1 

Some personal identifiers have been redacted for privacy purposes 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

 OSHRC DOCKET NO. 15-0625 

Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois 

 For Complainant 

 Eric J. Miller, Esq., Eric J. Miller Law Group, Ltd., Rockford, Illinois 

 For Respondent 

Before: Administrative Law Judge Patrick B. Augustine 

DECISION AND ORDER

I. Procedural History 

 This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (“the Act”). Responding to a complaint about asbestos exposure and lack of 

adequate protection, the Occupational Safety and Health Administration (“OSHA”) initiated an 

inspection of a 3-Dimension (“Respondent”) worksite, located at 5860 N. Pulaski, Chicago, 

Illinois on September 25, 2014. (Tr. 33–34). As a result of the inspection, OSHA issued a 

Citation and Notification of Penalty (“Citation”) to Respondent, which alleges one serious 

violation of the Act and proposes a penalty of $2,200.00. The Citation was issued on March 13, 

2015. Respondent timely contested the Citation. 

Trial in this matter commenced on Monday, November 16, 2015, in Chicago, Illinois, and 

lasted for two days. Four witnesses testified: (1) Compliance Safety and Health Officer (CSHO) 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

3 DIMENSION CONSTRUCTION 

MANAGEMENT, INC., 

 Respondent.
2 

Bogdan Catalin; (2) John Mengel, principal of JSM Venture, which manages the building at 

issue; (3) Brian Harrington, owner of Respondent; and (4) Matthew Clark, Respondent’s project 

manager. The parties filed post-trial briefs.1

II. Stipulations 

The parties entered into stipulations prior to the beginning of trial. Those stipulations 

were introduced into the record as Joint Exhibit No. 1 (hereinafter “Ex. J-1”). In lieu of 

reproducing them in their entirety, the Court shall make references to the stipulations in the 

format indicated in the previous sentence. 

III. Jurisdiction 

 Pursuant to the Joint Stipulations, the Court has jurisdiction over this proceeding pursuant 

to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c). (Ex. J-1 at ¶ 

1). The Joint Stipulations also state Respondent is engaged in a business affecting interstate 

commerce and is an employer within the meaning of the Act. (Ex. J-1 at ¶¶ 5–6). See also 29 

U.S.C. § 652(c). 

IV. Factual Background 

a. Respondent’s Business 

According to Brian Harrington, who started the business in 2001, Respondent specializes 

in converting properties into self-storage facilities. (Tr. 214–15). 

Harrington testified that his company is familiar with the entire conversion process, 

including planning, construction, and implementing environmental controls. (Tr. 216). 

Approximately 85% of Respondent’s business is what Harrington termed “bid to build”, which 

means that the plans, drawings, and environmental aspects have been addressed by the owner. 

 

1. The parties were given until April 30, 2016 to file their respective briefs. Complainant’s brief was filed timely. 

Notwithstanding having five months to compose a brief, Respondent’s counsel, after being contacted by the Court’s 

legal assistant, requested a one day extension to complete the post-trial brief, twice. In response, the Court received 

a brief roughly five pages in length, excluding stipulations, the table of authority, and table of contents. Only three 

of those pages constitute argument. 
3 

All that is left for Respondent is the actual construction/conversion. The remaining 15% of 

projects constituting Respondent’s business are what Harrington referred to as “design build”, 

which includes hiring an architect, designing the facility, performing environmental analyses, 

and building the self-storage facility. (Tr. 216). 

As part of the conversion process, Respondent issues a request for bids. Subcontractors 

can base their bid on the plans and basic requirements provided by Respondent through an FTP 

site. (Tr. 217). After receiving bids, Respondent goes through a process of review and ultimately 

selects the low bidder that is capable of meeting the requirements of the job. (Tr. 218–19). Once 

an agreement is reached between Respondent and the subcontractor, they have a pre-construction 

meeting at the worksite. (Tr. 221). This meeting is designed to introduce the supervisors for both 

Respondent and the subcontractor, allow for a walkthrough of the worksite, and review the 

worksite expectations. (Tr. 221). 

In this case, Respondent hired KIPI to perform demolition services. Respondent was 

familiar with KIPI based on its work on another self-storage project run by Respondent. (Tr. 

230). According to Harrington, a representative of KIPI named “Max” walked through the 

worksite with Matt Clark, Respondent’s project manager. (Tr. 229–30). During that 

walkthrough, KIPI was informed that it was responsible for removing walls and ceilings, but the 

utilities should be left alone. (Tr. 229). Harrington also testified that KIPI was “fully 

understanding” that asbestos abatement was going to occur at some point in the renovation 

process. (Tr. 229–30). At the time KIPI was hired, however, Respondent did not verify that KIPI 

was properly qualified to handle demolition in an asbestos environment; instead, Respondent 

assumed that KIPI was certified to perform such work based on the fact that a demolition 
4 

contractor is “typically” fully certified and on KIPI’s representation that its employees had taken 

the OSHA 10-hour course.2(Tr. 249). 

b. The Worksite 

The worksite, as noted above, was located at 5860 North Pulaski Road, Chicago, Illinois. 

The single-story structure was previously a multi-purpose space that was occupied by a couple of 

different businesses. (Tr. 116, 224–25). The building itself was comprised of three separate, yet 

interconnected, large rooms and an office space at the front of the building. (Tr. 42). At the time 

of the inspection, the building was owned by 5860 Storage Properties, LLC, but managed by 

JSM Venture, LLC, which is owned by John Mengel. (Tr. 114–15). 

c. Sequence of Events 

The events that led to the inspection started with John Mengel’s purchase of the building 

in June 2014. (Tr. 116). Mengel intended to convert the building from a multi-tenant space to a 

self-storage facility. The conversion process began in approximately September 2014, when the 

remaining tenants vacated the building. (Tr. 116–17). Initially, Mengel hired T2 (also a general 

contractor) to aid him with the plans and drafting the building permit; however, beyond the 

initial paperwork, T2 had no further connection to the project. (Tr. 118–19). Shortly thereafter, 

Mengel hired Respondent as general contractor for the construction project. (Tr. 121). 

Although Respondent was hired as the general contractor, Mengel told Harrington that he 

would be entering into a separate contract for environmental remediation services. (Tr. 124, 

225). On September 9, 2014, Mengel had Ed Boomsma of Environmental Emergency 

Management Systems, Inc., perform a walkthrough of the property, identify asbestos-containing 

material (ACM) or presumed asbestos-containing material (PACM), and provide a quote for 

remediation. (Tr. 127, 228, 242–43, 302–303). Clark, Respondent’s project manager, walked the 

 

2. Harrington testified under cross-examination that, after this incident, he now requests significantly more 

certification documentation. (Tr. 249). 
5 

worksite with Boomsma and Mengel, during which time Boomsma identified ACM/PACM 

throughout the building. (Tr. 297–98). Ultimately, however, Mengel opted for the abatement 

services of Celtic Environmental (“Celtic”), whose quote was half of what Boomsma proposed. 

(Tr. 135, 298). That quote was premised on the demolition contractor, KIPI, exposing the 

ACM/PACM prior to abatement taking place. (Tr. 126, 298). Respondent had a representative 

present during Celtic’s walkthrough of the property as well. (Tr. 228). 

