“SECRETARY OF LABOR,Complainant,v.CLEVELAND ELECTRICILLUMINATING COMPANY,Respondent.OSHRC Docket No. 88-1358_ORDER_The Occupational Safety and Health Review Commission has received theparties’ Stipulation and Settlement Agreement in the captioned action.The case is before the Commission pursuant to a Direction for Review byFormer Acting Chairman Linda L. Arey on July 3, 1989.The Commission treats the parties’ Stipulation and Settlement Agreementas a Joint Motion to Approve Settlement Agreement. Having reviewed theSettlement Agreement, attached hereto, it is found that the Agreementdisposes of all issues pending before the Commission in this matter.Therefore, the Commission grants the parties’ Joint Motion to ApproveSettlement Agreement, affirms the citations as amended and assesses theproposed penalties as amended.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: July 2, 1990————————————————————————ELIZABETH DOLSECRETARY OF LABOR,Complainant,v.THE CLEVELAND ELECTRICILLUMINATING COMPANY,Respondent.OSHRC DOCKET NO. 88-1358_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which is currently pendingbefore the Commission.IIIt is hereby stipulated and agreed by between the Complainant, Secretaryof Labor, and the Respondent, The Cleveland Electric IlluminatingCompany, that:1. Respondent represents that all of the alleged violations for which itwas cited have been abated and shall remain abated.2. Respondent hereby agrees to withdraw its notice of contest previouslyfiled in this case.3. The parties agree that in the future, when Respondent engages inboiler repairs, the provisions of ?1926.58(e)(6) need not be followedfor the removal of boiler skin casing so long as the work performedentails only the removal of the skin casing and not the intentionalremoval of asbestos-containing insulation.Prior to the removal of skin casing, the boiler insulation will betested, if practicable, to determine if it contains asbestos. Inaccordance with Respondent’s Asbestos Abatement, Handling, and DisposalProcedure, if the sample reveals asbestos-containing insulation or if nosample is taken, the removal of skin casing will be considered anasbestos repair operation and appropriate personal protective equipment,including appropriate respiratory protection and protective clothing,will be used.For the first skin-casing removal that involves asbestos-containinginsulation that is performed after the effective date of this settlementagreement, employees will use powered air-purifying respirators withhigh-efficiency filters. Respondent will also provide employees engagedin such operations with full disposable coveralls with disposable glovesand head coverings. Respondent will perform initial monitoring on thefirst skin-casing removal that involves asbestos-containing insulationto determine the extent of employee exposure to asbestos, if any. In theabsence of any initial monitoring during the first skin-casing removal,Respondent will provide employees engaged in skin-casing removaloperations with full facepiece supplied air respirators equipped with anauxiliary positive pressure self-contained breathing apparatus.Air-monitoring results from the first such skin-casing removal will,whenever appropriate under ?1926.58(f)(2)(iii), be relied upon todetermine the expected level of exposure and appropriate personalprotective equipment for subsequent skin-casing removal jobs.Respondent shall demarcate areas where boiler skin operations areconducted in any manner that minimizes the number of employees withinthe area and protects employees outside the area whenever concentrationsof asbestos exceed or can reasonably be expected to exceed 0.2 fibersper cubic centimeter.After the boiler skin casing is removed, if asbestos-containinginsulation is present, the requirements of ?1926.58(e)(6) will befollowed if such insulation is actually removed or otherwisesubstantially disturbed.4. Complainant hereby agrees to reduce the total penalty from $2,100, asassessed by Judge Salyers in his Decision and Order of May 4, 1989, to$1,500.5. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding.6. None of the foregoing agreements, statements, stipulations, oractions taken by Respondent shall be deemed an admission by Respondentof the allegations contained in the citations or the complaint herein.The agreements, statements, stipulations, and actions herein are madesolely for the purpose of settling this matter economically and amicablyand they shall not be used for any other purpose, except for subsequentproceedings and matters brought by the Secretary of Labor directly underthe provisions of the Occupational Safety and Health Act of 1970.7. No authorized employee representative elected party status in this case.IIIRespondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rules 