“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?4723 \u00a0 THE SHENANGO COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 30, 1982DECISIONBefore ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Joe D. Sparks is before the Commissionpursuant to section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Sparks vacated acitation in which the Secretary alleged that Respondent, The Shenango Company(?Shenango?), violated 29 C.F.R. ? 1910.1001(f)(1) [1] by failing to monitor forasbestos fibers. We reverse Judge Sparks and find that Shenango violated themonitoring standard.I??????????? Thefacts in this case have been stipulated. During an inspection of Shenango?sfoundry, a compliance officer observed furnace relining operations in progress.Jackhammers, pneumatic chip hammers and rakes were used to remove the furnacelinings in the minicast furnace area and the pillar furnace. Dust clouds werecreated by these operations.??????????? Inquestioning Shenango?s representative, the compliance officer determined thatShenango knew or suspected that asbestos was in the fabric used to reline thefurnaces, but no tests or monitoring were conducted to determine whetheremployee exposure to asbestos fibers was below permissible limits. Shenangoconcedes the presence of asbestos in the pillar furnace lining and, forpurposes of this proceeding, Shenango also concedes the presence of asbestos inthe material used in the minicast furnace lining. The compliance officer tooksamples of the material used to reline the furnaces and the material in thefurnaces. The samples were subsequently analyzed for asbestos content and theresults of the analysis showed that the materials contained from 70% to 90%asbestos. Wipe samples taken by the compliance officer from the face of anexposed employee and from the face plate of a furnace showed 0% asbestospresent.??????????? Uponthese facts, Judge Sparks found that asbestos materials in some form werereleased into the air. He further found, however, that the Secretary had failedto demonstrate that the work practice in this case had released ?asbestosfibers,? i.e., fibers longer than 5 micrometers. See note 1 supra. Judge Sparksnoted that the release of asbestos fibers must be established before monitoringis required. See Goodyear Tire and RubberCo., 77 OSAHRC 82\/A2, 5 BNA OSHC 1473 (No. 13442, 1977).II??????????? CommissionerCottine directed review on the following questions:??????????? (1)Whether the Administrative Law Judge erred in concluding that the initialmonitoring requirement imposed by 29 C.F.R. ? 1910.1001(f)(1) is conditioned onthe release into the air of asbestos fibers longer than 5 micrometers.??????????? (2)Whether the Administrative Law Judge erred in vacating the alleged violation of29 C.F.R. ? 1910.1001(f)(1).??????????? Shenangoargues that 29 C.F.R. ? 1910.1001(f)(1) requires the Secretary to demonstratesome measurable amount of asbestos fibers was released. According to Shenango,the Secretary has not established an essential element of his case and thecitation must be dismissed because the stipulated facts do not indicate thatany measurable amount of asbestos fibers was released.??????????? TheSecretary agrees with the judge?s finding that asbestos was released into theair by Shenango?s work practices. He contends, however, that the judgeimproperly placed on him the burden of showing that some of the asbestosparticles were fibers greater than 5 micrometers in length. According to theSecretary:[s]imple reason dictates that an employerusing asbestos should not be allowed to speculate as to whether the fibers inasbestos material it uses are longer than 5 micrometers. Indeed, the illogic ofthe judge?s holding is immediately evident since it is only by monitoring thatthe employer can and will know whether fibers of the specified length are infact released and the quantity of such release.???????????? TheSecretary further argues that ?whenever employees work with asbestos there is apresumption that they are exposed to asbestos fibers as defined in section1910.1001(a)(2).?III??????????? In Goodyear Tire and Rubber Co., supra, adivided Commission stated that, to prove a violation of 29 C.F.R. ?1910.1001(f)(1), the Secretary ?must establish that it is more likely than notthat fibers were released.? 5 BNA OSHC at 1475. Section 1910.1001(c)(2)(iii)states in relevant part that, ?Employees engaged in . . . the removal ordemolition of asbestos insulation or coverings shall be provided withrespiratory equipment . . . and with special clothing. . . .? As CommissionerCleary observed in his separate opinion in GoodyearTire and Rubber Co., supra: The presence of such a requirementstrongly suggests a finding by the Secretary of Labor during rulemaking thatremoval of asbestos insulation releases asbestosfibers. 