“Docket No. 81-1469 SECRETARY OF LABOR, Complainant, v. R.D. ANDERSON CONSTRUCTION CO., INC.,Respondent.OSHRC Docket No. 81-1469DECISION Before: BUCKLEY, Chairman, and WALL, Commissioner.[[1]]BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.?661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C.??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. ? 659(c).R.D. Anderson Construction Company, Inc., is a general contractor engaged incommercial construction. On April 16, 1981, it was engaged in renovating andreconstructing Marvin Hall, a four-story building on the campus of the University ofKansas in Lawrence, Kansas. Following an inspection by three OSHA compliance officers, theSecretary issued a citation alleging that Anderson had willfully violated severalprovisions of the asbestos standard, 29 C.F.R. ? 1910.1001. Administrative Law Judge PaulE. Dixon affirmed the citation and assessed a $2,100 penalty.After the judge’s decision was directed for review, subitems 1A, 1D and 1E werewithdrawn. Only two items remain before the Commission. Item 1C alleges that Andersonwillfully violated the initial monitoring requirement of 29 C.F.R. ? 1910.1001(f)(1).Item 1B alleges that Anderson 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 the violationwas not willful. We vacate the citation item alleging a violation of the labelingrequirement under section 1910.1001(g)(2)(i).Item 1C: 29 C.F.R. ? 1910.1001(f)(1), Initial MonitoringItem 1C alleges that Anderson violated section 1910.1001(f)(1) by not conducting\”initial monitoring\” to determine whether employees engaged in the renovation ofMarvin Hall were exposed to airborne concentrations of asbestos fibers above prescribedlimits. The standard states:? 1910.1001 Asbestos.* * *(f) Monitoring–(1) Initial determinations. Within 6 months of the publication of thissection, every employer shall cause every place of employment where asbestos fibers arereleased to be monitored in such a way as to determine whether every employee’s exposureto asbestos fibers is below the limits prescribed in paragraph (b) of this section. If thelimits are exceeded, the employer shall immediately undertake a compliance program inaccordance with paragraph (c) of this section.The parties agreed, and Judge Dixon found, that Anderson had not monitored the air inMarvin Hall to determine whether its employees were over-exposed to airborne asbestosfibers. The parties had also stipulated that asbestos was present.[[2]] Instead, theparties dispute whether asbestos fibers had been \”released\” into the air withinthe meaning of the standard.The Secretary must prove a violation of a standard by a preponderance of theevidence, that is, he must convince the tier of fact that the evidence taken as a wholeshows that the fact sought to be proved is more probable than not. See UltimateDistribution Systems, Inc., 82 OSAHRC 22\/ B12, 10 BNA OSHC 1568, 1570, 1982 CCH OSHD ?26,011, p. 32,653, (No. 79- 1269, 1982), and cases cited. The Secretary must thereforeprove here that it was more likely than not that asbestos fibers were released. ShenangoCo., 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). TheSecretary could have 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 take wipe samples. SeeOSHA Industrial Hygiene Technical Manual ? VIII.B.1.h (1984)(prescribing procedure fortaking wipe sample for asbestos), reprinted in CCH Employ. S.& H. Guide, No. 680(1984), and in 2 BNA OSHR Reference File p. 77:8001, p. 77:8351. Instead, the Secretaryrelied on circumstantial evidence to meet his burden. On the basis of this evidence, thejudge found that it was more likely than not that asbestos fibers were\”released\” into the air. He found that air currents, dry sweeping of dust anddebris and the open nature of the worksite, combined with concentrations of looseasbestos, made it more likely than not that asbestos fibers were released into the air. Weagree.Marvin Hall was an old building with two-foot-thick stone walls. Sandwichedbetween its floors was a material with a texture like sawdust. To install new utilityequipment, Anderson made cuts in the floors and thereby exposed this fill material. Aswork on each section of 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 of Kansas. Theletter confirmed an oral understanding that the University would forward to Anderson acopy of a report by state architectural officials on the fill material. The subsequentlyforwarded report contained the results of tests by Kansas health officials, who found thatthe floor fill material was 15% chrysotile asbestos. The report went on to warn that:The floor fill material taken from Marvin Hall was in a state where it could havecontaminated the area. However, since this material has been literally enclosed by havinga concrete floor poured over the existing floor and floor fill material, this material atthis point does not facilitate a need for concern. Be advised, however, that if holes areto be cut in the new floor and penetration of the existing floor is necessary, there is avery good chance that this floor fill material will be released and become airborne. Ifthis happens, the Contractor should be advised of the potential danger and should issuehis workmen