UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2073
ARCON, INCORPORATED,
Petitioner,
versus
OCCUPATIONAL SAFETY & HEALTH REVIEW
COMMISSION; SECRETARY OF LABOR,
Respondents.
On Petition for Review of an Order of the Occupational Safety and
Health Review Commission. (99-1707)
Argued: May 26, 2005 Decided: June 23, 2005
Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.
Petition denied by unpublished per curiam opinion.
ARGUED: David Harlen Sump, CRENSHAW, WARE & MARTIN, P.L.C.,
Norfolk, Virginia, for Petitioner. John Robert Shortall, Office
of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent. ON BRIEF: Stuart P. Sperling, CRENSHAW, WARE
& MARTIN, P.L.C., Norfolk, Virginia, for Petitioner. Howard M.
Radzely, Solicitor of Labor, Joseph M. Woodward, Associate
Solicitor for Occupational Safety and Health, Charles F. James,
Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Arcon, Incorporated petitions for review of an order of the
Occupational Safety and Health Review Commission (Review
Commission) insofar as the order affirmed the findings of an
administrative law judge (ALJ) imposing sanctions for violation of
asbestos cleanup regulations. Finding no error, we deny the
petition for review.
I.
Arcon is an asbestos removal contractor based in Norfolk,
Virginia. In February 1999, Arcon contracted to remove
approximately 1,500 feet of bulkhead panels from the M/V CAPE
LOBOS, berthed in Wilmington, North Carolina. Arcon’s work plan
for the job described the removal of the panels as “Class II
Asbestos Work,” J.A. 365, meaning that it involved activities such
as “the removal of asbestos-containing wallboard, floor tile and
sheeting, roofing and siding shingles, and construction mastics,”
29 C.F.R. § 1915.1001(b) (2004). The panels were located on the
boat deck, the poop deck, and the upper deck.
Arcon’s crew--supervisor David Poole, Joe Boone, and Daryl
Jefferson--arrived at the site on March 8, 1999. At that time,
they observed that there was already a great deal of dust in the
work area. When the Arcon crew began work on March 9, air samples
were taken by Warren Plautz, a field technician for Phoenix
Envirocorp, which had been retained to conduct monitoring at the
2
site. Plautz’s pre-work sample indicated a fiber count of
.065/cubic centimeter--over the permissible exposure limit (PEL) of
.01. Plautz’s next sample, called an “excursion sample,” was taken
from inside the work area on the boat deck and indicated a fiber
count of 3.49/cubic centimeter. This was above the permissible
excursion limit of 1.0.1 These high fiber counts were evidently
the result of the friability of the wallboard--according to Boone,
“if you touch[ed] [the panels], the stuff would just fall out,”
J.A. 150--and Poole’s use of a reciprocating saw (a “Sawzall”) to
remove wallboard from around a pipe.
Plautz informed Poole of the high fiber counts, and then he
informed the general manager of Phoenix Envirocorp, Thomas Green.
Green consulted Arcon’s safety manager, C.J. Morey, and advised her
to shut down the project. When Arcon’s president, Arthur
Hawthorne, called Poole to discuss the situation, Poole stated that
the sample results were high because of the way he removed the
panels and possibly because a piece of the material fell on the air
monitoring equipment. Poole did not inform Hawthorne that the
panels were breaking apart or that he had used the Sawzall to
remove one of the panels. After this conversation, it was Morey’s
1
This test result was initially reported as 35.5 fibers/cubic
centimeter, an impossibly high level. Although this caused some
confusion, it appears that everyone involved agreed that the
problem was likely a misplaced decimal point.
3
understanding that the boat deck would be cleaned up and clearance
samples would be obtained before the work continued.
That night, Poole traveled to Norfolk to obtain a negative air
machine, additional plastic sheeting, and an airless water sprayer.
The following morning, March 10, the crew proceeded with work on
the poop deck without first obtaining clearance samples from the
boat deck. Plautz’s air samples from the poop deck indicated that
fiber counts were within the PEL, but Green nevertheless reported
to Morey that he was concerned that Poole had not finished cleaning
the boat deck. However, the work on the poop deck apparently
proceeded without incident.
At the beginning of the day on March 11, Poole asked Gregory
Baccari, the official responsible for approving the work area, to
approve the containment area on the upper deck. Baccari refused,
pointing out that the plastic sheeting that had been used to
contain the area had tears, holes, and gaps, and that no sheeting
had been placed on the ceiling, which was open as the result of the
previous removal of ceiling tiles. Baccari left the area, but when
he later returned he found that the crew had proceeded with the
work without correcting the problems. According to Baccari, the
area was “anywhere from ankle deep to knee deep” in broken panels
and there was visible dust in the air. Id. at 81.