5 BNA OSHC at 1476 (dissenting opinion) (emphasis added).\u00a0??????????? Therecord shows that the employees were removing furnace linings which containedfrom 70% to 90% asbestos. The material was dry, and dust clouds were created bythe operation. From these facts, the judge found that asbestos was beingreleased into the air during the relining process. Judge Sparks stated,A reasonable inference can be drawn fromthe stipulated facts that asbestos material was being released into the airduring the removal of furnace linings. The linings, consisting of a paper orcloth covered by a mortar-like substance, contained asbestos and were removedby means of a jackhammer. During such operations dust clouds were created. . .. The reasonable conclusion is that asbestos was released into the air.???????????? Weagree with these findings and conclude that they establish the need forShenango to conduct monitoring pursuant to section 1910.1001(f)(1). Shenango?soperation involved the use of a jackhammer to remove material composedprimarily of asbestos. A visible dust cloud was produced. It is reasonable toinfer that this dust cloud was composed of various sizes and shapes ofparticles. Inasmuch as asbestos normally appears in fibrous form, we find thatit is more likely than not that at least some of the particles in the dustcloud created during the relining operations were asbestos fibers longer than 5micrometers.[2]Accordingly, Shenango was obligated to monitor for asbestos exposure. Since itfailed to monitor, Shenango violated 29 C.F.R. ?\u00a01910.1001(f)(1).??????????? Thecitation alleged that the violation was serious in nature. However, there isnothing in the stipulation of facts from which we can conclude that as a resultof this violation employees have been or will be exposed to excessive amountsof asbestos fibers and therefore could suffer death or serious physical harmwithin the meaning of section 17(k) of the Act, 29 U.S.C. ?\u00a0666(j).Accordingly, we find the violation to be nonserious. See Research Cottrell, Inc., 81 OSAHRC 26\/B13, 9 BNA OSHC 1489,1981 CCH OSHD ?25,284 (No. 11756, 1981). We conclude that a penalty of $100 isappropriate.??????????? Thecitation is amended to allege a nonserious violation of 29 C.F.R. ?1910.1001(f)(1) and, as so amended, is affirmed. A penalty of $100 is assessed.SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: APR 30, 1982ROWLAND, Chairman, dissenting:??????????? Iwould affirm Judge Sparks? well-reasoned decision. The Secretary has failed todemonstrate a necessary element of a violation of the asbestos monitoringstandard, the release of asbestos fibers.??????????? In Goodyear Tire and Rubber Co., supra, theCommission held that,The [monitoring] standard does not rely .. . on the mere possibility of release before triggering the monitoringrequirement. It requires monitoring only ?where asbestos fibers are released? . . . [emphasis in theoriginal]. . . . Thus, to prove a violation, Complainant must establish that itis more likely than not that fibers werereleased. [emphasis added]. . . . We therefore reject the argument that heneed only show a ?genuine possibility? of release.???????????? Thestandard specifically defines ?asbestos? and ?asbestos fiber.? 29 C.F.R. ??\u00a01910.1001(a)(1)and (a)(2). An asbestos fiber is a particle of asbestos that has both a minimumlength of five micrometers and a minimum length-to-width ratio of three to one.Borg-Warner Corp, 78 OSAHRC 18\/A2, 6BNA OSHC 1393, 1398?99, 1978 CCH OSHD ?22,555 at pp. 27,221?22 (No. 10757,1978). The plain language of the standard indicates that a showing thatasbestos fibers are being released is required before the duty to monitorarises. Compare 29 C.F.R. ??1910.1001(f)(1) with 1910.1001(c)(2)(i), (ii), and (iii). Therefore, theSecretary does not prove the presence of asbestos fibers merely by proving thepresence of asbestos.??????????? Thepreamble to the asbestos standard also demonstrates that the monitoringstandard is triggered only by the release of asbestos fibers and not the merepresence of asbestos. There, the Secretary explained,[The monitoring standard] requiresperiodic monitoring at intervals no longer than 6 months, thus allowingconsiderable time and discretion, and prescribes the use of the membrane filtermethod, which is an acceptable method for determination of asbestos fibers.?37 Fed. Reg. 11319 (1972) (emphasis added).??????????? Inthis case, the Secretary cannot point to any tests to establish the presence ofasbestos fibers. The Secretary chose to base his case on stipulated facts.These facts did not include any admission by Shenango or indication that it wasmore likely than not that asbestos fibers in some measurable amount werereleased during the relining operations.