the appropriate masks and clothing. It is the best interests of all concernedthat his (Contractor’s) men be outfitted accordingly and he be made aware of the potentialdangers involved.The letter gave Anderson its first written indication that the worksite containedasbestos. On April 16, 1981, Marvin Hall was inspected by two OSHA compliance officers.The compliance officers found that, at the time of the inspection, there was nodemolition work or other activity taking place that would pulverize material and carryparticles into the air. All floor cuts had been covered over with concrete, thuseliminating them as potential sources of airborne asbestos. However, during the removal ofa staircase, a panel had been removed, exposing the asbestos-laden floor fill material andleaving some of it hanging off the edge. According to one compliance officer, thismaterial could have dropped to any lower floor. A sample of the material was taken; it wasfound by an OSHA laboratory to contain 30% chrysotile asbestos. They also found demolitiondebris throughout the building and took seven samples of dust and debris. Three samplescontained no asbestos and one was not tested for reasons that are not clear. One sampletaken from debris that had settled on tables and pipes on the first floor contained 0.1%asbestos. A sample taken from the corridor on the first floor contained less than 1%asbestos. A sample taken from an exposed window well on the first floor, where the sillhad not yet been installed, was found to be 60% amosite asbestos. No explanation wasoffered for the presence of this amosite asbestos, a form different from the chrysotileasbestos in the floor fill material identified by the Kansas health officials. Airvelocity readings taken on the first floor indicated an air current ranging from 220-600feet per minute, caused by natural ventilation. One of the compliance officers testifiedthat there were many open or missing windows and doors. Anderson’s project manager, KenPecis, testified, however, that at the time of the inspection only three of the 350windows on the site were missing. The compliance officers also testified that theyobserved employees engaged in the practice of dry sweeping, which could release asbestosinto the air. When questioned by the compliance officer, one of the sweepers stated thathe did cleanup work all over the site.Judge Dixon found that it was more likely than not that asbestos fibers had beenreleased into the air. Anderson argues that the judge’s finding should be overturnedbecause the movement of air in the building was normal and that the building was fullyenclosed. Anderson points to the lack of testimony that anyone felt a breeze or themovement of air and maintains that, contrary to the judge’s view of the evidence, it madeno cuts in the floors. It claims that it did not expose the asbestos fill during a floorcut but during the removal of the staircase, and that the fill material that was soexposed 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 over thepurpose of the floor opening and the manner of its creation, which apparently led thejudge to conclude that a cut had been made. Despite this, Judge Dixon’s essentialconclusion that it was more likely than not that asbestos fibers were released is correct.Whatever the purpose of the floor opening or the manner of its creation, the pertinentfact is that the asbestos fill material was exposed during the reconstruction of MarvinHall. Moreover, the material was loose and friable, with the texture of sawdust. Althoughit lay undisturbed, compliance officer Phipps testified that the material was hanging offthe sides of the opening and could have dropped off. Furthermore, some of the dust anddebris that had settled on the floors and tables and pipes in the building was found tohave contained asbestos. Dry sweeping of this material occurred all over the building,making it likely, at the least, that the asbestos-laden dust would become airborne.Although Anderson’s vice-president Pecis testified that Marvin Hall was enclosed, JudgeDixon found the airflow tests conducted by the compliance officers were more reliable. Theair current increased the likelihood that asbestos dust raised by dry sweeping, or fallingoff the exposed fill material, would be carried into the air. On the whole, we thereforeagree with the judge’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) requires anemployer to conduct initial monitoring where asbestos fibers \”are\” released intothe air. If the standard were read literally, however, employers would be required toinitially monitor once any asbestos fibers were released into the air. It would beirrelevant that the release of asbestos fibers might have been unknown and even unknowablebecause, for example, the material in question was not known to contain asbestos. Toconstrue the standard so literally, however, would effectively require the infeasible,despite the requirement of section 6(b)(5) of the Act under which this standard wasadopted, that the Secretary adopt only \”feasible\” standards.