Docket No. 13732

GENERAL ELECTRIC COMPANY

OSHRC Docket No. 13732

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Edward L. Dobbins, General Electric Company, for the employer

Mr. A. R. Worthington, Local 191, IUE (AFL-CIO), for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge patton affirmed citations alleging that Respondent, General Electric Company, violated section 5(a)(2) n2 of the Act by failing to comply with standards regulating employee exposure to noise and asbestos. Acting Chairman Barnako granted Respondent's petition for review of the judge's decision. n3 Respondent's petition takes exception to the judge's disposition of the merits of the alleged violations and also challenges the judge's rulings on various procedural motions.

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n1 29 U.S.C. § 661(i).

n2 29 U.S.C. § 654(a)(2).

n3 Former Commissioner Moran also directed that the judge's decision be reviewed "for error."

[*2]

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RESPONDENT'S MOTIONS FOR DISCOVERY

The citations were issued on May 20, 1975. Following Respondent's timely notice of contest and the filing of a complaint and answer, an expert in noise control retained by the Secretary of Labor ("the Secretary") visited Respondent's plant on October 22, 1975, to investigate the feasibility of noise reduction controls. Thereafter, by an order dated January 21, 1976, Judge Patton set the case for hearing on February 17, 1976. In response to a motion for continuance by the Secretary based on the unavailability of the Secretary's expert to testify on that date, the judge moved the hearing date to March 10, 1976, by an order dated February 3, 1976.

On February 6, 1976, Respondent served interrogatories on the Secretary, primarily seeking information concerning the evidence that the Secretary intended to present concerning the alleged noise violation. On February 12, the Secretary declined to answer the interrogatories based on the proximity of the request to the trial date, the extensive nature of the information sought, and the fact that the interrogatories had not [*3] been propounded in accordance with Rule 53 of the Commission's Rules of procedure. n4 On February 19, Respondent sought from the judge an order requiring the Secretary to answer the interrogatories and for a continuance of the hearing. Judge Patton denied the motion on the basis that Respondent's attempted discovery came too close to the hearing date, especially since discovery could have been sought earlier. The judge also noted that when Respondent originally filed the interrogatories, it had not sought the judge's permission as required by Rule 53.

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n4 Rule 53, 29 C.F.R. § 2200.53, provides, in pertinent part:

Rule 53. Discovery depositions and interrogatories.

(a) Except by special order of the Commission or the Judge, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.

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On March 2, Respondent moved for reconsideration of the judge's order, arguing primarily that it did not know of the Secretary's intention [*4] to present expert witnesses until it received the Secretary's motion for continuance on February 2, and that the need for it to propound the interrogatories did not arise until that time. Respondent asserted that it filed its interrogatories promptly after the need arose. Respondent further maintained that it should not be penalized for the time that had elapsed between the filing of the pleadings and the scheduled date of the hearing, as any delay was in no way due to any fault on its part. In opposing Respondent's motion for reconsideration, the Secretary stated that Respondent knew that the Secretary would be relying on an expert witness as early as "July 24, 1975 (sic)," when Respondent permitted the Secretary's expert to enter its plant for discovery purposes.

Judge Patton denied Respondent's motion for reconsideration, and when Respondent renewed its motion for a continuance at the outset of the hearing, the judge also denied that motion.

On review, Respondent contends that the judge's denial of its various discovery-related motions denied it due process of law. Respondent again argues that its need for interrogatories first arose when it learned from the Secretary's motion [*5] for continuance that the Secretary intended to present an expert witness and that it filed the interrogatories promptly thereafter.

The Commission has held that a decision whether or not to permit discovery pursuant to Rule 53 is within the judge's sound discretion and that, in exercising that discretion, "[t]he judge should consider the need of the moving party for the information sought, any undue burden to the party from whom the discovery is sought, and, in balance, any undue delay in the proceedings which may occur." Kli, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1098, 1977-78 CCH OSHD P22,350 at 26,937 (No. 13490, 1977).

We conclude that the judge did not abuse his discretion in this case. Respondent's request for interrogatories would have required a further delay in the hearing, and Respondent offered no compelling reason why it could not have sought discovery at an earlier time. Respondent's only stated reason for seeking discovery at a time close to the scheduled hearing was that it had first learned that the Secretary intended to present an expert witness when it received the Secretary's motion for continuance on February 2, 1976. However, minimal diligence would [*6] have enabled Respondent to obtain this information at an earlier time. Respondent was aware that a noise control expert had visited its plant on behalf of the Secretary and should have anticipated that the Secretary intended to use this expert as a witness. If Respondent possessed any doubt on the subject, it could have sought to dispel that doubt by means of an interrogatory asking if the Secretary intended to present any expert witnesses. n5 In view of the fact that Respondent did not pursue discovery with due diligence and that the discovery it finally did seek would have resulted in a further delay of the hearing, we find no abuse of discretion in the judge's denial of Respondent's motions. See Quality Stamping Products Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD P23,520 (No. 78-235, 1979).

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n5 Rule 26(b)(4)(A)(i) of the Federal Rules of Civil procedure provides:

Rule 26. General Provisions Governing Discovery.

* * *

(b) Scope of Discovery.

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(4) Trial Preparation: Experts:

* * *

(a)(i) A party may through interrogatories reguire any other party to identify each person whom the other party expects to call as an expert witness at trial . . . .

Rule 26(b) governs the scope of discovery in Commission proceedings. Quality Stamping Prod. Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1287 & n. 5, 1979 CCH OSHD P23,520 at 28,503 & n. 5 (No. 78-235, 1979).

[*7]

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THE DATE OF THE ALLEGED NOISE VIOLATION

The inspection of Respondent's plant that led to the citations occurred on April 2, 9, and 10, 1975. The compliance officer who conducted the inspection made measurements of the noise levels on April 10. However, the citation and complaint alleged, and the judge found, that the violation occurred on April 2 and 9. Respondent asserts that this discrepancy "is fatal to the Secretary's case."

In response to Respondent's argument, the Secretary notes that the evidence as to the noise levels on April 10 was introduced without objection by Respondent, and he argues that Respondent therefore consented to try the issue of whether the violation occurred on April 10. Accordingly, the Secretary moves that the pleadings be amended to allege that the noise violation occurred on April 10. The motion is made pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, which provides that, "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings [*8] . . . ."

It is true, as Respondent asserts, that the Secretary's noise measurements were made on April 10. However, the evidence also establishes that the operations for which noise measurements were made occurred regularly in the course of Respondent's business, and those measurements are therefore probative of the noise levels regularly existing in Respondent's plant. Accordingly, any violation that existed is not limited to the date on which the measurements were made. The issue tried by the parties was not whether the violation occurred on a specific date but whether the violation occurred at or about the time of the inspection. Accordingly, we amend the pleadings to allege that the noise violation occurred on or about April 10, 1975. See Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979), aff'd sub nom Mineral Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289 (5th Cir. 1981).