Later that morning, Allen Mosby, a compliance officer with the
North Carolina Department of Health and Human Services, boarded the
4
CAPE LOBOS in response to an anonymous complaint about Arcon’s work
practices. Mosby took numerous photographs of the dust, debris,
and holes in the plastic sheeting. Among other things, Mosby noted
that it did not appear that the Arcon crew was wetting down the
panels prior to wrapping them in the plastic sheeting. Mosby
ordered the site to be shut down that afternoon. He also notified
the Occupational Safety and Health Administration (OSHA) of
possible regulatory violations.
OSHA compliance officer Andrea Reid investigated the site and
issued two citations containing a total of 12 items. Citation 1
alleged four serious violations of OSHA regulations, denoted as
Items 1, 2a, 2b, and 3. Citation 2 alleged eight willful
violations of OSHA regulations, denoted Items 1a-c and 2a-e. Reid
imposed a total fine for the violations of $108,500.
Arcon sought review by an ALJ, who vacated three of the
violations, reduced four of the willful violations to serious
violations, and reduced the fine to $40,450. Arcon sought
additional review from the Review Commission, which vacated another
three items and reduced the fine to $36,200. Arcon now seeks
further review.
II.
The Secretary of Labor bears the burden of proving the
violation of an OSHA standard. To do so, she must demonstrate “(1)
the applicability of the standard, (2) the employer’s noncompliance
5
with the terms of the standard, (3) employee access to the
violative condition, and (4) the employer’s actual or constructive
knowledge of the violation.” N&N Contractors, Inc. v. OSHRC, 255
F.3d 122, 126 (4th Cir. 2001). We must affirm the holdings of the
Review Commission if they are supported by substantial evidence in
the record as a whole. See id. at 125. “Substantial evidence is
more than a mere scintilla”; it is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
A.
Arcon first argues that the Secretary failed to establish
that the cited standards apply because she did not prove that the
fibers in the air were asbestos fibers, as opposed to some other
kind of fiber. The Review Commission rejected this claim in a
single sentence: “The argument is not a valid challenge to the
applicability of the cited standards, whose applicability does not
depend on whether asbestos dust is present.” J.A. 456.
The Review Commission was correct. The pertinent regulatory
provision, 29 C.F.R. § 1915.1001 (2004), “regulates asbestos
exposure in all shipyard employment work ..., including but not
limited to ... [r]emoval or encapsulation of materials containing
asbestos.” 29 C.F.R. § 1915.1001(a)(2). Arcon admits that the
wallboard panels contained amosite asbestos, and Mosby testified to
6
this fact.2 Accordingly, the regulations apply to the work Arcon
was doing.
One of the citations--alleging a failure to provide adequate
respiratory protection--relies on a regulatory standard that
applies, as is relevant here, to certain forms of Class II asbestos
work. See 29 C.F.R. § 1915.1001(h)(1)(ii), (iv) (requiring
respirator protection “[d]uring all Class II work where the ACM
[asbestos-containing material] is not removed in a substantially
intact state” or when no negative exposure assessment is supplied).
Substantial evidence supports the determination that Arcon’s work
on the CAPE LOBOS was Class II asbestos work, which is defined as
“activities involving the removal of ACM ... includ[ing], but ...
not limited to, the removal of asbestos-containing wallboard.” 29
C.F.R. § 1915.1001(b). As noted above, Arcon admits that the
wallboard it removed from the CAPE LOBOS contained amosite
asbestos. Its removal therefore was Class II work.
In light of the clear applicability of the regulations,
Arcon’s assertion that the Secretary failed to prove the presence
of airborne asbestos fibers appears actually to be a challenge to
the finding of a violation of the applicable standards. Such a
2
On appeal, Arcon contends that Mosby’s testimony--that tests
of the wallboard “came back am[o]site,” J.A. 36--was improper
because Mosby was not an “expert.” Arcon did not challenge his
testimony on this basis during administrative proceedings, however,
and thereby waived this claim. See 29 U.S.C.A. § 660(a) (West
1999).
7
challenge would apply only to Citation 2, Item 1c, which alleges a
failure to use a proper respirator. Since the type of respirator
required varies according to the amount of airborne asbestos, see
29 C.F.R. § 1915.1001 tbl.1, the Secretary was required to
demonstrate the presence of airborne asbestos fibers in the
workplace in order to establish a violation.
The Secretary’s evidence on this point consisted of the
results of Plautz’s environmental monitoring. Plautz employed
phase-contrast microscopy (PCM) to count airborne fibers. In the
absence of other information, OSHA regulations require any fiber at
least 5 micrometers long with a 3:1 or greater length/width ratio
to be counted as an asbestos fiber. See 29 C.F.R. § 1915.1001
appx. A(13)(a), (b). Although PCM does not definitively establish
a given fiber as asbestos, see id. appx. B § 1.3, the regulations
provide that PCM is adequate to establish the presence of airborne
asbestos, see id. § 1.2. However, the regulations also provide
that a differential counting method, which will positively identify
fibers as asbestos, “should be used if discrimination is
desirable.” Id. § 6.7.
