Docket No. 79-1682

SECRETARY OF LABOR,
Complainant,

DUQUESNE LIGHT COMPANY,
Respondent,

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 142,

Authorized
Employee
Representative.

OSHRC Docket No. 79-1682

DECISION

Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions 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. ї 659(c).

The Secretary of Labor has petitioned us to reverse that part of Administrative Law Judge Benjamin G. Usher's decision in which the judge vacated charges that Duquesne Light Company violated OSHA asbestos standards requiring initial monitoring of the workplace and annual medical exams for exposed employees, 29 C.F.R. її 1910.1001(f)(1) and (j)(3).[[1]] The Secretary also takes exception to Judge Usher's finding that Duquesne's violation of certain other provisions of the asbestos standard should be characterized as nonserious. The Secretary alleges that all the violations were serious and that some were willful. Duquesne argues that the judge erred in finding any violations because the evidence was insufficient that Duquesne knew or reasonably could have known its employees were working with asbestos. We affirm the judge's decision on all these matters for the reasons given below.

FACTS

On September 12, 1978, several Duquesne employees removed insulation from the top half of a turbine as part of a major overhaul of turbine #3 at Duquesne's Phillips Power Station in South Heights, Pa. The overhaul had been scheduled about a year in advance. Duquesne usually has large insulation jobs like this performed by an independent contractor. The record does not indicate why that was not done here. Duquesne maintenance mechanics and janitors used tools to chop the dry insulation away and threw the pieces into open cardboard drums. The testimony indicated that these were approximately the same procedures used during previous insulation removal jobs.

There are four turbines in the plant and they ordinarily are overhauled every five years. Some of the Duquesne employees involved in the cited project had been engaged in previous turbine insulation removal operations. One employee, Pash, testified that he had been a maintenance mechanic with Duquesne for 16 to 17 years; that he had worked on turbine overhauls before September 12, 1978; that insulation must be removed each time an overhaul is done; and that he understood that the insulation was asbestos because some of it was labeled "asbestos" in the storeroom. No other content labels appeared on any insulation. He also testified that he removed and replaced insulation whenever steam lines or hot water lines were repaired.[[2]]

Another employee, Dabney, who had worked for Duquesne for 28 years and had been a mechanic at Phillips Station for 10 years, testified that he had removed what he called "asbestos" insulation from turbines on two occasions. The jobs were at a different station and each job took perhaps four hours. He also testified that he remembered removing insulation from valves on an unspecified number of occasions. Dabney did not know for a fact that the insulation removed was asbestos, and the record reflects that many employees used the term "asbestos" in a generic sense to refer to all insulation.

It is undisputed on review that the operation did not comply with the asbestos standard in the following respects: the permissible ceiling exposure limit was exceeded as to three employees and the permissible eight-hour time-weighted average ("TWA") exposure limit was exceeded as to one employee;[[3]] the asbestos was not wetted to reduce airborne asbestos fibers; the appropriate respirators were not used; Duquesne's respirator program was not sufficient; sufficient protective clothing was not provided or required to be used; separate lockers or containers for asbestos-contaminated clothing and street clothes were not provided; closed, impermeable containers with proper warning labels were not used to transport the contaminated clothing; and caution signs were not posted at approaches to the area around the turbine. It also is undisputed on review that Duquesne never had done monitoring for asbestos in Phillips Station and that the employees involved here had not had physical exams annually during their employment. The issues before us are whether compliance with the asbestos standard was required and, if so, whether the violations were serious and whether some of them were willful.

An OSHA compliance officer ("CO") testified that Phillips Station superintendent Phillip DeSalle was among a group of Duquesne management officials who discussed the question of insulation removal with him on August 4, 1978, in the course of an earlier inspection of an insulating contractor that had worked at Duquesne's Phillips Station. The CO testified that certain Duquesne management employees showed him a written 10-step procedure that its employees were to follow in removing insulation that was considered to be asbestos.[[4]] The CO also testified that DeSalle told him that if Duquesne employees removed insulation, they would assume they were working with asbestos.

The 10-step procedure was not followed during the September 12 operation although the two employees in charge of the operation, DeSalle and Ralph Nelson, knew of it. They testified that the procedure was not followed because they did not believe the insulation being removed contained asbestos. DeSalle, who had overall responsibility for that operation, was aware that asbestos was considered unsafe and Nelson, Duquesne's engineer in charge of the September 12 project, was aware that asbestos was a suspected carcinogen.

Before the September 12 operation, DeSalle and Nelson both had inspected the insulation on turbine #3 and concluded that the insulation on the upper portion of the turbine was mineral wool. Nelson noted its "wooly, jaggy" feel and believed asbestos to be a softer material. DeSalle noted it was grayish tan in color, whereas asbestos normally was white. Crane, an OSHA physical scientist, testified that it would be extremely difficult to determine whether or not asbestos was present in insulation based on a visual examination.

