THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH89312

					)             and SH89311

		Plaintiff,		)  Citation: P9278-037-89

		Vs.			)            and P927893789


		Defendant		)  OPINION AND ORDER

	Pursuant to notice, this matter was heard Friday, May 4, 1990
at Portland, Oregon and closed May 31, 1990 with the receipt of
closing arguments. APD was represented by Norman F. Kelley, and
defendant, Link-Osborn, was represented by Michael Caro. The
matter was recorded by Harris.


	This matter arises out of defendant's October 31, 1989 appeal.
from citations and Notice of Penalty Nos. P927893789 and
P9278-037-89. At the time of hearing APD moved to dismiss
Citation No. P927803789 in its entirety and the motion was
granted. APD also moved to dismiss items Nos. 1-2 and 1-3 in
Citation No. P927893789 and the motion was granted.

	Item 1-1 of Citation No. P927893789 is the sole remaining issue.

	The issue is whether or not a violation of OAR 437-03-001: 29
CRF 1926.58 (e6) (ii) (b) occurred.

	Requirements of this section are that: "where airborne
concentrations of asbestos . . . exceeds or reasonably can be
expected to exceed the time waited average and/or the excursion
limit . . . of this section the employer shall designate a
competent person to perform or supervise the following duties: .
. . . (B) insure the integrity of the enclosure".

	Defendant's motion to dismiss based on APD's tardy issuance of
a citation is denied for the reason that the citation issued 66
days after the alleged infraction and APD is allowed 180 days
within which to issue a citation. There is no showing the
employer was prejudiced by the timing of the issuance of the


	l Link-Osborn is a company engaged in the business of asbestos
removal. On the evening of August 9 1989 under the supervision
of Troy Parker the person designated to insure the integrity of
the enclosure the employees of Link-Osborn set up a polyethylene
containment area in conformance with applicable standards and
commenced removal of ceiling covering material using OSHA
recommended wet method of removal.

	Hazcon an independent air testing company was hired by the
owner of Lloyd Center Properties to set air standards monitor
and sample the air throughout this project. Air samples were
taken throughout the night as removal operations progressed.
These tests measured the concentration of all fibers in the air
on a time weighted average. At no time during the removal
process did the fiber content in the air exceed the permissible
levels. At no time during the removal process did the fiber
content even approach the action level. The action level as
defined in 29 CFR Sect. 1926.58(b) is: " airborne
concentration of asbestos tremalite anthophyllite actinolite or
a combination of these minerals in excess of 0.1 fiber per cubic
centimeter (f/cc) of air calculated as an eight (8) hour time
weighted average."

	In the early a.m. hours of August 10 1989 Hazcon cleared the
project as a nonregulated area and gave permission for the
polyethylene containment to be removed. actual removal work of
asbestos material from the ceiling ceased at 6:30 a.m.

	Link-Osborn employees began the process of cleanup and
encapsulation. The polyethylene walls were cleaned and sprayed
with an encapsulent designed to contain fibers. The containment
was then dismantled and rolled up and disposed of in proper
fashion. Water was vacuumed up.

	Following the clearance of the project  as a nonregulated area;
after cessation of asbestos removal and encapsulation and well
into the cleanup process Oregon OSHA inspectors arrived on the
job site.

	At that time the inspector discovered several tears in the
floor and walls of the containment material; water pooled under
the containment material and a handful of mushable material on
the floor of the dismantled containment material. There had been
a leak in a water hose leading to the containment area during he
removal process.

	The inspector although not present during work in progress
deduced that the holes in the containment or in other words the
breach in the integrity of the containment had occurred while
asbestos removal work was in progress.

	The mushable material sample and a sample of the pooled water
were sent to the state lab for analysis.

	After the containment was dismantled and disposed of the
remaining water was vacuumed up with a Hepa vacuum. This is a
machine designed to be used to pick up wet materials and retain
any fibrous material.