2200.7 and 2200.100.WHEREFORE, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.ORLANDO J. PANNOCHIA (Date)Attorney for the Secretaryof LaborKENNETH B. STARK (Date)Attorney for The ClevelandElectric IlluminatingCompany————————————————————————SECRETARY OF LABOR,Complainant,v.CLEVELAND ELECTRICILLUMINATING COMPANY,Respondent.OSHRC Docket No. 88-1358APPEARANCES:Christopher J. Carney, Esquire, Office of the Solicitor, U. S.Department of Labor, Cleveland, Ohio, on behalf of complainant.Kenneth B. Stark, Esquire, Duvin, Cahn and Barnard, Cleveland, Ohio, andDavid R. Percio, Esquire, Cleveland Electric Illuminating Company,Cleveland, Ohio, on behalf of respondent._DECISION AND ORDER_SALYERS, JUDGE: Respondent, Cleveland Electric Illuminating Company(\”CEI\”), contests a citation charging a serious violation of 29 C.F.R. ?1926.58(e)(6)(i) for failure to establish a negative-pressure enclosurebefore commencing an asbestos removal or renovation operation; of 29C.F.R. ? 1926.58(e)(6)(ii) for failure of its designated competentperson to perform his duties in accordance with the standard; of 29C.F.R. ? 1926.58(f)(1)(i) for failure to monitor the airborneconcentrations of asbestos to which its employees may have been exposed;of 29 C.F.R. ? 1926.58(f)(2)(i) for failure to initially monitor theairborne concentrations of asbestos to which its employees may have beenexposed; of 29 C.F.R. ? 1026.58(h)(2) for failure to provide appropriaterespirators for its employees; and of 29 C.F.R. ? 1926.58(i)(3) forfailure to transport contaminated clothing in sealed, impermeablecontainers. CEI also contests a citation for an other-than-seriousviolation of 29 C.F.R. ? 1926.58(k)(1)(i) for failure to post warningsigns in a regulated area where airborne levels of asbestos may havebeen in excess of the permissible exposure limit (PEL).[[1]]_FACTS_CEI is the major power company for northeastern Ohio. On April 22, 1988,Occupational Safety and Health (\”OSHA\”) Industrial Hygienist Julie Weisconducted an inspection of CEI’s Lakeshore plant located on SouthMarginal Road in Cleveland (Tr. 196-198). The inspection was pursuant toa formal health complaint arising from incidents that occurred at theplant on March 26 and 28, 1988 (Tr. 197).The Lakeshore plant contains six boilers: four oil-fired boilers, onecoal- fired boiler, and a package boiler used for heating the plant (Tr.12). Boilers 93 and 94 are oil-fired units that were converted fromcoal-fired units in 1977 (Tr. 22, 148). They are each approximatelyseven stories high and 22 feet wide. The boilers, which are about 100feet apart, are used to supply steam to the turbine generators for theproduction of electricity (Tr. 13-14, 139, 143).The outer walls of the boilers are steel, approximately 1\/8 inch thick,and are referred to as the skin casing. Behind the skin casing isinsulation. Behind the insulation are steel tubes which run along thesides of the boilers and along the floor (Tr. 14-15).It is common knowledge among the personnel at CEI that at one timeinsulation containing asbestos was installed in the plant (Tr. 18). CEIhas since discontinued the installation of asbestos-containinginsulation, but some of the original insulation remains. CEI replacesthe insulation in a piecemeal fashion, removing the asbestos-containinginsulation when a repair is made and replacing it with asbestos-freeinsulation. CEI has developed a procedure to deal with asbestos removal,which is detailed in a company memorandum entitled \”The ClevelandElectric Illuminating Company Asbestos Abatement, Handling and DisposalProcedure\” (Exhibit C-2). Rule 14.0(A) of that memorandum provides:\”Plant Maintenance General Supervisor shall maintain the plant recordsfor identification of types of insulation on existing and newequipment.\” On the fourteenth page of C-2 is the following \”GeneralRule\”: \”All insulation removal work is to be performed as if it containsasbestos, unless it is determined otherwise.\”Beginning on March 24 or 25, 1988, boiler 94 was closed down for repairsfor a three-week period. CEI had been experiencing an increasing numberof leaks from the boiler and it was determined that replacing each tubeas it developed a leak was inefficient. Therefore, all of the tubeswould be removed from boiler 94 and replaced with new ones (Tr. 13,297-298)._SATURDAY, MARCH 26, 1988_On Saturday, March 26, 1988, a crew was assigned to begin work on boiler94. Willie Simmons has worked for CEI for 11 years, and has attained theposition of maintenance mechanic \”A,\” the highest mechanicclassification (Tr. 11). He and an assistant were working on the southside of boiler 94 (Ex. R-2. area #2; Tr. 13-14, 21).Simmons testified that, due to knowledge that asbestos insulation waspresent in the