KIPI began demolition on September 10, 2014, before Mengel had hired Celtic. (Tr. 84; 

Ex. C-8H). Even though asbestos was previously identified during the walkthroughs with 

Boomsma and Dave Smrz of Celtic, no exposure assessment was performed and no 

precautionary measures were implemented prior to demolition beginning. (Tr. 301). Instead, 

KIPI was instructed by Clark to remove walls and ceiling grids prior to any abatement taking 

place. (Tr. 229). Further, Harrington testified that KIPI was specifically told that their job was to 

expose the asbestos-laden pipes in order to allow Celtic to perform remediation services. (Tr. 

229, 266). Thus, even though Respondent disclaims specific knowledge3

 regarding the presence 

of asbestos, it is clear that, based on the walkthroughs, Respondent was generally aware that 

KIPI would be working in close proximity to asbestos. 

Celtic performed an environmental survey on September 15, 2014. (Tr. 137, 159; Ex. C9d). Celtic’s proposal, which was sent to Mengel the same day, identifies asbestos at the 

worksite as follows: 

The 9X9 asbestos tile and mastic is found in the Pump room area of the property 

and the North East corner offices of the building as shown. 

The asbestos pipe insulation is found throughout the property in the warehouse 

area. [sic] Mezzanine and above the drop ceiling in the finished store front area. 

An excess of over 2,500 Linear Feet of pipe insulation is estimated to be in the 

property. 

 

3. Respondent requested from Mengel the Phase I Environmental survey of the property, but did not receive it until 

long after the demolition job had been completed. (Tr. 227, 267; Ex. C-4). The Phase I survey was performed in 

September 2013. (Ex. C-4). 
6 

(Ex. C-9d) (emphasis added). The key proviso to the agreement was that cost was contingent 

upon “the entire demo [being] done prior to us starting the abatement . . . .” (Id.). Of course this 

was a near-foregone conclusion—during the interim period between Boomsma’s walkthrough 

and Celtic’s proposal, KIPI had been demolishing ceilings and walls for at least 3 days. (Exs. C8a, C-8h, C-8i). According to the log book filled out by [redacted], Respondent’s 

superintendent, the ceiling tile removal in the office portion of the building was 95% complete 

on September 12, 2014. (Tr. 86; Ex. C-8i). Celtic was not scheduled to begin abatement until 

October 1, 2014. (Tr. 82; Ex. C-8f). The log books indicated that KIPI continued to perform 

demolition for five additional days after Mengel reached an agreement with Celtic. (Ex. C-8). 

d. The Inspection(s) 

 Upon receiving a complaint regarding potential asbestos hazards at the worksite, 

Complainant sent CSHO Bogdan Catalin to perform an inspection of the premises on September 

25, 2014. (Tr. 33–34). As he approached the building, CSHO Catalin observed pipes that 

appeared to be covered with asbestos insulation. (Tr. 36; Ex. C-7a). On closer inspection, CSHO 

Catalin saw that the insulation covering those pipes was damaged. (Tr. 36–37). As the CSHO 

made his way around the building, he introduced himself to [redacted], who identified himself as 

Respondent’s superintendent. (Tr. 39). CSHO Catalin conducted an opening conference with 

[redacted] and invited him to call all relevant stakeholders. (Tr. 40). CSHO Catalin informed 

both Respondent and KIPI that he would be opening an inspection of both companies. (Tr. 42). 

By the close of the opening conference, [redacted] had obtained approval from management to 

allow the inspection and accompanied CSHO Catalin during his inspection. (Tr. 42). 

 CSHO Catalin and [redacted] entered the building from the rear and worked forward 

towards the office portion of the building, which was fronted by Pulaski street. (Tr. 43). After 

entering the first room, CSHO Catalin observed ducting, ceiling or drywall framing, and piles of 
7 

debris on the floor. (Tr. 43; Ex. C-7a at 6). Similar observations were made in the second room 

from the back of the building. (Tr. 44–45; Ex. C-7a at 9). In the last, big room prior to the front 

office area, CSHO Catalin saw two scissor lifts, two bucket attachments for a Bobcat, a 

cordoned-off area that had structural concerns, as well as construction debris. (Tr. 48–49; Ex. C7a at 10–13). According to KIPI employees, the Bobcats were used to remove the ceiling 

structure, which CSHO Catalin later confirmed through observation and review of Respondent’s 

log books. (Tr. 48–49, 54–55; Ex. C-8h). Finally, CSHO Catalin approached the last room in the 

building, also known as the office area. (Tr. 50). The office, which CSHO Catalin had observed 

from the front of the building, had a pipe elbow with damaged asbestos insulation. (Tr. 50; Ex. 

C-7 at 15). CSHO Catalin determined that, in the process of removing the surrounding 

structures, the pipe was impacted and asbestos broke off. The insulation had ragged edges, 

which indicated that it was not properly removed or stripped. (Tr. 50). The office also had two 

additional asbestos-lined pipes that had been exposed by removing the ceiling framework.4

 (Tr. 

52). CSHO Catalin also found a respirator in the office area, indicating that someone needed to 

protect themselves against airborne particulate matter. (Tr. 57). 

 After taking a number of photographs, CSHO Catalin indicated that he would be 

returning for a second day of inspections. (Tr. 58). He returned to his office, briefed his 

supervisor, and contacted the City of Chicago Public Health Department due to the potential for 

asbestos debris and exposure. (Tr. 59–60). From there, CSHO Catalin; John Mengel; Barbara 

Kay, an inspector with the City of Chicago; Matt Clark and [redacted], representing Respondent; 

Joe Smrz, owner of Celtic; and Nathan Kestelyn, owner of KIPI, agreed to meet back at the 

worksite on September 30, 2014. (Tr. 59). 

 

4. CSHO Catalin confirmed that the pipe insulation was asbestos by reviewing the Phase I Environmental survey 

that was performed the year prior. (Tr. 56; Ex. C-4). 
8 

 The second inspection was carried out in much the same fashion as the first—the group 

walked the worksite, starting with the back room and proceeding to the office at the front of the 

building. (Tr. 62; Ex. C-7b). In the last room prior to the office area, CSHO Catalin 

photographed an exposed asbestos-insulated pipe that was damaged. (Tr. 63–64; Ex. C-7b at 1). 

The damage was located at a point in the ceiling where a wall had been removed, as indicated by 

the overspray of white paint on the exposed ceiling. (Tr. 63; Ex. C-7b at 1–4). CSHO Catalin 

also photographed other evidence of damaged asbestos insulation. (Tr. 66; Ex. C-7a at 5). Even 

though CSHO Catalin informed Respondent of his suspicions regarding the presence of asbestos 

in the initial inspection, it appeared as if the debris piles that had been previously located 

throughout the building were removed between the first inspection and the beginning of the 

second inspection, but there was no indication that additional precautions were taken. (Tr. 64). 

Clark testified that KIPI was responsible for removing debris. (Tr. 311). In response to the 

conditions at the worksite, Ms. Kay ordered a total cleanup of the worksite, and CSHO Catalin 

requested air clearance results. (Tr. 71). Celtic began developing an abatement plan that day. 

(Tr. 70). 

 At some point after the second inspection on September 30, 2014, CSHO Catalin 

interviewed [redacted]. (Tr. 72). At the conclusion of the interview, [redacted] sent CSHO 

Catalin three photographs illustrating the conditions of the worksite as they existed on September 

12, 2014, or roughly two weeks prior to the first inspection.5

 (Tr. 72). The photographs illustrate 

conditions similar to those observed by CSHO Catalin on September 25, 2014, including debris 

piles and the same damaged pipe insulation that he observed from outside the building during his 

inspection. (Compare Ex. C-7a to Ex. C-7c). 