[3] In fact, wipe sampleswhich one might expect to contain asbestos fibers if the employees were exposedto asbestos fibers did not contain any trace of asbestos.??????????? Despiteits protests to the contrary, the majority has presumed that the employees inthis case were exposed to asbestos fibers because ?asbestos normally appears infibrous form.? The majority points to no authority for this presumption, whichis not reflected in the monitoring standard or in Commission precedent.Likewise, the majority does not, and indeed cannot, point to anything in thefacts to demonstrate asbestos fibers were released.??????????? Finally,Shenango is entitled to depend on the stipulated facts. See Wigmore on Evidence ? 2590. It isgrossly unfair for the Commission to declare, as it does with this decision,that the presence of asbestos will give rise to a presumption that employeesare exposed to asbestos fibers. Under this presumption, it is very doubtfulthat Shenango would have stipulated to the facts it did. In all likelihood,Shenango would have exercised its right to a hearing on the alleged asbestosviolation. By its decision, the Commission has effectively denied Shenango itsright to a hearing, guaranteed under the Act.??????????? Forthese reasons, I dissent.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?4723 \u00a0 THE SHENANGO COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 9, 1979DECISION AND ORDER??????????? OnSeptember 27, 1978, two citations were issued to respondent. One, allegingrepeated violations of standards regulating noise levels, has been amicablyresolved by a stipulation and settlement agreement filed April 13, 1979.??????????? Theonly issue remaining for determination is whether asbestos fibers were releasedat respondent?s place of employment. If asbestos fibers were released,respondent was required to initiate a monitoring program ?. . . to determinewhether every employee?s exposure to asbestos fibers is below the limitsprescribed . . ..?1??????????? Inlieu of a hearing, the parties submitted a proposed stipulation of facts whichhas been signed by attorneys for both parties. Having been executed by bothparties, the stipulation of facts constitutes the established operative factsof record. The facts, as stipulated, are as follows:From July 26, 1978 to August 10, 1978,compliance officers of the Occupational Safety and Health Administrationconducted an inspection of the place of employment of the Shenango Companylocated at 465 West Third Street in Dover, Ohio, pursuant to Section 8(a)(1)(2)of the Occupational Safety and Health Act of 1970.???????????? OnAugust 3, 1978 during the course of the inspection, Compliance Officer LionelReynolds observed furnace relining operations in the foundry. The linings ofall of the furnaces consist of a heat resistant paper or cloth applied to theinner refractory brick, which paper or cloth is then covered with a heatresistant mortor-like [sic] substance which hardens and forms the inner surfaceof the furnace. In relining operations, this mortor [sic] surface and the paperor cloth are removed and replaced.??????????? Atthe minicast area, he observed an employee jack-hammering the old lining andthen using a rake and his hand to pull the debris out. During this operation adust cloud was created.??????????? Suspectingthe material used to reline the furnace to be asbestos, the inspector tooksamples of the material inside the furnace, samples of the loose materialdebris from the furnace, and an AA filter wipe of the employee?s face.??????????? Hethen observed this same operation at ?facility 26? pillar furnace. There anemployee was using a pneumatic chip hammer to remove the lining, creating anobvious dust cloud.??????????? Herethe inspector took two samples of the raw unused material. He also took a wipefrom the face plate of the furnace.??????????? Inquestioning employer representative Mr. Flynn, it was determined that theemployer knew or suspected asbestos was in the fabric used to reline the furnaces,but no tests or monitoring had been conducted to determine whether employeeexposure to asbestos fibers is below the prescribed limits.??????????? OnAugust 4, 1978, Compliance Officer Reynolds continued his inspection.??????????? Inthe scrap cutting area he observed material he suspected of containing asbestosbeing cut on the scrap cutting saws to make ?skim boards.? He took a sample ofthis material for analysis.??????????? Allseven of the samples taken were marked, identified and sent to the OccupationalSafety and Health Administration Analytical Laboratory for analysis.??????????? Theresults of the analysis are attached hereto and marked Exhibit A.??????????? Theresults from the analysis show:99?24 fabric removed from furnace?70%asbestos?99?25 loose debris in furnace?.1 of 1%asbestos?99?23 face wipe