[[4]] To avoid thisresult, we construe the standard to require monitoring when the release of asbestos fibersinto the air may reasonably be foreseen. Such a test comports with other monitoringrequirements of the asbestos standard, which require that both personal and environmentalmonitoring be conducted at intervals of not greater than six months where exposure toasbestos \”may reasonably be foreseen\” to exceed prescribed limits. 29 C.F.R.?? 1910.1001(f)(2)(ii) and (f)(3)(ii). It also comports with the Commission precedent onemployer knowledge, which requires employers to remedy violative conditions if they haveactual knowledge or if they could have known of the conditions with the exercise ofreasonable 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 CCH OSHD ?\u00a0 25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42\/A2, 9 BNA OSHC 1722,1981 CCH OSHD ? 25,345 (No. 13732, 1981); Wenczel Tile Co., 82 OSAHRC 14\/C8, 10 BNA OSHC1477, 1982 CCH OSHD ? 25,971 (No. 77-2039, 1982).[[5]]Applying this test, we find that it was reasonably foreseeable that asbestos fibers wouldbe released into the air of Marvin Hall. It is true, as Anderson argues, that the letterreceived by Anderson from the University of Kansas warned that an asbestos problem wouldarise if further cuts were made in the flooring, and that no cuts were made after receiptof the letter. We disagree with Anderson, however, that the letter gave it no reason toforesee that asbestos might be released. The letter clearly warned Anderson that the floorfill material was asbestos-laden and of a consistency that it could become airborne. Atthe time of the inspection a portion of the floor fill material was exposed to allow forthe removal of a stairway. Having received the warning, Anderson could reasonably haveforeseen that exposing the floor fill material during the removal of the stairway couldhave resulted in the release of airborne asbestos fibers. Moreover, Anderson should haveconcluded from the letter that its demolition of the building may have already releasedasbestos into the workplace and could reasonably have foreseen that these would bereleased into the air during subsequent construction activities and dry sweeping of dustand debris.Nonetheless, the record fails to establish that the violation was willful. To establishthat a violation was willful, the Secretary must prove that the violation was committedwith intentional disregard of the Act’s requirements or plain indifference to workers’safety. Cedar Construction 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). Aviolation is not willful if the employer has a good faith belief concerning a factualmatter critical to the existence of 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’s receipt of theletter, warning it of the presence of asbestos, created a heightened duty to takeprecautions. Despite exposing the asbestos fill material when working on the stairway,Anderson failed to take any precautions, and failed to warn either its employees orsubcontractors of 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, there isnothing in the record to indicate that its interpretation was made in bad faith. Moreover,Anderson’s project manager Ken Pecis testified that after he received the letter, henotified the state officials that the asbestos would be removed in accordance with OSHArequirements. Pecis also indicated that after learning of the asbestos problem he orderedhooded jumpsuits and face masks and told his superintendent, Bill Valentine, to obtainplastic bags. Valentine confirmed that the protective gear was delivered to the worksite.Clearly, Anderson was taking steps necessary to comply with the asbestos standard in theevent additional floor cuts were made. These steps convince us that its failure to conductinitial monitoring was not the product of either intentional disregard of worker safety orplain indifference to the requirements of the Act.Item 1B: 29 C.F.R. ? 1910.1001(g)(2)(i), LabelingItem 1B alleges that Anderson violated 29 C.F.R. ? 1910.1001(g)(2)(i) by failing to labelasbestos material or their containers. The standard states: ? 1910.1001 Asbestos.* * *(g) Caution signs and labels* * *(2) Caution labels–(i) Labeling. Caution labels shall be affixed to all raw materials,mixtures, scrap, waste, debris, and other products containing asbestos fibers, or to theircontainers, except that no label is required where asbestos fibers have been modified by abonding agent, coating, binder, or other material so that during any reasonablyforeseeable use, handling, storage, disposal, processing, or transportation, no airborneconcentrations of asbestos fibers in excess of the exposure limits prescribed in paragraph(b) of this section will be released.The compliance officer testified that none of the piles of scrap and piles ofdebris about the site were affixed with caution labels and that there were no bags orcontainers on the site labeled as containing asbestos. Although there were no containerslabeled for the disposal of asbestos materials, the Secretary failed to establish that anycontainers on the site contained asbestos materials. The one scrap pile sampled by thecompliance officer tested negative for asbestos, and there is nothing in the record tosupport a conclusion that any other scrap piles contained asbestos. The compliance officerdid sample several loose accumulations of dust which were found to contain some asbestos.The Secretary does not argue, however, that the standard should be read so literally as torequire that labels be affixed to loose dust, and we decline to so interpret it.Accordingly, we vacate item 1B.Having reversed the judge’s determination that the violation of ? 