DeSalle's belief that the material was mineral wool was reinforced by his observation that the insulation was sprayed-on and his recollection that all the sprayed-on insulation had been mineral wool. Both men also based their conclusion that the insulation was mineral wool in part on their recollection that use of asbestos products had been discontinued some years before. DeSalle testified that the material on turbine #3 looked like the insulation removed earlier in 1978 from turbine #4. That material had been applied in 1976, after Duquesne had issued a directive in early 1975 which read: "[I]t is important that all future insulation products be asbestos free where feasible." Not only were the men aware of the 1975 directive, but they also knew that in the latter half of 1972, AC & S, Inc., an insulation contractor to Duquesne which had installed the asbestos insulation on turbine #3 in March of that year, had discontinued applying asbestos insulation. And by notice of July 19, 1972, Duquesne's Transmission and Distribution Department had discontinued use of "asbestoment cement and asbestos tape used for fireproofing." There is no evidence that DeSalle, Nelson or any other employee knew that the insulation on the top portion of the turbine was asbestos.

During the initial inspection, DeSalle concluded that the insulation on the lower half of the turbine probably did contain asbestos.[[5]] However, on the day of the inspection, only the insulation on the top part of the turbine was being removed, which was believed to be mineral wool. The older insulation on the bottom was to be removed at a later date using different procedures applicable to work with asbestos.

Dr. Parkinson, a medical expert presented by the Secretary, testified that medical science has not determined a safe level of exposure to asbestos, and that there is some low possibility of contracting cancer based on any amount of exposure. Dr. Parkinson's testimony also indicated that it has not been established that there is no safe level of asbestos exposure. To his knowledge, no studies involving the effects of one day of exposure have been done. He testified concerning numerous studies that have linked intermittent or vicarious asbestos exposures to cancers. However, all those studies dealt with exposures repeated over a period of time. Dr. Parkinson gave his opinion that employees who had a one-time exposure to asbestos for three or four hours at the highest levels measured by the compliance officer faced a very low potential of developing cancer.

JUDGE'S DECISION

The judge vacated the charge that Duquesne had failed to perform initial monitoring as required by ї 1910.1001(f)(1) on the ground that the standard does not apply to a workplace like Duquesne's where asbestos fibers were not ordinarily released and where installation or removal of asbestos insulation was unrelated to Duquesne's principal business. The judge vacated the charge that Duquesne failed to provide annual medical exams under ї 1910.1001(j)(3) on the related ground that that standard does not apply where, as here, employees are not usually engaged in working with asbestos.

The judge found violations based on the employees' measured exposures above the ceiling and 8-hour TWA permissible limits. He also affirmed the items of the citation based on Duquesne's failure to use wet methods, appropriate respirators, sufficient protective clothing, properly sealed containers for contaminated clothes and caution signs at approaches to the asbestos removal area. He also found a violation based on the inadequacy of Duquesne's respirator program and its failure to provide separate lockers for contaminated and non-contaminated clothing. Judge Usher rejected Duquesne's argument that the company could not have known with the exercise of reasonable diligence that the insulation on turbine #3 was asbestos. He pointed to evidence that a mere check of its own records or a phone call to AC & S would have provided that information. The judge found that Duquesne had "proceeded on the blind presumption that its employees were not working with a potentially lethal substance."

The judge found that the Secretary had failed to demonstrate that any of the violations were serious. Judge Usher found there was no proof of exposure of any employees apart from this specific operation. He interpreted the definition of a serious violation in section 17(k) of the Act, 29 U.S.C. ї 666(j),[[6]] to require a showing of a substantial probability of death or serious physical harm resulting from these isolated exposures in order to establish a serious violation. He noted that Dr. Parkinson had testified only that there was a "potential health hazard" from the isolated exposures and that these employees faced a very low probability of developing any asbestos-related disease in the future. He rejected the Secretary's argument that because there is no known safe level of asbestos exposure, any excessive exposure to asbestos must be considered serious. The judge concluded that such an argument is speculative and does not substitute for factual proof on the issue.

The judge also rejected the Secretary's claim that certain of the violations were willful. The willful allegations were based on the allegedly lax attitude of Duquesne's management toward known cancer risks. Judge Usher ruled that Duquesne's conduct was simply thoughtless reliance on a supposition that asbestos was not present -- a presumption that he found had some basis in fact. He concluded that Duquesne had not exhibited the level of defiance, disregard, or indifference to the Act's requirements which would justify calling the violations willful.

OPINION

1. Knowledge issue
Duquesne urges in its brief that we vacate all items of both citations, including those items affirmed by the judge, on the ground that the Secretary failed to prove that Duquesne knew or could have known of the violations with the exercise of reasonable diligence. However, we agree with the judge that Duquesne did not exercise reasonable diligence in failing to properly identify the insulation's content. The insulation on the top of turbine #3 had been installed early in 1972, before either Duquesne or AC & S had begun to discontinue the use of asbestos products. Nelson had negotiated the contract for installation of the insulation and had not specified that non-asbestos insulation be used. Thus, Duquesne's supervisors could not rely an any policy to discontinue the use of asbestos and should have known that a more thorough check of the insulation's content was necessary. As the judge noted, a mere check of Duquesne's own records or a telephone call to the contractor who had installed the insulation would have sufficed. Since the job had been planned a year in advance, no sudden urgency precluded a more diligent effort than was expended to ascertain the presence of asbestos. The record indicates that Duquesne could have known of the existence of the asbestos violations with the exercise of reasonable diligence.