 

5. CSHO Catalin testified that the date stamp on the photographs from [redacted] indicated the date of September 

12, 2014. Respondent did not put forth countervailing evidence to suggest otherwise. 
9 

 In addition to reviewing photographs, CSHO Catalin requested and reviewed the daily 

work logs kept by Respondent. (Ex. C-8). These work logs describe in detail such things as the 

nature of the workday’s operations, equipment used, and problems encountered. One notation in 

particular caught CSHO Catalin’s eye: on September 17, 2014, the log indicates that a pipe was 

hit by KIPI during demolition of the ceiling in the “West Warehouse”. (Tr. 79; Ex. C-8c).6

 

According to Harrington and Clark, Respondent cordoned off the area to prevent access and 

believed that the CMU 3R rated fire wall provided sufficient encapsulation of the asbestos and 

that tape and spray-painted lines on the floor were sufficient to prevent entry or exposure. (Tr. 

253–55, 273–74, 316–17). Interestingly, Harrington did not issue a formal directive to stay away 

from the pipes until September 22, 2014, or roughly 5 days after a KIPI employee hit the pipe. 

(Tr. 275–76; Ex. C-9b). 

 CSHO Catalin also took bulk samples from various debris piles and floor tile, and found 

that, of his samples, only the floor tile indicated asbestos content. (Ex. C-10). CSHO Catalin did 

not take samples from the pipes because he did not have appropriate equipment to do so. (Tr. 

168). However, even though the specific samples taken by CSHO Catalin did not come back 

positive, there is no dispute that the pipes identified in the photos contained asbestos. Lending 

credence to CSHO Catalin’s conclusion that his sampling results did not accurately represent the 

asbestos hazard at the worksite is a Clearance Air Sampling survey performed by Northern 

Environmental Development, Inc. (“NED”) (Tr. 98–99; Ex. C-5). CSHO Catalin testified that he 

received a copy of the survey from Smrz after Celtic completed the abatement in early October, 

2014.

7

 (Tr. 95). The NED report indicated that it applied “aggressive air sampling methods in 

 

6. The Court finds that this is damaged pipe is different than the one illustrated in the photos send by [redacted], 

which were taken on September 12, 2014 and, according to CSHO Catalin’s testimony, were in a different room. 

(Tr. 79). 

7. It is not immediately clear whether the air sampling occurred prior to or after Celtic’s remediation efforts. CSHO 

Catalin testified that he received the clearance survey results after Smrz had told him that Celtic completed 

remediation, not that they were the post-remediation survey results. (Tr. 95). Given that NED observed damaged, 
10

accordance with AHERA”, including the use of a leaf blower prior to sampling and the 

placement of 20-inch box fans that were left running during the sampling period. (Ex. C-5). The 

results of the survey indicated that the average of the five air samples was more than double the 

AHERA8

 clearance standard. (Ex. C-5). In addition to asbestos-positive air sampling results, 

NED observed damaged and friable asbestos pipe insulation still attached to the pipes as well as 

in piles on the ground. (Ex. C-5). For CSHO Catalin, this survey confirmed what his samples 

were unable to prove—the entire worksite, including various debris piles, contained asbestos. 

(Tr. 98). 

V. Discussion 

The facts of this case are, for the most part, undisputed. The real issue in this case is the 

application of the cited standard to the facts. The standard describes the general scope of the 

general contractor’s obligations and its obligations vis-à-vis the “asbestos contractor”. See 29 

C.F.R. § 1926.1101(d)(5). Respondent is the general contractor under this set of facts; however, 

the term “asbestos contractor” is left undefined and thus it is not immediately apparent how that 

term applies. See id. § 1926.1101(b). 

 Since the term “asbestos contractor” is not defined in the regulation, Complainant argues 

that the regulation is ambiguous and therefore proposes an interpretation that broadens the 

concept of an asbestos contractor into virtually any contractor at a worksite that contains 

asbestos. See Compl’t Br. at 24–26. As such, under Complainant’s interpretation, KIPI would be 

included within the scope of the term “asbestos contractor”. 

 

friable asbestos both on the pipes and on the ground, the Court infers that the clearance survey was performed preremediation, because the results of the survey indicate that remediation had not yet commenced. See Okland 

Construction Co., 3 BNA OSHC 2023, 2024 (No. 3395, 1976) (reasonable inferences can be drawn from 

circumstantial evidence). Irrespective of when the survey was performed, however, the conclusion is the same—the 

worksite was contaminated with asbestos. The only difference is whether KIPI employees were potentially exposed 

to more than double the AHERA clearance standard during its demolition efforts, or whether the asbestos level was 

conceivably higher (if we assume that the survey took place after Celtic performed remediation). 

8. “AHERA” stands for Asbestos Hazard Emergency Response Act. See generally 15 U.S.C. § 2641. 
11

 Respondent contends that Celtic, not KIPI, was the asbestos contractor and that Mengel’s 

separate contract with Celtic absolved Respondent of its responsibilities under 1926.1101(d)(5).9

Resp’t Br. at 9. Respondent premises its interpretation of the standard on the definition found in 

AHERA. See 15 U.S.C. § 2642(1). 

 Based on what follows, the Court finds that, although Complainant’s suggested 

interpretation of the standard is unduly broad, he nonetheless established that KIPI was 

performing the duties of an asbestos contractor, that Respondent violated the standard, and that 

the violation was serious. 

a. Legal Standard 

To establish a prima facie violation of section 5(a)(2) of the Act, Complainant must 

prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; 

(3) one or more of the employees had access to the cited condition; and (4) the employer knew, 

or with the exercise of reasonable diligence could have known, of the violative condition. Ormet 

Corp., 14 BNA OSHC 2134 (No. 85-0531, 1991). 

b. Citation 1, Item 1 

Complainant alleged a serious violation of the Act as follows: 

29 CFR 1926.1101(d)(5): As supervisor of the entire project, the general 

contractor did not ascertain whether the asbestos contractor was in compliance 

with the asbestos standard, and did not require such contractor to come into 

compliance with this standard: 

 

9. Respondent proffers one additional, quasi-constitutional argument that, even under the most deferential 

treatment, is difficult to understand and just plain wrong. As far as the Court can tell, Respondent seems to suggest 

that cited standard contravenes “construction common law” without making it entirely clear what aspect of the 

common law is being contravened or how the cited standard conflicts with it. Resp’t Br. at 8. To the extent that 

Respondent is suggesting that it is inappropriate to hold a general contractor responsible for ensuring the safe 

operations of its subcontractors, the Court would note the overwhelming Commission and circuit court precedent to 

the contrary. See McDevitt Street Bovis, Inc., 19 BNA OSHC 1108 (No. 97-1918, 2000). To the extent that 

Respondent’s argument implies that the standard contains an exception merely because it states that “the general 

contractor is not qualified to serve as the asbestos ‘competent person’”, such an argument is belied by the second 

sentence of the standard, which clearly expresses the general contractor’s obligations with respect to the asbestos 

contractor. This argument is a reflection of the amount of time the Court perceives Respondent spent drafting its 

brief. See fn.1, supra. 
12

a. The employer, acting as a General Contractor, requested, directed and 

approved of sub-contractor employee(s) to conduct interior demolition. While 

demolishing ceiling structures and dividing drywall partitions, subcontractor 

employee(s) damaged pipe(s) covered with ACM/PACM thermal system 

insulation. The General Contractor did not require the sub-contractors performing 

demolition work to come into compliance with 1926.1101 asbestos standard. 