	Mr. Troy Parker remained on the job site as supervisor
throughout the entire process from erection through dismantling.

	The analysis of the water samples sent to the state lab
revealed that the samples contained less than l.5 percent
chrysotile asbestos.

	The methods used to test the samples is not known. There is no
evidence to indicate whether the sample was filtered dried or
taken as a liquid. There are no OSHA standards for permissible
amounts of asbestos in a liquid.


	APD must prove by a preponderance of the evidence that either
the defendant failed to appoint a competent person to supervise
to insure the integrity of the containment and/or that even
though a competent person was appointed the integrity was
breached at a time when airborne concentrations of asbestos
exceeded or could reasonably be expected to exceed the time
weighted average (TWA) and/or the excursion limit as defined in
29 CRF Sect. 1926.58..

	29 CFR Section 1926.58(c) establish the permissible exposure
limits above which a regulated area is required:

	(1) TIME WEIGHTED AVERAGE LIMIT (TWA). The employer shall
insure that no employee is exposed to an airborne concentration
of asbestos trernalite anthophyllite actinolite or combination
of these minerals in excess of .02 fiber per cubic centimeter of
air as an 8 (eight)  our time weighted average (TWA.) as
determined by the method prescribed in appendix Q of this
section or an equivalent method.

	(2) EXCURSION LIMIT. The employer shall insure that no
employees exposed to an airborne concentration of asbestos in
excess of l.O fiber per cubic centimeter of air (f/cc) as
averaged over a sampling period of thirty (30) minutes.

	When fiber concentrations can reasonably be expected to exceed'
the permissible levels is governed by the 'action level':

	(b) Definitions. 'action level' means an airborne concentration
of asbestos tremolite anthophyllite actinolite or a combination
of these minerals of 0.1 fiber per cubic centimeter (f/cc) of
air calculated as an eight (8) hour time-weighted average.

29 CFR Section 1926.58(b).

	The evidence is clear that the employer appointed a competent
individual to insure the integrity of the containment. Mr Troy
Parker was supervisor from beginning to end of this shift.

	The containment must be installed when airborne concentrations
exceeded or could have exceeded acceptable limits. It would be
reasonable to conclude that airborne concentrations could be
expected to exceed limits during the removal process. Here
during the removal process the limit never approached an action
limit. The project was certified by an independent tester for
dismantling. The certification was based on a clean air sample
indicating a lack of offending material in the air.

	Thereafter a special encapsulating agent was sprayed on any
exposed areas as a further insurance that no particles or fibers
became airborne. A negative atmosphere was created to insure
that any errant fibers would stay contained and the dismantling
of the enclosure began.

	At this point after the time had passed when it would be
reasonable to expect a concentration of fibers in the air the
inspectors arrived and found water containing fibers and some
type of mushable product. These samples were analyzed and found
to contain some amount of asbestos fiber. The exact amount of
fiber as it relates to what volume of water or mushable product
or air is unclear because the test results do not equate their
findings with the applicable standards regarding airborne

	There is no evidence that it would be reasonable to conclude
that the fibers suspended in water or mush would be expected to
become airborne under the circumstances then and there existing
or that if they did what percentage of fibers they would bear to
a time weighted average of air sample.

	There is no evidence just how much of this water or mushable
product was present. My clear impression is that the amount was
insignificant if not miniscule.

	I conclude that at the time APD inspected it was not reasonable
to expect that airborne quantities of offending material would
or could be present.

	I further conclude that a miniscule amount of potentially
offending material contained in water or in a mush could, at
worse, pose only a negligible relationship to employee health
and as such is not a citeable incident.

	Citation Nos. P927893789 and P927803789 will be dismissed.


P297893789 and P927803789 be and hereby are dismissed in their
entirety and held for naught.

	NOTICE TO ALL PARTIES: you are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court of appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS

	Entered at Portland, Oregon on JUN. 2 5 1990 


				By Ronald J. Podnar