BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
Health Division				)  Docket No. SH90123

	Plaintiff,			)  Citation No.W788700190

		vs.			) 

NORTH BANK MANAGEMENT 			)

	Defendant			)  OPINION AND ORDER



	Pursuant to notice. a hearing was held in the above matter on
March 26, 1991, in Portland, Oregon, before Referee Douglas
Crumme'. Harris Reporting recorded the hearing. Jon Heil
(employer), a sole proprietor doing business as North Bank
Management, appeared personally without legal counsel. Kevin
Shuba, Assistant Attorney General, represented the Oregon
Occupational Safety and Health Division (the Division). Exhibits
1 through 7 were offered and admitted. The record closed on the
date of hearing.



                           ISSUES



I. Whether employer violated OAR 437-03-033 by failing to make
all reasonable efforts, prior to beginning work, to insure that
materials to be worked on or removed were not asbestos.



II. Whether employer violated 29 CFR 1926.58(k)(3)(ii) by
failing to insure that training concerning asbestos was given to
employees prior to, or at the time of, initial assignment.



III. Whether employer violated 29 CFR 1926.58(g)(1)(i) by
failing to insure that all engineering controls, including
ventilation and wet removal, were used to reduce employee
exposure to asbestos.



IV. Whether employer violated 29 CFR 1926.58(f)(2)(i) by failing
to insure that initial monitoring was done on each employee who
was potentially exposed to asbestos, to determine their exposure
level.



V. Whether employer violated 29 CFR 1926.58(k)(1)(i) by filing
to insure that each work site where exposures to asbestos may
exceed the "time-weighted average" (TWA) and/or "excursion"
limits were demarcated with asbestos warning signs.



VI. Whether employer violated 29 CFR 1926.58(e)(6)(i) by failing
to insure that a negative pressure enclosure was set up,
wherever feasible, during the removal of asbestos.



VII. Whether employer violated 29 CFR 1926.58(e)(6)(ii) by
failing to designate a competent person to perform the duties
described in 29 CFR 1926.58(e)(6)(ii)(A)(H) on every asbestos
removal job.



VIII. Whether the appropriate penalty for the violation charges,
if proved, is $1,000 per violation, for a total penalty of
$7,000.



                        FINDINGS OF FACT



1. At all times relevant to the Findings of Fact below, employer
was a sole proprietor doing business as North Bank Management.
Employer's business was the management of residential income
Property.



2. During October and November 1989, employer was engaged in the
renovation of the basement of a single-family rental home at
2628 SE 47th, Portland, Oregon. The rental home was owned by
someone other than employer. Employer was doing the work as part
of his property management business.



3. The basement that employer was renovating had a wall that was
20 feet long and 7 feet high. This wall had a layer of
cardboard-like material under the wall paneling. The
cardboard-like material was composed of about 70 percent
asbestos. This material was dry and friable. Asbestos fibers
were likely to break off and become airborne when the material
was disturbed. In addition to the wall material, there was some
exposed insulation tape containing asbestos in the basement.



4. As part of the basement renovation work, the wall paneling
and the underlying layer of asbestos material were torn off,
piled on the floor, and then later carried outside. The
approximate volume of the asbestos material removed was 90 to
120 gallons.



5. Two workers helped employer tear down the basement wall
materials or carry them outside. Employer paid these workers by
the day. The workers performed other duties in addition to
helping remove the basement wall materials. The workers were
subject to employer's direction and control.



6. Prior to removing the basement wall material, Willamette
Industries advised employer that those materials probably
contained asbestos. Also on October 30, 1989, before all of the
basement wall material had been removed, Penney Wolf-McCormick,
a hygienist employed by the Division, advised employer that the
basement materials probably contained asbestos. (Ex. 45.) Other
than receiving these warnings, employer did not make an effort
to survey or test whether the basement material contained
asbestos before he finished removing the materials. Material of
the type and vintage in the basement wall often contain asbestos.



7. Employer did not provide any training in asbestos hazards to
the two workers who helped remove the basement wall material. At
least one of the workers had not previously received such
training. (Ex. 43.)



8. Employer did not monitor airborne asbestos levels during
removal of the basement wall materials. There is not substantial
evidence either the airborne levels of asbestos fibers in the
basement during the removal of the wall materials exceeded, or
did not exceed, 0.2 fiber per cubic centimeter of air as an
8-hour time weighted average or 1.0 fiber per cubic centimeter
of air as averaged over a sampling of 30 minutes. (See Ex. 418
through 426.)



9. Other than sometimes wearing dust masks, employer did not use
any control methods to reduce airborne asbestos fibers during
the removal of the basement wall materials. Specifically,
employer did not employ any ventilation, vacuum, enclosure,
wetting, disposal or other control methods. Employer did not use
a negative pressure enclosure to reduce dispersal of asbestos
fibers, although such an enclosure was feasible in the basement
work area. The wall materials were generally ripped off the wall
by use of a crow bar or other means. The materials were
sometimes piled unenclosed, on the floor or ground, prior to
being hauled away.