plant, \”it is always a common practice to ask thesupervisor if the work that we’re going to be doing has been checked forasbestos especially if we’re going to be around the boiler or any typeof piping or valves or anything like that\” (Tr. 18). Simmons inquired ofhis supervisor, Ted Zielaskiewicz, whether they would be working withasbestos. Zielaskiewicz told Simmons he would check with the generalsupervisor, Daniel Tirabasso, and then reported back that the insulationin the area where he would be working was asbestos-free (Tr. 20).Simmons and his assistant began work on the boiler. They removed theskin casing on the boiler using cutting torches and then removed theinsulation covering the tubes. The assistant cut about four and a halffeet of the skin casing and Simmons would use a pinch bar and hammer toknock the skin away from the boiler and to knock the insulation out.They cut about three- quarters of the way across the 20-foot-wide boilerbefore ending that day (Tr. 15-16).While Simmons worked on the south side of boiler 94, another crew ofmaintenance mechanics, including maintenance mechanic \”A\” Nathan Wilson,who has been with CEI for over 18 years, was removing skin casing at thebase of the southeast corner of boiler 94, immediately above the wet ashpit (Ex. R-2, area #1; Tr. 73-75). Beneath the skin casing was blockinsulation that originally had been held in place by metal clamps. Asthe skin casing was removed, most of the insulation fell out of theboiler. The remaining insulation was removed by hand or with tools (Tr.117). A third crew was working in the dry ash pit of boiler 93,approximately 100 feet away from boiler 94 (Tr. 139). A total of 11 or12 employees were working in the areas around boilers 93 and 94 (Tr. 17-18).The Lakeshore plant generally has a dusty environment while the boilersare working. When coal is burned, it leaves a residue called fly ash,which is a dark gray, granular substance. Even though four of theboilers had been converted from coal-burning units in 1977, a great dealof the fly ash was left in the boilers’ systems (Tr. 19, 22, 307-309).Simmons testified that, as they worked, the air became exceedinglydusty. At times he and his assistant could not see each other eventhough they were working in close proximity (Tr. 17). Bernard Zebrowski,a maintenance mechanic \”A\” with CEI for 21 years, was working on boiler93 in the dry ash pit while Simmons was removing the insulation onboiler 94. Zebrowski testified that, as he worked, an unusual amount ofdust was produced by the work being done on boiler 94. \”It was so thickthat you couldn’t see. We had to get out of there. I couldn’t believe itand I even called the guys who were working on 94 Boiler to find outwhat was going on. And they told me they were taking a paneling off andall that dust and debris was falling out of there, . . .\” (Tr. 141).Jay Fine, a maintenance mechanic \”B,\” was working in the dry ash pit ofboiler 93 with Zebrowski on March 26. Fine stated that as they worked,they became engulfed in ash \”like a gray cloud almost that came upinside of the ash pit, and at that time we had to leave the ash pitbecause the air became unfit to breathe\” (Tr. 458). Fine testified thatthe dust was coming from the south side of boiler 94 where Simmons wasworking (Tr. 459). Fine observed insulation falling out of the boilerwhere it had been opened, and he observed Simmons pulling it off (Tr.465). Both Zebrowski and Fine stated that the cloud was a light graycolor (\”light color, whitish,\” \”grayish white cloud\”) that was unlikethe darker gray of fly ash (Tr. 140, 458).Simmons testified that he had worked with asbestos before and couldidentify it by sight. He stated that when insulation blocks containingasbestos break down, they give off a fibrous dust that is white or alight gray. It was Simmons’ opinion that the dust cloud that envelopedhim and his co-workers on March 26, 1988, was a half and half mixture offly ash and asbestos (Tr. 19, 24-27).Wilson, who was working on the underside of boiler 94, stated that he,too, could identify asbestos by sight. \”[I]n the insulation it’s white.After being in the boiler for a while, it’s probably an off-white typeof material\” (Tr. 83). It was Wilson’s opinion that the debris fallingfrom the boiler as he cut away the skin casing was \”deterioratedasbestos, dust\” (Tr. 84).Zebrowski also thought the dust coming out of boiler 94 looked likeasbestos dust. He asked Simmons during a break if he was sure that therewas no asbestos in the area. Simmons told him that Tirabasso had assuredhim it was not asbestos (Tr. 142). Despite Tirabasso’s assurances,Simmons was uneasy working amid the thick dust. He asked Tirabasso sixtimes over the course of the day whether he was sure the area had beenchecked