“SECRETARY OF LABOR,Complainant,v.R.D. ANDERSON CONSTRUCTION CO., INC.,Respondent.OSHRC Docket No. 81-1469_DECISION _Before: BUCKLEY, Chairman, and WALL, Commissioner.[[1]]BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C.?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).R.D. Anderson Construction Company, Inc., is a general contractorengaged in commercial construction. On April 16, 1981, it was engaged inrenovating and reconstructing Marvin Hall, a four-story building on thecampus of the University of Kansas in Lawrence, Kansas. Following aninspection by three OSHA compliance officers, the Secretary issued acitation alleging that Anderson had willfully violated severalprovisions of the asbestos standard, 29 C.F.R. ? 1910.1001.Administrative Law Judge Paul E. Dixon affirmed the citation andassessed a $2,100 penalty.After the judge’s decision was directed for review, subitems 1A, 1D and1E were withdrawn. Only two items remain before the Commission. Item 1Calleges that Anderson willfully violated the initial monitoringrequirement of 29 C.F.R. ? 1910.1001(f)(1). Item 1B alleges thatAnderson willfully violated the labeling requirement of 29 C.F.R. ?1910.1001(g)(2)(i).We conclude that Anderson violated section 1910.1001(f)(1) but that theviolation was not willful. We vacate the citation item alleging aviolation of the labeling requirement under section 1910.1001(g)(2)(i)._Item 1C: 29 C.F.R. ? 1910.1001(f)(1), Initial Monitoring_Item 1C alleges that Anderson violated section 1910.1001(f)(1) by notconducting \”initial monitoring\” to determine whether employees engagedin the renovation of Marvin Hall were exposed to airborne concentrationsof asbestos fibers above prescribed limits. The standard states:? 1910.1001 Asbestos.* * *(f) Monitoring–(1) Initial determinations. Within 6 months of thepublication of this section, every employer shall cause every place ofemployment where asbestos fibers are released to be monitored in such away as to determine whether every employee’s exposure to asbestos fibersis below the limits prescribed in paragraph (b) of this section. If thelimits are exceeded, the employer shall immediately undertake acompliance program in accordance with paragraph (c) of this section.The parties agreed, and Judge Dixon found, that Anderson had notmonitored the air in Marvin Hall to determine whether its employees wereover-exposed to airborne asbestos fibers. The parties had alsostipulated that asbestos was present.[[2]] Instead, the parties disputewhether asbestos fibers had been \”released\” into the air within themeaning of the standard.The Secretary must prove a violation of a standard by a preponderance ofthe evidence, that is, he must convince the tier of fact that theevidence taken as a whole shows that the fact sought to be proved ismore probable than not. See Ultimate Distribution Systems, Inc., 82OSAHRC 22\/ B12, 10 BNA OSHC 1568, 1570, 1982 CCH OSHD ? 26,011, p.32,653, (No. 79- 1269, 1982), and cases cited. The Secretary musttherefore prove here that it was more likely than not that asbestosfibers were released. Shenango Co., 82 OSAHRC 25\/A2, 10 BNA OSHC 1613,1982 CCH OSHD ? 26,051 (No. 78-4723, 1982); Goodyear Tire & Rubber Co.,77 OSAHRC 82\/A2, 5 BNA OSHC 1473 (No. 13442, 1977). The Secretary couldhave met this burden by taking air samples to determine whether asbestosfibers were in the air, but did not do so.[[3]] He also did not takewipe samples. See OSHA Industrial Hygiene Technical Manual ? VIII.B.1.h(1984)(prescribing procedure for taking wipe sample for asbestos),reprinted in CCH Employ. S.& H. Guide, No. 680 (1984), and in 2 BNA OSHRReference File p. 77:8001, p. 77:8351. Instead, the Secretary relied oncircumstantial evidence to meet his burden. On the basis of thisevidence, the judge found that it was more likely than not that asbestosfibers were \”released\” into the air. He found that air currents, drysweeping of dust and debris and the open nature of the worksite,combined with concentrations of loose asbestos, made it more likely thannot that asbestos fibers were released into the air. We agree.Marvin Hall was an old building with two-foot-thick stone walls.Sandwiched between its floors was a material with a texture likesawdust. To install new utility equipment, Anderson made cuts in thefloors and thereby exposed this fill material. As work on each sectionof flooring was completed, a layer of concrete was poured over thefloor, effectively encapsulating the fill material.On March 4, 