see Columbian Art Works, Inc., 81 OSAHRC 96\/F5, 10 BNAOSHC 1132, 1981 CCH OSHD ? 25,737 (No. 78-29, 1981).\u00a0 In any event, the Secretarypreviously has cited standards at issue here as serious.\u00a0 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 and Machine Works, 81 OSAHRC 52\/B12, 9 BNA OSHC1936, 1981 CCH OSHD ? 25,402 (No. 80-2196, 1981, (ALJ) (? 1001(j)(3)). [[9]] Thus, no \”good faith\” exception to a finding of willfulness is warranted.\u00a0 Where an employer believes in good faith that he is in compliance with an OSHAregulation, no willful violation may be found.\u00a0 However, the test of good faith isobjective.\u00a0 The belief must be reasonable in the circumstances.\u00a0 Mel Jarvis,supra.[[10]] Other testimony by an OSHA physical scientist, Crane, confirmed thatuntrained persons like DeSalle and Nelson could not make such a determination with anydegree of certainty.”