ALLEGED NOISE VIOLATION - 29 C.F.R. § 1910.95(b)(1) n6

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n6 This standard provides:

§ 1910.95 Occupational noise exposure.

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(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

* * *

Table G-16 -- PERMISSIBLE NOISE EXPOSURES

	Sound level
Duration per day, hours	dBA slow response
8	90
6	92
4	95
3	97
2	100
1 1/2	102
1	105
1/2	110
1/4 or less	115

(footnote omitted).

[*9]

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Respondent manufactures transformers at its plant in Rome, Georgia, where the alleged violation occurred. The citation concerns the manner in which large metal transformer housings, referred to in the record as "tanks," are manufactured. The metal plates that form each housing are welded together, and metal that is splattered on the plates during the welding is then removed from the tank by means of chipping hammers. The chipping process generates noise levels measured by the compliance officer to range between 109 and 117 dBA inside a tank and between 98 and 105 dBA directly outside a tank. Employees who worked some distance from the tanks were also exposed to noise levels exceeding 90 dBA when chipping was being performed. The employees who operated the chipping hammers generally spent two to three hours per day at that task.

The Secretary's witnesses recommended a two-pronged approach to reduce the noise exposure of Respondent's employees: a change in Respondent's welding processes that would reduce the amount of splatter, and damping of the tanks during the chipping process. A welding expert, [*10] Mr. D'Annessa, testified that various means existed to reduce the splatter generated by the welding process and thereby reduce the time spent by Respondent's employees at chipping away the splatter. D'Annessa observed in visiting Respondent's plant that some of the welding on the tanks was performed by a process called stick electrode welding. He testified that this process generated considerable splatter, and suggested replacing it with a process known as wire feed or MIG welding, which produced considerably less splatter. D'Annessa further testified that MIG welding was a superior method that would, in the long run, prove more economical than stick electrode welding. He estimated that chipping time could be reduced by 40% if the change in welding techniques was made. D'Annessa testified that techniques also existed to prevent splattered metal from adhering to the tank surfaces and that application of such techniques could further reduce the time spent in chipping.

Mr. Ballentine, a noise control expert called as a witness by the Secretary, testified concerning the feasibility of damping the tanks. He stated that much of the present noise was due to vibration of the tanks [*11] caused by their excitation during grinding and chipping and suggested that this noise could be reduced by damping the vibrating surfaces of the tanks. He testified that commercially available damping tiles with magnets attached could be applied to the large surfaces that underwent the highest velocity vibrations. The cost of these tiles would be between 35 cents and 1 dollar per square foot, and the tiles could be used over and over again. Ballentine testified that noise reduction using such damping tiles was commonly used in industrial processes similar to that in Respondent's plant.

Respondent's noise control expert, Mr. Miller, did not think that feasible means existed to reduce noise to within the limits of Table G-16 for the cited condition. He had considered a number of noise controls other than those suggested by the Secretary's witnesses and had rejected them as infeasible. He did not think that damping was feasible because each tank had a large number of surfaces, all of these surfaces contributed to the noise, and all would have to be damped to reduce noise to below Table G-16 levels. He therefore rejected Ballentine's suggestion that it would be a feasible means of [*12] noise reduction to damp only the large surfaces.

Mr. Williams, Respondent's manager of manufacturing engineering, agreed that MIG welding was superior to stick electrode welding and testified that Respondent was, at the time of the inspection, already using MIG welding to a large extent and planned to continue to expand its use wherever practical. He estimated that the use of MIG welding had reduced splatter 50% to 60% but had not and could not entirely eliminate splatter. Williams also testified that most of the transformers in the plant were custom designed and manufactured and that, in order to maintain the proper flow of production, it was necessary to clean some welds before others were made. Because of these circumstances, use of damping tiles would involve a continuing process of installation and removal of the tiles, resulting in a significant slowdown in the production process. Williams estimated that the output of the plant would be reduced from 25% to 35% if all surfaces of the tanks were damped while the chipping hammers were used. He further testified that production could be maintained by the construction of a 2 million dollar addition to the existing plant, although [*13] such an addition would create additional problems with the flow of material through the production process.

Judge Patton concluded that both the change in welding methods and the use of damping were feasible controls to reduce noise. The judge interpreted section 1910.95(b)(1) to require, as a condition of feasibility, that controls be able to reduce the noise exposure of employees to within the limits of Table G-16. He concluded that this condition had to be satisfied, however, only with respect to some employees and not all employees. He found that the noise exposure of the employees working some distance from the tanks was already within the G-16 limits, that the exposure of the employees who performed chipping on the outside of the tanks could be reduced to within those limits by the change in welding techniques combined with damping the large surfaces of the tanks, and that those controls would not reduce the exposure of the employees who performed chipping inside the tanks to within allowed limits. Based on his finding that the exposure of some employees could be reduced to within Table G-16 limits, the judge found that the controls were feasible.

Since the judge issued [*14] his decision, the Commission has defined the circumstances under which engineering or administrative noise reduction controls are considered feasible. The Commission has rejected the suggestion that controls are only feasible if they will reduce the noise exposure of employees below the limits of Table G-16. Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977) ("Continental Can"). Instead, the Commission has held that controls are technologically feasible if they are capable of achieving a significant reduction in the existing noise levels. See also Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980) ("Samson"). Furthermore, the Commission has held that controls, in addition to being technologically feasible, must also be proven by the Secretary to be economically feasible in that the cost of the controls is justified by the benefits they will achieve. Continetal Can Co., supra. In Samson, the Commission announced that it would continue to apply the test for economic feasibility.

The test [*15] for feasibility applied by Judge Patton in this case differs from that announced in Continental Can and Samson. Judge Patton cosidered controls to be technologically feasible only if they would reduce noise to within Table G-16 levels, and he did not consider the economic feasibility of controls. Accordingly, his decision on this issue must be set aside and reconsidered under current Commission precedent. Moreover, because this case was tried before our decision in Continental Can Co. was announced, the parties must be afforded an opportunity to present additional evidence and argument on the feasibility of controls. Samson Paper Bag Co., supra. Therefore, we will remand the case to the administrative law judge to afford the parties the opportunity to reopen the record. The parties may, on remand, present further evidence concerning both the technological and the economic feasibility of noise controls. Such evidence need not be limited to the controls that are discussed in this opinion. Furthermore, the parties should specifically address the degree of reduction in noise exposure that can be achieved by Respondent's conversion, to the extent possible, from [*16] stick welding to MIG welding. After the parties have had the opportunity to reopen the record, the judge should reconsider his decision on the alleged noise violation in light of current Commission precedent and any further evidence and argument offered by the parties.