of employee?0% asbestos?99?20) new materials for?90% asbestos?99?21) relining furnace?75% asbestos?99?22 face place [sic] of furnace?0%asbestos?99?26 board cut on scrap cutting saws?5%asbestos???????????? Afterreceiving the results of the analysis, Compliance Officer Reynolds recommendedthat a Citation be issued to the Shenango Company for a serious violation of 29CFR 1910.1001(f)(1) which reads:Initial monitoring was not conducted insuch a manner to determine whether every employee?s exposure to airborneasbestos fibers is below the prescribed limits:?a) In the foundry. The furnace reliningoperations which involved the use of asbestos paper and\/or fabric including theprocess of tearing out the old lining. For example, the Pillar furnaces and theAjax high frequency furnaces.?b) At the scrap cutting area wherematerial containing asbestos is cut on the scrap cutting saws to make ?skimboards?.???????????? Healso proposed that the penalty for violation be $640.00, and that the violationbe abated within two months of the date of the issuance of the complaint.??????????? TheCitation was issued on September 27, 1978 and on October 6, 1978, the employerfiled a notice of contest to the Citation, its penalty and abatement date.??????????? Thematter was placed before the Occupational Safety and Health Review Commissionfor a hearing.??????????? Duringpre-hearing discussions the parties determined that as to this Citation therewas no real dispute of the facts and agreed to waive the hearing, stipulate thefacts and submit briefs for a determination of law. Respondent disputes thepresence of asbestos in the material used at the minicast furnace, but concedesthe presence of asbestos in the Pillar furnace lining and in the skim boards.However, for purposes of this proceeding, Respondent concedes the presence ofasbestos in material used at the minicast.??????????? Complaintcontends that ?. . . Respondent knew or should have known that [the ?dustcloud?] contained a substantial amount of asbestos and that it was probablethat some asbestos fibers were being released into the air . . ..? Complainantfurther states that ?. . . Surely when fabric containing from 70 to 95%asbestos material is pulled apart causing the release of particulate matterinto the air, some of these particles are asbestos fibers.? (Brief, p. 4)??????????? Thestipulated facts establish that analysis of samples taken from work areas showconcentration of asbestos ranging from 0% to 70% for old materials and up to90% for new materials. The precise percentage of asbestos being released intothe air is not significant, for the release of asbestos fibers in anyconcentration is sufficient to trigger the protective requirements of theregulations. GAF Corp., 75 OSHRC3\/A2, 3 BNA OSHC 1686, 1975?76 CCH OSHD ? 20,163 (1975).??????????? Areasonable inference can be drawn from the stipulated facts that asbestosmaterial was being released into the air during the removal of furnace linings.The linings, consisting of a paper or cloth covered by a mortar-like substance,contained asbestos and were removed by means of a jackhammer. During suchoperations dust clouds were created. In addition, the compliance officerobserved a material containing 5% asbestos being cut by scrap cutting saws. Thereasonable inference to be drawn from these facts is that the loose debriscollected in the furnace after having been released into the air. Likewise, thecommon experience teaches that sawdust is customarily released into the airwhen material is sawed. The analysis of the loose debris found in the furnaceand of the material being sawed establish the presence of asbestos. Thereasonable conclusion is that asbestos was released into the air.??????????? Theamount of asbestos material released is established to be very small as shownby the negative samples taken from the face plate of the furnace and the facewipe of the employee, and the very small amount detected in the loose debris inthe furnace. The evidence is sufficient, however, to show that some asbestosmaterial was released.??????????? Theplan language of the regulation does not trigger the monitoring requirementupon the release of asbestos material in general, but upon release of asbestos?fibers?. The term ?asbestos fibers? is defined in 29 C.F.R. ? 