2. Alleged initial monitoring violation
The Secretary argues that the judge's interpretation of the cited standard, ї 1910.1001(f)(1), as being limited to workplaces where asbestos fibers "ordinarily" are released is contrary to its plain meaning as well as Commission precedent. He cites Research-Cottrell, Inc., 81 OSAHRC 26/B13, 9 BNA OSHC 1489, 1497, 1981 CCH OSHD І 25,284, pp. 31,263-64 (No. 11756, 1981), and GAF Corp., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD І 20,163 (Nos. 3203 et al., 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977), for the proposition that monitoring is required in any workplace where employees are exposed to any measurable concentration of asbestos fibers. The Secretary notes that no monitoring had been done at Phillips Station even though there had been repair work and turbine overhauls at five-year intervals and Duquesne's policy was to assume it was working with asbestos when removing insulation.

Duquesne argues that the Commission need not read GAF and Research-Cottrell to cover workplaces where asbestos fibers are not ordinarily released, as both those cases involved regular exposure to asbestos as a function of the employee's occupation. It argues that the judge's interpretation of the standard is consistent with its plain meaning, pointing to the statement in the standard that monitoring must be done "[w]ithin 6 months of the publication of this section" (which occurred in 1972)[[7]] and the requirement of periodic representative monitoring following the initial monitoring under її 1910.1001(f)(2)(ii) and (f)(3)(ii). Duquesne argues that these requirements imply that monitoring requirements apply only to workplaces with regular employee exposure.

In GAF, the Commission held-that the provisions of the asbestos standard requiring initial monitoring and medical examinations applied to employees in occupations that "were, by their nature, regularly exposed to airborne concentrations of asbestos fibers" even though the concentrations were within permissible exposure levels. 3 BNA OSHC at 1692, 1975-76 CCH OSHD at 23,982. The parties in that case stipulated that the employees were regularly exposed to asbestos by the nature of their jobs. Similarly, in Research-Cottrell, the cited employer's employees were regularly exposed to airborne concentrations of asbestos in the course of installing asbestos sheets in the construction of large cooling towers at nuclear plants. The installation of the asbestos sheets took approximately eight months.

In this case, the removal of insulation from the top of turbine #3 took less than five hours. Removal of insulation on the four turbines occurred once every five years and there is no evidence to suggest that in each case the insulation removed contained asbestos. No previous Commission or court decision has considered whether the initial monitoring and medical exam requirements apply to an isolated one-day operation such as in this case involving employees in an occupation not regularly exposed to asbestos. [[8]]

Read as a coherent whole, the monitoring provisions of the asbestos standard do not apply here. We therefore affirm the judge's decision. Following initial monitoring, employers are required to do periodic monitoring. In no case is this sampling to be done at intervals greater than six months, where employee exposures may reasonably be foreseen to exceed permissible limits. Sections 1910.1001(f)(2)(ii) and (f)(3)(ii). Even if we were to accept the Secretary's argument that Duquesne employees were exposed to asbestos each time a turbine overhaul operation was done -- and we do not accept that argument -- those operations occurred once every five years on the four turbines. Section 1910.1001(f) does not contemplate that employers must monitor such sporadic operations.[[9]]

3. Alleged annual medical exam violation
The Secretary again attacks the judge's limitation of the scope of the cited standard, ї 1910.1001(j)(3), to occupations "ordinarily" or "usually" exposed to asbestos fibers. In this regard the Secretary cites Research-Cottrell, supra, and Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1981 CCH OSHD І 25,300 (No. 13102, 1981). Duquesne argues that the judge's interpretation is consistent with the express language of the standard, applying it only to occupations exposed to airborne concentrations of asbestos fibers. Duquesne also argues that no violation was shown on the facts because the cited standard allows one year for compliance from the time the employees first are exposed to airborne concentrations of asbestos fibers.

The judge also properly disposed of this item. The standard applies only to "employees engaged in occupations exposed to airborne concentrations of asbestos fibers." "Occupation" in this sense means a person's usual or principal business or employment. E.g., Random House Dictionary of the English Language 996 (1971). Thus, an occupation exposed to asbestos fibers must be one with at least some degree of regular asbestos exposure. No previous Commission or court decision, including Anaconda, has applied the medical exam provisions to exposures found to be isolated, and we believe that would be unreasonable. Only one day of asbestos exposure was proven in this case for any of the employees involved (see n. 8 supra). Since there was no showing of recurring employee exposure to asbestos outside of this isolated project, employees were not shown to be engaged in an occupation that was exposed to asbestos fibers.

4. Alleged Seriousness
The Secretary points to Dr. Parkinson's testimony that the employees' exposures on September 12, 1978, posed a potential health problem. The Secretary argues that to establish a serious violation under Commission precedent he need not show a substantial probability that the violations would lead to a serious disease, but only a substantial probability that they could lead to a serious disease. He argues that under Anaconda he need not show more than one excessive exposure on one day for a serious violation. Even assuming he must show chronic excessive exposures, the Secretary argues he has done so here.

Duquesne criticizes the definition of seriousness in Anaconda as a per se rule that virtually every overexposure to a toxic substance is a serious violation no matter how trifling or transitory. Duquesne points out that in Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978), the court rejected the proposition that any excessive exposure to a substance that can cause cancer is a serious violation. 584 F.2d at 132-33. Duquesne argues that the better test is that stated by Chairman Rowland in his dissent in Seaboard Foundry, Inc., 11 BNA OSHC 1398, 1983 CCH OSHD І 26,522 (No. 77-3964, 1983), under which the Secretary generally must establish by specific evidence a substantial probability that a life-threatening disease could result from the exposure in question.

