BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH90121

		Plaintiff,		)  Citation No. B921000890

		v.			)

BOB STEELE & ASSOCIATES, INC.		)

		Defendant		)  OPINION AND ORDER



	A hearing was held on August 21, l990, in Astoria, Oregon
before the undersigned referee. The plaintiff, Oregon OSHA, was
represented by its attorney, Kevin Carlson. The employer, Bob
Steele & Associates, Inc, was present with its attorney, Diane
Spies. The court recorder was Barbara Biglerias. Exhibits 1
through 11 were offered into evidence; the defendant's
objections to page 1 of Exhibit 6 and Exhibit 11 were sustained;
defendant's objections to pages 36 through 73 of Exhibit 5 are
overruled, based upon ORS 183.450 and Oregon Rule of Evidence
803 (8), and Exhibit 5 is received into evidence in its
entirety. The record was left open for written closing arguments
and then closed on November 23, 1990 upon receipt of the
plaintiff's rebuttal argument.



                              ISSUE



	The only issue is whether Citation No. B921000890 is
appropriate.



                         FINDINGS OF FACT



	The defendant, Bob Steele & Associates, Inc., is a company that
is involved in doing railroad car renovations which included
removal of asbestos containing materials. It has been licensed
as a full scale asbestos abatement contractor since March 21,
1989. From September 18, l989, through October 18, 1989, the
defendant worked on and removed air ducts and insulation from an
old rail car without obtaining the manufacturer's information or
laboratory analysis or records indicating the age and
composition of the materials involved. The defendant did not
establish negative pressure enclosures before commencing the
project nor did it designate a competent person to perform or
supervise the project. The air duct insulation removed by the
defendant from the rail cars contained 70 to 80 percent asbestos
which was dumped in open piles on the job site. The defendant's
employees had to work in a confined area, inside railroad cars,
and were exposed to asbestos. Asbestos exposure can cause
asbestosis and lung cancer and death.



	From September 18, 1989, through October 18, 1989, the
defendant employer did not perform initial monitoring at the
initiation of the job to determine the airborne concentration to
which the employees may be exposed. On October 20, 1989, the
OSHA representative inspected the defendant's job site and
informed the defendant that monitoring was required because
there appeared to be asbestos present. Thereafter, from October
20 through November 12, 1989, the defendant cleaned up the
inside of the rail cars but again did no monitoring.



	Oregon OSHA issued Citation No. B9210OOR90 to the defendant
employer. The citation is appropriate.



                   CONCLUSIONS OF LAW AND OPINION



	Item 1-1 of the citation charges the defendant, prior to
starting work, the employer did not make reasonable effort to
determine if materials to be worked on or removed contained
asbestos, etc. Subsequent testing clearly revealed that the
material being removed by the defendant's employees contained
high amounts of asbestos to which they were exposed. The
employer defendant argues that he should not be unduly penalized
for his failure to readily discover that the material contained
asbestos. However, OAR 437-03-033 requires the employer, prior
to starting work, to make reasonable efforts to determine if
materials to be worked on or removed contained asbestos and that
reasonable efforts would include but not be limited to,
obtaining manufacturer's information, laboratory analysis of
bulk samples, or records indicating the age and composition of
the materials. There is no evidence that the defendant employer
made any effort at all. This is a serious violation of the
rules. I conclude that the violation charged is correct and that
the $1,000 penalty is appropriate.



	Item 1-2 of the citation charges: Where feasible, the employer
did not establish negative pressure enclosures before commencing
asbestos removal, demolition or renovation operations. The
employer concedes that he violated the rule and that the penalty
of $150 is not contested.



	Item 1-3 of the citation charges that: Employer did not
designate a competent person to perform or supervise the duties
of the project. Again, the employer does not contest the $150
penalty assessed.



	Item 1-4 of the citation charges that: Asbestos waste, scrap
and debris were not disposed of in sealed, labeled, impermeable
bags or other closed, labeled, impermeable containers. 29 CFR
l926.58(1)(2) requires employers to store and dispose of
asbestos containing waste in sealed, labeled, impermeable bags.
Here the air duct insulation was removed from the railway cars
and dumped in open piles on the job site. The employer argues
that he never intended to disregard the appropriate procedure.
However his intention is not as important as in fact what he
actually did. The evidence is clear that he has violated the
rule. I conclude that the charge for this item of the citation
is correct and that the $1,000 penalty is appropriate.



	Item 2-5 of the citation charges: Employer did not perform
additional monitoring at the initiation of each asbestos job to
accurately determine the airborne concentration to which
employees may be exposed during the cleanup of the inside of the
rail cars that occurred between October 20, 1989, through
November 12, 1989, where it was known that the materials
contained asbestos. The defendant employer argues that he erred
in not monitoring but argues that his actions were not willful
because two of his workers and an asbestos control analyst
believed it was unlikely that the material contained asbestos.
However this violation occurred after the inspection by the OSHA
investigator who specifically told the employer that monitoring
was required and that it appeared that the material did contain
asbestos. I conclude that such conduct by the employer defendant
was willful and that the charge is correct and that the Penalty
is appropriate.



	Item 3-6 of the citation charges: Employer did not perform
initial monitoring at the initiation of each asbestos job to
accurately determine the airborne concentration to which
employees may be exposed for the material covering the rail car
air duct insulation which contained asbestos that was removed
between September 18 through October 18, 1989. This is a repeat
violation of a similar citation issued on July 31, 1989, per 29
CRF 1926.58(F)(2)(i). The previous citation was not contested
and became final on August 21, 1989. The employer offers no
argument on this issue. The evidence is clear and conclusive
that the defendant employer again violated the rule. Therefore I
conclude that the charge made is correct and that the $2,000
penalty is appropriate.



	Therefore, based upon my item per item discussion and
conclusion on each of the items contained within the citation, I
conclude that the citation No. B921000890 should be approved in
its entirety.



                             ORDER



	IT IS HEREBY ORDERED, that Citation No. B921000890 is approved
in its entirety and the defendant's request for hearing is
dismissed.



	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
183.482.



	Entered at Portland, Oregon on December 21, 1990 



				WORKERS' COMPENSATION BOARD

				By Gary N. Peterson, Referee