(Ex. C-1). 

 The cited standard provides: 

All general contractors on a construction project which includes work covered by 

this standard shall be deemed to exercise general supervisory authority over the 

work covered by this standard, even though the general contractor is not qualified 

to serve as the asbestos “competent person” as defined by paragraph (b) of this 

section. As supervisor of the entire project, the general contractor shall ascertain 

whether the asbestos contractor is in compliance with this standard, and shall 

require such contractor to come into compliance with this standard when 

necessary. 

29 C.F.R. § 1926.1101(d)(5). 

i. The Standard Applies 

 With respect to the cited standard, Complainant contends that the term “asbestos 

contactor” should be interpreted as broadly as the scope of the standard itself, which is to say that 

any contractor performing work at a site with the potential for asbestos exposure is an asbestos 

contractor. See Resp’t Br. at 25–26. The question is whether Complainant’s interpretation is 

entitled to deference. “When determining the meaning of the standard, the Commission must 

first look to its text and structure.” The Davey Tree Expert Co., 2016 WL 845440 at *1 (No. 11-

2556) (citing Superior Masonry Builders Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003)). 

If the meaning of the standard’s language is “sufficiently clear” the inquiry ends. Unarco Comm. 

Prods., 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993). However, if “the meaning of the 

regulatory language is not free from doubt”, the standard is ambiguous. Martin v. OSHRC (CF&I 

Steel Corp.), 499 U.S. 144, 150–51 (1991). Only in that instance will the Commission defer to 

Complainant’s reasonable interpretation of the standard. See id; Unarco, 16 BNA OSHC at 
13

1502–1503. However, both the courts and the Commission have rejected Complainant’s 

interpretation of a standard when it strains the plain meaning of the regulatory text. See, e.g., 

Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, (No. 89-1206, 1993). 

 “A regulation is ‘ambiguous’ as applied to a particular dispute or circumstance when 

more than one interpretation is ‘plausible’ and ‘the text alone does not permit a more definitive 

reading.”’ Exelon Generation Co. v. Local 15, Int'l Bhd. of Elec. Workers, 676 F.3d 566, 570 

(7th Cir. 2012) (citing Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 207 (2011)). However, 

“a reviewing court should not confine itself to examining a particular statutory provision in 

isolation. The meaning—or ambiguity—of certain words or phrases may only become evident 

when placed in context.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 

(2000); see also Am. Fed’n of Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 737, 740 (D.C. Cir. 

1986) (“[R]egulations are to be read as a whole, with each part or section . . . construed in 

connection with every other part or section”) (internal quotation marks and citation omitted); 

Summit Contractors, Inc., 23 BNA OSHC 1196, 1202–1203, (No. 05-0839, 2010) (noting rule of 

statutory construction that every word be given effect), aff’d per curiam, 442 F. App’x 570 (D.C. 

Cir. 2011) (unpublished); E. Smalis Painting Co., 22 BNA OSHC 1553, 1580, (No. 94-1979, 

2009) (same). As such, the disputed provision should first be read within the context of the 

asbestos standard as a whole. If the ambiguity cannot be resolved, the Court will defer to 

Complainant’s interpretation of the standard unless it is “plainly erroneous or inconsistent with 

the regulation.” Auer v. Robbins, 519, U.S. 452, 461 (1997). 

 At the most general level, the asbestos in construction standard applies to the work at 

the worksite. According to the scope and application paragraph, “This section regulates asbestos 

exposure in all work as defined in 29 CFR 1910.12(b), including but not limited to the following: 

Demolition or salvage of structures where asbestos is present . . . ; construction, alteration, 
14

repair, maintenance, or renovation of structures, substrates, or portions thereof that contain 

asbestos . . . .” 29 C.F.R. § 1926.1101(a)(1), (3). The overwhelming weight of the evidence 

shows that the worksite was contaminated with asbestos. Further, the work performed by KIPI 

and supervised by Respondent, whether considered demolition or renovation, is covered by the 

standard.10

 

 Although it is left undefined, the term “asbestos contractor” appears to have a specific 

meaning; the term is only used twice throughout the entire asbestos standard. See 29 C.F.R. § 

1926.1101(b). The context in which the term is used, however, indicates that its application was 

intended to be far more restrictive than the construction Complainant now advocates. This is 

particularly evident in subsection (d) of the asbestos standard, which is where the provision cited 

by Complainant is located and the only portion of the standard where the term “asbestos 

contractor” is used. Subsection (d)(1) provides: 

On multi-employer worksites, an employer performing work requiring the 

establishment of a regulated area shall inform other employers on the site of the 

nature of the employer’s work with asbestos . . . and the measures taken to ensure 

that employees of such other employers are not exposed to asbestos.

Id. § 1926.1101(d)(1) (emphasis added). This section essentially breaks the worksite into two 

camps: (1) employers whose work with asbestos requires the establishment of a regulated area; 

and (2) other employers at the worksite. See id. The employer whose work requires the 

establishment of a regulated area, in turn, has an obligation to inform “other employers” of the 

nature of its work and to take measures to prevent the employees of “other employers” from 

becoming exposed. Subsection (d)(2) further clarifies that asbestos hazards are to be abated by 

“the contractor who created or controls the source of asbestos contamination”, or the same 

 

10. The Court mentions both renovation and demolition in light of the standard’s definition of “demolition”, which 

is defined as the “wrecking or taking out of any load-supporting structural member and any related razing, 

removing, or stripping of asbestos.” 29 C.F.R. § 1926.1101(b). The testimony was unclear as to whether loadsupporting members of the building were removed. However, the definition of “renovation” means the modifying 

of any existing structure, or portion thereof. Id. In either case, the standard applies, and, as will be discussed later, 

under either definition KIPI qualifies as an “asbestos contractor.” 
15

contractor whose work requires the establishment of a regulated area. Id. § 1926.1101(d)(2). On 

the other hand, subsection (d)(3) indicates the obligations of “all employers of employees” 

exposed to asbestos hazards, including those working adjacent to a regulated area. Id. § 

1926.1101(d)(3) (emphasis added). In other words, there are generally applicable obligations for 

all employers of employees that are potentially exposed to asbestos, and there are more specific 

obligations for an employer who creates or controls the source of asbestos contamination and 

thus requires the establishment of a regulated area. 

 Subsection (d)(4) is the first provision to use the term “asbestos contractor”. Specifically, 

it states: 

All employers of employees working adjacent to regulated areas established by 

another employer on a multi-employer worksite, shall take steps on a daily basis 

to ascertain the integrity of the enclosure and/or the effectiveness of the control 

method relied on by the primary asbestos contractor to assure that asbestos fibers 

do not migrate to such adjacent areas. 