for asbestos. Each time he was told the area had been checkedand that it was safe for work (Tr. 20).The employees working in the boiler area were wearing dust masks but notrespirators. No asbestos-related safety precautions were taken prior tothe commencement of the job. No negative-pressure enclosures wereerected and no personal air monitoring was conducted. The employees werewearing their regular work clothes, which they took home with them towash after changing at the plant. No asbestos-related warning signs wereposted in the area (Tr. 27-29)._MONDAY, MARCH 28, 1988_On Monday, March 28, 1988, work resumed on the south side of boiler 94where Simmons and his assistant had been working on March 26. Jay Finewas also assigned to work with them. Zebrowski was working in thebasement on a boiler 94 pump (Tr. 33, 162, 460). They began work at 7:00a.m. and stopped for a coffee break at 9:00. At that time, the generalmanager of maintenance, Fred Lewis, spoke with Fine. Fine showed Lewisthe inside of the boiler where the insulation was exposed. Lewiscommented that the insulation looked suspicious. Lewis halted work onthe boiler until samples of the insulation could be tested for thepresence of asbestos (Tr. 462).[[2]]Keith Thompson, CEI’s plant environmentalist, took samples from thesouth side of boiler 94, as well as from its southeastern underside (Ex.R-2, areas #1 and #2; Tr. 336-337). He hand-delivered the samples to theplant laboratory. Sometime after noon that day, he received the results,which indicated that all of the samples contained asbestos (Ex. C-1; Tr.351).[[3]] After Lewis was informed of the presence of asbestos, anabatement contractor was brought in to remove the insulation (Tr. 353).The week before the asbestos was detected, Tirabasso had taken sampleson boiler 93 and the dry ash pit on boiler 94. The results of bothsamples indicated that it was non-asbestos material (Ex. R-3; Tr.303-304). Boilers 93 and 94 are \”sister\” boilers, of the same age andstyle. Tirabasso assumed that such similar boilers would have similarlynon- asbestos insulation. Using this reasoning, Tirabasso concluded thatboiler 94 did not contain asbestos material and assured the employees hesupervised that it was safe for them to work in this location (Tr. 311,317-318). Tirabasso does not keep records of where the asbestoscontaining insulation is located or where new insulation has beeninstalled (Tr. 317).Following the inspection of OSHA Industrial Hygienist Julie Weis onApril 22, 1988, CEI was issued two citations for a number of violations.CEI does not dispute that it failed to take any of the steps that theallegedly violated standards dictate. Instead, CEI argues that forvarious reasons, it was not required to comply with the asbestos standards._NEGATIVE-PRESSURE ENCLOSURES AND A COMPETENT PERSON _Section 1926.58 (e)(6)(i) of 29 C.F.R. provides:Wherever feasible, the employer shall establish negative-pressureenclosures before commencing removal, demolition, and renovationoperations.Section 1926.58(e)(6)(ii) of 29 C.F.R. provides:The employer shall designate a competent person to perform or supervisethe following duties:(A) Set up the enclosure;(B) Ensure the integrity of the enclosure;(C) Control entry to and exit from the enclosure;(D) Supervise all employee exposure required by this section;(E) Ensure that employees working within the enclosure wear protectiveclothing and respirators as required by paragraphs (i) and (h) of thissection and;(F) Ensure that employees are trained in the use of engineeringcontrols, work practices, and personal protective equipment;(G) Ensure that employees use the hygiene facilities and observe thecontamination procedures specified in paragraph (j) of this section; and(H) Ensure that engineering controls are functioning properly.CEI argues that the operation on March 26, 1988, was neither an asbestosremoval, demolition, or renovation operation, thus excluding it fromcompliance with these sections. At the hearing, Leslie Grove, an OSHAindustrial hygienist supervisor, stated that work done on boiler 94could qualify as either a removal or a renovation operation (Tr. 233, 272).Section 1926.58(b) defines \”removal\” as \”the taking out or stripping ofasbestos. . . or materials containing asbestos. . . ,\” and \”renovation\”as \”the modifying of any existing structure, or portion thereof, whereexposure to airborne asbestos. . . may result.\” \”Repair,\” which is notmentioned in ? 1926.58(e)(6)(i), is defined as \”overhauling, rebuilding,reconstructing, or reconditioning of structures or substrates whereasbestos. . . is present.