ALLEGED ASBESTOS VIOLATION - 29 C.F.R. § 1910.1001(b)(3) n7

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n7 At the time of the alleged violation, the standard was codified at 29 C.F.R. § 1910.93a(b)(3). It has since been recodified at § 1910.1001(b)(3). The standard requires, in pertinent part: "No employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers . . . per cubic centimeter of air . . . ."

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The alleged asbestos violation concerns a section of Respondent's plant in which asbestos tubes are cut using power saws. Two table saws and a band saw are in the tube-cutting area. In January 1974, the company received a citation alleging excessive concentrations of asbestos in the area. Mr. Lester, who is Respondent's employee responsible for [*17] environmental and industrial hygiene at the plant, testified that this citation concerned excessive asbestos dust generated when one of the table saws was used to cut the asbestos tubes. He stated that the violation was abated by discontinuing the use of that particular saw for cutting asbestos. The operations previously performed on that table saw are now performed on the hand saw, which generates less dust and where the dust is easier to capture.

On April 9, 1975, the Secretary's compliance officer, Hemingway, sampled the tube-cutting area for asbestos dust. n8 At the time, both the second table saw and the band saw were being used to cut asbestos tubes. Of nine samples Hemingway took at various locations throughout the area, two exceeded the 10 fiber/cc ceiling limit for concentrations of asbestos fibers, n9 and the remaining seven yielded concentrations under that limit. Hemingway testified that the excessive concentrations occurred at the table saw.

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n8 The inspection that resulted in the January 1974 citation had been conducted by a different compliance officer.

n9 See note 7 supra. The two samples showing excessive concentrations yielded measurements of 15.65 and 16.05 fibers/cc.

[*18]

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After receiving the January 1974 citation, Respondent began a program of monitoring the asbestos concentrations in the tube-cutting area. Between that citation and Hemingway's inspecton, Respondent took 31 air samples, including samples of the same operation that Hemingway sampled on April 9, 1975. None of those samples revealed concentrations in excess of 10 fibers/cc. The most recent samples before April 9, 1975, were taken on February 15, 1975. Three samples taken on that day were, according to Lester, "all very far below ten fibers per cc." The measurement technique used by Respondent corresponded to that recommended by the National Institute for Occupational Safety and Health ("NIOSH"), a part of the Department of Health and Human Services responsible, among other things, for recommending to the Secretary of Labor occupational safety and health standards. 29 U.S.C. § 671. n10

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n10 The NIOSH recommended measurement method is found in NIOSH, Criteria for a Recommended Standard . . . . Occupational Exposure to Asbestos (1972). This NIOSH document served generally as the basis for the asbestos standard at 29 C.F.R. § 1910.1001. See Borg-Warner Corp., 78 OSAHRC 18/A2, 6 BNA OSHC 1393, 1978 CCH OSHD P22,555 (No. 10757, 1978)

[*19]

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Judge Patton found that the samples obtained by Hemingway were acculate and demonstrated that the asbestos levels in the tube-cutting area on April 9, 1975, exceeded the ceiling concentration permitted by the standard. The judge also found that the asbestos could feasibly be reduced to the level permitted by the standard by extending the existing ventilation system to incorporate a pickup point above the surface of the table saw. n11 We accept the judge's evaluation of the evidence regarding the asbestos levels and the availability of feasible controls. However, in order to find an employer in violation of a standard, it is not enough to find that a condition contravening that standard existed in the employer's workplace. The Secretary must also prove that the employer either knew or could have known with the exercise of reasonable diligence of the noncomplying condition. [*20] Co., 76 OSAHRC 138/B6, 4 BNA OSHC 1825, 1976-77 CCH OSHD P21,263 (No. 8687, 1976). The Secretary failed to meet that burden in this case.

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n11 The asbestos standard requires that "[e]ngineering controls, such as, but not limited to, isolation, enclosure, exhaust ventilation, and dust collection, shall be used to meet the exposure limits prescribed in paragraph (b) of this section." 29 C.F.R. § 1910.1001(c)(1)(i). If such controls are technically not feasible or are unable to reduce the concentration of airborne asbestos within the prescribed limits, then exposed employees must wear suitable respirators. 29 C.F.R. § § 1910.1001(d)(1) and 1910.1001(d)(2).

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The record demonstrates that Respondent took the table saw which it considered to be responsible for excessive concentrations of asbestos out of service. Respondent also monitored the air in its tube-cutting area for asbestos, using a technique recommended by NIOSH. All of the samples obtained by Respondent between the original citation and the inspection that [*21] resulted in this case showed asbestos concentrations within permitted limits. Nothing in the record casts doubt on the accuracy of the monitoring or on the fact that the samples taken were representative of the operations occurring in that area.

This case is similar to North American Rockwell Corp., 75 OSAHRC 43/A6, 2 BNA OSHC 1710, 1974-75 CCH OSHD P19,464 (Nos. 2692 & 2875, 1975), aff'd sub nom. Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976). In that case, the employer's brake grinding operation generated asbestos dust. The employer had installed a dust collection system at the brake grinding machine to prevent asbestos dust from entering the operator's breathing zone. The employer had regularly monitored the air in the operator's breathing zone, and all of its measurements showed that the concentration of asbestos breathed by the operator was within permissible limits. A subsequent inspection by the Secretary, however, revealed a concentration in the operator's breathing zone in excess of permissible limits, and a citation was issued. The Commission found that the employer had exercised reasonable diligence to discover the presence of [*22] excessive asbestos, and therefore lacked either actual or constructive knowledge of the presence of the violative condition. n12 On appeal, the Sixth Circuit upheld this finding, and held that the employer could therefore not be found in violation of the standard.

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n12 Commissioner Cleary dissented in North American Rockwell Corp. on the basis that the employer's measurements in that case did not demonstrate reasonable diligence because they were not representative of all operations performed in the employer's plant that resulted in the release of asbestos fibers. He agrees, however, that the evidence in this case demonstrates that the measurements made by Respondent accurately represented the typical conditions that generate asbestos fibers in Respondent's tube cutting operation.

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An employer has the duty to exercise reasonable diligence to discover conditions that violate the Act and the standards promulgated pursuant thereto. If an employer knows that a regulated air contaminant is present in its facility, [*23] reasonable diligence requires that it measure the amount of the contaminant to determine whether it is present in an excessive amount. See North American Rockwell Corp., supra. When the Secretary alleges that the contaminant is present in excessive amounts, but the employer shows that it had made measurements and determined that the concentration was not excessive, the burden is on the Secretary to show that the employer's failure to discover the excessive concentrations resulted from a failure to exercise reasonable diligence. In this case, the Secretary has not demonstrated any deficiency in Respondent's measurements. Moreover, Respondent had discontinued the use of the table saw that led to the earlier citation for excessive asbestos, so the prior citation did not put it on notice that the circumstances existing at the time the alleged violation in this case occurred would produce excessive concentrations of asbestos. Accordingly, the Secretary has failed to prove that Respondent did not exercise reasonable diligence, and the citation must be vacated.

