“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79?4080 & 79?4081 \u00a0 LUTZ, DAILY & BRAIN-CONSULTING ENGINEERS, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September 25, 1980ORDER??????????? Theseare cases under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??\u00a0651?678(?the Act?). In both cases, the Secretary of Labor (?the Secretary?) issued tothe Respondent citations alleging that Respondent committed nonseriousviolations of section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), by failing tocomply with two standards concerning asbestos published at 29 C.F.R. ?1910.1001(f)(3)(i) and 29 C.F.R. ? 1910.1001(g)(1)(i). The citations arose outof inspections of two separate worksites, the Kaw Valley Power Station (No.79?4080), and the Nearman Creek Power Station (No. 79?4081), both located inKansas City, Kansas. Following Respondent?s notices of contest to thecitations, the two docket numbers were assigned and the cases were assigned toAdministrative Law Judge Vernon Riehl. The judge scheduled the cases for hearingon the same day but, at the Secretary?s request immediately prior to thehearing, Judge Riehl consolidated the cases for hearing and decision.[1]??????????? Afterthe hearing, Judge Riehl issued a decision in which he entered factualfindings, legal conclusions, and orders vacating the citations in both cases.The Secretary filed a petition for discretionary review in No. 79?4080 takingexception to certain findings and conclusions of the judge concerning thecitation arising out of the Kaw Valley Power Station inspection. The petitionalso indicated that the Secretary believed the judge reached incorrect legalconclusions in No. 79?4081 as well, but that he was not seeking review of thatcase ?because the facts therein may not establish the violations alleged.? CommissionerCottine granted the Secretary?s petition for review.??????????? Becauseno issue involved in Docket No. 79?4081 was directed for review, that case isnot before us on review. See Commission Rule of Procedure 92(c), 44 Fed. Reg.70106, 70111 (1979), to be codified in 29 C.F.R. ? 2200.92(c) [formerly Rule91a(c), 29 C.F.R. ? 2200.91a(c)]. Accordingly, pursuant to Commission Rule 10,[2] we hereby sever the twocases. In Docket No. 79?4081, the judge?s decision is the final order of theCommission. Docket No. 79?4080 remains before the Commission for review.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: SEP 25, 1980\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79?4080 & 79?4081 \u00a0 LUTZ, DAILY & BRAIN-CONSULTING ENGINEERS, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 4, 1980APPEARANCES:EUGENE F. DeSHAZO, Esquire, ELIEHUE C.BRUNSON, Esquire, U. S. Department of Labor, Office of the Solicitor, KansasCity, Missouri For the Complainant\u00a0JAMES N. NOWACKI, Esquire, Kirkland andEllis, Chicago, Illinois For the Respondent?STATEMENT OF CASE??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 contesting a citation issued by the complainant against therespondent under the authority vested in the complainant by section 9(a) of theAct. The citation alleged that an inspection of a workplace under the operationand control of the respondent revealed the existence of workplace conditionsthat violated section 5(a)(2) of the Act for the reason that these conditionsfailed to comply with certain occupational safety and health standardspromulgated by the Secretary of Labor pursuant to section 6 thereof.??????????? Causes79?4080 and 79?4081 have been consolidated.??????????? Thecitations alleged that the violations resulted from a failure to comply withstandards promulgated by publication in the Federal Register.??????????? Adescription of the alleged violations contained in said citations states:OSHRC Docket 79?4080Item 1A, 29 CFR 1910.1001(f)(3)(i)Samples were not collected from areas of awork environment which were representative of the airborne concentrations ofasbestos fibers which may reach the breathing zone of employees:Kaw Power Generation Station Constructionsite owned by the Board of Public Utilities located at 2015 Kansas Avenue,Kansas City, Kansas.?Employees in the construction area wherepipes, structures and equipment were in the process of having asbestosinsulation or coverings removed or demolished by the Board of Public Utilitiesor Industrial Clean Air.? Item 1B, 29 CFR 1910.1001(g)(1)(i)Caution signs were not provided anddisplayed at all locations where airborne levels of asbestos fibers may be inexcess of prescribed limits:Kaw Power Generation Station constructionsite, owned by the Board of Public Utilities, located at 2015 Kansas Avenue,Kansas City, Kansas?Construction area where pipes, structuresand equipment were in the process of having asbestos insulation or coveringsremoved or demolished by the Board of Public Utilities or Industrial Clean Air.? OSHRC DOCKET 79?4081Item 1A, 29 CFR 1910.1001(f)(3)(i)Samples were not collected from areas of awork environment which were representative of the airborne concentrations ofasbestos fibers which may reach the breathing zone of employees.?Nearman Creek Power Station, Unit #1,owned by the Board of Public Utilities, located at 4245 North 55th Street,Kansas City, Kansas.?Cutting of Transite electrical ductscontaining 20% asbestos with abrasive type cut-off wheel by employees atSachs\/Commonwealth, and Sanders\/Capital Electric.? Item 1B, 29 CFR 1910.1001(g)(1)(i)Caution signs were not provided anddisplayed at all locations where airborne levels of asbestos fibers may be inexcess of prescribed limits.?Nearman Creek Power Station, Unit #1,owned by the Board of Public Utilities, located at 4245 North 55th Street,Kansas City, Kansas.?Areas where Transite electrical ductscontaining 20% asbestos was cut with abrasive type cut-off wheels by employeesof Sachs\/Commonwealth and Sanders\/Capital Electric.???????????? Theconsolidated cases were heard on April 8, 1980, in Kansas City, Missouri.??????????? Followingthe hearing respondent, on May 17, 1980, filed a Motion for Preclusion. Thegrounds given in the Motion for Preclusion were that complainant was one daylate in forwarding to the Court the proposed findings of fact, conclusions oflaw, and brief.??????????? Thismotion is overruled as there is no prejudice whatsoever to respondent. The timeset forth in our order was a random figure, which we thought to be adequateunder the circumstances.??????????? Ourdecision, which is in favor of the respondent, to vacate the citation takesinto full account the material set forth in complainant?s brief.??????????? Thecomplaint alleged that caution signs were not provided and displayed at alllocations where airborne levels of asbestos fibers may be in excess ofprescribed limits (29 CFR 1910.1001(g)(1)(i)).??????????? Thiscitation was for the construction area where pipes, structures and equipmentwere in the process of having asbestos insulation or coverings removed ordemolished by the Board of Public Utilities or Industrial Clean Air.??????????? Complainantalleged that respondent knew of the presence of airborne asbestos at two of itsaforementioned work sites, but allowed its employees to become exposed toasbestos contaminates while failing to monitor the asbestos level or to postnotices of the hazardous conditions.??????????? Complainantstates that the respondent, in essence, carried out project managementfunctions which included design of all improvements on new construction,administration and coordination of construction on behalf of the Board ofPublic Utilities, and daily inspections of the work by its resident engineerswho provided continual evaluation of the construction activities. Respondentalso