Id. § 1926.1101(d)(4) (emphasis added). By describing the obligations of “all employers of 

employees” in relation to the work of the “primary asbestos contractor”, the standard makes clear 

that: (1) the “asbestos contractor” is responsible for controlling the migration of asbestos fibers; 

and (2) all employers with employees that are potentially exposed to asbestos are responsible for 

ensuring that the control methods implemented by the asbestos contractor are effective insofar as 

such methods prevent the migration of asbestos fibers into adjacent work areas. Id. When read in 

conjunction with sections (d)(1), (d)(2), and (d)(3), there is a clear dichotomy between asbestos 

contractors and other employers of employees. There is the contractor who creates or controls 

the source of asbestos contamination and who, by virtue of such work, is required to establish a 

regulated area and employ a competent person. Id. § 1926.1101(d)(1)–(5). Then, there are all 

“other employers”, whose obligations are triggered by their proximity to regulated areas and the 

attendant likelihood of asbestos exposure. See id. § 1926.1101(d)(1); see also id. § 
16

1926.1101(g)(9) (“Class III asbestos work shall be conducted using . . . controls which minimize 

the exposure to employees performing the asbestos work and to bystander employees.”). 

 The general contractor has obligations with respect to both groups (it is deemed to 

exercise supervisory authority); however, its obligations vis-à-vis the “asbestos contractor” are 

more specific and relate to the creation and/or control of asbestos contamination, which requires 

the employment of a competent person. 

 According to the standard, a competent person is defined as: 

[O]ne who is capable of identifying existing asbestos hazards in the workplace 

and selecting the appropriate control strategy for asbestos exposure, who has the 

authority to take prompt corrective measures to eliminate them, as specified in 29 

CFR 1926.32(f): in addition, for Class I and Class II work who is specially trained 

in a training course which meets the criteria of EPA's Model Accreditation Plan 

(40 CFR 763) for supervisor, or its equivalent and, for Class III and Class IV 

work, who is trained in a manner consistent with EPA requirements for training of 

local education agency maintenance and custodial staff as set forth at 40 CFR 

763.92 (a)(2). 

Id. § 1926.1101(b). This provision indicates both the general expectations for a competent 

person, as well as the required core competencies of that person based on the class of work being 

performed. In addition, section (e), which discusses regulated areas, states that “the employer 

shall ensure that all asbestos work performed within regulated areas is supervised by a competent 

person.” Id. § 1926.1101(e)(6); see also id. § 1926.1101(d)(1) ([A]n employer performing work 

requiring the establishment of a regulated area shall inform other employers on the site . . . .”). 

The type of work which is required to be performed in regulated areas is Class I, II, III, or 

“where airborne concentrations of asbestos exceed, or there is a reasonable probability they may 

exceed a PEL”, which covers certain types of Class IV work. Id. § 1926.1101(e)(1).11

 

 

11. Under Complainant’s interpretation there would be no need for these four classifications to exist because any 

contractor working in a building that had asbestos, even though the work they were performing is not asbestosrelated, would be an “asbestos contractor.” This further convinces the Court that his interpretation is unreasonable 

since it would repeal important distinctions and requirements of the regulation. 
17

 The Court is cognizant of Complainant’s motivation to provide the broadest protection 

possible; however, the protections afforded by the standard do not require expansion of the term 

“asbestos contractor” in order to assure their effectiveness. Subsection (d) as a whole indicates 

the manner in which every employer of employees is expected to comply with the asbestos 

standard. To the extent that the cited provision already requires the general contractor “to 

exercise general supervisory authority over the work covered by this standard”, there is no need 

to expand the term “asbestos contractor” to include all contractors, regardless of the actual work 

they perform, on a worksite that contains asbestos. 29 C.F.R. § 1926.1101(d)(5). The cited 

provision simply makes it clear that even though the general contractor may not employ a 

competent person, it is still expected to exercise its “supervisory authority” over those employers 

whose work requires one. As noted above, the type of work that requires a competent person is 

Class I, II, III, and IV. 

 Although the term “asbestos contractor” is not specifically defined in subsection (b), it is 

nonetheless given contour by the standard as a whole. Subsection (d) indicates that an asbestos 

contractor is a contractor that creates or controls the source of asbestos contamination, which 

requires the services of a competent person and, in most cases, the establishment of a regulated 

area. The remainder of the standard confirms that if the work you are performing involves the 

control or creation of asbestos contamination and requires both the establishment of a regulated 

area and the employment of a competent person, then you are engaged in one of the work 

classifications established by subsection (g). See generally id. § 1926.1101(g); see also id. § 

1926.1101(b) (defining “competent person”). Thus, the Court finds, when the regulation is read 

as a whole, the term “asbestos contractor” is not ambiguous, but rather connotes an employer 

engaged in Class I, II, III, or IV work as those classes are defined in the regulation. Therefore, 

Complainant’s proposed interpretation is not entitled to deference. 
18

 That Complainant’s proposed interpretation is overly broad does not end the discussion. 

Coincident with its proposed interpretation, Complainant contends that the term “asbestos 

contractor” applies to Respondent’s work specifically because it was engaged in demolition 

operations in an asbestos-contaminated building, which is work covered by the terms of the 

standard. See id. § 1926.1101(a)(1). Utilizing the definition of “asbestos contractor” determined 

by the Court, the question then becomes: whether the demolition work performed by KIPI 

constituted Class I, II, III, or IV work? Based on what follows, the Court finds that Respondent 

was engaged in Class I work, which means that the standard applies as alleged by Complainant. 

 Based upon the facts presented, the Court finds Respondent was not engaged in either 

Class II or Class IV work. Class IV work is custodial in nature and involves contact with, but 

not the disturbance of, ACM and PACM. See 29 C.F.R. § 1926.1101(b) (defining “Class IV 

asbestos work”). Class II work involves the removal of ACM “which is not thermal system 

insulation”. Id. (defining “Class II asbestos work”). Respondent was not merely performing 

clean-up or maintenance services, and at least some of the ACM involved was TSI. Thus, if 

KIPI is an asbestos contractor as alleged, it is either a Class I or Class III asbestos contractor. 

 All of the parties involved in the conversion of the worksite were aware of the scope of 

the work performed by KIPI. Harrington, Mengel, and Clark testified that KIPI was hired to 

expose, but not disturb, pipes and other utilities that they knew, or at least should have known, 

contained asbestos. The demolition work involved the removal of walls, as well as the removal 

of ceiling tiles and the suspended structure that holds the tiles in place. The walls ran 

perpendicular to some of the asbestos-covered pipes, and the structure holding the ceiling tiles in 

place was attached to the solid, structural portion of the ceiling, adjacent to the same pipes. (Ex. 

C-7c at 3, C-7b). In some instances, the ceiling was removed by using chain come-alongs 

attached to a skidsteer or Bobcat. KIPI was also required to remove debris from the worksite. 
19

(Tr. 247–48). At no point were precautions taken to protect against asbestos exposure, save for 

warnings that KIPI should avoid hitting the pipes. (Tr. 291, Ex. C-9b). 

 The photographs taken by CSHO Catalin and [redacted] illustrate the results of KIPI’s 

demolition work: multiple locations where the asbestos surrounding a pipe was damaged and in a 

friable condition, and multiple piles of debris that, upon further inspection by NED, were 

identified as containing asbestos. (Ex. C-5, C-7). Further, the results of the survey performed by 

NED showed that the average of the five air samples taken was more than double the AHERA 

clearance standard. (Ex. C-5). The Court concludes that KIPI was engaged in work covered by 

the standard—it performed demolition services in a building, known by Respondent to contain 

asbestos, and damaged multiple asbestos-insulated pipes in the process. 

 According to the standard, “demolition” is defined as “the wrecking or taking out of any 

load-supporting structural member and any related razing, removing, or stripping of asbestos.” 