Accordingly, the judge's rulings on Respondent's discovery-related motions are affirmed. The citation alleging [*24] Respondent's noncompliance with 29 C.F.R. § 1910.1001(b)(3) is vacated. The citation and complaint are amended to allege that the alleged violation of 29 C.F.R. § 1910.95(b)(1) is set aside and the case is remanded for further proceedings consistent with this opinion. On remand, the judge should afford the parties the opportunity to reopen the record to present evidence on the issue of economic feasibility and argument regarding the feasibility of noise controls generally. The judge then should resolve that alleged violation based on the entire record and on Commission precedent. SO ORDERED.

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

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

My colleagues correctly dispose of the issues concerning the citation alleging Respondent's noncompliance with 29 C.F.R. § 1910.95(b)(1). The majority is also correct in concluding that Respondent did not and could not, with reasonable diligence, know of the presence of excessive concentrations of asbestos fibers in its tube cutting operation. However, I do not agree that a citation should be vacated if an employer does not have either actual or constructive knowledge of a violative condition. [*25] Where knowledge is lacking, no monetary penalty should be assessed. However, the citation should be affirmed and abatement should be ordered, thereby protecting employees from the hazardous condition first discovered by the Secretary. Accordingly, I dissent from the majority's vacation of the citation alleging Respondent's noncompliance with 29 C.F.R. § 1910.1001(b)(3).

The purpose of the Occupational Safety and Health Act of 1970 n1 is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. . . ." n2 To that end, Congress designed an enforcement system intended to promote compliance with mandatory safety and health requirements. n3 Congress authorized the Secretary of Labor ("Secretary") to inspect and investigate workplaces for possible violations of these provisions and to issue citations to an employer that he believes has violated the Act. n4 Congress also established the Commission to adjudicate disputes between employers and the Secretary arising out of these citations. n5 If an employer does not notify the Secretary that it intends to contest a citation within fifteen days [*26] of its receipt of the notification of proposed penalty, the citation "shall be deemed a final order of the Commission and not subject to review by any court or agency. n6 However, if the employer files a timely notice of contest, the Secretary transmits the case to the Commission for appropriate adjudicatory proceedings. "The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . ." n7

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n1 29 U.S.C. § § 651-678 ("the Act").

n2 Section 2(b) of the Act, 29 U.S.C. § 651(b).

n3 Section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), requires that employers comply with occupational safety and health standards promulgated under the Act. Section 5(a)(1), the "general duty" clause, requires employers to furnish to their employees "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical Harm. . . ." 29 U.S.C. § 654(a)(1).

n4 Section 9(a) of the Act, 29 U.S.C. § 658(a).

n5 Sections 10(c) and 12 of the Act, 29 U.S.C. § § 659(c), 661.

n6 Section 10(a) of the Act, 29 U.S.C. § 659(a).

n7 Section 10(c) of the Act, 29 U.S.C. § 659(c).

[*27]

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Both the structure of the Act and the legislative history demonstrate that Congress intended the Commission's orders to serve principally as abatement orders requiring the correction of violations. In explaining the basis for a proposed amendment creating this Commission, an amendment the Senate ultimately adopted, Senator Javits explained, "Under the Committee bill no enforceable order to correct a violation would issue until the completion of all administrative and judicial review proceedings. . . . Under my amendment, an enforceable order would issue at the end of the administrative review stage. . . ." Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Leqislative History of the Occupational Safety and Health Act of 1970 at 392 (Comm. Print 1971) ("Legis. Hist."). See also Id. at 462; S. Rep. No. 91-1282, 91st Cong., 2d Sess. 55-56, 63 (1970) (minority views); H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 50 (1970) (minority views). Moreover, Congress provided that the abatement period specified in a citation "shall not begin to run until [*28] the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties. . . ." n8 By this provision, Congress provided that an order requiring abatement should not be enforceable until the completion of Commission proceedings establishing whether a condition in violation of the Act existed at the employer's workplace. Thus, a central purpose of an adjudication before the Commission is to determine whether the conditions alleged in a citation in fact require abatement under the Act. If the Commission determines that a noncomplying condition exists, the Commission is to enter an order requiring abatement, and the employer then has the opportunity to challenge that determination in a court of appeals. n9 The abatement order, however, is not stayed unless the court or the Commission specifically orders otherwise. n10 Thus, the adjudicatory procedure established by Congress balances the objective of rapid abatement of hazards with the right of employers to receive a full and fair adjudication of disputed issues.

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n8 Sections 10(b) of the Act, 29 U.S.C. § 659(b).

n9 Section 11(a) of the Act, 29 U.S.C. § 660(a), provides in pertinent part:

Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10 may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit, by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside.

n10 Section 11(a) of the Act, 29 U.S.C. § 660(a); Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036, 1042 (5th Cir. 1975). Pending judicial review, the Commission has consistently stayed its decisions only as to payment of assessed penalties and not to the abatement orders. As stated in Ryder Truck Lines, Inc., 73 OSAHRC 36/E9, 1 BNA OSHC 1326, 1328, 1973-74 OCH OSHD P16,669 at p. 21,452 (No. 391, 1973), aff'd on other grounds, 497 F.2d 230 (5th Cir. 1974), in rejecting the employer's motion to stay the Commission's abatement order, "The goal of the Act's abatement requirements is prevention of occupational injuries and illnesses. It follows, therefore, that abatement should be achieved as rapidly as is reasonable under the circumstances."

[*30]

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Congress also provided that penalties could be assessed against employers for violations of the Act. The penalty provisions were designed to provide for penalties commensurate with the degree of an employer's culpability. See H.R. Rep. 91-1291, 91st Cong., 2d Sess. 23 (1970) reprinted in Legis. Hist. at 853. For willful and repeated violations, penalties of up to $10,000 may be assessed. n11 A serious violation carries a mandatory penalty of up to $1000. n12 A violation that is not of a serious nature ("other than serious violation") also can be penalized up to $1000, but the assessment of a penalty is discretionary. n13 Finally, an employer who does not comply with a Commission order to abate a violation within the time permitted may be assessed a penalty of $1000 for each day the violation continues beyond the abatement date. n14

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n11 Section 17(a) of the Act, 29 U.S.C. § 666(a).

n12 Section 17(b) of the Act, 29 U.S.C. § 666(b).

n13 Section 17(c) of the Act, 29 U.S.C. § 666(c).

n14 Section 17(d) of the Act, 29 U.S.C. § 666(d).