1981, Anderson received a letter from the University ofKansas. The letter confirmed an oral understanding that the Universitywould forward to Anderson a copy of a report by state architecturalofficials on the fill material. The subsequently forwarded reportcontained the results of tests by Kansas health officials, who foundthat the floor fill material was 15% chrysotile asbestos. The reportwent on to warn that:The floor fill material taken from Marvin Hall was in a state where itcould have contaminated the area. However, since this material has beenliterally enclosed by having a concrete floor poured over the existingfloor and floor fill material, this material at this point does notfacilitate a need for concern. Be advised, however, that if holes are tobe cut in the new floor and penetration of the existing floor isnecessary, there is a very good chance that this floor fill materialwill be released and become airborne. If this happens, the Contractorshould be advised of the potential danger and should issue his workmenthe appropriate masks and clothing. It is the best interests of allconcerned that his (Contractor’s) men be outfitted accordingly and he bemade aware of the potential dangers involved.The letter gave Anderson its first written indication that the worksitecontained asbestos. On April 16, 1981, Marvin Hall was inspected by twoOSHA compliance officers.The compliance officers found that, at the time of the inspection, therewas no demolition work or other activity taking place that wouldpulverize material and carry particles into the air. All floor cuts hadbeen covered over with concrete, thus eliminating them as potentialsources of airborne asbestos. However, during the removal of astaircase, a panel had been removed, exposing the asbestos-laden floorfill material and leaving some of it hanging off the edge. According toone compliance officer, this material could have dropped to any lowerfloor. A sample of the material was taken; it was found by an OSHAlaboratory to contain 30% chrysotile asbestos. They also founddemolition debris throughout the building and took seven samples of dustand debris. Three samples contained no asbestos and one was not testedfor reasons that are not clear. One sample taken from debris that hadsettled on tables and pipes on the first floor contained 0.1% asbestos.A sample taken from the corridor on the first floor contained less than1% asbestos. A sample taken from an exposed window well on the firstfloor, where the sill had not yet been installed, was found to be 60%amosite asbestos. No explanation was offered for the presence of thisamosite asbestos, a form different from the chrysotile asbestos in thefloor fill material identified by the Kansas health officials. Airvelocity readings taken on the first floor indicated an air currentranging from 220-600 feet per minute, caused by natural ventilation. Oneof the compliance officers testified that there were many open ormissing windows and doors. Anderson’s project manager, Ken Pecis,testified, however, that at the time of the inspection only three of the350 windows on the site were missing. The compliance officers alsotestified that they observed employees engaged in the practice of drysweeping, which could release asbestos into the air. When questioned bythe compliance officer, one of the sweepers stated that he did cleanupwork all over the site.Judge Dixon found that it was more likely than not that asbestos fibershad been released into the air. Anderson argues that the judge’s findingshould be overturned because the movement of air in the building wasnormal and that the building was fully enclosed. Anderson points to thelack of testimony that anyone felt a breeze or the movement of air andmaintains that, contrary to the judge’s view of the evidence, it made nocuts in the floors. It claims that it did not expose the asbestos fillduring a floor cut but during the removal of the staircase, and that thefill material that was so exposed lay undisturbed.We agree with Anderson’s claim that the judge erroneously found that a\”cut\” had been made in the floor. There was confusion in the record overthe purpose of the floor opening and the manner of its creation, whichapparently led the judge to conclude that a cut had been made. Despitethis, Judge Dixon’s essential conclusion that it was more likely thannot that asbestos fibers were released is correct. Whatever the purposeof the floor opening or the manner of its creation, the pertinent factis that the