allegedly held weekly construction meetings which required that all primecontractors submit reports and construction schedules for review and comment.??????????? Theevidence establishes there were asbestos contaminates at both the Kaw ValleyPower Station and the Nearman Creek Power Station. The credible evidence alsois that the respondent performed no tests to determine asbestos levels, postedno notice of the presence of the contaminates, nor did it see that the Board ofPublic Utilities did the same. The record further shows that at least fiveother prime contractors, tractors, performing work for the Public Utilities atthe aforementioned site, were cited for the same violations. None of thecontractors contested the citations and promptly abated the hazards.??????????? Thecomplainant contends that the respondent was very much in control ofconstruction activities and had contracted to keep the Board of PublicUtilities informed as to defects or deficiencies in the work of thecontractors. In addition, complainant states that the respondent had the powerto disapprove or reject work that failed to conform to the contract (exhibitsR?1; T. 85).??????????? Althoughthe respondent, in effect, prepared designs and specifications which made upthe contract between the Board of Public Utilities and the prime contractors(T. 88?90), respondent states that they did not supervise the job but hadcontrol over the finished product.??????????? Insupport of its contention, the complainant cites Marshall v. Bechtel PowerCorp., 548 F.2d 248. In that case we affirmed a citation for fournonserious violations and the proposed penalties. The employer had contendedthat it could not be cited under 29 CFR 1926 because it was not engaged inconstruction. We ruled that the employees, on the production site, were engagedin construction although more or less in a supervisory capacity within themeaning of the Act. The employer was judged to be a integral part of the totalconstruction going on at the site at the time of inspection, and was,therefore, subject to standards designed to protect any employee working on theproject. We still feel that this decision is sound, but it does not apply tothe instant case because the evidence does not indicate exposure nor sufficientfacts to make a violation of the standard involved.??????????? Inthe Bechtel case we adopted a broad interpretation of the terms ?workfor construction? and ?engaged in construction,? so as to reach beyond workersdoing manual labor and to cover individuals performing vital functions in thetotal activities of the construction project This decision, which was upheld bythe Review Commission, was affirmed by the United States Court of Appeals forthe Eighth Circuit.??????????? Inthe instant case we do have a project management function which included designof the facilities, administration and coordination of construction on behalf ofthe Board of Public Utilities, and daily inspection of the work.DISCUSSION??????????? Respondentin its brief stated that it provided professional engineering services for thedesign of a new coal-fired, electrical power generation station in Kansas City,Kansas, known as the Nearman Creek Power Project. Respondent?s engineeringduties were set forth in its October 11, 1972, written contract with the Boardof Public Utilities of the City of Kansas City, Kansas (Board of PublicUtilities), a quasimunicipal corporation. Respondent?s engineers prepared plansand specification which describe, through drawings and written specifications,the composition of the completed Nearman Creek Project. Respondent states thatthese plans and specifications were then incorporated into the contractsbetween the Board of Public Utilities and various construction contractors.Among those contractors was Saunders Plumbing and Heating, Incorporated, whosesubcontractor was Capital Electric Company (together Saunders\/Capital) who wasresponsible for constructing yard piping for the Nearman Creek Project. Anothercontractor was the joint venture of Sachs Electric Company and CommonwealthElectric Company (Sachs\/Commonwealth). That contractor was responsible forinstalling electric power and lighting for the Nearman Creek Project. BothSanders\/Capital and Sachs\/Commonwealth, as part of their work, were to installcertain Transite electrical duct along the ground.??????????? Transiteelectrical duct is manufactured by John-Manville and contains asbestos. It isuncontested that there is no danger from the asbestos in the Transiteelectrical duct unless it is discharged into the air by cutting it with a powersaw or abrasive cut-off wheels. Any other form of cutting the duct is harmless.The Transite electrical duct was laid in long runs across the ground at NearmanCreek Project. This Transite electrical duct is basically a small pipe orconduit through which at a later point electrical wire is to be placed. Ininstalling the Transite electrical duct the different pieces are bound togetherin fitted sections without cutting. The only cutting that occurs is at the endof the run where the last piece must be cut to fit the remaining spaceavailable (T. 60, 109).??????????? Respondentstates that on June 20, 1979, an OSHA inspector, Lionel Olson, arrived at theNearman Creek Project site. He asked Robert Follmer, chief resident engineerfor respondent, to show him one of the ends of the run where Transiteelectrical duct would be expected to be cut. The two men walked to that areaand each observed debris on the ground where apparently cutting had occurred.Neither man observed any actual cutting of the Transite Electrical duct (T.55). Lionel Olson took samples of the debris with him for subsequent analysis.At no time before or after did Robert Follmer, or any other employee of theengineer, ever see this debris (T. 120?121, 123?124, 127, 133, 136). Theevidence establishes that the employees of the engineer did not spend time inthe area where Transite electrical duct was being cut, nor did they ever see itbeing cut (T. 110, 120, 122, 131, 133).??????????? Subsequentanalysis by OSHA officials indicated that the debris on the ground on June 20did contain asbestos fibers. However, no tests were taken by the OSHA officialsof the amount of asbestos, if any, in the air (T. 18, 23, 54, 58?59; exhibitC?2). No tests were taken of the respondent?s employees (T. 56, 121).Nevertheless, an OSHA citation was issued to the respondent for itself failingto have tested for asbestos in the air and for failing to post warning signs ofasbestos (29 CFR 1910.1001(f)(3)(i) and (g)(1)(i)).??????????? Becausenone of respondent?s employees had noticed there was any asbestos hazard, therespondent cannot be liable. In Secretary of Labor v. Anning-Johnson Co.,1975?76 CCH OSHD ?20,690 (1976), the Commission reviewed in detail theprinciples of law applicable to a multiple employer setting. The Commissionheld that it was an affirmative defense if the employer and his employees didnot have notice or with reasonable diligence would not have had notice of thehazardous condition. It is undisputed that improper cutting with power saws orabrasive cut-off wheels is the only source of an asbestos hazard from Transiteelectrical duct. The evidence of record establishes that no one employed byrespondent ever observed any cutting of Transite electrical duct (T. 55,120?121, 123?124, 127, 133, 136). The only occasion when any debris fromcutting the Transite electrical duct was observed, in one instance, was whenthe OSHA compliance officer asked to see the end of a duct run where cuttingwould normally occur. But, it was unknown when that debris was first there orif the cutting that