Docket No. 87-1522

SECRETARY OF LABOR,
Complainant,

v.

ASBESTOS ABATEMENT
CONSULTATION AND ENGINEERING,
Respondent.

OSHRC Docket No. 87-1522

ORDER

The Commission construes the Secretary's notice to withdraw citation sub-items as a motion, and grants the Secretary's motion. The Judge's report is set aside insofar as it affirmed citation sub-items (b) and (c) of item 1, and the Judge's report vacating sub-item (a) is hereby a final order.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: February 2, 1989

SECRETARY OF LABOR,
Complainant,

v.

ASBESTOS ABATEMENT CONSULTATION
& ENGINEERING,
Respondent.

OSHRC DOCKET NO. 87-1522

DECISION AND ORDER

Appearances:

E. Jeffery Story, Esq., of Dallas, Texas, for the Complainant
B. Harrison Moore, of Hainesport, New Jersey, for the Respondent, pro se.

PROCEDURAL HISTORY

BLYTHE, Judge:

This case is before the Occupational Safety and Health Review Commission ("Commission") under § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 ("the Act"). As the result of an inspection by an industrial hygienist of the Occupational Safety and Health Administration ("OSHA"), of a workplace in Austin, Texas, where Respondent was performing asbestos monitoring services for Falcon Associates, which was removing asbestos from Highland Mall, one citation was issued September 1, 1987, to Respondent alleging willful violations of § 5(a)(2) of the Act and the health standard codified at 29 C.F.R. 1926.58(f)(5)(i) and Appendix A thereto and proposing an aggregate penalty of $8,000.

Respondent timely contested the citation and proposed penalty, and thereafter a formal complaint and answer were filed.

Respondent's answer, which neither admitted nor denied the jurisdiction and coverage allegations of the complaint, is deemed to have admitted them under Rule 36(a). In addition, Respondent's answer admits elsewhere that it is engaged in business throughout the United States. Issues remaining to be determined are whether Respondent was in willful violation of paragraphs 6 and 9 of the Sampling and Analytical Procedure and paragraph 3 of the Quality Control Procedures of Appendix A to C.F.R. 1926.58, and, if so, the appropriate penalty therefor.

DISCUSSION AND OPINION

The standard cited for all of these alleged violations, 29 C.F.R. 1926.58(f)(5)(i), provides:

(5) Method of monitoring.

[i] All samples taken to satisfy the monitoring requirements of paragraph (f) of this section shall be personal samples collected following the procedures specified in Appendix A.

The applicable provisions of Appendix A are:

Sampling and Analytical Procedure

6. Calibrate each personal sampling pump before and after use with a representative filter cassette installed between the pump and the calibration devices.

9. The microscope shall be fitted with a Walton-Beckett eyepiece graticule calibrated for a field diameter of 100 centimeters (+/-2 micrometers).

Quality Control Procedures

3. All individuals performing asbestos, tremolite, anthophyllite, and actinolite analysis must have taken the NIOSH course for sampling and evaluating airborne asbestos, tremolite, anthophyllite, and actinolite dust or an equivalent course.

All of the provisions of Appendix A are labeled "Mandatory" although a general statement seems to allow more latitude than the word "mandatory" might indicate; it states:

The sampling and analytical methods described below represent the elements of the available monitoring methods (such as the NIOSH 7400 method) which OSHA considers to be essential to achieve adequate employee exposure monitoring while allowing employers to use methods that are already established within their organizations. All employers who are required to conduct air monitoring under paragraph (f) of the standard are required to utilize analytical laboratories that use this procedure, or an equivalent method, for collecting and analyzing samples.

With regard to paragraph 6, the Citation alleges:

Personal sampling pumps were last calibrated with a primary calibration device approximately 5 weeks ago. Pump rotometers are being used to calibrate the pumps.

According to Respondent, each air pump used by Respondent to take samples was equipped with a built-in, or "inherent," rotometer, which was used to calibrate the pump. The question is whether a more sophisticated "primary" calibration device was required for this purpose. Complainant brought in as an expert witness the author of Appendix A, Daniel Thomas Crane, the supervisory physical scientist supervising the microscopy branch at OSHA's Analytical Laboratory at Salt Lake City, Utah. Mr. Crane testified that a small rotometer attached to an air pump is not really a calibration device and that a bubble burette should be used (Tr. 143, 144). The short answer is that Appendix A does not require or define a primary calibration device. Respondent was not put on notice that air pumps had to be calibrated with a primary device. Although Appendix A is very specific in other respects, it is not in this instance.

The Complainant argues that, in the absence of interpretation of Appendix A by the Commission or the courts, the testimony of Mr. Crane, as its author, must be given great weight; this is true, but it cannot supply what has been omitted.

With regard to paragraph 9 of the Sampling and Analytical Procedure of Appendix A, the citation alleges that a Bausch & Lomb microscope used by Respondent "was not fitted with a Walton-Beckett graticule," as specifically required by paragraph 9. This allegation is admitted by Respondent, but it contends that the microscope was used in a "pre-analysis" not covered by Appendix A. This requires a rather detailed explanation.