\”The operation planned for boiler 94 was to remove the old tubes frominside the boiler and to replace them with new tubes. Grove maintainedthat the removal of original parts and the replacement with new onesconstitutes a modification, which brings the operation within thestandard’s definition of renovation. CEI maintains that Grove’s positionwould serve to destroy any distinction between the standard’sdefinitions of \”renovation\” and \”repair,\” and would render the \”repair\”definition redundant. No renovation was planned on boiler 94.CEI argues that the boiler assignment was not an asbestos removaloperation because it did not intend for any asbestos to be removed, andin fact, the asbestos insulation was not actively removed. The companycontends Simmons’ testimony that he knocked off insulation with a pinchbar was rebutted by Tirabasso, because Tirabasso stated that he did notobserve any employee removing insulation. This argument is based onTirabasso’s testimony that he visited the area where Simmons was workingonce in the morning before work actually began and \”two or three timesduring the course of the day, and I did not see people removinginsulation from Area 2\” (Tr. 313). The fact that Tirabasso did notactually observe Simmons removing insulation during his two or threevisits does not in any way refute Simmons’ testimony, as well as Fine’stestimony, that Simmons did so.CEI contends that both Tirabasso and Thompson observed the blockinsulation on the south side of boiler 94, and saw no gaps or missingblocks. CEI also questions the veracity of its employees who stated thatthey either removed or observed the removal of insulation.Both Willie Simmons and Jay Fine testified in a sincere, straightforwardmanner concerning their work activities on the days in question. Theydisplayed no bias and their testimony was entirely reasonable andcredible. On the other hand, Tirabasso and Thompson showed anunderstandable inclination to minimize the amount of insulation involvedin the operation. This inclination led to questionable testimony, suchas Tirabasso’s statement that there was not an abnormal amount of dustin the air on March 26, despite an abundance of more credible evidenceto the contrary (Tr. 307; see also footnote 2).Moreover, no motivation is apparent as to why the employee witnesseswould fabricate their part in the insulation removal. CEI would have itbelieved that Simmons was mistaken when he said he removed theinsulation and that Fine was also mistaken when he said he observedSimmons removing the insulation. CEI further suggests that Simmons,Fine, and Zebrowski were in error when they said they worked on boiler94 for two hours on March 28; and that Simmons, Fine, Zebrowski, andWilson exaggerated when they stated that, in their combined experienceof over 30 years, the dust was unusually heavy on March 26. Absent anymotivation for this alleged insulation conspiracy, the testimony ofthese men is accepted as the most credible.CEI also argues that the primary goal of the assigned tasks on March 26was not the removal of asbestos. CEI intended to remove the skin casingfrom the south side of boiler 94 and the skin casing and the four-inchmineral wool blanket from the underside of boiler 94 (Ex. R-4, pp. 4-5).Section 1926.58(e)(6)(iv) of 29 C.F.R. provides:For small-scale, short-duration operations, such as pipe repair, valvereplacement, installing electrical conduits, installing or removingdrywall, roofing, and other general building maintenance or renovation,the employer is not required to comply with the requirements ofparagraph (e)(6) of this section. (Refer to Appendix G.)The operation at issue in the present case is neither small-scaled, norof short duration. When Simmons was asked if his work on boiler 94 was a\”large-scale job,\” he responded, \”[s]ure it was\” (Tr. 16). Boiler 94,which is seven stories high and twenty feet wide, was to be shut downfor three weeks to perform this operation. At least 11 men worked on theoperation the first day of the three-week time frame. The work on boiler94 was not an exception to the standard within ? 1926.58(e)(6)(iv).CEI also claims that it was not required to comply with the asbestosstandard because it did not know that the insulation on the south sideof boiler 94 contained asbestos. CEI contends that Tirabasso reasonablybelieved that the insulation did not contain asbestos based on theabsence of asbestos in the samples taken from boiler 93. The recordestablishes, however, that Tirabasso reached a decidedly unreasonableconclusion.It was common knowledge among plant personnel that asbestos insulationhad originally been used in the plant, and that it had been replacedonly in a piecemeal fashion and not according to any organized plan.Tirabasso, who had 25 years of experience at CEI, had to be aware ofthis haphazard method of replacement (Tr. 286). The mere fact that oneboiler tested asbestos-free gave no reasonable basis