In Anaconda, the Commission held that OSHA standards must be interpreted and applied in a manner consistent with the Secretary's intent in promulgating them, and that, in deciding whether a violation is serious, the Commission must look to the hazard which the standard is designed to prevent. The Commission found that a violation of a permissible exposure level was a serious violation where the purpose in limiting exposure to the substance involved [coal tar pitch volatiles] was to protect against contraction of a life-threatening disease--cancer. Although seriousness was found based on measurements of one day's exposure, the operations involved there were regular and ongoing. Id., 9 BNA OSHC at 1462, 1981 CCH OSHD at pp. 31,334-35.

Conversely, in Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1982 CCH OSHD І 25,975 (No. 4678, 1982), the Commission indicated that no finding of seriousness would be warranted based on one day's violative exposure to a potentially life-threatening air contaminant, silica dust, if the evidence showed those one-day exposures were (1) insufficient by themselves to cause serious consequences and (2) not representative of exposures on other days. Thus, reading Hermitage and Anaconda together, an isolated one-day exposure would not be considered serious unless that isolated exposure were shown to be sufficient to cause serious consequences.

No such showing has been made here. We previously have found that there is insufficient evidence that any employees involved in the September 12, 1978 operation were exposed to asbestos at other times. In order for these violations to be characterized as serious under the Act, there must be evidence of a substantial probability that a serious disease could result from these isolated exposures. The Secretary's medical expert testified that these isolated exposures resulted in a very low probability of cancer and the medical testimony gave no firm, positive basis on which to conclude that the exposures could cause or contribute to any asbestos-related disease. So far as the record shows, no studies have been done of isolated exposures similar to those proven here. We interpret the testimony regarding the possibility of contracting cancer from any amount of asbestos exposure as meaning that such possibility cannot be ruled out because it has been neither proven nor disproven. The fact that science has been unable to find a safe level of exposure to asbestos does not establish affirmatively that an isolated exposure can cause serious consequences. It was the Secretary's burden to make such an affirmative showing in this case. The evidence here raises only a speculative possibility that the isolated exposures could lead to asbestos-related disease.

Our conclusion that the alleged violations are not serious is consistent with both the Secretary's and the Commission's past treatment of asbestos standard violations. For example, in Research-Cottrell the Commission affirmed a citation involving an employer's failure to initially monitor asbestos levels or to administer medical examinations under the same standards at issue here. In that case, involving exposure of employees to asbestos for up to eight months, the Secretary specifically determined that the violations were nonserious. The Administrative Law Judge characterized the citation as involving "low gravity" violations and the Commission agreed, affirming the Judge's decision not to assess a penalty for those non-serious violations. 9 BNA OSHC at 1499, 1981 CCH OSHD at p. 31,265. See also Hull Pottery Co., 82 OSAHRC 18/D9, 10 BNA OSHC 1575, 1982 CCH OSHD І 25,972 (No. 78-555, 1982); Baldwin Industries, Inc., 82 OSAHRC 19/A2, 10 BNA OSHC 1572, 1982 CCH OSHD І 25,980 (No. 78-741, 1982).

5. Alleged Willfulness
The Secretary argues that Duquesne's management acted with plain indifference to the Act's requirements by failing to take substantial measures to protect its employees, despite knowing of the OSHA requirements and the grave hazards involved. The Secretary relies on the Commission's test of willfulness stated in Anaconda: "we consider a violation to be willful if it is done consciously and intentionally." 9 BNA OSHC at 1479, 1981 CCH OSHD at p. 31,351. The Secretary also argues that, while a violation is not willful if the employer in good faith believed that he was in compliance, the test of good faith is an objective test: whether the belief was reasonable in the circumstances. The Secretary argues that since Duquesne knew of the standard and the hazards involved and failed to enforce a workrule regarding the hazards, it cannot claim that it acted in good faith. The Secretary also argues that the conclusion by Duquesne's supervisors that the insulation was not asbestos was not based on a reasonable investigation, particularly in view of the severe hazards. The Secretary argues that the supervisors' reckless disregard of the asbestos hazards should be imputed to the company.

Duquesne notes that the judge, in finding the violations not willful, stated that the presumption by Duquesne's supervisors that the insulation was not asbestos "clearly had some basis in fact." Duquesne characterizes the supervisors' decision regarding the insulation's content not as a presumption but as a reasoned decision following a factual investigation.

The Commission will find a violation to be willful where the employer has acted voluntarily "with either an intentional disregard of, or plain indifference to, the Act's requirements." Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1131, 1981 CCH OSHD І 25,738, p. 32,105 (No. 76-2644, 1981); General Electric Co., 77 OSHRC 88/A2, 5 BNA OSHC 1448, 1450, 1977-78 CCH OSHD І 21,853, p. 26,320 (No. 11344, 1977), rev'd in part on other grounds, 583 F.2d 61 (2d. Cir. 1978). We agree with the judge that Duquesne's conduct was not shown to be willful.

Duquesne's management had instituted a 10-step procedure designed to gain compliance with the asbestos standard, and DeSalle and Nelson knew about the procedure. The supervisors did not follow the procedure because they believed the insulation did not contain asbestos. Their determination had some basis in fact, as the judge found. They both physically inspected the insulation and concluded that it was mineral wool. There had been a company policy in effect for years to discontinue installation of asbestos insulation, and station superintendent DeSalle thought the insulation involved here looked like other insulation that had been installed after that policy took effect. Moreover, DeSalle did not permit removal of insulation he believed contained asbestos from the lower part of the same turbine without the use of procedures applicable to asbestos. Although the supervisors should have investigated further to determine whether all of the insulation was asbestos, their failure to do so does not constitute willfulness. The evidence does not show a willful disregard of OSHA requirements or employee health.