caused it had even occurred during normal working hours. Noemployee of the respondent ever observed any power saws or abrasive cut-offwheels in the vicinity of any of the Transite electrical duct at any time (T.136). The respondent?s engineers had no duty to observe the constructionmethods employed by Saunders\/Capital and Sachs\/Commonwealth. Respondent?semployees had no reason to know in the exercise of their duties that there wasany improper cutting of Transite electrical duct (T. 82, 90; R?2, R?2A).Accordingly, the citations must be dismissed.??????????? TheSecretary of Labor has not proved that the respondent?s employees had access tothe areas where the claimed hazardous condition was created. In Gilles andCotting, Inc., 1975?76 CCH OSHD ?20,448 (1976), on remand from 504 F.2d1255 (4th Cir. 1974), ?access? was defined by the Commission as follows:We would expect the proof to show thatemployees either while in the course of their assigned working duties theirpersonal comfort activities while on the job, or their normal means of ingress\/egressto their assigned workplaces, will be, or, or have been in a zone of danger.???????????? Theevidence establishes that the employees of the respondent did not have anyassigned working duties that included observing the cutting of Transiteelectrical duct or being in the vicinity where that activity was occurring (T.82?86, exhibit C?1). The credible evidence establishes that Robert Follmer, andothers employed by the respondent at the Nearman Creek Project, did not enteror leave the worksite near any area where Transite electrical duct has been cut(T. 130, 135). The testimony was that at no time during the exercise of theirnormal duties, personal activities, or ingress or egress from their assignedwork areas, did any of respondent?s employees encounter the areas whereTransite electrical duct was being cut (T. 93, 121, 130, 134?135, 136).??????????? TheSecretary of Labor did not present any proof as to when any improper cutting ofTransite electrical duct occurred. It is possible (perhaps not probable) thatsuch work was done outside of normal working hours when the employees or theengineer were not present at the Nearman Creel Project site. It is the burdenof the Secretary of Labor to prove respondent?s employees had access to thehazard. It is clear that, in this case, the complaint cannot be sustained as tothe respondent. See Secretary of Labor v. Anning-Johnson Company,1975?1976 CCH OSHD ?20,690 (1976).??????????? It isto be noted that on cross-examination, Lionel Olson, the OSHA inspectortestified there was no proof that the respondent?s employees had even beenexposed to asbestos (T. 63?64).??????????? Respondent?sengineer on the Kaw Project designed filtration baghouses for an existingcoal-fired, electrical generating station. As part of that project, theengineer designed designed a new breeching which resembles large ventilatingduct work that connected the existing boilers to each of the baghouses to beconstructed.??????????? Plansand specifications were prepared by the engineer under respondent?s contractwith the Board of Public Utilities of October 11, 1972. These plans andspecifications were then incorporated by the Board of Public Utilities and thecontracts with various construction contractors.??????????? Beforebeginning the work of construction of the baghouses and the new breeching, theBoard of Public Utilities and one of its contractors, Industrial Clean AirCompany (ICA), first needed to demolish the old breeching including removal ofits insulation. None of this work had been specified by the respondent?s engineer.??????????? Duringearly April 1979, when this work first began, two of respondent?s engineerswere at the Kaw Station Project site. They worked out of a field office, whichwas approximately 260 feet from the area where the demolition work on theexisting breeching and insulation was being performed by the Board of PublicServices and ICA (T. 100?101). Between that area and the field office, therewas a large building shielding the field office area (T. 100?101).??????????? Duringthe course of the demolition work, a construction worker brought to theattention of Gary Schuman that the insulation appeared to contain asbestos.Schuman advised that the contractors were responsible to follow properprocedures (T. 139?140) although the respondent?s engineer did not assume anyresponsibilities for the safety of the contractors or their methods fordemolition work (T. 96?97?98; exhibit R?1).??????????? GarySchuman was aware of the contractual obligation of the contractors to performtheir work in a safe manner (T. 145; exhibits R?1, R?2C) Schuman also tookprecautions, on his own, to avoid the area where he had been told asbestos wasbeing destroyed. He was aware of the dangers of asbestos, and thereforespecifically walked routes away from the demolition site (T. 142?143, 145?147).Schuman spent approximately 30 percent of his time in the field office and onlya few minutes during the entire period near the area where the demolition wasoccurring. He spent the remainder of his time at the other areas of the projectsite (T. 67, 100?101, 141; exhibit R?2C). The other employee of the engineer,Joseph Kliethemes, had no responsibilities in the area where the demolitionwork was occurring on existing breeching (T. 144, 148). Therefore, he avoidedthat area as well (T. 144, 148). Also during this period, he wore a protectivemask over his nose and mouth (T. 71, 149).??????????? At notime was the respondent, either through the compliance officer or any othersource, advised that asbestos concentration ever reached the prohibited levelsof 2 fibers per cubic centimeter of air under 29 CFR 1910.1001(b) at the KawStation Project (T. 18, 23, 47; exhibits R?10, C2). None of the employees ofthe respondent were ever tested by OSHA officials to determine if they had everbeen exposed to asbestos (T. 56).??????????? Underthe circumstances, we hold that the efforts of Gary Schuman to avoid the sitewhere demolition was occurring, his instructions to a contractor to do hisduty, and the efforts of Joseph Kliethermes to protect himself by wearing aface mask was a reasonable alternative to literal compliance with theregulations. In Secretary of Labor v. Anning-Johnson, supra, theCommission has held that on a multi-employer worksite, as in the instant case,where the engineer had not created the hazardous conditions by doing any of theasbestos demolition work, nor did it have control over these conditions,realistic alternative measures are acceptable. The Commission also stated thatwhat is reasonable might depend upon the level of hazard.??????????? Inthe instant case, the complaint was only for failure to test or post signs. Arealistic alternative to posting signs and testing for asbestos would be simplyto stay out of the area where the asbestos demolition was being carried out bythe contractors as respondent did, and as indicated by the evidence. Therespondent cannot be held liable for failing to test or post signs when he tookthe aforementioned realistic alternative measures.??????????? In Secretaryof Labor v. Anning-Johnson, supra, the Commission held that an employer canonly be cited for a violation if his employees would be expected to be withinthe zone of danger exposing them to the hazards. In the instant case thecredible evidence shows that the engineer did not design or specify any of thedemolition work on the existing breeching or its insulation nor did theengineer have any responsibility for the methods of performance of that work(T. 96?98; exhibit R?1, R?2B). Respondent?s employees were merely on the siteto observe