10. Neither employer nor the two employees who helped him with
the removal of the basement wall materials were capable of
identifying asbestos hazards.



11. Employer did not use any warning signs concerning asbestos
during removal of the basement wall materials. The materials
were at times piled outside next to the neighbors yard or along
the curb next to the street.



12. Exposure to asbestos can cause asbestosis, which is a lung
disease similar to emphysema that can involve significant
disability. Exposure to asbestos can also cause potentially
fatal lung cancers. The exposures involved in removal of the
basement wall material here had a low probability of causing
these conditions.



13. On or about April 11, 1990, employer received a Citation
from the Division. The Citation charged that employer had
committed the seven violations at issue in this hearing. The
Citation proposed civil penalties of $1,000 per violation, for a
total of $7,000. (Ex. 1.) On April 13, 1990, employer filed a
request for hearing, appealing the Citation.



14. During the course of the Division's investigation of this
matter, employer did not correct any of the alleged violations
at issue in the hearing.



15. Employer's "lost workday incidence rate" for prior years is
not below current published statewide averages for employer's
Standard Industrial Classification, so far as the record proves.



                       Discussion of Findings



	Based on employer's demeanor, his prior inconsistent
statements, inconsistencies during his testimony, and more
believable contradictory evidence in the record, employer's
credibility was low. His testimony was not believable in some
respects. The Findings of Fact are made accordingly.



           ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW



	The Division has adopted, by reference, the provisions of 29
CFR 1926.58 as safety rules. OAR 437-03-001. Those rules apply
to all construction work, including removal of materials
containing asbestos and alteration or renovation of structures
that contain asbestos. 29 CFR l926.58(a)(2) and (3).



	The Division has the burden to prove that the employer violated
the sections charged. ORS 183.450(2); ORS 654.290(2).



	Mr. Heil was an employer at the time of the events described in
the Findings of Fact because the persons working with him had
engaged to furnish him services, in exchange for remuneration,
and subject to his direction and control. ORS 654.005(3) and (4).



	Mr. Heil argues that he was not an employer for purposes of ORS
Chapter 654 because those who worked for him were independent
contractors. This argument is not persuasive. While sole
proprietors who are independent contractors are not "subject"
workers for purposes of the workers' compensation laws (see ORS
656.027(7)), there is not a similar provision exempting
independent contractors from the occupational safety laws under
ORS chapter 654.



I. Failure to Determine if Materials Were Asbestos



The Division charges that employer violated OAR 437-03-033.



OAR 437-03-033 provides as follows:



"Prior to starting work, the employer shall make reasonable efforts to determine if materials to be worked on or removed contain asbestos....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 materials. A determination shall not be required when an employer assumes that the suspect material contains asbestos...and performs the work in accordance with the provisions of 29 CFR 1926.58."
Employer violated this section. He failed to take reasonable steps to determine that the basement wall materials contained asbestos, although he was warned at least twice before completing removal of the materials that that was probably the case. II. Failure to Insure Training The Division charges that employer violated 29 CFR 1926.58(k)(3)(ii). This section provides that for employers whose workers deal with asbestos, "training shall be provided prior to or at the time of initial assignment (unless the employee has received equivalent training within the previous 12 months) and at least annually thereafter." Employer violated this section. He failed to provide training in asbestos hazards to the two employees who helped remove the basement wall materials containing asbestos. At least one of those workers had never received such training. III. Failure to Use All Engineering Controls The Division charges that employer violated 29 CFR 1926.58(g)(1)(i). This section requires that an employer use one or any combination of specified control methods to achieve compliance with the TWA and/or excursion exposure limits prescribed in 29 CFR 1926.58(c). The methods specified include ventilation, vacuum, enclosure, wetting, disposal, and other feasible methods. 29 CFR 1926.58(g)(1)(i)(A)(G). The TWA exposure limit provides that an employer must ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.2 fiber per cubic centimeter of air as an eight-hour, time-weighted average. 29 CFR 1926.58(c)(1). The "excursion" exposure limit provides that an employer must ensure that no employee is exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter of air as averaged over a sampling of 30 minutes. 29 CFR 1926.58(c)(2). Employer violated 29 CFR 1926.58(g)(1)(i). Other than sometimes using dust masks, he did not use any controls to reduce airborne asbestos fibers or to attempt to achieve the TWA and/or excursion exposure limits prescribed in 29 CFR 1926.58(c). IV. Failure to Monitor Employee Exposure The Division charges that employer violated 29 CFR 1926.58(f)(2)(i). This section provides that "...each employer who has a work place or work operation covered by this standard, except as provided for in paragraphs (f)(2)(ii) and (f)(2)(iii) of this section, shall perform initial monitoring at the initiation of each asbestos...job to accurately determine the airborne concentrations of asbestos to which employees may be exposed. Rule 29 CFR 1926.58(f)(2)(ii) and (iii) concern circumstances where employers demonstrate by objective data that exposures were below the TWA and excursion limits. Employer violated 29 CFR 1926.58(f)(2)(i). He did not conduct any monitoring to determine airborne concentrations of asbestos to which employees were exposed. There is no objective data to prove that exposure levels were below the TWA and excursion limits so that initial monitoring was not required. V. Failure to Use Warning Signs The Division charges that employer violated 29 CFR 1926.58(k)(1)(i). This section provides that "warning signs that demarcate the regulated area shall be provided and displayed at each location where airborne concentrations of asbestos...may be in excess of the time-weighted average and/or excursion limit prescribed in...this section." Employer violated this section. The friable, exposed nature of the asbestos material in the basement wall, and the manner of removal of that material, created a greater than negligible possibility that airborne concentrations of asbestos would exceed the TWA and excursion limits. Despite this, employer did not use warning signs to demarcate the areas where those limits might have been exceeded. VI. Failure to Use Negative Pressure Enclosure The Division charges that employer violated 29 CFR 1926.58(e)(6)(i). This section provides that "wherever feasible, the employer shall establish negative pressure enclosures before commencing removal, demolition, and renovation operations" involving asbestos. Employer violated this section. He did not use a negative pressure enclosure in the basement, although to do so, to reduce dispersal of airborne asbestos fibers, would have been feasible. VII. Failure to Designate competent Person The Division charges that employer violated 29 CFR 1926.58(e)(6)(ii). This section provides that the employer shall designate a competent person to perform or supervise the activities regulated under 29 CFR 1926.58, concerning the removal of asbestos. A "competent person" means "one who is capable of identifying existing asbestos...hazards in the work place and who has the authority to take prompt corrective measures to eliminate them...." 29 CFR 1926.58(b). Employer violated this section. He did not employ anyone who was capable of identifying asbestos hazards during removal of the basement wall materials. VIII. Penalties The Division asserts that the employer should pay a civil penalty of $1,000 for each of the seven violations charged. An employer who commits a less than serious violation of a Division safety rule may be assessed a civil penalty of not more than $1,000 for each such violation. ORS 654.086(1)(b). An employer who commits a serious violation of a Division safety rule shall be assessed a civil penalty of not less than $50 nor more than $2,500 for each violation. ORS 654.086(1)(a). A "serious" violation exists if there is a substantial probability that death or serious physical harm could result from the violation, unless the employer did not know, and could have not have known, of the presence of the violation. ORS 654.086(2). The prescribed penalty for a safety violation that could cause a worker's death, but has a low probability of doing so, is $1,000 per violation. OAR 437-01-145(1). "Multiple violations of the same or similar statute, regulation, rule, standard or order within an establishment may be combined as one violation to indicate an "overall lack of compliance...." This is called a ''grouped violation." OAR 437-01-015(32). The penalty for a grouped violation of different rules is calculated by determining the probability and severity of injury or illness for the entire group. OAR 437-01-145(4). Employer argues that the proposed $7,000 civil penalty is too high and that a penalty of $500 or $1,000 would be more just. The penalty proposed in the citation appears appropriate, with one exception. The exception is that the violations set out in Conclusion of Law III, concerning failure to use ventilation and other controls, and Conclusion of Law VI, concerning failure to use a negative pressure enclosure, concern the same failing and should be grouped as one violation, with a total penalty of $1,000. OAR 437-15-01-015(32). An agency is not permitted to permute a single discrete act of misconduct into two or more by affixing different labels to the act. Pratt v. Real Estate Division, 76 Or App 483, 709 P2d 1134; Britton v. Bd. of podiatry Examiners, 55 Or App 544, 632 P2d 1273 (1981). Otherwise, these violations involved a low probability of significant injury or illness, including death. Therefore, a $1,000 penalty per violation is appropriate. OAR 437-01-145(1). A basis is not proved for reduction of the penalties because of any remedial efforts by employer. OAR 437-01-145(2)(a). Similarly, a basis for reduction is not proved on the basis of a comparison of employer's incidence of lost work days against the statewide average. OAR 437-01-145(2)(b). Accordingly, employer should pay a civil penalty of $1,000 for the grouped violation as well as $1,000 penalties for each of the five other violations, for a total penalty of $6,000. ORDER IT IS THEREFORE ORDERED that Citation in this matter is modified to group items 1-3 and 1-6 into a single violation with a total penalty of $1,000. The remainder of the Citation is affirmed. Employer shall pay a total civil penalty of $6,000, as required by law. 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 APR 2 5 1991 WORKERS' COMPENSATION BOARD BY Douglas Crumme' Referee