In summary, we reject all the parties' challenges to the judge's decision for the reasons given above, and we affirm that decision.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JUN 29 1984

CLEARY, Commissioner, concurring in part and dissenting in part:

I concur in the majority's ruling against Duquesne on the knowledge issue. However, the majority's disposition of the issues raised by the Secretary is based on erroneous legal tests and unsupportable factual findings.

I
The majority's reading of the initial monitoring and annual medical exam standards, 29 C.F.R. її 1910.1001(f)(1) and (j)(3), is strained and contrary to the plain meaning and the purposes of those standards, as well as the previous interpretations of them. The Supreme Court has noted that safety regulations are to be construed to effectuate the Congressional purpose underlying the Act, which is to assure so far as possible safe and healthful working conditions for working men and women. Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). This rule is especially applicable to health regulations designed to protect employees against the possibility of contracting cancer. Restrictive readings of OSHA health regulations, carving out implied exceptions to their coverage contrary to their express language, are unreasonable and impermissible. Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977).

The previous interpretations of the standards involved here by this Commission and the courts have been uniform and cover this case:

We interpret the requirements of 29 C.F.R. ї 1910.1001(f)(1) and ї 1910.1001(j) in order to best effectuate the remedial purpose of the Act. See GAF Corp., 75 OSAHRC 3/A2, 3 BNA OSHC 1686. 1975-76 CCH OSHD І 20,163 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977). Thus, the provisions of the asbestos standard apply whenever employees are exposed to airborne asbestos in any measurable concentration. GAF Corp. v. OSHRC, [supra]; cf. Marshall v. Western Electric, Inc., [supra]. Respondent, whose employees were exposed to airborne asbestos in measurable concentrations, is required to comply with the provisions of the standards. . . . It is enough that [the Secretary] show employee exposure to measurable concentrations of airborne asbestos and a concomitant failure on the part of Respondent to monitor or provide medical examinations. Research-Cottrell, Inc., 81 OSAHRC 26/B13, 9 BNA OSHC 1489, 1497, 1981 CCH OSHD І 25,284, pp. 31,263-64 (No. 11756, 1981).[[1]] In Industrial Union Dep't, AFL-CIO v. American Petroleum Institute , 448 U.S. 637, 658 n. 65 (1980), the Supreme Court interpreted the D.C. Circuit's opinion in GAF Corp., supra, to require employers to provide medical exams for employees exposed to any asbestos fibers, even below the permissible exposure limit.

Despite the authoritative interpretations of the broad scope of the two standards involved here, the majority reads an implied "regular exposure" restriction into them. As to the initial monitoring standard, ї 1001(f)(1), the majority states that when read together with її 1001(f)(2)(ii) and (f)(3)(ii), that standard is limited in scope to operations that take place at least every six months. The pertinent provisions are given below. [[2]] Sections 1001(f)(2) and (f)(3)(ii), in nearly identical language, call for subsequent monitoring after the initial monitoring, with sufficient frequency and pattern as to represent employee exposure levels with reasonable accuracy. They also call for samples at least every six months for employees whose exposure may reasonably be foreseen to exceed permissible levels. The obvious purpose of those provisions is to assure that measured employee exposures accurately represent actual exposures, not to nullify the explicit and unambiguous requirement of ї 1910.1001(f)(1) that an employer monitor every workplace where asbestos fibers are released to determine whether every employee's exposure is within
permissible limits. The implied exception that the majority reads into the standard, contrary to its express language, is impermissible. Marshall v. Western Electric, Inc., supra.

As to the annual medical exam standard,[[3]] the majority restricts the authoritative interpretations referred to above on the rationale that its application to employees "engaged in occupations exposed to airborne concentrations of asbestos fibers" excludes employees not regularly exposed as part of their occupation. However, the only limitation warranted by that phrase is that medical exams need not be given to employees who never are exposed to airborne concentrations of asbestos fibers during the course of their occupation. Here, the employees were exposed as part of their occupation on September 12, 1978. Thus, they are entitled to the protection of annual medical exams under the plain language of the standard. In fact, the evidence indicates that certain employees were also exposed numerous times previously, as discussed in Part II infra. Again, the implied exception found by the majority, resulting in the denial of the protection of the standard to these employees, is unreasonable and impermissible. Marshall v. Western Electric, Inc., supra.[[4]]

In this regard, the Supreme Court has noted the importance of asbestos medical exam requirements in evaluating whether existing permissible exposure limits are effective, and in removing unusually susceptible workers before they suffer permanent damage. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, supra, 448 U.S. at 657-58 and n. 67. The latter purpose is particularly important where, as here, the employees are exposed to concentrations of asbestos far above permissible limits.[[5]] The evidence shows that Duquesne employees could contract cancer as a result of the exposures proven here (see Part II infra). At a minimum, they are entitled to the protection of the medical exam provisions.