that the project conformed in in general to the plans andspecifications. They had no duty to observe the demolition of existingbreeching or its insulation. It is therefore apparent that the vicinity of thatwork was not their workplace, and they had made every effort to avoid it.Therefore, they were not within the zone of danger.??????????? OnMay 5 and 26, 1979, a private testing agency for the Board of Public Utilitiestested for asbestos and found no hazardous amounts (T. 143; exhibits R?10). Therespondent knew about those tests and had no duty to duplicate them (T. 43).??????????? Atthe Nearman Creek Project the compliance officer never tested for levels ofasbestos in the atmosphere (T. 18, 23, 54?59; exhibit C?2). The only samplestaken were of the debris on the ground to determine whether it was composed ofasbestos (T. 18, 23, 54, 58?59). No employees of respondent or other employeeson the site were ever monitored for asbestos exposure (T. 56, 121). However, atthe Kaw Station Project there was testing of construction workers by OSHAofficials to determine the levels of asbestos in the air (T. 8?9; exhibit C?2).Lionel Olson, the OSHA inspector, testified that only one-tenth of a fiber percubic centimeter on an 8-hour time weighted average was shown to exist (T. 47).No testing whatsoever was done on the respondent?s employees (T. 66).??????????? Inthe absence of any evidence of prohibited levels of asbestos, it accordinglyfollows that the citations by the Secretary of Labor cannot be sustained.First, 29 CFR 1910.1001(g)(1)(i), which the engineer is claimed to haveviolated, provides for warning signs as follows:(i) Caution signs shall be provided anddisplayed at each location where airborne concentrations of asbestos fibers maybe in excess of exposure limits prescribed in paragraph (b) of this citation.???????????? Therefore,warning signs are only required if concentrations of asbestos may be in excessof the exposure limits prescribed in paragraph (b) of 29 CFR 1910.1001. Thatparagraph (b) provides as follows:?a(ii) Standard effective July 1, 1976. The 8-hour time weighted average airborneconcentrations of asbestos fibers to which any employee may be exposed shallnot exceed two fibers, longer than five micrometers, per cubic centimeter ofair . . ..\u00a0??????????? It isevident therefore that there must be some showing that asbestos levels in theair were sufficient to warrant that there may be more than two fibers per cubiccentimeter of air on an 8-hour time weighted average.??????????? Atthe Nearman Creek Project there is no proof of any asbestos fibers in the air,and on the Kaw Station Project the Secretary of Labor offered proof of no morethan one-tenth of a fiber per cubic centimeter of air. There is no reason topost caution signs for such a small amount of asbestos, if any, in the area.This is more apparent in the case of respondent?s employees who were not nearthe area where the asbestos was claimed to have been released.??????????? Thetesting requirement could only have violated if the respondent shouldreasonably have believed that the two fiber per limit had been exceeded. Inthese cases, however, there is no proof that there ever was two fibers percubic centimeter of air at any location on either of the projects. Thereforethere was no reason for anyone to believe, even if they had taken a test, thatthe two fiber limit had been exceeded. There can be no violation for failing totest for the two fiber limit where the two fiber limit was never shown to havebeen exceeded.??????????? Toput it another way there could be no violation by the respondent for exposingits employees to a hazard from asbestos if there was no proof of any asbestoshazards ever existing as set forth by the standard. The failure to take a testis not of itself hazardous. It is only the failure to take a test that wouldhave shown hazardous levels of asbestos that can be a violation of section 5(b)of the Occupational Safety and Health Act (29 U.S.C. ? 654(b). No suchhazardous levels were shown to exist at either project.??????????? In DravoCorporation, 1979 CCH OSHD, ?23,388 (1979) affirmed in part, reversed inpart, on other grounds, 613 F.2d 1227 (3rd Cir. 1980), the judge held thata complaint against the employer for failure to post caution signs (29 CFR1910.1001(g)(1)(i)) and conduct tests (29 CFR 1910.1001(f)(3)(i)) for asbestosmust be dismissed where the Secretary of Labor failed to offer proof thatprohibited levels of asbestos were present in the air.??????????? Inthe instant case there is no evidence of record that the two fiber limit hadbeen exceeded at either the Nearman Creek or the Kaw Power Station.??????????? Respondent,in its brief, argues because the Board of Public Utilities is exempt from OSHAcoverage, therefore, it follows respondent is exempt because it was obligatedto perform its design and observation services under that contract at twoproject sites.??????????? Thisis not a correct statement of the law.??????????? Therespondent is liable for failing to provide a safe workplace for its employeesno matter what the situation is in regard to either a main contractor or othersubs employed at the same location.??????????? Thereis no way an employer can contract away his responsibility, under the Act, toprovide his employees a safe worksite.??????????? Respondentalso cites the delay of 26 days on the Kaw Station Project, and 62 days afterthe last inspection before a citation was issued in defense of the citation. Wesee no prejudice to the respondent because of the delay of the citation and itwill not be a factor in the decision.??????????? Weare somewhat puzzled concerning the persistence with which the Government haspursued this case. The respondent has a perfect safety record. The controllingforce in this case is a municipal body (Board of Public Utilities) which isexempt from the Act.??????????? Therespondent informed the contractor (who is responsible to take appropriatemeasures to avoid hazards from asbestos) that this was the contractor?sresponsibility. Herein we have a situation where the respondent did not createany of the conditions that were causing the hazards, if any (the evidence doesnot show, from testing, that there was a hazard within the meaning of the Act).The respondent in the instant case took reasonable precautionary measures toprotect its employees although someone else created hazard, if any. The othercontractor, who created the hazard, was in total control of the work situationin the area.??????????? Therewere never any test results showing airborne concentrations of asbestos at theKaw Station Project that exceeded two fibers per cubic centimeter of air.??????????? Thecredible evidence of record establishes a whole set of circumstances in whichthe respondent took necessary precautions, in as many areas as it possiblycould, to protect its workers from the derelictions of other contractors.??????????? TheSecretary thought so little of the severity, from the respondent?s standpoint,that there was no penalty.??????????? TheDepartment of Labor has been too aggressive in this case in a situation thatwas abated almost instantly. We cite the following testimony of record toindicate that there are other cases where the Government is not nearly soconcerned or in fact not concerned at all. This testimony is as follows:JUDGE RIEHL: I?m a little bit concernedthat the government is so overly concerned with this case that these people arejust more or less at a distance observing it, when I worked at the 212 [210]Office in St. Louis, which is owned by the government, and the late SidLevalds, who was the OSHA Area Director, ran a test and found