[*31]

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The relationship between penalties and abatement orders and the purpose they serve in the enforcement of the Act was described by Acting Chairman Barnako in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1066, 1979 CCH OSHD P23,294 at p. 28, 175 (No. 16183, 1979) (concurring and dissenting opinion):

The Act contemplates that employers will comply with its provisions before the Secretary inspects their workplaces, and provides for monetary penalties for first-instance violations to encourage such pre-inspection compliance. When an inspection does reveal a violation, and a final order of the Commission ordering abatement of that violation is entered, then the employer is subjected to greatly enhanced penalties for failure to comply with that abatement order. In other words, an employer who fails to comply with an explicit abatement order is subject to much higher penalties than he was for simply failing to comply with the Act prior to being inspected and found in violation. Such a result is, of course, eminently sensible, for a person's failure to correct a condition he knows is in violation [*32] of the Act is more reprehensible than a mere inadvertent failure to comply. (footnotes omitted).

Acting Chairman Barnako went on to note that a repeated violation also justifies a higher penalty than a first-instance violation:

The Commission's final order, even if it only orders abatement of the conditions encompassed in the citation, places the employer on notice that similar conditions elsewhere in its workplace are also in violation of the Act. The employer's failure to eliminate all such hazards also justifies the imposition of higher penalties than are appropriate for pre-inspection, inadvertent violations. Thus, even if an employer's conduct is not willful in the sense that it represents a conscious decision not to comply, an employer's failure, after receiving an abatement order, to actively seek out and eliminate similar hazards throughout its workplace, should logically subject that employer to higher penalties if a subsequent inspection reveals violations substantially similar to those delineated in the abatement order. Such violations are properly classified as repeated.

Id., 7 BNA OSHC at 1067, 1979 CCH OSHD at p. 28,175 (footnote omitted).

The penalty provisions [*33] of the Act are directed at two types of situations. The first is when an employer is found to have committed a firstinstance violation that is not willful in nature. The second is when the employer's conduct demonstrates a higher degree of culpability, either through failure to correct a condition that is the subject of an abatement order, failure to seek out and correct conditions that are substantially similar to those contained in an abatement order, or the commission of a willful violation. The relatively low penalties permitted for first-instance violations contrast with the much more substantial penalties permitted for subsequent and willful violations. Thus, the entry of abatement orders serves the congressional purpose of deterring violative conduct by forming the foundation that permits the assessment of enhanced penalties for repeated violations and for the failure of an employer to abate a cited violation. n15

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n15 In assessing all penalties, the Commission must give due consideration to the size of the employer's business, the gravity of the violation, the employer's good faith, and the employer's history of previous violations. Section 17(j) of the Act, 29 U.S.C. § 661(i). Thus, the commission of a willful or repeated violation, or an employer's failure to abate a violation, does not necessarily warrant a higher penalty than could be assessed for a first-instance violation. However, the potential for higher penalties acts to deter the type of conduct that can result in such penalties.

[*34]

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The enforcement remedies available under the Occupational Safety and Health Act closely parallel the remedies available under many environmental and public health laws. 39A C.J.S. Health & Environment § 48. The cornerstone of these statutes is compulsory abatement that is achieved through two alternative remedies -- an administrative abatement order or an injunction. 1 F. Grad, Treatise on Environmental Law § 1.02[5][a](1980). The function of these remedies is the prevention of illness and environmental damage through the prompt abatement of the hazard. Id. at § 2.03[7][a][i]; F. Grad, Public Health Law Manual 134 (rev. ed. 1973). The authorization of section 10(c) of the Act, 29 U.S.C. § 659(c), "to obtain abatement orders requiring employers to correct unsafe working conditions", Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 445 (1977), is substantively identical to the abatement orders authorized by numerous environmental and public health statutes. F. Grad, Public Health Law Manual 134-35 (1973). n16

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n16 As previously described, the abatement order is also subject to modification, 29 U.S.C. § 659(c); 29 C.F.R. § 2200.34 (1980), and the employer's failure to abate is an independent basis for citation, 29 U.S.C. § § 659(b), 666(d). See generally, M. Rothstein, Occupational Safety and Health Law ch. 13 (1978).

In addition to the abatement order issued under the Act, an injunction may be obtained to abate an imminent hazard when "a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act. . . ." 29 U.S.C. § 662(a). See generally, M. Rothstein, Occupational Safety and Health Law § 308 (1978); 39A C.J.S. Health & Environment § 49; 1 F. Grad, Treatise on Environmental Law § 2.03 [7][a][iv] (1980).

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The more drastic remedies of civil penalties and criminal prosecutions supplement the abatement orders by establishing monetary and criminal liability for a violation of the Act. The function [*36] of these remedies is exclusively to deter violative conduct; these remedies do not compel abatement of the hazardous condition or activity. 1 F. Grad, Treatise on Environmental Law § § 1.02[5][a], 2.03[7][a][i], [ii] (1980); also F. Grad, Public Health Law Manual 137 (1973). n17 The Court recognized this fundamental distinction between an abatement order and civil penalties when it described the government's authority to seek an order imposing "civil penalties on any employer maintaining an unsafe working condition," in addition to the abatement order. Atlas Roofing Co. v. OSHRC, supra. n18 Furthermore, the supplementary function of civil penalties is reinforced by the fact that Congress did not mandate the imposition of civil penalties for all violations of the Act. 29 U.S.C. § 666(a) (willful and repeated violations), § 666(c) (other-than-serious violation), § 666(d) (failure to abate citation). n19 Thus, the abatement order is the irreducible minimum of protection to be afforded individuals who are exposed to a hazardous condition or activity.

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n17 The use of civil penalties is also based on a recognition that "judges in criminal courts, who generally regard intent as a necessary element of a crime, are reluctant to impose criminal sanctions on a defendant who may have become a criminal without knowledge, or by inadvertent neglect." 1 F. Grad, Treatise on Environmental Law § 2.03[7][a][ii] at p. 2-161. Nonetheless, "the ecological and health consequences may be equally horrendous whether the violation is merely negligent or knowingly reckless." Id. at p. 2-164. See generally, Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933).

Civil penalties also have certain advantages over criminal prosecutions. As Professor Grad has observed:

. . . [Civil penalties afford] an opportunity to penalize offenders without subjecting them to criminal process and without the stigmatizing effect of a criminal record based on a public health violation that may be punishable as a misdemeanor. Violators of public health laws and regulations are not, on the whole, criminal offenders in the usual sense of persons who, with criminal knowledge and intent, break the law. Although some of them may be so irresponsible as to bring them within the usual criminal category, in most instances -- and even in instances where the violation may have serious consequences -- the violation may be the result of ignorance, neglect or a desire to save money. Under those circumstances, a civil penalty which does not make a criminal out of the offender may be entirely sufficient, and may have the added advantage of impressing on the violator that it may be more expensive in the long run to let violations persist than to spend the necessary money for needed repairs, improvements, or improved processes.