II
The majority's holding that the massive exposures proven here should be characterized as nonserious also rests on overly restrictive views of the law and the evidence. In determining whether a violation involving exposure to toxic chemicals is serious, we must look to "the harm the regulation was intended to prevent, and if that harm is death or serious physical injury, a violation of the regulation is serious per se." Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). The asbestos standard is expressly designed to afford employees protection against contracting lung cancer, mesothelioma and asbestosis. Preamble to the Asbestos Standard, 37 Fed.Reg. 11318 (1972). Thus, the standard's purpose is to protect employees against life-threatening diseases, and the violations of it here clearly are serious.

Even if specific evidence is demanded that the exposures proven in this case could result in serious consequences, as the majority does, the evidence of record indicates that (1) the exposures on September 12, 1978, could result in cancers by themselves and (2) in any event, Duquesne employees had been exposed to asbestos previously a number of times. The majority's findings to the contrary are not supportable.

Dr. Parkinson specifically testified that the available evidence indicates there is a possibility of contracting cancer based on any amount of exposure to asbestos. He testified that even assuming that the only exposure was on September 12, 1978, the employees still faced a real possibility of contracting mesothelioma, an incurable form of lung and abdominal cancer. He specifically referred to a 1976 study of mesothelioma in which the author studied quite small asbestos exposures to determine if there was any exposure level below which persons would be safe from the disease. The author found no such level. This is specific scientific research supporting the Secretary's position. There was no evidence rebutting the possibility of serious harm resulting from one-time expo- sures. Thus, the Secretary's specific evidence is sufficient to establish a substantial probability that death or serious physical harm could result from the September 12, 1978, exposures alone.[[6]]

Furthermore, Duquesne employees had been previously exposed to asbestos a number of times. First, Duquesne's efforts to end asbestos use and its adoption of a 10-step asbestos handling procedure indicate that asbestos insulation in fact had been applied previously. Second, Pash testified that he had worked for Duquesne as a maintenance mechanic for 16 or 17 years; that he had worked on various turbine overhauls throughout that period; that insulation must be removed each time an overhaul is done; and that some of the insulation he worked with was labeled "asbestos" in Duquesne's storeroom (no other content labels appeared on any insulation). Pash testified that the procedures used in removing the insulation on September 12, 1978, were no different from those used during the previous jobs in which he had participated. The only reasonable inference is that Pash previously had been exposed to asbestos on numerous occasions. There was no rebuttal evidence to show that the asbestos he had worked with previously (some of it marked "asbestos") really wasn't asbestos, or that adequate precautions ever had been taken to protect employees from asbestos exposure. The evidence is clear that Duquesne employees including Pash had been exposed to asbestos on a number of previous occasions. This is consistent with the testimony of Dr. Parkinson, the Secretary's medical expert, that any assumption that a worker's exposure to asbestos can be limited to one or two days is artificial. The repeated exposure of certain employees can only add to the danger of serious asbestos-related disease.

Where, as here, the unrebutted evidence establishes a substantial probability that the violations could result in serious consequences, a serious violation should be found, even under a specific evidence requirement. Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1982 CCH OSHD І 25,975 (No. 4678, 1982). The majority's restrictive view of the evidence suggests that it would require scientific certainty that cancer or other serious consequences could result. That would be inconsistent with the plain language of section 17(k) of the Act, 29 U.S.C. ї 666(j),[[7]] which defines a serious violation in terms of a "substantial probability that death or serious physical harm could result." Also, cases upholding the Secretary's authority to regulate suspected carcinogens including asbestos have noted his authority and duty to do so in the absence of scientific certainty.

[S]ome of the questions involved in the promulgation of these standards are on the frontiers of scientific knowledge, and consequently as to them insufficient data is presently available to make a fully informed factual determination. . . .

For example, in this case the evidence indicated that reliable data is not currently available with respect to the precisely predictable health effects of various levels of exposure to asbestos dust; nevertheless, the Secretary was obligated to establish some specific level as the maximum permissible exposure. After considering all the conflicting evidence, the Secretary [adopted] a relatively low limit . . . . Inasmuch as the protection of the health of employees is the overriding concern of OSHA, this choice is doubtless sound . . . .

Industrial Union Dep't. AFL-CIO v. Hodgson, 499 F.2d 467, 474-75 (D.C. Cir. 1974); see Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir. 1975), cert. denied sub nom Firestone Plastics Corp. v. Department of Labor, 421 U.S. 992 (1975).

Similarly here, scientific certainty has not been achieved with respect to whether intermittent (or even isolated) asbestos exposures can cause or contribute to cancers. However, sound choices must be made based on the available evidence. Here the specific evidence establishes a substantial probability that such exposures can lead to cancer. Thus, consistent with section 17(k) of the Act, the violations here should be found to be serious even under a specific evidence requirement.

The majority's assertion that its nonserious characterization is consistent with the Secretary's and the Commission's past treatment of asbestos standard violations does not support its conclusions here. The Commission has affirmed a serious violation of an asbestos personal protective equipment standard in at least one case since 1981. Johns-Manville Corp., 81 OSAHRC 67/A12, 9 BNA OSHC 2039, 1981 CCH OSHD І 25,491 (No. 78-2419, 1981) (ї 1001 (c)(2)(iii)). [[8]]

Furthermore, the majority's analogy to Research-Cottrell, supra, is unfounded, as is its reference to Hull Pottery Co., 82 OSAHRC 18/D9, 10 BNA OSHC 1575, 1982 CCH OSHD І 25,972 (No. 78-555, 1982), and Baldwin Industries, Inc., 82 OSAHRC 19/A2, 10 BNA OSHC 1572, 1982 CCH OSHD І 25,980 (No. 78-741, 1982). Unlike those three cases, here it is established that certain employees had been exposed to impermissible ceiling and 8-hour time weighted average exposures to asbestos fibers, and there was specific testimony of cancer hazards as a result of the measured exposures alone. It also should be noted that the seriousness of all the violations alleged by the Secretary is on review, not just the monitoring and medical exam items. The seriousness of each violation must be determined in light of the entire record here, even under a specific evidence test. Research-Cottrell, Hull and Baldwin do not support the majority's position.