asbestos goingall through the building at a certain count, I forget what it was, 3, 4, 5,reported it to Dr. Bingham, reported it and actually tried to shut the buildingdown and I understand his order was countermanded, that they didn?t have toleave. The government knew all that and knew I was under acts [attacks]. I hada heart attack while they were protesting, between that and the fumes.???????????? WhyMrs. Bingham and the rest of the government shows such a concern for a caselike this, which is very remote compared to what I was daily taking in dosages,why they didn?t go after this building? Is there something about the owners ofthat building that made them sacrosanct and nobody could touch them? Just whatwas it? Can you tell me why while we?re here? I?ve been pondering that for tenyears now.MR. DESHAZO: Your Honor, I have no idea. Iknow when that particular inspection was made, I know the individual that didthe testing.?JUDGE RIEHL: I talked to Mr. Levald. Heruminate [ran] the test right at the source and he?d protest it. He wrotearticles to it. I?ve seen the Area Director from St. Louis [who] wrote inprotesting that OSHA does everything but follow that lead and do somethingabout it and finds excuses for it and then I get this case, which is one-onethousands less than what they exposed me and Judge Dixon to, and Judge Wienmanto in that building, and it just defies my imagination to see that this is thesame Secretary, Mrs. Bingham, who blended [extended] authority through you andofficial agencies of this case and that one was, in effect, covered up. It?sbeyond me.?JUDGE RIEHL (interrupting): The gasolinecase, I went out of my way because I thought it was ridiculous that OSHApursued that. Later on Mrs. Bingham said, ?We? re not going to handle thesekind of cases. They?re ricky ticky. They don?t belong here. We ought to goafter serious things like carcinogens?. And so, with that case, now, here, withthese cases, I assume, rather conversely, I?m supposed to hear this one. Thiswould almost be in that category. (T. 21?23)???????????? Wequote the above testimony to show the tremendous range of concern by theDepartment of Labor concerning asbestos cases.??????????? It isto be noted that the 210 N. 12th Street Building, which Mr. Sid Levalds triedto have closed for Federal employees because of the danger of asbestospoisoning, is a Government facility not subject to the Act. We had predicted inthe Illinois Terminal case, several years ago, that all such Governmentdirectives in regard to OSHA type safety in Government building would be atotal flop insofar as correction of abuses. We note that there are a number ofFederal Employees? Unions and others concerned with safety who have brought upthe question of workplace conditions, but up until this date there is noconformance to OSHA regulations for Government people. They are, in effect,disfranchised orphans in the whole safety movement in America.??????????? Inthis case we have an employer (respondent) who is a part of the businesscommunity that is covered by OSHA. It seems to us a complete travesty toabandon any attempt to help the employees at 210 N. 12th Street from beingexposed to asbestos up until the present date and to then, when dealing with anemployer covered under the Act, so vigorously prosecute this case atconsiderable expense to both the employer and the Government.SUMMATION??????????? Wehave stated in some detail the various reasons wherein credible evidenceestablishes that the respondent is not in violation of the Act.??????????? Wethink a letter from attorney James Nowacki, representing respondent, dated June18, 1980, addressed to us, summarizes the situation for the most part asfollows:Most importantly, however, the centralundisputed fact remains that there was never any proof offered by anyone thatthe level of asbestos in the atmosphere at either project exceeded permissiblelimits. Thus, there was no violation for failing to erect caution signs . . .or conduct atmospheric tests . . . in a confused metaphor that fails to graspthe issue, stated:If one drives past a red light, it doeslittle good to stop twice next time. (Complainant?s Brief, p. 6)\u00a0To state that metaphor correctly:If one fails to check for a traffic light,it is nevertheless not a violation so long as the light was green.\u00a0In this case, the ?light was green?because there is no evidence whatsoever there was ever an impermissible amountof asbestos in the atmosphere on either project. * * *?Very truly yours,?James N. Nowacki???????????? Asfar as we are concerned this pretty well sums it up. There was no violationbecause there was never any credible evidence sustaining a violation on thepart of the respondent.FINDINGS OF FACT??????????? 1.The Nearman Creek Power Station Project (Nearman Creek Project) was located at4245 North 55th Street, Kansas City, Kansas.??????????? 2.The Nearman Creek Project was involved in the construction of a new coal-fired,electric power generating plant (T. 81).??????????? 3.The Respondent provided professional engineering services to design the NearmanCreek Project under a written contract dated October 11, 1972, between therespondent and the Board of Public Utilities of the City of Kansas City, Kansas(Board of Public Utilities) (T. 81; exhibit R?1).??????????? 4.The Board of Public Utilities, herein mentioned, is a quasimunicipalcorporation (T. 11?12).??????????? 5. Asa part of its professional engineering services, the respondent prepared plansand specifications for the Nearman Creek Project that described throughdrawings and written specification the composition of the completed NearmanCreek Power Generating Station (T. 89?90.??????????? 6.The Board of Public Utilities then incorporated the plans and specificationsinto the contracts between the Board of Public Utilities and specificcontractors who were to construct the Nearman Creek Project (T. 89).??????????? 7.These plans and specifications as prepared by the respondent did not describethe means, methods, techniques or procedures the contractors were to use toconstruct the Nearman Creek Project (T. 82, 90).??????????? 8.Pursuant to respondent?s contract with the Board of Public Utilities, it was tohave engineering personnel present at the Nearman Creek Project site who wouldresport their observations to the Board of Public Utilities as to whether theNearman Creek Project was being completed by the contractors in general accordancewith the plans and specifications (T. 83?96; exhibit C?1).??????????? 9.The contract between the respondent and the Board of Public Utilities and thegeneral conditions of the contracts between the contractors and the Board ofPublic Utilities stated that the respondent had no duties or responsibilitiesconcerning the construction means, methods, techniques, procedures, or safetymeasures, or programs of the contractors for the Nearman Creek Project (T. 82;exhibits R?2, R?2A).??????????? 10.The Board of Public Utilities entered into a construction contract withSaunders Plumbing and Heating, Inc., whose subcontractor was Capital ElectricCompany (together Saunders\/Capital), as the mechanical and electricalcontractor responsible to construct the yard piping for the Nearman CreekProject (T. 115; exhibit R?2). The work of Saunders\/Capital includedinstallation of Transite electrical duct or pipe along the ground (T. 86?87).??????????? 11.The Board of Utilities also entered into a construction contract with SachsElectric Company and Commonwealth Electric Company, a joint venture(Sachs\/Commonwealth), by Sachs\/Commonwealth was to install the electric powerand lighting for the Nearman Creek Project (exhibit R?2A). As part of theirwork, they would also install certain Transite electrical duct along the ground(T. 87?88).??????????? 