for the belief thatan adjacent boiler would contain similar insulation. Despite theexplicit language of rule 14.0(A) of CEI’s asbestos procedure, requiringCEI to maintain plant records of the types of insulation on existingequipment, no such plans were kept. Given these circumstances, a personexercising reasonable diligence would have concluded that an area didnot contain asbestos insulation only after testing that specific area.Furthermore, even if CEI had a reasonable belief at the commencement ofthe operation that no asbestos was involved, it was repeatedly put onnotice once the project began that it was highly likely that asbestoswas present in the area. Simmons, Wilson, and Zebrowski all claimed thatthey could recognize asbestos dust on sight. Tirabasso, Thompson, andDr. Antone Lott, an industrial hygienist hired by CEI, all stated thatit was impossible to identify asbestos dust with the naked eye, and thatmicroscopic analysis was required (Tr.329, 366, 432). While it may betrue that the maintenance mechanics could not state with absoluteaccuracy that the dust they were working in contained asbestos, theirknowledge and experience led them logically to assume that it did.The mechanics had worked previously with insulation that they knewcontained asbestos, and they knew that when the asbestos insulationbecame friable it appeared to be a white or grayish white dustcontaining fibrous particles. They knew that fly ash appeared as a darkgray, granular dust. Despite assurances that the area where they wereworking on boiler, 94 did not contain asbestos insulation, theappearance of the dust cloud raised their suspicions that asbestos waspresent, which in fact it was. After being asked six times whether theinsulation being worked on was indeed asbestos, the reasonable responsefor CEI would have been to halt work and take samples of the insulation,not to blandly reassure the employees and tell them to continue working.CEI raises the defense of unpreventable employee misconduct with regardto Tirabasso’s actions, relying on _Floyd S. Pike Electrical Contractor.Inc.,_ 78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH O SHD ? 22,805 (No.3069, 1978). In that case, the Commission held that a supervisor, whoseknowledge and actions are generally imputed to the employer, could befound to have engaged in unpreventable misconduct for which the employeris not liable. The Commission set out the following as elements of thedefense:(1) A demonstration of the employer’s commitment to employee safetyreflected by the establishment of work rules that effectively implementthe requirements of the standard at issue;(2) the effective communication of the work rules to employees; and,(3) the effective enforcement of these work rules through supervisionadequate to detect failures to comply with the rules and disciplinesufficient to discourage such violations. (Footnotes omitted.)_Id_. at 1978 CCH OSHD ?22,805, p. 27,543.In the present case, CEI had established a detailed, specific procedurethat implemented the requirements of the asbestos standard. Weischaracterized it as \”a fairly thorough safety program. . .\” (Tr. 225).The first element of the defense is met.The record also establishes that the work rules were effectivelycommunicated to the employees. The employee witnesses, withoutexception, testified that they were aware of the company’s work rulesregarding asbestos. They were aware that insulation should be testedbefore beginning work. Their testimony reflects a high level ofawareness and concern regarding the asbestos procedure. CEI hasestablished the second element of the defense.CEI falters on the third element, however, which calls for \”theeffective enforcement of these work rules through supervision adequateto detect failures to comply with the rules and discipline sufficient todiscourage such violations.\” Id. The record is silent on any disciplinemeted out to Tirabasso for his part in the violations.The record does disclose that on Friday, March 25, 1988 a planningmeeting was held to discuss the weekend operation. Presumably othersupervisory personnel besides Tirabasso were present, but Tirabassotestified that the possibility of asbestos insulation in boiler 94 wasnot discussed (Tr. 297-298). Simmons testified that when he initiallysuspected the presence of asbestos, he reported it to anothersupervisor, Ted Zielaskiewicz, who in turn went to Tirabasso (Tr. 19).The company’s written asbestos procedure provides that the PlantMaintenance General Supervisor keep records for the identification oftypes of insulation in existing equipment. Fred Lewis was identified atthe hearing as the general supervisor of maintenance (Tr. 165, 461).Apparently, he did not maintain such records, or if he did, he failed tomake them available to Tirabasso.The record does not support CEI’s claim that it had \”supervisionadequate to detect failures to comply with the rules.