asbestos fill material was exposed during the reconstructionof Marvin Hall. Moreover, the material was loose and friable, with thetexture of sawdust. Although it lay undisturbed, compliance officerPhipps testified that the material was hanging off the sides of theopening and could have dropped off. Furthermore, some of the dust anddebris that had settled on the floors and tables and pipes in thebuilding was found to have contained asbestos. Dry sweeping of thismaterial occurred all over the building, making it likely, at the least,that the asbestos-laden dust would become airborne. Although Anderson’svice-president Pecis testified that Marvin Hall was enclosed, JudgeDixon found the airflow tests conducted by the compliance officers weremore reliable. The air current increased the likelihood that asbestosdust raised by dry sweeping, or falling off the exposed fill material,would be carried into the air. On the whole, we therefore agree with thejudge’s assessment that it was more likely than not that there wereasbestos fibers in the air.That does not end our inquiry, however. Section 1910.1001(f)(1) requiresan employer to conduct initial monitoring where asbestos fibers \”are\”released into the air. If the standard were read literally, however,employers would be required to initially monitor once any asbestosfibers were released into the air. It would be irrelevant that therelease of asbestos fibers might have been unknown and even unknowablebecause, for example, the material in question was not known to containasbestos. To construe the standard so literally, however, wouldeffectively require the infeasible, despite the requirement of section6(b)(5) of the Act under which this standard was adopted, that theSecretary adopt only \”feasible\” standards.[[4]] To avoid this result, weconstrue the standard to require monitoring when the release of asbestosfibers into the air may reasonably be foreseen. Such a test comportswith other monitoring requirements of the asbestos standard, whichrequire that both personal and environmental monitoring be conducted atintervals of not greater than six months where exposure to asbestos \”mayreasonably be foreseen\” to exceed prescribed limits. 29 C.F.R. ??1910.1001(f)(2)(ii) and (f)(3)(ii). It also comports with the Commissionprecedent on employer knowledge, which requires employers to remedyviolative conditions if they have actual knowledge or if they could haveknown of the conditions with the exercise of reasonable diligence.Dunlop v. Rockwell International, 540 F.2d 1283, 1292 (6th Cir. 1976);Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCHOSHD ? 25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC42\/A2, 9 BNA OSHC 1722, 1981 CCH OSHD ? 25,345 (No. 13732, 1981);Wenczel Tile Co., 82 OSAHRC 14\/C8, 10 BNA OSHC 1477, 1982 CCH OSHD ?25,971 (No. 77-2039, 1982).[[5]]Applying this test, we find that it was reasonably foreseeable thatasbestos fibers would be released into the air of Marvin Hall. It istrue, as Anderson argues, that the letter received by Anderson from theUniversity of Kansas warned that an asbestos problem would arise iffurther cuts were made in the flooring, and that no cuts were made afterreceipt of the letter. We disagree with Anderson, however, that theletter gave it no reason to foresee that asbestos might be released. Theletter clearly warned Anderson that the floor fill material wasasbestos-laden and of a consistency that it could become airborne. Atthe time of the inspection a portion of the floor fill material wasexposed to allow for the removal of a stairway. Having received thewarning, Anderson could reasonably have foreseen that exposing the floorfill material during the removal of the stairway could have resulted inthe release of airborne asbestos fibers. Moreover, Anderson should haveconcluded from the letter that its demolition of the building may havealready released asbestos into the workplace and could reasonably haveforeseen that these would be released into the air during subsequentconstruction activities and dry sweeping of dust and debris.Nonetheless, the record fails to establish that the violation waswillful. To establish that a violation was willful, the Secretary mustprove that the violation was committed with intentional disregard of theAct’s requirements or plain indifference to workers’ safety. CedarConstruction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978); D.A. L.Caruso, Inc., 84 OSAHRC ___, 11 BNA OSHC 2138, 1984 CCH OSHD ? 