1910.1001 (f)(1) waswillful, we reevaluate the amount of penalty to be assessed. The only indication ofAnderson’s size is that there were 12 employees at the site. Therefore, we conclude thatit is a small employer. There is no evidence in the record to indicate that Anderson hasany history of previous violations. Anderson’s precautions against future asbestosexposure indicate a measure of good faith. Although we find that there were asbestosfibers in the air, the evidence fails to establish any likelihood that the level ofexposure exceeded permissible limits or even what the level of exposure was. Therefore, wecannot say that the gravity of the violation was anything but low. Having considered therecord and the statutory penalty criteria set for that section 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 arewithdrawn. Item 1B of the citation is vacated. Item 1C is affirmed but thecharacterization of the violation as \”willful\” is vacated; a penalty of $100 isassessed.FOR THE COMMISSIONExecutive SecretaryDATED: February 10, 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] Commissioner Rader took no part in this decision.[[2]] Anderson does not take exception to the judge’s finding that the asbestoswas in fibrous form. The Secretary must show that the asbestos was in fibrous form,Goodyear Tire & Rubber Co., 77 OSAHRC 82\/A2, 5 BNA OSHC 1473 (No. 13442, 1977), thatis, that the particles were longer than 5 micrometers, with a length to width ratio of3-to-1. 29 C.F.R. ? 1910.1001 (a)(2); Borg-Warner Corp., 78 OSAHRC 18\/A2, 6 BNA OSHC1393, 1978 CCH OSHD ? 22,555 (No. 10757, 1978). Although the Secretary did not formallyintroduce evidence to establish that fibers were present, the parties’ stipulation thatasbestos was present was based on answers by OSHA technicians to interrogatories Andersonhad served on the Secretary. These answers were based on a laboratory analysis of samples.The analysis set forth the percentage of asbestos found in the samples and stated that thesamples were tested for asbestos fibers 5 micrometers in length and with a length-to-widthratio of 3-to-1. The results reflected the number of such asbestos \”fibers\”found. Because Anderson 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 that conditions at theworksite made it likely that asbestos levels exceeded permissible limits. This does notalone explain the absence of air samples, however. A belief that asbestos levels were thentoo low to exceed permissible limits explains why no samples were taken to investigatepossible violations of provisions of the asbestos standard that apply when permissiblelevels are exceeded, such as the engineering control provision, section 1910.1001(c)(1).It does not, however, explain why no air samples were taken to determine whether there wasany airborne asbestos, a necessary element of a violation of section 1910.1001(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 or harmful physicalagents under this subsection, shall set the standard which most adequately assures to theextent feasible, on the basis of the best available evidence, that no employee will suffermaterial impairment of health or functional capacity even if such employee has regularexposure to the hazard dealt with by such standard for the period of his working life.Development of standards under this subsection shall be based upon research,demonstrations, experiments, and such other information as may be appropriate. In additionto the attainment of the highest degree of health and safety protection for the employee,other considerations shall be the latest available scientific data in the field, thefeasibility of the standards, and experience gained under this and other health and safetylaws. Whenever practicable, 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 standard is impermissible. Therethe Commission had construed a similar requirement in an emergency vinyl chloride standardto not require initial monitoring because the employer had reliably predicted thatconcentrations of the substance would not exceed permissible limits. 77 OSAHRC 15\/B13, 4BNA OSHC 2021, 1977-78 CCH OSHD ? 21,538 (No. 8902, 1977). The court rejected this view,holding that the employer was not permitted by the standard to speculate whetherpermissible levels would be exceeded because the very purpose of initial monitoring is todetermine for certain what the ambient levels were and whether permissible levels wereexceeded. There was no question in Western Electric, however, that the employer knew thatvinyl chloride would indeed be released into the air. Here, by contrast, we deal with thequestion whether an employer is required to initially monitor when he is uncertain whetherasbestos would be released into the air. We do not suggest that an employer who knows ofthe release of asbestos fibers may decline to monitor because he thinks it unlikely thatthe permissible level would be exceeded.”