F. Grad, Public Health Law Manual 141 (1973) (Emphasis added).

n18 A criminal prosecution may be initiated under section 17(e) of the Act, 29 U.S.C. § 666(e). See generally M. Rothstein, Occupational Safety and Health Law § 309; F. Grad, Public Health Law Manual 156-60 (1973).

n19 Only a serious violation requires that a penalty must be assessed. 29 U.S.C. § 666(b). See text accompanying notes 11-14, supra. Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275, 282 (1978) (civil and criminal sanctions under the Clean Air Act).

[*37]

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Employer knowledge is relevant to the Act's enforcement scheme in several ways. An employer's failure to correct a violation for which an abatement order has previously been entered obviously represents a conscious failure on the part of the employer to comply with the Act. Similarly, a willful violation represents either a conscious failure to comply or a careless disregard of employee safety that an employer should know is violative of the Act. See John W. Eshelman and Sons, 81 OSAHRC, 9 BNA OSHC 1396, 1981 CCH OSHD P25,231 (No. 76-5039, 1981); P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1214, 1979 CCH OSHD P23,421 at P. 28,342 (No. 14315, 1979), aff'd, 637 F.2d 741 (10th Cir. 1980). Knowledge is not directly relevant to a repeated violation. However, a repeated violation represents a failure on the part of an employer against whom an abatement order has been entered to take the steps necessary to prevent substantially similar violations. As Acting Chairman Barnako's opinion in potlatch Corp., supra, makes clear, a repeated violation represents a failure [*38] on the part of an employer to comply with the spirit, if not the letter, of an abatement order. Thus, these types of violations represent conduct on the part of an employer that may justify the assessment of penalties higher than would be assessed for first-instance violations of similar gravity.

With respect to first-instance violations, the Act specifically makes knowledge relevant to serious violations. Section 17(k) of the Act, 29 U.S.C. § 666(j), defines a serious violation as follows:

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, 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. (Emphasis added).

The Act does not explicitly define an other than serious violation. n20 Indeed, this category of violation exists by the negative implication of section 17(c), [*39] 29 U.S.C. § 666(c), which refers to a violation that "is specifically determined not to be of a serious nature." Thus, an other than serious violation is simply a violation that does not meet the criteria established in section 17(k) for a serious violation.

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n20 The citation at issue in this case originally alleged a repeated violation of the asbestos standard. However, the judge did not find the violation to be repeated and the Secretary has not taken exception to that action by the judge. Additionally, the Secretary has never alleged that the violation was serious in nature. Accordingly, in the present posture of this case, the asbestos citation must be considered to allege an other than serious violation. See Henry C. Beck Co., 80 OSAHRC 50/A2, 8 BNA OSHC 1395, 1401 nn. 6 & 7, 1980 CCH OSHD P24,484 at p. 29,906-07 nn. 6 & 7 (No. 11864, 1980).

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The important issue that must be addressed in this case concerns the appropriate role of employer knowledge of a violative condition within the statutory scheme, [*40] particularly its relationship to abatement orders and civil penalties. My colleagues rely upon Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975) and Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976) in support of their conclusion that employer knowledge is relevant to both serious and other than serious violations and that a citation must be vacated if the Secretary fails to prove that the employer had knowledge of the violative condition.

I agree that employer knowledge is relevant to first instance violations of the Act -- both serious and non-serious -- and that the burden of establishing employer knowledge of a violative condition properly rests with the Secretary. Commission precedent has consistently held that knowledge is relevant to violations characterized as serious and non-serious on the grounds that: (1) strict liability is not the standard of care imposed by the Act, (2) responsibility for the existence of conditions extends only to those conditions than an employer can be expected to prevent or correct, see Green Construction Co. and Massman Construction [*41] Co., 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD P21,235 (No. 5356, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,961 (No. 12775, 1975), and (3) the employer's duty under the Act is intended to be an achievable one. National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). n21 Furthermore, the general rule is that the Secretary has the burden of proof in proceedings commenced by a notice of contest, Commission Rule 73; 29 C.F.R. § 2200.73, though in many instances the Commission has allocated the burden of producing evidence to the employer or prescribed affirmative defenses to citations that must be raised and proved by the cited employer. With respect to the proof of employer knowledge of a violative condition, however, I agree [*42] with my colleagues that there exists no compelling reason for modifying the usual rule that the burden of proof rests with the Secretary. Prestressed Systems, Inc., supra.

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n21 The lead opinion's reliance on Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975) is misplaced. The facts before the ninth circuit in Alsea did not even involve employer knowledge of a violative condition. Thus, I do not rely on either Alsea or Dunlop v. Rockwell Int'l, supra, which is based on Alsea.

[*43]

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I disagree with my colleagues' conclusion that the Secretary's failure to prove employer knowledge of a violation requires that the citation be vacated, no abatement order be entered, and an existing violative condition be allowed to continue to endanger employee safety and health. This conclusion is clearly inconsistent with the Act's remedial purpose of assuring so far as possible safe and healthful working conditions.

In my view the statutory purpose can be achieved, without resort to imposing strict liability, by according knowledge its appropriate role within the Act's enforcement scheme. This requires a careful consideration of employer knowledge in the context of penalty assessments and abatement orders under the Act.

Former Commissioner Van Namee suggested that it would be consistent with the Act to find an other than serious violation and assess no penalty when an employer lacked knowledge of a violative condition. Mountain States Telephone & Telegraph Co., 73 OSAHRC 1/A9, 1 BNA OSHC 1077, 1971-73 CCH OSHD P15,365 (No. 355, 1973) (concurring opinion). Commissioner Cleary has also [*44] suggested that an abatement order with no penalty should be entered in a situation where employer knowledge is lacking. Knutson Construction Co., 76 OSAHRC 131/F3, 4 BNA OSHC 1759 (No. 765, 1976) (Cleary, concurring and dissenting opinion), aff'd, 566 F.2d 596 (8th Cir. 1977). Similarly, the United States Court of Appeals for the District of Columbia has stated:

a zero penalty, coupled with an abatement order, would obviously be the proper response where the Commission determined that the defendant-employer had no notice, i.e., no duty to know, that its safety regime was defective.

National Realty and Construction Co. v. OSHRC, supra, 489 F.2d at 1268 n. 41 (dictum). The Court of Appeals for the Sixth Circuit has also indicated that the Commission could enter an abatement order even if due process considerations precluded the assessment of a penalty. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978).