26,985(No. 79-5676, 1984). A violation is not willful if the employer has agood faith belief concerning a factual matter critical to the existenceof the violation. C.N. Flagg & Co., 75 OSAHRC 32\/C6, 2 BNA OSHC 1539,1974-75 CCH OSHD ? 19,251 (No. 1409, 1975); see also Mel JarvisConstruction Co., 1981 OSAHRC 89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ?25,563 (No. 77-2100, 1981).In finding the violation willful, the judge stated that Anderson’sreceipt of the letter, warning it of the presence of asbestos, created aheightened duty to take precautions. Despite exposing the asbestos fillmaterial when working on the stairway, Anderson failed to take anyprecautions, and failed to warn either its employees or subcontractorsof the asbestos hazard. The judge concluded that Anderson deliberatelyignored its duty to comply with the standard.Although we disagree with Anderson’s narrow reading of the letter, thereis nothing in the record to indicate that its interpretation was made inbad faith. Moreover, Anderson’s project manager Ken Pecis testified thatafter he received the letter, he notified the state officials that theasbestos would be removed in accordance with OSHA requirements. Pecisalso indicated that after learning of the asbestos problem he orderedhooded jumpsuits and face masks and told his superintendent, BillValentine, to obtain plastic bags. Valentine confirmed that theprotective gear was delivered to the worksite. Clearly, Anderson wastaking steps necessary to comply with the asbestos standard in the eventadditional floor cuts were made. These steps convince us that itsfailure to conduct initial monitoring was not the product of eitherintentional disregard of worker safety or plain indifference to therequirements of the Act._Item 1B: 29 C.F.R. ? 1910.1001(g)(2)(i), Labeling_Item 1B alleges that Anderson violated 29 C.F.R. ? 1910.1001(g)(2)(i) byfailing to label asbestos material or their containers. The standardstates:? 1910.1001 Asbestos.* * *(g) Caution signs and labels* * *(2) Caution labels–(i) Labeling. Caution labels shall be affixed to allraw materials, mixtures, scrap, waste, debris, and other productscontaining asbestos fibers, or to their containers, except that no labelis required where asbestos fibers have been modified by a bonding agent,coating, binder, or other material so that during any reasonablyforeseeable use, handling, storage, disposal, processing, ortransportation, no airborne concentrations of asbestos fibers in excessof the exposure limits prescribed in paragraph (b) of this section willbe released.The compliance officer testified that none of the piles of scrap andpiles of debris about the site were affixed with caution labels and thatthere were no bags or containers on the site labeled as containingasbestos. Although there were no containers labeled for the disposal ofasbestos materials, the Secretary failed to establish that anycontainers on the site contained asbestos materials. The one scrap pilesampled by the compliance officer tested negative for asbestos, andthere is nothing in the record to support a conclusion that any otherscrap piles contained asbestos. The compliance officer did sampleseveral loose accumulations of dust which were found to contain someasbestos. The Secretary does not argue, however, that the standardshould be read so literally as to require that labels be affixed toloose dust, and we decline to so interpret it. Accordingly, we vacateitem 1B.Having reversed the judge’s determination that the violation of ?1910.1001 (f)(1) was willful, we reevaluate the amount of penalty to beassessed. The only indication of Anderson’s size is that there were 12employees at the site. Therefore, we conclude that it is a smallemployer. There is no evidence in the record to indicate that Andersonhas any history of previous violations. Anderson’s precautions againstfuture asbestos exposure indicate a measure of good faith. Although wefind that there were asbestos fibers in the air, the evidence fails toestablish any likelihood that the level of exposure exceeded permissiblelimits or even what the level of exposure was. Therefore, we cannot saythat the gravity of the violation was anything but low. Havingconsidered the record and the statutory penalty criteria set for thatsection 17(j) of the Act, 29 U.S.C. ? 