1910.1001(a)(2)as follows:?Asbestos fibers? means asbestos fiberslonger than 5 micrometers.????????????? Havingbeen specifically defined to mean fibers longer than 5 micrometers, it is clearthat the term ?asbestos fibers? is not intended as a generic term to includeall asbestos material. Neither is the term surplusage. Consideration of theregulatory scheme shows that the word ?fibers?, defined to mean fibers longerthan 5 micrometers, is not irrelevant. Subsections (b)(1), (2) and (3) measurethe permissible exposure to asbestos in terms of airborne concentrations of fiberslonger than 5 micrometers.??????????? Thedefinition of the term ?asbestos fibers? and the regulatory scheme compel theconclusion that the release of airborne fibers longer than 5 micrometers isessential to trigger the monitoring requirements of section 1001(f).??????????? Acareful search of the stipulated facts fails to reveal any evidence that fiberslonger than 5 micrometers were contained in the asbestos material. Thelaboratory analysis shows that materials containing asbestos were used atrespondent?s work place, but fails to show that any of the material contained?asbestos fibers? as defined in the pertinent section.??????????? Thiscase is clearly distinguishable from that in GAF Corp. and United Engineers & Constructors, 75 OSHRC 3\/A2, 3BNA OSHC 1686, CCH OSHD ?20, 163 (Docket Nos. 3203, 4008 and 7355), where bothemployers stipulated that employees were regularly exposed to asbestos fibers.The present situation is also distinguishable from that in Goodyear Tire & Rubber Co., 77 OSHRC 82\/A2, 5 BNA OSHC 1473,CCH OSHD ?20,412, in which the majority of the Review Commission held that thetestimony was inadequate to establish that asbestos fibers were released,although Commissioner Clearly (now Chairman) would have found such testimonysufficient. The record in the instant case, however, is devoid of any evidencethat asbestos fibers were present in materials used by respondent or releasedinto the air.??????????? Complainant,in his brief, suggests that release of asbestos fibers should be presumed fromthe nature of the operation. Such presumption would, of course, transfer theburden of proof from the Secretary to the respondent. Having written theregulations and defined the terms, the Secretary must be prepared to prove theessential elements of an alleged violation.??????????? Insummary, based on the analysis of the debris in furnace and material subjectedto sawing operations, it will be found as a fact that asbestos material in someform was released. It will not, however, be presumed or officially noticed thatsuch material included asbestos fibers.??????????? Therebeing no evidence that asbestos fibers were released, complainant has failed toestablish an essential element of the alleged violation and the charges must bevacated.FINDINGS OF FACT??????????? Thestipulation of facts executed by the parties constitute the facts found inconnection with the allegation of a serious violation.CONCLUSIONS OF LAW??????????? 1.The Review Commission has jurisdiction of the parties and the subject matter.??????????? 2.Respondent did not violate the standard at 29 C.F.R. ? 1910.1001(f)(1) asalleged in the serious citation (designated as Citation No. 4).??????????? 3.The repeated citation (designated as Citation No. 5) is amended to conform tothe settlement agreement filed April 13, 1979.ORDER??????????? 1.Citation No. 4, alleging a serious violation, is vacated.??????????? 2.Citation No. 5, alleging a repeated violation, as amended, is affirmed.??????????? 3.Civil penalties of $640.00 are assessed.??????????? 4.The abatement date for Item 1b of Citation No. 5 is April 1, 1980.\u00a0Dated this 9th day of July, 1979.?JOE D. SPARKS[1] 29 C.F.R. ? 1910.1001(f)(1) provides that:?1910.1001 Asbestos.(f)Monitoring?(1)Initial determinations.Within6 months of the publication of this section, every employer shall cause everyplace of employment where asbestos fibers are released to be monitored in sucha way as to determine whether every employee?s exposure to asbestos fibers isbelow the limits prescribed in paragraph (b) of this section. If the limits areexceeded, the employer shall immediately undertake a compliance program inaccordance with paragraph (c) of this section.Section 1910.1001(a)(2) defines?asbestos fibers? as ?asbestos fibers longer than 5 micrometers.?[2] Because the Secretary has met his burden todemonstrate that it was more likely than not that asbestos fibers were releasedin this case, we do not need to consider the Secretary?s argument that apresumption exists that employees are exposed to asbestos fibers whenever theywork with asbestos.[3] Judge Sparks also reasoned along these lines. He said,Thedefinition of the term ?asbestos fibers? and the regulatory scheme compel theconclusion that the release of airborne fibers longer than 5 micrometers isessential to trigger the monitoring requirements of section 1001(f).A careful search of the stipulatedfacts fails to reveal any evidence that fibers longer than 5 micrometers werecontained in the asbestos material. The laboratory analysis shows thatmaterials containing asbestos were used at Respondent?s workplace, but fails toshow that any of the material contained ?asbestos fibers? as defined in thepertinent section.”