An employer lacking either actual or constructive knowledge of a violative condition should not be subject to a monetary penalty because of the presence of that condition in its workplace. As the above-quoted language from Acting Chairman Barnako's [*45] separate opinion in Potlatch Corp. makes clear, the Act's provision for first-instance penalties is intended to encourage employers to comply with the Act before their workplaces are inspected by the Secretary. Employers are required not only to correct those noncomplying conditions of which they have actual knowledge, but to exercise reasonable diligence to discover non-obvious violations and to correct those as well. If an employer lacks both actual and constructive knowledge of the cited violations, no amount of potential penalties will induce an employer to correct violations that it could not detect. Thus, the assessment of penalties for violations of which an employer lacks knowledge does not further the purposes of the Act.

However, whether an employer should be penalized for a violative condition has no bearing on whether the employer should be ordered to correct that condition. These two remedies -- abatement orders and civil penalties -- are distinct. As the Supreme Court has stated in reviewing the enforcement provisions of the Act:

Two new remedies were provided -- permitting the Federal Government, proceeding before an administrative agency, (1) to obtain abatement [*46] orders requiring employers to correct unsafe working conditions and (2) to impose civil penalties on any employer maintaining any unsafe working condition.

Atlas Roofing Co. v. OSHRC, 430 U.S. at 445. n22 Because these remedies are distinct, whether an employer should be penalized for a particular violation is a separate question from whether that violation should be ordered abated.

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n22 See text accompanying notes 16-19, supra.

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Even the decisions in Brennan v. OSHRC (Alsea Lumber Co.), supra, and Dunlop v. Rockwell International, supra, relied on by my colleagues, reveal that those courts were concerned with the possibility that employers could be penalized for violations of which they lacked knowledge. In Alsea, the court stated:

Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation. Under our legal system, to date at least, no man is held accountable, or [*47] subject to fine, for the totally independent act of another.

511 F.2d at 1145 (Emphasis added).

In Rockwell International, the court stated:

Even the less-than-conscientious employer,when facing the prospect of penalties of up to $1000 per non-serious violation, may attempt to improve the safety of his facility before the Secretary's representatives issue citations in an effort to secure compliance. This had to be the hope of the framers of the Act since it would take an army of compliance officers to effect nationwide compliance were it not for the voluntary cooperation of thousands of employers. The employer's task is difficult enough without adding responsibility for potentially hazardous circumstances of which the employer is unaware and could not discover with the exercise of reasonable diligence.

540 F.2d at 1292 (Emphasis added).

Thus, the courts that decided Alsea Lumber and Rockwell International focused on the penalty provisions of the Act. They did not consider the other remedy noted by the Supreme Court in Atlas Roofing Co. v. OSHRC, supra: the entry of abatement orders. This narrow [*48] focus overlooks the primary purpose of the Act -- the prevention of work related injury and illness. E.g., Marshall v. Western Electric, Inc., 565 F.2d 240, 245 (2d Cir. 1977); Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653 (8th Cir. 1979); Lee Way Motor Freight, Inc. v. Secretary, 511 F.2d 864, 870 (10th Cir. 1975). With respect to hazardous conditions that have actually been cited by the Secretary and are the subject of enforcement actions under the statute, this purpose is effectuated through the entry of abatement orders. As stated by Commissioner Cleary, ". . . the overriding purpose of the Act's enforcement is the issuance of remedial orders to abate hazards. The Act is designed not to punish, but to achieve compliance with the Secretary's standards and the abatement of safety hazards." Knutson Construction Co., supra, 4 BNA OSHC at 1764 (Emphasis added). In addition, Professor Rothstein has stated, "The prompt abatement of hazardous conditions is one of the Act's top priorities." M. Rothstein, Occupational Safety and Health Law § 281 at p. 276 (1978). Thus, Alsea Lumber and Rockwell International do not resolve [*49] the issue of whether employer knowledge is relevant to the entry of abatement orders when a condition contravening a standard is shown to exist in an employer's workplace. In relying on Alsea Lumber and Rockwell International may colleagues similarly do not address or resolve that issue.

III

All of our cases involve allegations by the Secretary that safety and health hazards exist in workplaces. When an employer disputes the Secretary's allegations, the Commission must provide expert resolutions of the issues. Atlas Roofing Co. v. OSHRC, 430 U.S. at 461. The Commission's proceedings determine whether employees are exposed to hazardous conditions that the cited employer has a legal obligation to eliminate. Thus, in this case, the Secretary alleges that Respondent's employee was exposed to an excessive concentration of airborne asbestos, a substance known to cause lung cancer, mesothelioma, and asbestosis. n23 Respondent disputes the accuracy of the Secretary's measurements. Our inquiry must focus on resolving this dispute because its resolution will determine whether Respondent must abate what may be a grave hazard.

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n23 These adverse effects of asbestos have long been known and provided a major impetus to the enactment of the statute. As the Senate Committee on Labor and Public Welfare stated:

Asbestos is another material which continues to destroy the lives of workers. For 40 years it has been known that exposure to asbestos caused the severe lung scarring called asbestosis. . . . It has also since been found that manufacturing and construction workers exposed to asbestos suffer disproportionately from pulmonary cancer and mesothelioma. Because nothing has been done about the hazards of asbestos, even after the association of asbestos and lung cancer was first reported in 1935, 20,000 out of the 50,000 workers who have since entered one asbestos trade alone -- insulation work -- are likely to die of asbestosis, lung cancer or mesothelioma. Nor is the potential hazard confined to these workers, since it is estimated that as many as 3.5 million workers are exposed to some extent to asbestos fibers, as are many more in the general population.

S. Rep. No. 91-1282, 91st Cong., 2d Sess. 3 (1970) reprinted in Legis. Hist. at 143.

See also 13 A. Frank, Courtroom Medicine: Cancer 26 (1980); 14 Int'l Agency for Research on Cancer, IARC Monographs on the Evaluation of Carcinogenic Risk of Chemicals to Man: Asbestos (1977); Symposium, Health Hazards of Asbestos Exposure, 330 Annals N.Y. Acad. Sciences (I. Selikoff & E. Hammond, eds. 1979).