Bernard Cohn, son of Respondent's owner, was sent from Respondent's home office in New Jersey to collect air samples from the Highland Mall asbestos removal job. This he did daily, analyzing the slides in his hotel room with a microscope fitted with a Porton graticule. The results of this analysis were immediately made known to Falcon, the asbestos removal contractor, so that Falcon could decide what respirators were required or take other steps to protect its employees. Cohn then shipped the cassettes to Respondent's New Jersey laboratory for final analysis, and the results of this final analysis were communicated to Falcon.

It is Respondent's position that the "pre-analysis" was not required and that it should not be penalized for doing more than required by the standard.

Complainant contends that since the "preanalysis" results were given to Falcon it was an analysis covered by the cited standard, including the microscope graticule requirement. This requirement alone does not seem very significant, especially since Bernard Cohn apparently secured accurate results with the Porton graticule, but it is part of an integrated plan to secure uniformity in asbestos-monitoring procedure. The hazard of non-compliance is that laboratories engaged in this monitoring, if allowed to use unauthorized methods and equipment, might not achieve the accuracy and uniformity for which the standard is designed.

I am convinced that the so-called "pre-analysis" is in fact an analysis subject to the standard. There appears to be no reason why Respondent could not comply with this and the following subitem pertaining to education of the microscopist.

In the final subitem it is alleged:

Employee performing asbestos analysis did not have NIOSH or equivalent course for sampling and evaluating asbestos. This could cause inaccurate asbestos counting and results.

Here again, Respondent's answer admits the truth of the allegation except that it denies that the employee, Bernard Cohn, was engaged in work covered by the standard. Apparently this employee had on-the-job training, but Respondent did not attempt to prove (as permitted by Appendix A) that this training was "equivalent" to the NIOSH course. I find that this lack of training was a violation, also.

The next. question is whether these violations were willful.

A violation is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety.

A. C. Dellovade, Inc., 86 OSAHRC, 13 BNA OSHC 1017, 1986 CCH OSHD ś 27,785 (No. 83-1189, 1987).

Respondent specializes in asbestos removal monitoring and was aware of § 1926.58 and Appendix A. It apparently in good faith thought it was not in violation because of its "pre-analysis" theory. The crux of this matter is whether Respondent's interpretation of the standard's application was unreasonable. Keco Industries, Inc., 87 OSAHRC, 13 BNA OSHC 1161, 1987 CCH OSHD ś 27,860 (No. 81-263, 1987). It contended forcefully that its methodology was superior to and offered greater protection to employees than OSHA's and that its "pre-analysis" was an additional service for which it should not be penalized. Although I do not agree with this position, I do not believe that the violations were willful. Good faith can negate willfulness. Keco Industries, supra.

Since Complainant did not plead that the violations were "willful serious," the characterization must be reduced to "other than serious." Id.

After considering the penalty criteria set forth in § 17(j) of the Act, I find an aggregate penalty of $500 to be appropriate.

FINDINGS OF FACT

1. Respondent has a laboratory in Mt. Laurel, New Jersey, for analyzing air samples containing asbestos filters. On August 24, 1987, its field representative, Bernard Cohn, was engaged in gathering such air samples at Highland mall in Austin, Texas, where Falcon Associates was removing asbestos. Cohn analyzed these samples in his hotel room, informing Falcon immediately of the analysis results, then sending the cassettes from the air pumps to the New Jersey laboratory for further analysis. The laboratory then communicated the results of its analysis to Falcon.

2. Each air pump used by Bernard Cohn was equipped with a rotometer which he used to calibrate each pump before and after each use.

3. The microscope used by Bernard Cohn was fitted with a Porton graticule, not a Walton-Beckett graticule.

4. Bernard Cohn had not taken the NIOSH course for sampling and evaluating airborne asbestos, tremolite, anthophyllite and actinolite, or an equivalent course.

5. The appropriate penalty is $500.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. Respondent is an employer engaged in a business affecting commerce within the meaning of § 3(5) of the Act.

3. The evaluation of samples of airborne asbestos performed by Bernard Cohn was an analysis subject to 29 C.F.R. 1926.58(f)(5)(i).

4. On August 24, 1987, Respondent was not in violation of paragraph 6 of the Sampling and Analytical Procedure of Appendix A to § 1926.58.

5. On August 24, 1987, Respondent was in violation of paragraph 9 of said Sampling and Analytical Procedure of Appendix A.

6. On August 24, 1987, Respondent was in violation of paragraph 3 of the Quality Control Procedures of said Appendix A.

7. Respondent's violations of § 1926.58(f)(5)(i) were not willful but were "other than serious."

ORDER

Item 1 of citation 1, for willful violation of C.F.R 1926.58(f)(5)(i), is amended to allege an other-than-serious violation, and, as so amended. it is AFFIRMED and a penalty of $500 is ASSESSED.

So ORDERED.

DEE C. BLYTHE
Administrative Law Judge

Date: September 7, 1988