Id. § 1926.1101(b). Though there was not explicit testimony on the issue of whether loadsupporting structural members were removed during the process of converting the building, both 

parties have characterized KIPI’s work as demolition.12 (J-1 at ¶4). The asbestos that KIPI 

damaged during the process was identified as thermal system insulation, or TSI. (Tr. 135, 204; 

Ex. C-4). 

 The standard defines a Class I asbestos work as “activities involving the removal of TSI 

and surfacing ACM and PACM.” Id. “Removal” is further defined as “all operations where 

ACM and/or PACM is taken out or stripped from structures or substrates, and includes 

demolition operations.” Id. (emphasis added).13

 This understanding of demolition as Class I 

 

12. The Court makes note of the definition of demolition to point out that KIPI’s work, to the extent that it did not 

involve the removal of a structural member, could also just as easily be characterized as “renovation”, which the 

asbestos standard defines as “the modifying of any existing structure, or portion thereof”. 29 C.F.R. § 1926.1101(b); 

see also id. (defining “repair”). 

13. The preamble expands on this definition: “‘Removal’ means all operations where ACM and/or PACM is 

removed from a building component, regardless of the reason for the removal. It includes those maintenance, repair, 
20

asbestos work is supported by the preamble to the asbestos standard: “Exposures to asbestos in 

the construction industry were classified into six activity categories: . . . Demolition—

involving14 asbestos removal prior to the demolition of all or part of a building or industrial 

facility that contains asbestos materials. Demolition falls under asbestos work Class I as defined 

in the revised standard.” 59 Fed. Reg. at 41,041 (emphasis added); see also id. (discussing 

building renovation and remodeling, including the demolition of drywall, as covered by 

classification standard). 

 The clear import of the foregoing passages is that demolition, whether partial or total, is 

characterized as Class I asbestos work. This stands to reason because, as this case illustrates and 

the preamble discusses, demolition is a destructive activity. Tearing down walls and removing 

structural components in close proximity to asbestos creates a strong likelihood of the creation 

of, and exposure to, damaged or friable asbestos. See 29 C.F.R. § 1926.1101(a)(1). In this case, 

such exposure occurred as evidenced by the damaged pipe sections photographed by CSHO 

Catalin and [redacted] and the air sampling results performed by NED. Subsequently, the 

asbestos that was damaged and, in some cases, fell to the ground, was removed from the 

worksite by KIPI. Based on the foregoing, the Court finds that KIPI was engaged in Class I 

asbestos work. Accordingly, the Court finds that Complainant properly characterized KIPI as an 

asbestos contractor. 

 Prior to moving on, the Court would like to address the arguments of Respondent 

regarding the application of the cited standard. First, Respondent seems to suggest that because 

 

renovation and demolition activities where ACM and/or PACM removal is incidental to the primary reason for the 

project, as well as where removal of ACM and/or PACM is the primary reason for the project. Removal should be 

distinguished from “disturbance” which includes “cutting away” a small amount of ACM or PACM.” Occupational 

Exposure to Asbestos, 59 Fed. Reg. 40,964, 40,978 (August 10, 1994); see also id. at 40,990 (Class I asbestos work 

consists of the “removal” of asbestos-containing TSI and surfacing material and of PACM, including demolition 

operations involving these materials.”). 

14. The Court highlights this word to point out that it appears to be a typo. In the other five “activity categories” 

mentioned in the preamble, all of the subsequent explanations begin with the word “including” to indicate that the 

explanation that follows the activity category is an example of that type of activity. See 59 Fed. Reg. at 41,041. 
21

Complainant failed to introduce evidence that indicated KIPI was a certified asbestos contractor, 

the Court cannot find that KIPI was an asbestos contractor. Resp’t Br. at 9. Whether KIPI was a 

certified asbestos contractor has no bearing on whether Respondent had a responsibility, as 

general contractor, to ensure that KIPI was complying with the requirements of the asbestos 

standard. The determining factor is the type of work that KIPI was performing, not the manner in 

which the parties characterized its work pursuant to this particular building contract. See, e.g., 

GEM, Inc., 22 BNA OSHC 1843 (No. 1924, 2009) (ALJ Spies) (“[C]ontract designations are 

private agreements; their terms are not controlling.”). As the Court concluded above, KIPI 

performed demolition operations in a building contaminated with asbestos, which the standard 

characterizes as Class I asbestos work. In order to perform Class I asbestos work, KIPI is 

required to have a competent person certified pursuant to 40 C.F.R. § 763. Regardless of 

whether KIPI was certified, however, it was incumbent upon Respondent to ensure that KIPI 

adhered to the requirements for Class I asbestos work.15 See 29 C.F.R. § 1926.1101(d)(5). 

 Second, there is nothing in the Act to suggest that the “asbestos contractor” be a singular 

entity, as Respondent seems to argue. Clearly, Celtic was an asbestos contractor; however, as the 

tier system suggests, different entities, depending on the type of work they are performing, could 

conceivably be asbestos contractors. See generally 29 C.F.R. § 1926.1101(g). Further, the use 

of the term “primary asbestos contractor” contemplates that more than one asbestos contractor 

may be on site at any given time. See id. § 1926.1101(d)(4). For example, in an interpretation 

letter issued by Complainant, the Director of Enforcement Programs stated that “if you use a 

separate crew of workers for doing final cleanup at the demolition site, the standard’s training 

requirements for performing Class IV asbestos work apply for those workers.” Richard E. 

Fairfax, “Application of Asbestos Standard to Demolition of Buildings with ACM in Place” 

 

15. Ensuring that KIPI had a properly certified competent person would have been one of those requirements. 
22

(August 26, 2002).16 Again, as noted above, the Court is not bound by the terminology used in 

the various contracts entered into by the parties—while Celtic may have been an asbestos 

contractor, there is nothing in the standard to prevent KIPI from also being an asbestos 

contractor. 

 Finally, Respondent appears to suggest that it should not be held responsible for the acts 

of the asbestos contractor because Mengel contracted separately with Celtic. Regardless of 

whether Respondent was a party to the environmental remediation contract with Celtic, the 

standard nonetheless imposes a duty upon Respondent to ensure that asbestos contractors comply 

with the terms of the standard. See Central of Georgia R. Co. v. OSHRC, 576 F.2d 620, 624 (5th 

Cir., 1978 (“[A]n employer may not contract out of its statutory responsibilities under OSHA.”). 

Even assuming that Respondent did not have a duty to ensure Celtic’s compliance, it still had a 

duty to ensure that KIPI complied with the terms of the asbestos standard. 

 Though Complainant’s proposed expansion of the term “asbestos contractor” is unduly 

broad, the foregoing discussion illustrates that, in this case, such an expansion is unnecessary. 