Arcon maintains that the Secretary failed to carry her burden
of proof with respect to Citation 2, Item 1c because she did not
employ a differential counting method to positively demonstrate the
concentration of airborne asbestos fibers. This argument is
without merit. The Review Commission has explicitly stated that
8
compliance with the respirator standard “is premised on the
painstaking, microscopic measurement of samples required” by PCM.
Sec’y of Labor v. Dec-Tam Corp., 1993 WL 27401, at *13 (O.S.H.R.C.
Jan. 19, 1993). This evidence is thus sufficient to meet the
Secretary’s burden of making a prima facie case for a violation and
thereby to shift the burden to Arcon to rebut. See Sec’y of Labor
v. EBAA Iron, Inc., 1995 WL 49331, at *1 (O.S.H.R.C. Feb. 7, 1995).
Arcon has presented no evidence to rebut the sampling results.
B.
Arcon next maintains that the Secretary failed to meet her
burden of proof with respect to Citation 1, Item 2b. This item
charged Arcon with failing to conduct additional monitoring after
a change in process, namely, the use of the Sawzall to cut the
wallboard panels on March 9. There is no question that the use of
the Sawzall greatly increased the amount of airborne fibers in the
work area. Arcon maintains, however, that this citation should be
vacated because the use of the Sawzall was abandoned after March 9.
According to Arcon, its return to its originally planned work
practices absolved it of the need to conduct any additional
monitoring.
Arcon did not raise this challenge to the citation before the
Review Commission.3 Accordingly, it has waived review of this
3
Arcon instead argued that the citation should be dismissed
because it resulted from unforeseeable employee misconduct. See
generally N&N Contractors, 255 F.3d at 128 n.3 (discussing employee
9
issue. See 29 U.S.C.A. § 660(a) (West 1999) (“No objection that
has not been urged before the Commission shall be considered by the
court, unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances.”).
Additionally, even if this claim were not waived, the regulation
does not support Arcon’s position; it requires additional
monitoring after a change in practice, without regard to whether
monitoring may actually be needed. See 29 C.F.R.
§ 1915.1001(f)(4)(ii). And, Arcon cites no other authority in
support of its argument.
C.
Item 2c of Citation 2 alleged that on March 11, Arcon failed
to place “[c]ritical barriers”--here, polyethylene sheeting--at all
openings to the work area. 29 C.F.R. § 1915.1001(g)(7)(ii)(A). In
particular, the citation noted that (1) Arcon failed to use
barriers over open portholes, (2) the sheeting that Arcon used “did
not cover all open areas,” J.A. 15, and (3) Arcon failed to use
impermeable dropcloths on the floor of the upper deck. This
citation was based on Mosby’s observations and photographs of the
work area on March 11. Arcon asserts that this citation should be
vacated because (1) the Secretary failed to prove any migration of
airborne asbestos, and (2) it was prevented from proving the
efficacy of the methods it did use because Mosby shut down the work
misconduct defense).
10
on March 11 before any monitoring could be employed. See 29 C.F.R.
§ 1915.1001(g)(7)(ii)(B) (providing that alternative barrier
methods may be used if the efficacy of those methods is “verified
by perimeter area monitoring or clearance monitoring”).
Arcon’s first assertion is plainly without merit. The
standard requires the use of certain methods, and thus a violation
of the standard is established by the failure to use those methods.
Arcon’s second argument fails because there is no evidence
that it performed any perimeter area or clearance monitoring, or
that Mosby prevented it from doing so. In the first place, the
Arcon crew began work at approximately 8:30 a.m., and Mosby did not
shut down the work until well after lunch. There is no dispute
that Arcon did not perform any perimeter area monitoring during the
five or more hours that it worked on March 11. And, although Arcon
now asserts that it would have performed clearance monitoring if
Mosby had not shut down the job, there is no evidence in the record
that supports this assertion. Accordingly, there is no basis for
vacating this citation.
III.
Finally, Arcon challenges the amount of the penalty imposed on
it as an abuse of discretion. See generally 29 U.S.C.A. § 666(j)
(West 1999) (discussing authority to impose civil penalties and
relevant considerations as to the amount of penalty). Arcon’s
argument on this point rests entirely on its previous assertion
11
that the Secretary failed to prove the presence of airborne
asbestos fibers. As discussed above, however, the use of phase
contrast microscopy is an accepted method for determining the
presence of airborne asbestos fibers. The Secretary therefore met
her burden, and it was up to Arcon to challenge the validity of the
Secretary’s evidence. Since Arcon failed to do so, there is no
basis on which to reduce the penalties imposed.
IV.
For the reasons set forth above, we deny the petition for
review.
PETITION DENIED
12