12.An OSHA compliance officer, Lionel Olson, visited the Nearman Creek Projectsite for inspection (T. 27?29, 123).??????????? 13.Robert L. Follmer was the chief resident mechanical-electrical engineer for therespondent for the Nearman Creek Project at the time of the complianceofficer?s visit (T. 115).??????????? 14.Another employee of respondent, at the Nearman Creek Project site, was GordonWilliam Miller, a resident civil engineer, who had a similar duty to observewhether Saunders\/Capital appeared to be completing their work in generalaccordance with the plans and specifications (T. 132?133).??????????? 15.The only other engineering employee of the respondent at the Nearman CreekProject site was Alfred Frank Burkle whose duties were to observe the work ofSachs\/Commonwealth for the same purpose (T. 136?137).??????????? 16.None of respondent?s employees performed any construction work nor directed themeans, methods, techniques, or procedures of construction work used by thesecontractors (T. 82, 93, 121).??????????? 17.On June 20, Lionel Olson requested that Robert Follmer show him those placeswhere Transite electrical duct had been cut by any of the contractors (T. 123).The only locations on the Nearman Creek Project where such ducts would be cutwould be at the ends of the long runs across the ground (T. 60, 109).??????????? 18.Robert Follmer took Lionel Olsen to the end of one of these runs (T. 123). BothFollmer and Olson observed that there was debris on the ground, which wouldindicate that the Transite electrical duct had been cut at that location (T.123, 127). No actual cutting of Transite electrical duct was observed by eitherman (T. 55). Also, Robert Follmer had never seen the debris before (T.120?121).??????????? 19.The compliance officer, Olson, then requested any information the respondenthad on the Transite electrical duct (T. 128). Robert Follmer gave Olsonapproved shop drawings, submitted by Sachs\/Commonwealth, which consisted of abrochure from Johns-Mansville Corporation, the manufacturer of the Transciteelectrical duct (T. 123; exhibit C?1). This brochure stated that Transiteelectrical duct contained asbestos (T. 128; exhibit C?1). The brochure did notshow improper methods of cutting Transite electrical duct that might releaseasbestos into the air nor did it contain any warnings concerning asbestos (T.32, 41, 122; exhibit C?1).??????????? 20.The debris on the ground, which was observed by Olson on June 20, was latertested in a laboratory (T. 31). OSHA officials then determined that the debriscontained asbestos (T. 41). There was no evidence as to whether or not anyasbestos fibers exceeded five micrometers in length.??????????? 21.No employee of the respondent was ever monitored by OSHA officials to determinewhether they had been exposed to asbestos in the air (T. 56, 121). Thecompliance officer, Olson, admitted he did not know whether the respondent?semployees had been exposed to asbestos (T. 63?64).??????????? 22.No tests were ever conducted by OSHA officials anywhere at the Nearman CreekProject to determine the amount of asbestos fibers in the air, if any, on an8-hour time weighted average (T. 18, 23, 54, 58?59; exhibit C?2).??????????? 23.Robert Follmer and the other employees of the respondent did not perform anyduties in the areas where Transite electrical duct had been cut nor did theyuse these areas for normal ingress or egress to the Nearman Creek Project site(T. 130, 135).??????????? 24.On July 17, 1979, a citation was issued to the respondent. The violationdescribed in the citation alleged that on June 20 and 21, 1979, the respondenthad failed to test samples of the air for airborne concentrations of asbestosfibers, and no caution signs had been displayed as required by 29 CFR1910.1001(f)(3)(i) and (g)(1)(i). The citation alleged that there had beencutting of Transite electrical ducts containing 20 percent asbestos withabrasive type cut-off wheels by employees of Saunders\/Capital andSachs\/Commonwealth. No penalty was assessed. Citations were also issued toSaunders\/Capital and Sachs\/Commonwealth (T. 53).??????????? 25.The respondent had never before been cited for any safety violations (T. 42).??????????? 26.At no time, when Rober Follmer and Lionel Olson observed the debris on theground on June 20 at the end of a Transite electrical duct, did any employee ofthe respondent ever observe any such debris near any Transite electrical duct(T. 120?121, 123?124, 127, 133, 136).??????????? 27.At no time did the respondent?s employees, Robert Follmer, Gordon Williams orAlfred Frank Burkle, ever observe any cutting of Transite electrical ducts byanyone in any manner (T. 110, 120, 122, 131, 133).??????????? 28.There is no asbestos hazard from Transite electrical duct unless it is cut byan abrasive type cut-off wheel or power saw (T. 34?35). No employee of therespondent ever saw such equipment being used in the vicinity of the Transiteelectrical duct at the Nearman Creek Project at anytime (T. 136).??????????? 29.No employee, supervisor, or principal of the respondent at the Nearman CreekProject ever had reason to believe anyone had been exposed to any asbestosfibers in the air (T. 93, 121, 134, 136).??????????? 30.The fact that abrasive cut-off wheels or power saws were not proper means,methods, or techniques for cutting asbestos was not disclosed on any documentsin the possession of the respondent (exhibit C?1).??????????? 31.The type of devices or procedures used by Saunders\/Capital andSachs\/Commonwealth to cut Transite electrical duct constitute means, methods,techniques, or procedures of construction over which the respondent had no controlor knowledge.??????????? 32.The Nearman Creek Project site was under the control of the Board of PublicUtilities. Each area of construction work around the Transite electrical ductswas under the control of Saunders\/Capital and Sachs\/Commonwealth, who were responsiblefor the maintenance of those areas and their own means, methods, techniques,and procedures of construction.??????????? 33.The respondent performed its services for the Nearman Creek Project inconformity with normal professional standards (T. 93?95).NEARMAN CREEK POWER STATION PROJECTCONCLUSIONS OF LAW??????????? 1.The citation against the respondent on the Nearman Creek Project, allegingfailure by the respondent to comply with 29 CFR 1910.101(f)(3)(i)(environmental monitoring for asbestos) and 29 CFR 1910.1001(g)(1)(i) (cautionsigns for asbestos), involved nonserious violations under section 5(b) of theOccupational Safety and Health Act (29 U.S.C. ? 654(b)).??????????? 2.The respondent was not in violation of the standard calling for the posting ofsigns of conducting tests for asbestos, because the respondent did not havenotice of nor in the exercise of its duties with due diligence should it havehad notice of any improper cutting of Transite electrical ducts to cause ahazard from asbestos at the Nearman Creek Project. The respondent did notcreate the conditions causing the hazard, if any, from asbestos nor did it haveany control over or power to abate the means, methods, techniques, orprocedures used in cutting the Transite electrical duct at the Nearman CreekProject.??????????? 3.Under the circumstances prevailing, there was no legal duty to post signswarning of asbestos, because there was no evidence of any airborne asbestosever reaching a level requiring such signs. Chapter 29 CFR 1910.1001(g)(1)(i).The standard with which respondent is charged with violating provides:(i) Caution signs shall be provided anddisplayed at each location where airborne concentrations of asbestos fibers maybe in excess of the exposure limits prescribed in paragraph (b) of this section.