[*51]

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The majority concludes, as do I, that the Secretary's measurements were accurate and that an employee was exposed to an excessive level of asbestos. However, by vacating the citation, they do not order Respondent to abate the violation. Failing to order abatement in this situation is inconsistent with the Act's purpose of preventing work related illness. It is also contrary to the enforcement scheme created by Congress because it eliminates the possibility of enhanced penalties should Respondent fail to timely abate the violation or should Respondent commit substantially similar violations in the future. Hopefully, having been informed of its obligations under the Act, Respondent will proceed to fulfill those statutory duties. However, Congress authorized mandatory abatement orders because it recognized that not every employer would comply with the statute voluntarily. In addition, Congress structured the Act's enforcement scheme to encourage abatement through the deterrent effect of civil penalties. Moreover, the penalty structure was intended to provide an especially strong incentive to come [*52] into compliance for an employer whose workplace has been found to contain a noncomplying condition. Acting Chairman Barnako's observation in Potlatch Corp. bears repeating: "a person's failure to correct a condition he knows is in violation of the Act is more reprehensible than a mere inadvertent failure to comply." 7 BNA OSHC at 1066, 1979 OSHD at p. 28,175. The majority's action frustrates the congressional intent that abatement orders should be entered and enforced when adjudicatory proceedings reveal the existence of hazardous conditions that are in violation of the Act.

Another serious deficiency in the majority's approach is that critical compliance issues may not be fully adjudicated. Whether an employer has an abatement obligation under the Act may require resolution of a number of issues, and these issues may be particularly difficult in cases such as this involving exposure to toxic air contaminants. For example, several Commission cases have involved controversies over whether the airborne substance monitored by the Secretary was in fact a substance regulated by a standard. volatiles); Deering-Milliken, Inc., 78 OSAHRC 101/A2, 6 BNA OSHC 2143, 1978 CCH OSHD P23,191 (No. 12597, 1978), aff'd, 630 F.2d 1094 (5th Cir. 1980) (cotton dust); Borg-Warner Corp., 78 OSAHRC 18/A2, 6 BNA OSHC 1391, 1978 CCH OSHD P22,555 (No. 10757, 1978) (asbestos). In addition, cases involving toxic substances may present issues involving the feasibility of engineering or administrative controls to reduce employee exposure. See Deering-Milliken, Inc., supra; cf. Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OHD P24,555 (No. 76-222, 1980) (discussing the criteria for determining the feasibility of engineering or administrative controls to reduce employee exposure to excessive noise). Issues involving the adequacy of respirators used to control employee exposure to excessive quantities of air contaminants may need to be resolved. See Anaconda Aluminum Co., supra. Other cases place at issue whether employers have a duty to monitor their workplaces to determine the amount of a toxic air contaminant that is present. [*54] 1981); Western Electric, Inc., 77 OSAHRC 15/B13, 4 BNA OSHC 2021, 1976-77 CCH OSHD P21,538 (No. 8902, 1977), rev'd, 565 F.2d 240 (2d Cir. 1977). Whether a standard requires the employer to provide medical examinations to certain employees may be in dispute. See GAF Corp., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977). An employer may also challenge the validity of the cited standard. See Deering-Milliken, Inc., supra. Proper resolution of these issues is particularly important to both employers and employees: to employers because of the complexity and expense frequently associated with the abatement of these violations and to employees because of the detrimental consequences of their continued exposure to excessive quantities of toxic substances. However, when the Commission vacates a citation because the employer lacks knowledge of the violative condition, it fails to resolve issues pertinent to whether the employer has a responsibility under the Act to correct the condition for which it was cited.

Cases involving employee exposure to toxic air contaminants can also be expected [*55] to present close questions concerning employer knowledge. The asbestos standard involved in this case is typical of many air contaminant standards. It requires employers to conduct periodic monitoring to determine whether employees are exposed to excessive concentrations. n24 However, even in the absence of a specific monitoring requirement, an employer who knows that a regulated air contaminant is or may be present in its workplace must, as the majority notes, measure the level of the contaminant to determine whether it is present in an excessive amount. Thus, in many cases in which the Secretary alleges that an excessive concentration of an air contaminant is present in a workplace, the employer will have conducted tests indicating that the concentration is not excessive.

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n24 29 C.F.R. § 1910.1001(f).

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The fact that the Secretary's tests and an employer's tests yield different results does not necessarily mean that one set of tests was invalid or unreliable. n25 Numerous factors can affect these measurements. [*56] An exhibit introduced into evidence by Respondent states:

The concentration of dust in the air to which a worker is exposed will vary, depending upon the nature of the operation and upon the type of work performed by the operator and the position of the operator relative to the source of the dust. The amount of dust inhaled by a worker can vary daily, seasonally, and with the weather.

National Institute for Occupational Safety and Health, U.S. Department of Health, Education & Welfare, Criteria for a Recommended Standard . . . Occupational Exposure to Asbestos VIII-2 (1972) (Respondent's Exhibit 6). In North American Rockwell Corp., 75 OSAHRC 43/A6, 2 BNA OSHC 1710, 1974-75 CCH OSHD P19,464 (No. 2692, 1975), aff'd, 540 F.2d 1283 (6th Cir. 1976), the manner in which a dust collection system was maintained contributed to different results obtained by the Secretary and by the employer. In another case, there was testimony that variations in employee work rates, work habits, and work processes may have accounted for substantial differences in measurements of airborne fluorides. See Scullin Steel Co., 78 OSAHRC 56/D1, 6 BNA OSHC 1764, 1967, 1978 CCH OSHD P22,835 [*57] at p. 27, 607 (No. 13916, 1978). Thus, in many cases where the Secretary's measurements demonstrate that employees are exposed to excessive air contaminants, the employer will have exercised reasonable diligence but nevertheless failed to discover the excessive concentrations. Moreover, even where the employer's measurement techniques are deficient to the extent that it can be argued that the employer did not exercise reasonable diligence, the deficiency in the employer's measurements may be difficult for the Secretary to discover and prove. See North American Rockwell Corp., supra (lead, concurring, and dissenting opinions).

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n25 See generally 3 Patty's Industrial Hygiene & Toxicology 191-255 (L. Cralley & L. Cralley, eds. 1979).

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Under the majority's ruling, the Secretary must prove employer knowledge in order to obtain an abatement order. This rule will shift the focus of our proceedings from issues pertaining to whether a condition requiring abatement exists in the employer's workplace [*58] to whether the employer exercised reasonable diligence to discover that condition. To obtain an abatement order, the Secretary will be forced to litigate an issue that is totally irrelevant to whether a risk to employees exists that must be eliminated. Moreover, in many cases, the Secretary will fail to meet this burden of proof, either because employers have in fact exercised reasonable diligence or because the Secretary is unable to prove in what manner an employer's monitoring was deficient. Thus, the enforcement procedures established by Congress will not result in a binding adjudication establishing the employer's abatement responsibilities regarding employee exposure to toxic substances. As a result, employees may continue to be exposed to the risk of serious disease, and the resources of the parties will have been diverted to secondary issues of little consequence to the purposes of the Act.

In conclusion, I agree that Respondent exercised reasonable diligence and therefore lacked knowledge of the fact that its employee was exposed to excessive asbestos. Accordingly, I would assess no penalty. However, I would affirm the citation and thereby order Respondent to abate [*59] the hazard.