The work of KIPI, regardless of how it may have been characterized by Respondent, Mengel, or 

Smrz, was the type of work that the asbestos standard categorizes as the work of an asbestos 

contractor. Regardless of whether KIPI was a certified asbestos contractor (there is no evidence 

of this either way), it was performing a job that required such certification. There is no need to 

expand (d)(5)’s application to contractors whose employees may be exposed to, but do not 

directly work with, asbestos. See generally 29 C.F.R. § 1926.1101(d). Those employers are 

already under the umbrella of a general contractor’s “supervisory authority”. A plain reading of 

the standard as a whole makes it clear that KIPI was performing the work of an asbestos 

 

16. That same interpretation letter also discussed the application of the proper asbestos standard in the context of 

building demolition without first removing ACM. See Fairfax, supra. According to that interpretation, “Demolition 

of a building with ACM left in place falls under the definition of removal of installed ACM. . . . If any asbestoscontaining thermal system insulation or surfacing material is left installed in the building, then the work being 

performed is Class I asbestos work.” Id. 
23

contractor and that Respondent, as general contractor, had an obligation to ensure that KIPI 

complied with applicable provisions of the standard “even though [Respondent] is not qualified 

to serve as the asbestos ‘competent person’”. Id.

ii. The Terms of the Standard Were Violated 

 Respondent failed to ensure KIPI’s compliance with the asbestos standard. There is 

nothing in the photographs, testimony, or documentary evidence to suggest that KIPI 

implemented even the most basic asbestos control measures during the eight documented days of 

work between the start of the job and the inspection by CSHO Catalin. Respondent was 

represented on the worksite every day by [redacted], who observed KIPI’s work and filled out 

the daily reports. (Tr. 39; Ex. C-8). Respondent was aware that KIPI was hired to perform 

demolition, but only to the extent that it exposed asbestos-laden pipe. Nevertheless, having been 

informed of the asbestos content of the building, Respondent did not ascertain whether KIPI was 

in compliance with the asbestos standard (it was not) and did not require KIPI to “come into 

compliance” when it was apparent that such precautions were necessary. Accordingly, the Court 

finds Respondent violated the terms of the standard. 

iii. Respondent Knew or, with the Exercise of Reasonable Diligence, 

Could Have Known of the Violative Condition 

 “To establish knowledge, Complainant must prove that the employer knew or, with the 

exercise of reasonable diligence, should have known of the conditions constituting the violation.” 

Jacobs Field Svcs. N.A., 2015 WL 1022393 at * 3 (No. 10-2659, 2015) (citing Contour Erection 

& Sliding Sys., Inc., 22 BNA OSHC 1072, 1073 (No. 06-0792, 2007)). To determine reasonable 

diligence, the Court considers several factors, including “an employer’s obligation to inspect the 

work area, anticipate hazards, take measures to prevent violations from occurring, adequately 

supervise employees, and implement adequate work rules and training programs.” Id. (citations 

omitted); see also N&N Contractors, Inc., 18 BNA OSHC 2121 (No. 96-0606, 2000). 
24

 “The actual or constructive knowledge of an employer’s foreman can be imputed to the 

employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82–928, 1986). 

“An employee who has been delegated authority over other employees, even if only temporarily, 

is considered to be a supervisor for the purposes of imputing knowledge to an employer.” Paul 

Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379, 1381–82 (No. 76–4271, 1981). It is the 

substance of the delegation of authority, not the formal title of the employee having such 

authority, that determines whether a person is properly characterized as a supervisor. Dover 

Elevator Co., 16 BNA OSHC 1281 (No. 91-862, 1993). See Diamond Installations, 21 BNA 

OSHC 1688 (No. 02-2080, 2066) (permitting imputation of knowledge to employer based on 

temporary delegation of authority). The Commission has also held that an individual empowered 

to take corrective action, or is responsible for ensuring that work is done safely, can be 

considered a supervisor for the purposes of imputing knowledge to the employer. See Rawson 

Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003); Kern Bros. Tree Svc., 18 

BNA OSHC 2064 (No. 96-1719, 2000). 

 Although Respondent made multiple attempts to disclaim knowledge of asbestos 

contamination at the worksite, there are ample counterexamples throughout the record: (1) 

Harrington walked the worksite with Mengel to discuss the scope of the project, during which 

time Mengel informed Harrington about the presence of asbestos and that he was hiring an 

outside contractor for environmental remediation; (2) Respondent’s Project Manager, Matt 

Clark, did a walkthrough of the worksite with Ed Boomsma, who identified ACM in the building 

and provided Mengel with a quote for remediation services; (3) Respondent directed KIPI to 

remove the drop ceiling, but to avoid hitting the asbestos-laden pipes that rested above it; and (4) 

two days after the walkthrough with Boomsma, Respondent participated in another walkthrough 

with Dave Smrz from Celtic, who specifically directed Respondent to expose the affected areas, 
25

but not to go any further. (Tr. 223–29). Thus, through Harrington and Clark, Respondent had 

actual knowledge of the presence of asbestos throughout the worksite. Since both Clark and 

Harrington are members of management, the Court finds that their knowledge is properly 

imputable to Respondent. 

 For the sake of argument, however, if we assume that Respondent was somehow unaware 

of the presence of asbestos at the worksite, the Court would still find that Respondent had 

constructive knowledge of both the presence of asbestos and its attendant duty to ensure KIPI 

complied with the standard. Harrington testified that approximately 15% of the conversions that 

Respondent performs involve the entire process, including environmental remediation. (Tr. 216). 

Respondent’s experience in this area means that it is familiar with the rules regarding “presumed 

asbestos containing material” or PACM. According to the standard, any TSI or surfacing 

material found in buildings constructed prior to 198017 will be presumed to contain asbestos 

unless “rebutted pursuant to paragraph (k)(5) of this section.” 29 C.F.R. § 1926.1101(b). As the 

evidence shows, there was nothing to rebut the presence of asbestos; rather, the observations of 

environmental remediation experts and subsequent analysis of the materials confirmed the 

presence of asbestos in the areas indicated by Boomsma and Smrz. Thus, it was incumbent upon 

Respondent to presume that the material on the pipes was asbestos-containing. 

 Under this set of facts, the Court finds that Respondent failed to exercise reasonable 

diligence in both identifying and responding to a known hazard. Harrington testified that he 

relied on the representations of Mengel as to the nature and extent of the asbestos hazard, 

notwithstanding that: (1) it was directly aware of the extent of the asbestos contamination 

through the various walkthroughs that Respondent’s representatives participated in during the 

initial stages of the job; and (2) Respondent should have operated under the assumption that 

 

17. Testimony established that Respondent was aware the building was constructed prior to 1980. (Tr. 277–278). 
26

asbestos was located throughout the building based on its age and the materials present 

throughout. Even though Respondent has performed (or contracted for) asbestos remediation 

services during these self-storage conversion projects, and even though Respondent knew that 

asbestos hazards were present, no additional measures were taken. Even if the Court were to 

accept (which it does not) that Respondent did not actually know that there was a hazard, then 

these facts illustrate that Respondent should have. Whether it was the age of the building and the 

built-in presumption regarding the asbestos content of certain building materials or the fact that 

the scope of work was explicitly described as demolition without disturbing asbestos, 

Respondent cannot credibly disclaim knowledge of violative conditions. Accordingly, the Court 

finds Respondent had both actual and constructive knowledge of both the extent and nature of 

the asbestos contamination. 

iv. Respondent’s Employees Were Exposed to the Hazard 

The Commission does not require definitive proof of actual exposure to the hazard; 

rather, the question is whether employees have access to the hazard. Gilles & Cotting, Inc., 3 

BNA OSHC 2002 (No. 504, 1976). Access to a hazardous condition exists “if there is a 

‘reasonable predictability’ that employees ‘will be, are, or have been in’ the ‘zone of danger.’” 

Kokosing, 17 BNA OSHC 1869 (citing Capform, Inc., 16 BNA OSHC 2040 (No. 91-1613, 

1994)). 