\” Rather, therecord establishes that CEI’s supervisory personnel as a wholedisregarded the company’s written safety policy. It was the employeeswho suspected a failure to comply with the work rules, but who wereunable to persuade their supervisors to follow the proper procedure. CEIhas failed to make out a defense of unpreventable supervisory misconduct.The Secretary has proven that CEI did not establish negative-pressureenclosures before commencing asbestos removal, nor did its designatedcompetent person [Keith Thompson (Tr. 331)] perform his duties incompliance with the asbestos standard. CEI was in violation of 29 C.F.R.? 1926.58(e)(6)(i) and (ii)._EXPOSURE AND INITIAL MONITORING_Section 1926.58(f)(1)(i) of 29 C.F.R. provides:Each employer who has a workplace or work operation covered by thisstandard shall perform monitoring to determine accurately the airborneconcentrations of asbestos, tremolite, anthophyllite, actinolite or acombination of these minerals to which employees may be exposed.Section 1926.58(f)(2)(i) of 29 C.F.R. provides:Each employer who has a workplace or work operation covered by thisstandard, except as provided for in paragraphs (f)(2)(ii) and(f)(2)(iii) of this section, shall perform initial monitoring at theinitiation of each asbestos, tremolite, anthophyllite, or actinolite jobto accurately determine the airborne concentrations of asbestos,tremolite, anthophyllite, or actinolite to which employees may be exposed.CEI argues that it had no knowledge that the insulation in boiler 94contained asbestos, therefore, it was not required to comply with themonitoring standards. As discussed in the negative-enclosure andcompetent person section, supra, CEI could have known of the presence ofasbestos with the exercise of reasonable diligence. It is undisputedthat CEI did not perform initial monitoring or exposure monitoring. CEIwas in violation of 29 C.F.R. ? 1926.58(f)(1)(i) and (2)(i)._RESPIRATORY PROTECTION_Section 1926.58(h)(2)(i) of 29 C.F.R. provides:Where respirators are used, the employer shall select and provide, at nocost to the employee, the appropriate respirator as specified in TableD-4, and shall ensure that the employee uses the respirator provided.Table D-4 specifies that, for unknown concentrations of asbestos,employees shall be provided with a \”[f]ull facepiece supplied airrespirator operated in pressure demand mode equipped with an auxiliarypositive pressure self contained breathing apparatus.\” CEI argues thatthe standard only applies when employees are expected to be exposed toasbestos above the PEL. As noted, _supra, _CEI failed to monitor forairborne concentrations of asbestos, therefore the concentration isunknown. In the absence of any knowledge of the concentration ofairborne asbestos on that day, CEI was required to provide the highestlevel of respiratory protection to its employees, not the dust maskswhich they wore. CEI was in violation of 29 C.F.R. ? 1926.58(h)(2)._PROTECTIVE CLOTHING_Section 1926.58(i)(3) of 29 C.F.R. provides:Contaminated clothing shall be transported in sealed impermeable bags,or other closed, impermeable containers, and be labeled in accordancewith paragraph (k) of this section.CEI argues that the Secretary failed to prove that the employees wereexposed above the employees were exposed above the PEL, and thus thatthe clothes were contaminated. Weis did not take air samples during herinspection because it had been almost a month since the incidents atissue and any samples would not be representative of the airborneconcentration on those days (Tr. 199). Dr. Lott conducted air monitoringon March 29, 1988, and based on his results, concluded that theemployees were not exposed above the PEL on March 26, 1988 (Tr.400-403). Grove concluded, based on employee interviews and CEI’s testresults on March 28, 1988, that the employees were exposed above the PEL(Tr. 268).It is, of course, not possible to determine the airborne concentrationof asbestos on the days in question. This impossibility is due to CEI’sfailure to comply with the monitoring standards. While the Secretarynormally has the burden of showing exposure above the PEL, it would beunjust, under the circumstances of this case, to impose such a strictburden on the Secretary when such a determination was solely under thecontrol of CEI. Given the fact that the employees described the dust asabnormally thick, and the fact that the samples taken by Thompson showedresults of over one percent asbestos, it is more likely than not thatthe employees were exposed above the PEL on March 26 and March 28, 1988,and that their clothes were contaminated. It is undisputed that theemployees’ clothing was not handled in accordance with the provisions ofthe standard. CEI was in violation of 29 C.F.R. ? 