661(i), we assess a penalty of $100.Accordingly, the judge’s decision is modified as follows. Items 1A, 1D,and 1E are withdrawn. Item 1B of the citation is vacated. Item 1C isaffirmed but the characterization of the violation as \”willful\” isvacated; a penalty of $100 is assessed.FOR THE COMMISSIONExecutive SecretaryDATED: February 10, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] Commissioner Rader took no part in this decision.[[2]] Anderson does not take exception to the judge’s finding that theasbestos was in fibrous form. The Secretary must show that the asbestoswas in fibrous form, Goodyear Tire & Rubber Co., 77 OSAHRC 82\/A2, 5 BNAOSHC 1473 (No. 13442, 1977), that is, that the particles were longerthan 5 micrometers, with a length to width ratio of 3-to-1. 29 C.F.R. ?1910.1001 (a)(2); Borg-Warner Corp., 78 OSAHRC 18\/A2, 6 BNA OSHC 1393,1978 CCH OSHD ? 22,555 (No. 10757, 1978). Although the Secretary did notformally introduce evidence to establish that fibers were present, theparties’ stipulation that asbestos was present was based on answers byOSHA technicians to interrogatories Anderson had served on theSecretary. These answers were based on a laboratory analysis of samples.The analysis set forth the percentage of asbestos found in the samplesand stated that the samples were tested for asbestos fibers 5micrometers in length and with a length-to-width ratio of 3-to-1. Theresults reflected the number of such asbestos \”fibers\” found. BecauseAnderson does not take exception to the judge’s finding that \”fibers\”were present, we leave the judge’s finding undisturbed.[[3]] Here, the compliance officers testified that they did not test theatmosphere for asbestos fibers because they did not believe thatconditions at the worksite made it likely that asbestos levels exceededpermissible limits. This does not alone explain the absence of airsamples, however. A belief that asbestos levels were then too low toexceed permissible limits explains why no samples were taken toinvestigate possible violations of provisions of the asbestos standardthat apply when permissible levels are exceeded, such as the engineeringcontrol provision, section 1910.1001(c)(1). It does not, however,explain why no air samples were taken to determine whether there was anyairborne asbestos, a necessary element of a violation of section1910.1001(f)(1).[[4]] Section 6(b)(5) of the Act, 29 U.S.C. ? 655(b)(5), states:The Secretary, in promulgating standards dealing with toxic materials orharmful physical agents under this subsection, shall set the standardwhich most adequately assures to the extent feasible, on the basis ofthe best available evidence, that no employee will suffer materialimpairment of health or functional capacity even if such employee hasregular exposure to the hazard dealt with by such standard for theperiod of his working life. Development of standards under thissubsection shall be based upon research, demonstrations, experiments,and such other information as may be appropriate. In addition to theattainment of the highest degree of health and safety protection for theemployee, other considerations shall be the latest available scientificdata in the field, the feasibility of the standards, and experiencegained under this and other health and safety laws. Wheneverpracticable, the standard promulgated shall be expressed in terms ofobjective criteria and of the performance desired.(Emphasis supplied.)[[5]] We find nothing in Marshall v. Western Electric Co., 565 F.2d 240(2d Cir. 1977), that would suggest that our construction of the standardis impermissible. There the Commission had construed a similarrequirement in an emergency vinyl chloride standard to not requireinitial monitoring because the employer had reliably predicted thatconcentrations of the substance would not exceed permissible limits. 77OSAHRC 15\/B13, 4 BNA OSHC 2021, 1977-78 CCH OSHD ? 21,538 (No. 8902,1977). The court rejected this view, holding that the employer was notpermitted by the standard to speculate whether permissible levels wouldbe exceeded because the very purpose of initial monitoring is todetermine for certain what the ambient levels were and whetherpermissible levels were exceeded. There was no question in WesternElectric, however, that the employer knew that vinyl chloride wouldindeed be released into the air. Here, by contrast, we deal with thequestion whether an employer is required to initially monitor when he isuncertain whether asbestos would be released into the air. We do notsuggest that an employer who knows of the release of asbestos fibers maydecline to monitor because he thinks it unlikely that the permissiblelevel would be exceeded.”