 “[A]n employer who either creates or controls the cited hazard has a duty under § 5(a)(2) 

of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other 

employers ‘engaged in the common undertaking.’” McDevitt Street Bovis, 19 BNA OSHC 1108 

(97-1918, 2000) (quoting Anning-Johnson, 4 BNA OSHC 1193, 1199 (No. 3694, 1976)). “An 

employer may be held responsible for the violations of other employers ‘where it could 

reasonably be expected to prevent or detect and abate the violations due to its supervisory 
27

authority and control over the worksite.”’ Summit Contractors, Inc., 23 BNA OSHC 1196 (No. 

05-0839, 2010) (quoting McDevitt at 1109). According to the cited standard, Respondent (as 

general contractor) is “deemed to exercise general supervisory authority over the work covered 

by this standard . . . .” 29 C.F.R. § 1926.1101(d)(5). 

 KIPI was hired to perform demolition throughout the entire worksite. As a condition of 

Celtic’s contract with Mengel, it was understood that KIPI was hired to expose, but not remove, 

asbestos. According to multiple sources, the building had roughly 2500 linear feet of asbestoslined pipe. During the course of the demolition process, pipe insulation was damaged, hanging 

from the ceiling, and ultimately observed in debris piles on the floor of the building. 

Additionally, subsequent air testing revealed an airborne asbestos concentration more than 

double the accepted clearance rate. (Ex. C-5). 

 The damaged insulation, coupled with the aforementioned test results, show that KIPI 

employees were exposed to asbestos contamination during the demolition process. According to 

the cited standard, Respondent is deemed to exercise general supervisory authority over the 

worksite and, as such, “could be reasonably expected to prevent or detect and abate violations 

due to its supervisory authority and control . . . .” McDevitt, 19 BNA OSHC at 1109. Based on 

that authority and control, Respondent is obligated “to protect not only its own employees, but 

those of other employers ‘engaged in the common undertaking.’” See id., supra. Respondent and 

KIPI were engaged in the common undertaking of preparing the worksite for environmental 

remediation and, eventually, conversion to a self-storage facility. Thus, the Court finds that 

Respondent was obligated to supervise and protect KIPI’s employees as if those employees were 

its own. In addition, Respondent’s worksite superintendent, [redacted], was present at the 

worksite every day, supervising KIPI’s work, which means he was also exposed to the 
28

contamination caused by KIPI’s demolition activities. (Tr. 262). Accordingly, the Court finds 

that Respondent’s employees were exposed to the hazard. 

v. The Violation was Serious 

 A violation is classified as serious under the Act if “there is substantial probability that 

death or serious physical harm could result.” 29 U.S.C. § 666(k). Commission precedent 

requires a finding that “a serious injury is the likely result if an accident does occur.” Mosser 

Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010) (citation omitted); see Omaha 

Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779, 784 (8th Cir. 2002). Complainant does not 

need to show there was a substantial probability that an accident would occur; he need only show 

that if an accident did occur, serious physical harm could result. See Trinity Industries, Inc., 504 

F.3d 397, 401 (3d Cir. 2007). 

 In Trinity Industries, a foundry owner hired a contractor to perform work on a furnace. 

Id. at 399. During the course of the work, an employee of the contractor identified an insulation 

blanket that was later determined to contain 5% amosite asbestos. Id. Trinity was cited for 

failing to determine the location and quantity of asbestos and failing to notify the contractor 

regarding the same. Id. The Administrative Law Judge determined that the violations were not 

serious because the Secretary failed to meet her burden of showing “any significant exposure to 

asbestos”. Id. The Commission did not direct the case for review. On appeal, the Third Circuit 

Court of Appeals reversed. The Third Circuit held: 

[T]he question is whether, as a result of the failure to test and notify, it was 

possible that an accident could occur in which it was substantially probable that 

death or serious physical harm would result. See, e.g., Phelps Dodge Corp., 725 

F.2d at 1240; Secretary of Labor v. Miniature Nut & Screw Corp., 17 BNA 

OSHC 1557 (O.S.H.R.C.1996); Secretary of Labor v. Dec–Tam Corp., 15 BNA 

OSHC 2072 (O.S.H.R.C.1993). Given that the violations made it possible that 

workers could unwittingly stumble into large amounts of asbestos without 

adequate protection, there was no need to show that Pli–Brico employees suffered 

any actual exposure to asbestos, much less the “significant exposure” that the ALJ 

required, in order for the Secretary to show that a serious injury could result. 
29

Given the “detrimental health effects” that can result from exposure, 51 Fed.Reg. 

22,612, 22,615 (June 20, 1986), the failure to test for asbestos in those situations 

in which it is presumed to be present (and, given the failure to test, the 

concomitant failure to communicate the results of any tests) is unquestionably a 

“serious” violation. 

Id. at 401. 

 The facts presented in this case are not substantially different. Respondent’s failure to 

adequately supervise KIPI made it possible for those employees to be exposed to asbestos during 

demolition operations. This is only exacerbated by the fact that Respondent was expressly told 

that the purpose for conducting the demolition was to expose asbestos-covered pipes for 

subsequent environmental remediation. Respondent’s failure to ensure that KIPI complied with 

the appropriate standards exposed both KIPI’s employees and other contractor employees to 

asbestos, which was confirmed by the airborne testing conducted by NED. The Court sees no 

reason to depart from the holding of the Third Circuit, which held that exposure to asbestos can 

cause serious health problems. See id. (Tr. 108). Accordingly, the Court finds the violation was 

properly characterized as serious. 

 At bottom, Respondent abdicated its duty to ensure asbestos contractors, such as KIPI, 

complied with applicable regulations. Irrespective of how the various contracts were structured, 

the cited standard is clear that, as general contractor, Respondent had an obligation to ensure 

KIPI’s compliance with the asbestos standard. Subsection (d) illustrates the different types of 

exposure that may occur on a construction site and the respective obligations of each employer. 

As the general supervisory authority on the worksite, Respondent was expected to ensure that 

asbestos contractors complied with the terms of the standard, not only for the protection of KIPI, 

but for every other employee on the worksite that may be incidentally exposed to improperly 

contained asbestos. Respondent failed to comply with that obligation. Thus, the Court finds that 
30

Complainant established that Respondent violated 29 C.F.R. § 1926.1101(d)(5), and that the 

violation was serious. Accordingly, Citation 1, Item 1 shall be AFFIRMED. 

VI. Penalty 

 In determining the appropriate penalty for affirmed violations, section 17(j) of the Act 

requires the Commission to give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration 

and is determined by the number of employees exposed, the duration of the exposure, the 

precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co., 

15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and 

its judges conduct de novo penalty determinations and have full discretion to assess penalties 

based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel 

Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 

(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995). 

 Complainant has proposed a penalty of $2,200. The proposed penalty is based on the 

following: (1) a reduction of 60% due to Respondent having fewer than 25 employees; (2) an 

increase of 10% based on Respondent’s violation history; (3) a determination that the potential 

injuries were of high severity; and (4) that the probability of injury was lesser, due to the 

uncertainty regarding the length or location of exposure. (Tr. 108–110). Although the airborne 

exposure survey performed by NED seems to indicate regular and pervasive exposure to asbestos 

at the worksite, the Court does not see any compelling reason to depart from Complainant’s 

assessment. Accordingly, a penalty of $2,200 shall be ASSESSED. 
31

 ORDER 

 The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1 is AFFIRMED, and a penalty of $2,200.00 is ASSESSED. 

SO ORDERED. 

 /s/ Patrick B. Augustine 

Date: July 22, 2016

Denver, Colorado

Patrick B. Augustine

Judge, OSHRC