1926.58(i)(3)._WARNING SIGNS_Section 1926.58(k)(1)(i) of 29 C.F.R. provides:Warning signs that demarcate the regulated area shall be provided anddisplayed at each location where airborne concentrations of asbestos,tremolite, anthophyllite, actinolite, or a combination of these mineralsmay be in excess of the exposure limit prescribed in paragraph (c) ofthis section. Signs shall be posted at such a distance from such alocation that an employee may read the signs and take necessaryprotective steps before entering the area marked by the signs.CEI argues again that the Secretary failed to prove that the employeeswere exposed above the PEL. As discussed, supra, it is likely that theemployees were exposed above the PEL. CEI posted no warning signs andthus was in violation of 29 C.F.R. ? 1926.58(k)(1)(i)._CLASSIFICATION OF THE VIOLATIONS_Grove testified that exposure to asbestos can result in asbestosis,mesothelioma, lung cancer, and gastrointestinal cancer (Tr. 252, 256).Such risks warrant a classification of serious for the violations of 29C.F.R. ?? 1926.58(e)(6)(i), (e)(6)(ii), (f)(1)(i), (f)(2)(i), (h)(2),and (i)(3). Section 1926.58(k)(1)(i) is properly classified asother-than-serious._PENALTIES _Under section 17(j) of the Occupational Safety and Health Act of 1970(\”Act\”), the determination of the appropriate penalty is within thediscretion of the Commission. Due consideration must be given withrespect to the size of the employer, the gravity of the violation, thegood fait, of the employer, and the history of the previous violations.The gravity of the offense is the principal factor to be considered._Nacirema Operating Co., _72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCHOSHD ? 15,032 (No. 4, 1972).Upon due consideration, it is decided the Secretary’s proposed penaltyof $700 is appropriate for the violations of 1926. 58(e)(6)(i) and(e)(6)(ii); a total of $700 is appropriate for the violations of ?1926.58(f)(1)(i) and (f)(2)(i); and a total penalty of $700 isappropriate for the violations of ? 1926.58(h)(2) and (i)(3).The foregoing constitutes the findings of fact and conclusions of law inaccordance with Rule 52(a) of the Federal Rules of Civil Procedure._ORDER_It is hereby ORDERED:1. That items 1b and 1c of the serious citation are affirmed and apenalty of $700 is assessed;2. That items, 2a and 2b of the serious citation are affirmed and apenalty of $700 is assessed;3. That items 3 and 4 of the serious citation are affirmed and a penaltyof $700 is assessed; and4. That item 1 of the other-than-serious citation is affirmed and nopenalty is assessed.Dated this 24th day of May, 1989.EDWIN G. SALYERSJudge————————————————————————FOOTNOTES:[[1]] At the hearing, the Secretary moved to vacate three items ofcitation one charging serious violations of 29 C.F.R. ? 1926.58(e)(1),29 C.F.R. ? 1926.58(g)(1)(i), and 29 C.F.R. ? 1926.58(k)(3)(i) (Tr. 5).The Secretary’s motion was granted (Tr. 6).[[2]] Curiously, at the hearing CEI contended that no work was performedon boiler 94 on March 28, 1988 (Tr. 167) and it omits any mention in itspost-hearing brief of possible employee exposure on that day. This is indirect conflict with the testimony of Simmons, Fine, and Zebrowski, whoall testified that they worked approximately two hours before the jobwas halted.Apparently CEI’s contention is based on Thompson’s testimony that onMarch 28 he observed the south side of boiler 94 and took three samplesof the insulation there between 7:30 a.m. and 8:00 a.m., and did not seeany employees working. Fine, a credible witness, testified that while hewas working on boiler 94, he saw Thompson in the area sometime between7:00 a.m. and 9:00 a.m. (Tr. 463).Furthermore, Simmons and Fine’s assignment that day was to continue workon the south side of boiler 94. The work shift begins at 7:00 a.m. It ishighly unlikely that CEI supervisors would have permitted Simmons andFine to remain idle for a two-hour period. Thompson’s testimony on thispoint is discounted and it is found that work was performed on boiler 94for approximately two hours on the morning of March 28, 1988.[[3]] Although Exhibit C-1 concludes that \”[a]ll four insulation samplescontained over one percent asbestos[,]\” the actual percentage ofasbestos present in the samples is unknown. Thompson testified that thestandard method for reporting the presence of asbestos is whether it isover one percent \”[b]ecause greater than one percent asbestosconstitutes an ACM asbestos containing material, and with polarizedlight microscopy, that’s the best and quickest determination to find outthe percentage over one of asbestos in the material\” (Tr. 352).”