III
The majority correctly states that the Commission will find willfulness where the employer acts voluntarily with either intentional disregard of, or plain indifference to, OSHA requirements. E.g., Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD І 25,713 (No. 77-2100, 1981). Here, Duquesne's supervisors responsible for the September 12, 1978, insulation removal knew that asbestos was unsafe (engineer Nelson actually knew it was a suspected carcinogen). They knew that Duquesne had a 10-step procedure for protecting employees when working with it. They failed to use those procedures because they thought from their inspection that it was not asbestos. However, that belief was unreasonable, as even the majority finds. [[9]]

Theoretically, the supervisors' action might be attributed to mere carelessness except for the statements made by a group of Duquesne supervisors including DeSalle to an OSHA compliance officer at Phillips Station on August 4, 1978. The group advised the compliance officer that if Duquesne ever had its employees remove insulation, they would assume they were working with asbestos and would use Duquesne's 10-step protective procedure, which they showed the compliance officer. Thus, DeSalle knew that no chances were to be taken with insulation.

DeSalle had no way of knowing whether the insulation removed on September 12, 1978, contained asbestos. Duquesne never had trained him or Nelson how to identify asbestos, and neither supervisor indicated any reason to believe he could make that determination with any degree of certainty. [[10]] In fact, when the compliance officer consulted with Duquesne's supervisors including DeSalle on August 4, 1978, concerning whether there was asbestos insulation on another turbine in the plant, they said they would have no way of knowing.

DeSalle's explanation that he "thought" from a cursory examination that it was not asbestos is no explanation at all, because he knew the policy to assume it was asbestos until proven otherwise, and he had no reasonable basis to conclude it did not contain asbestos. DeSalle had not even taken the easy steps of having Duquesne's records checked or calling the contractor which had installed the insulation to confirm its content.

In the circumstances, it must be concluded that DeSalle and Nelson intentionally or plainly disregarded the possibility that the insulation might contain asbestos. This gambling with the employees' health involved an element of conscious refusal to take precautions mandated under known policies and is properly characterized as willful. E.g., Mel Jarvis, supra; Babcock & Wilcox Co. v. OSAHRC 622 F.2d 1160 (3d Cir. 1980).

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] ї 1910.1001 Asbestos

(f) Monitoring - (1) initial determinations. Within 6 months of the publication of this section, every employer shall cause every place of employment where asbestos fibers are released to be monitored in such a way as to determine whether every employee's exposure to asbestos fibers is below the limits prescribed in paragraph (b) of this section. If the limits are exceeded, the employer shall immediately undertake a compliance program in accordance with paragraph (c) of this section.

(j) Medical examinations
(3) Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers. Such annual examination shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 x 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV1.0).

[[2]] Duquesne discontinued the use of asbestos insulation as early as 1972. Therefore, the repair of steam and water lines or the overhaul of turbines in which the asbestos insulation had been replaced with non-asbestos products after 1972 would not involve the danger of employee exposure to airborne asbestos since the replacement insulation did not contain asbestos.

[[3]] OSHA industrial hygienist (IH) Francis Voycik took measurements of the exposures of four employees with sampling pumps and measuring devices during a 45-minute period on Sept. 12. The measurements showed that employee Schomburger was exposed to a concentration of 51.5 asbestos fibers per cubic centimeter of air (fibers/cc) for 28 minutes, 99.5 fibers/cc for 7 minutes and an overall TWA of 4.45 fibers/cc for a projected 8-hour period. (The ceiling concentration allowed is 10 fibers/cc and the 8-hour TWA allowed is 2 fibers/cc. Sections 1910.1000(b)(2), (3). All references to "asbestos fibers" in this decision are to the term as defined in ї 1910.1001(a)(2) - "asbestos fibers longer than 5 micrometers.") For employee Pash, the measurements showed exposure to 14.8 fibers/cc during one 32-minute period, and for employee Hendricks, 15.2 fibers/cc during a 25-minute period. All other measurements were within allowable limits. The insulation removal operation resumed on Sept. 18, 1978, and OSHA again inspected, but no citations were issued relative to that day.

[[4]] Duquesne's 10-step procedure included the following requirements: employee use of single-use dust respirators, proper eye protection and coveralls or similar protective clothing; vacuuming the protective clothing at day's end; roping off the work area and restricting entry by posting; placing canvas over grates to prevent dust falling to lower levels in the station; wetting down asbestos or wrapping it with wet rags; collecting asbestos waste in sealed, properly marked containers; and cleanup of asbestos by vacuuming or wet methods.

[[5]] DeSalle testified that insulation is removed from only the top part of the turbine unless a major overhaul is undertaken, in which case insulation is removed from both the top and the bottom of the turbine. He also testified that the insulation on the top part of the turbine had been removed and replaced since the insulation on the bottom of the turbine had been applied, accounting for his conclusion that only some of the insulation contained asbestos.