\u00a0Paragraph (b) of 29 CFR 1910.1001 prescribes theexposure limit as follows:(ii) Standard effective July 1, 1976. The8-hour time weighted average airborne concentrations of asbestos fibers towhich any employee may be exposed shall not exceed two fibers, longer than 5micrometers, per cubic centimeter of air . . ..???????????? 4.Since there was never any testing for airborne concentrations of asbestos atthe Nearman Creek Project by OSHA officials nor was any evidence offered as tothe amount of asbestos, if any, in the atmosphere there was no basis forrequiring warning signs under 29 CFR 1910.1001(g)(1)(i) shown.??????????? 5.When there are fewer than 2 fibers per cubic centimeter of air no warning signsare required (T. 50).??????????? 6. Asa matter of law, there can be no finding of violation of 29 CFR1910.1001(f)(3)(i) where there has been no proof that there were everconcentrations of asbestos in excess of two fibers per cubic centimeter of airon an 8-hour time weighted average as stated in 29 CFR 1910.1001(b).??????????? 7.There can be no violation under section 5(b) of the Occupational Safety andHealth Act (29 U.S.C. ? 654(b)) unless the employees of an employer are shownto have been exposed to a health or safety hazard. Because of the absence ofproof that the exposure limits of 29 CFR 1910.1001(b) were ever exceeded tocreate a hazard, there can be no violation by the respondent under the Act.??????????? 8.There was no duty existing on the part of the respondent to post warning signsor test for asbestos, because there was no credible evidence of record of anyof respondent?s employees being in a zone of danger exposing them to prohibitedlevels of asbestos. The regulations required testing and signs at theemployees? workplace. The area where the Transite electrical duct was cut wasnot the workplace of the respondent?s employees nor an area of ingress oregress for them.??????????? 9.Because there was no hazardous concentration of asbestos shown, there can be nopurpose served in citing the respondent for failing to test for asbestos orpost signs. (See Secretary of Labor v. Anning-Johnson Company, 1975?76CCH OSHD, ?20,690 (1976)).KAW POWR GENERATION STATION PROJECTFINDINGS OF FACT??????????? 1.The Kaw Power Generation Station Project (Kaw Station Project) was located at2015 Kansas Avenue, Kansas City, Kansas.??????????? 2.The Kaw Station Project involved the construction of antipollution devices tofilter coal smoke emissions from an existing electric power generating plant(T. 98?99). The antipollution devices included three large baghouse buildingsfor filtration of the emissions from each of three existing boilers identifiedas K1, K2, and K3 (T. 102?103). The new design intended that coal smokeemissions would be carried from the three boilers to the filtration baghousesby large air ducts called breeching.??????????? 3.The respondent provided professional engineering services to design the KawStation Project under a written contract dated October 11, 1972, between therespondent and the Board of Public Utilities (T. 96, exhibit R?1).??????????? 4.The Board of Public Utilities is a quasi-municipal corporation (T. 11?12).??????????? 5. Apart of the respondent?s professional engineering services was the preparing ofplans and specifications for the Kaw Station Project that described, throughdrawings and written specifications, the composition of the completed baghousesand new breeching for the Kaw Station Project (exhibit R?2B, R?2C).??????????? 6.The Board of Public Utilities incorporated the plans and specifications intothe contracts between the Board of Public Utilities and specific contractorswho were to construct the Kaw Station Project (T. 94; exhibit R?2B).??????????? 7.The plans and specifications prepared by the respondent did not describe themeans, methods, techniques, or procedures of construction of the Kaw StationProject (T. 96, 98). These plans did not describe how the old existingbreeching (or its covering insulation) was to be demolished and removed (T.97?98).??????????? 8.Respondent was not a party to any of the construction contracts (T. 103;exhibit 2?B).??????????? 9.Pursuant to the respondent?s own contract with the Board of Public Utilities,it was to have engineering personnel present at the Kaw Station Project sitewho would report their observations to the Board of Public Utilities as towhether the Kaw Station Project was being completed by the contractors ingeneral accordance with the plans and specification (exhibit R?1).??????????? 10.The specific language of the respondent?s own contract with the Board of PublicUtilities and the general conditions of the contracts between the contractors andthe Board of Public Utilities stated that the respondent had no duties orresponsibilities concerning the construction means, methods, techniques,procedures, or safety measures, or programs of the contractors (T. 96?97;exhibit R?2B).??????????? 11.The Board of Public Utilities entered into a contract with Industrial Clean AirCompany (ICA) who was to construct the three new baghouses and the newbreeching (exhibit R?2B).??????????? 12.Prior to beginning that work, the Board of Public Utilities and ICA begandemolishing existing breeching, including removal of the insulation thatcovered it (T. 5, 11, 138). That demolition began with the breeching for K1,the first boiler (T. 5). The demolition of the breeching for the other twoboilers, K2 and K3, was to follow later (T. 66, 139).??????????? 13.The two employees of respondent at the Kaw Station Project site, Gary Schumanand Joseph Kliethermas, had been told that the insulation being removed fromthe old breeching by the Board of Public Utilities and ICA contained asbestos(T. 138). They were also aware of the hazards of asbestos (T. 145).??????????? 14.On April 2, 1979, Gary Schuman told a construction worker and a foreman thatthe contractors should exercise responsibility to protect from any asbestoshazards (T. 139?140). Gary Schuman was also aware that the contract between theBoard of Public Utilities and ICA required ICA to perform its work incompliance with OSHA regulations (T. 145; exhibit R?1, R?2C).??????????? 15.At that time, Gary Schuman was the Chief resident civil engineer for the respondentat the Kaw Station Project Site (T. 138). As such, his duties were to observewhether the contractors appeared to complete the new baghouses and newbreeching in general conformity with the design shown on the plans andspecifications and to report his observations to the Board of Public Utilities(exhibit R?1). He had no duty to observe the demolition of the old breechingand the removal of its insulation (T. 97?98; exhibit R?1).??????????? 16.Gary Schuman spent approximately 30 percent of his time in the Engineer?s FieldOffice that was 260 feet (with a building separation as well) from the locationof K1 where the insulation was being removed from the old breeching (T.100?101, 141; exhibit R?2C). He spent no more than a few minutes during theentire period in the vicinity of the removal of insulation from the oldbreeching (T. 67, 141). He spent the rest of his time at other locations on theKaw Station Project site. He specifically walked routes through the Kaw StationProject site to avoid the vicinity where the insulation was being removed (T.142?143, 145?147).??????????? 17.The other employee of the respondent at the Kaw Station Project site, JoeKliethermas, was an electrical engineer (T. 148). He had no responsibilities toobserve any work in the vicinity of the demolition of the K1 breeching and itsinsulation (T. 144, 148). At all times Joe Kliethermas wore a protective maskover his mouth and nose while at the Kaw Station Project site (T. 71, 149).??????????? 18.None of the respondent?s employees performed any construction work nor did theydirect the means, methods, techniques, or procedures of construction work usedby the Board of Public Utilities or ICA (T. 139, 144; exhibits R?1, R?2C).??????????? 19.The OSHA compliance officer, Lionel Olsen, first visited the Kaw StationProject on April 19, 1979, at the request of one or more construction workerswho claimed the Board of Public Utilities and ICA were releasing asbestosfibers into the air when removing the insulation from the old breeching as itwas demolished (T. 6).??????????? 20.The following day, April 20, Compliance Office Olson placed monitoring deviceson certain construction workers to determine whether they were being exposed tohazardous amounts of asbestos fibers in the atmosphere (exhibit C?2). No suchdevices were placed on any employees of respondent (T. 56). As a consequence,Olson admitted he did not know whether the respondent?s employees had beenexposed to asbestos (T. 64).??????????? 21.Olson testified that only one-tenth fiber per cubic centimeter of air was foundpresent at the Kaw Station Project where the construction workers were removingthe insulation from the old breeching (T. 18, 23, 47). There was no evidence asto whether or not any asbestos fibers exceeded five micrometers in length.??????????? 22.Tests were also conducted on May 5 and 26, 1979, by Stewart Industrial Hygiene,Inc., of employees of the Board of Public Utilities (exhibit R?10). Those testsalso showed fewer than two fibers per cubic centimeter of air on an 8-hour timeweighted average.??????????? 23.There were no test results conducted by anyone at any time at the Kaw StationProject which showed asbestos in concentrations exceeding two fibers per cubiccentimeter of air on an 8-hour time weighted average (T. 27).??????????? 24.On July 17, 1979, on OSHA citation was issued to the respondent. The citationalleged that, on April 19 through May 16, 1979, the respondent had failed totest samples of the air for airborne concentrations of asbestos fibers, and nocaution signs and been displayed as required by 29 CFR 1910.1001(f)(3)(i) and(g)(1)(i). The citation alleged that asbestos insulation or coverings werebeing removed or demolished by the Board of Public Utilities and IndustrialClean Air. No penalty was assessed. A citation was also issued to ICA (T. 17,53).??????????? 25.The respondent had never before been cited for any safety violations (T. 42).??????????? 26.No employee, supervisor, or principal of the respondent at the Kaw StationProject ever believed that anyone employed by respondent had breathed any ofthe asbestos (T. 104, 144, 149).??????????? 27.The Kaw Station Project site was under the control of the Board of PublicUtilities. The area of construction where the insulation on the old breechingwas being removed was under the control of the Board of Public Utilities andICA (T. 104, 113, 139).??????????? 28.The respondent performed its services for the Kaw Station Project in conformitywith normal professional standards (T. 104?106).CONCLUSIONS OF LAW??????????? 1.The citation against the respondent on the Kaw Station Project alleging failureby the respondent to comply with 29 CFR 1910.1001(f)(3)(i) (environmentalmonitoring for asbestos) and 29 CFR 1910.1001(g)(1)(i) (caution signs forasbestos) involved nonserious violations under section 5(b) of the OccupationalSafety and Health Act (29 U.S.C. ? 654(b)).??????????? 2. Byavoiding the vicinity where the insulation was being removed. by informing acontractor that it was responsible to take appropriate protective steps toavoid hazards from asbestos, by knowing ICA had agreed in its contract with theBoard of Public Utilities to comply with OSHA regulations in doing its work,and by one employee wearing a face mask, respondent established that it tookreasonable measures for protection of its employees and, therefore, cannot beliable. The respondent did not create the conditions causing a hazard, if any,from asbestos nor did it have any control over or power to abate the means,methods, techniques or procedures used in removing insulation from oldbreeching at the Kaw Station Project.??????????? 3.Under the circumstances prevailing at the time of the inspections, there was nolegal duty to post signs warning of asbestos because there was no evidence ofany airborne asbestos ever reaching a level requiring such signs. The credibleevidence establishes that there were never any test results showing anyconcentrations of asbestos at the Kaw Station Project that exceeded 2 fibersper cubic centimeter of air. Therefore, there was never any requirement forwarning signs under 29 CFR 1910.1001(g)(1)(i).??????????? 4. Asa matter of law there can be no finding of violation of 29 CFR1910.1001(f)(3)(i) where there has been no proof that there were ever anyconcentrations of asbestos in excess of two fibers per cubic centimeter of airon an 8-hour time weighted average as stated in 29 CFR 1910.1001(b). There canbe no violation for not reasonably foreseeing that this two fiber limit wasexceeded if there is no proof by the Secretary of Labor that there ever weretwo fibers per cubic centimeter of air on an 8-hour time weighted average basis.Therefore, as a matter of law, no one can be held liable for failing to testfor asbestos under 29 CFR 1910.1001(f)(4)(i) if there is no proof that therewas ever a prohibited level of asbestos in the first place.??????????? 5. Itis well settled as a matter of law that there can be no violation under section5(b) of the Occupational Safety and Health Act (29 U.S.C. 654(b)) unless theemployees of an employer are shown to have been exposed to a health or safetyhazard. In this case the credible evidence does not show such exposure. Becauseof the absence of proof that the exposure limits of 29 CFR 1910.1001(b) wereever exceeded, creating a hazard, there can be no violation by the respondentunder the Act.??????????? 6. Noduty existed on the part of the respondent to post warning signs or test forasbestos because there was no evidence that any of respondent?s employees werein a zone of danger exposing them to prohibited levels of asbestos. Theregulations required testing and signs at the employee?s workplace in the areawhere the insulation was being removed from the old breeching was not theworkplace of the respondent?s employees nor an area of ingress or egress forthem.??????????? ?7. Because there were no hazardousconcentrations of asbestos, there can be no purpose served in citing therespondent for failing to test for asbestos or post signs.DECISION??????????? Basedupon the above findings of fact and conclusions of law, it is hereby ORDERED:The citations issued on docket numbers 79?4080 and 79?4081 are hereby vacated.?Vernon Riehl, Judge, OSHRCDated: August 4, 1980[1] Commission Rule 9,29 C.F.R. ? 2200.9, provides:Rule 9 Consolidation.Cases may be consolidated on the motion ofany party, on the Judge?s own motion, or on the Commission?s own motion, wherethere exist common parties, common questions of law or fact, or both, or insuch other circumstances as justice and the administration of the Act require.[2] Commission Rule10, 29 C.F.R. ? 2200.10, provides:Rule 10 Severance.Upon its ownmotion, or upon motion of any party or intervenor, the Commission or the Judgemay, for good cause, order any proceeding severed with respect to some or allissues or parties.”