[[6]] Section 17(k) provides:

[[7]] 37 Fed. Reg. 11318 (1972).

[[8]] The judge found no reliable evidence that any employees were exposed to asbestos at any time prior to the Sept. 12, 1978 operation, and we agree. No one at the hearing was able to say that any insulation previously removed by Duquesne employees actually was asbestos. Also, station superintendent DeSalle had been ordering non-asbestos insulation for most of the 1970's. AC & S, the contractor which in 1972 installed the insulation involved in the Sept. 12, 1978 operation, had ceased using asbestos insulation in the station as of the latter part of 1972, and in early 1975 the company had issued a policy against use of asbestos insulation. The Secretary's evidence of previous exposure before Sept. 12, 1978, simply is too speculative.

[[9]] In view of our disposition of this item, we do not reach the other issues raised by Duquesne regarding whether the item should be vacated since the six-month compliance period for initial monitoring had expired or whether, in the alternative, citation was premature because the cited standard allows six months for compliance after initial asbestos exposure.

[[1]] In Research-Cottrell, the employer was required to determine the exposure of every employee, even though some or most of the employees were transient. The case did not distinguish between long-term and short-term employees.

[[2]] ї 1910.1001 Asbestos

(f) Monitoring
* * *

(2) Personal monitoring
* * *
(ii) Sampling frequency and patterns. After the initial determinations required by paragraph (f)(1) of this section, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of employees. In no case shall the sampling be done at intervals greater than 6 months for employees whose exposure to asbestos may reasonably be foreseen to exceed the limits prescribed by paragraph (b) of this section.

(3) Environmental monitoring
* * *
(ii) Sampling frequency and patterns. After the initial determinations required by paragraph (f)(1) of this section, samples shall be of such frequency and pattern as to represent with reasonable accuracy the levels of exposure of the employees. In no case shall the sampling be at intervals greater than 6 months for employees whose exposures to asbestos may reasonably be foreseen to exceed the exposure limits prescribed in paragraph (b) of this section.

[[3]] The annual medical exam standard, ї 1001(j)(3), provides in pertinent part:

Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers.........

[[4]] Indeed, it was predictable that maintenance employees would be exposed to asbestos as part of their regularly scheduled turbine overhaul work. Why else would Duquesne's supervisors have implemented a policy to assume the insulation was asbestos and use the 10-step procedure automatically?

[[5]] For example, the industrial hygienist's monitoring results showed that one employee was exposed to almost 10 times the permissible ceiling concentration of asbestos fibers during one sampling and that another employee was exposed to more than 5 times the permissible ceiling concentration during another sampling. Clouds of dust were created during the operation due to the manner in which the asbestos was thrown into waste containers.

[[6]] The criteria document on asbestos published by the National Institute for Occupational Safety and Health (NIOSH), which formed part of the basis for the current asbestos standard, also indicates the potential dangers of isolated or short-term asbestos exposures. U.S. Dep't of Health, Education and Welfare, NIOSH, Recommendations For An Occupational Exposure Standard For Asbestos (1972). The criteria document noted a study of 232 former insulation plant employees by Dr. Irving Selikoff, which reported positive X-ray findings among individuals having known asbestos exposures as short as one day. Id. at III -7 and Table XXVII. NIOSH also cited a report finding an excess of lung cancer in a study of over 4,500 male workers employed at an asbestos factory making both textile and insulation products. This excess of lung cancer was demonstrated among workers whose jobs entailed heavy exposure, regardless of the duration of employment. Id. at III -7 & 8. NIOSH concluded that the effect after several decades of a one-time acute dose of limited duration which overwhelms the clearing mechanism, and is retained in the lungs, may be as harmful as many years of work at lower daily levels of exposure. Id. at V -3. In this case, Dr. Parkinson testified that he considered certain of the employees' exposures on September 12, 1978, to be very high. See n. 5 supra. NIOSH concluded that the initiation of cancer is possible following single small exposures to asbestos, although of a low probability. Id. at V -12.

[[7]] Section 17(k) provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[8]] Moreover, the past treatment of asbestos cases by the Secretary is irrelevant because he is not bound by his discretionary enforcement actions in other cases. Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD І 22,889 (No. 14484, 1977); see Columbian Art Works, Inc., 81 OSAHRC 96/F5, 10 BNA OSHC 1132, 1981 CCH OSHD І 25,737 (No. 78-29, 1981). In any event, the Secretary previously has cited standards at issue here as serious. See Shenango Co., 82 OSAHRC 25/A2, 10 BNA OSHC 1613, 1982 CCH OSHD І 26,051 (No. 78-4723, 1982) (ї 1001(f)(1)); General Engineering and Machine Works, 81 OSAHRC 52/B12, 9 BNA OSHC 1936, 1981 CCH OSHD І 25,402 (No. 80-2196, 1981, (ALJ) (ї 1001(j)(3)).

[[9]] Thus, no "good faith" exception to a finding of willfulness is warranted. Where an employer believes in good faith that he is in compliance with an OSHA regulation, no willful violation may be found. However, the test of good faith is objective. The belief must be reasonable in the circumstances. Mel Jarvis, supra.

[[10]] Other testimony by an OSHA physical scientist, Crane, confirmed that untrained persons like DeSalle and Nelson could not make such a determination with any degree of certainty.