                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-2073


ARCON, INCORPORATED,

                                                           Petitioner,

           versus


OCCUPATIONAL    SAFETY   &    HEALTH       REVIEW
COMMISSION; SECRETARY OF LABOR,

                                                          Respondents.


On Petition for Review of an Order of the Occupational Safety and
Health Review Commission. (99-1707)


Argued:   May 26, 2005                        Decided:   June 23, 2005


Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.


Petition denied by unpublished per curiam opinion.


ARGUED: David Harlen Sump, CRENSHAW, WARE & MARTIN, P.L.C.,
Norfolk, Virginia, for Petitioner. John Robert Shortall, Office
of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent. ON BRIEF: Stuart P. Sperling, CRENSHAW, WARE
& MARTIN, P.L.C., Norfolk, Virginia, for Petitioner. Howard M.
Radzely, Solicitor of Labor, Joseph M. Woodward, Associate
Solicitor for Occupational Safety and Health, Charles F. James,
Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Arcon, Incorporated petitions for review of an order of the

Occupational        Safety    and   Health     Review   Commission      (Review

Commission) insofar as the order affirmed the findings of an

administrative law judge (ALJ) imposing sanctions for violation of

asbestos cleanup regulations.               Finding no error, we deny the

petition for review.


                                        I.

       Arcon is an asbestos removal contractor based in Norfolk,

Virginia.       In     February     1999,    Arcon   contracted    to   remove

approximately 1,500 feet of bulkhead panels from the M/V CAPE

LOBOS, berthed in Wilmington, North Carolina.              Arcon’s work plan

for the job described the removal of the panels as “Class II

Asbestos Work,” J.A. 365, meaning that it involved activities such

as “the removal of asbestos-containing wallboard, floor tile and

sheeting, roofing and siding shingles, and construction mastics,”

29 C.F.R. § 1915.1001(b) (2004).             The panels were located on the

boat deck, the poop deck, and the upper deck.

       Arcon’s crew--supervisor David Poole, Joe Boone, and Daryl

Jefferson--arrived at the site on March 8, 1999.              At that time,

they observed that there was already a great deal of dust in the

work area.     When the Arcon crew began work on March 9, air samples

were   taken   by    Warren   Plautz,   a    field   technician   for   Phoenix

Envirocorp, which had been retained to conduct monitoring at the

                                        2
site.       Plautz’s   pre-work    sample   indicated   a   fiber   count   of

.065/cubic centimeter--over the permissible exposure limit (PEL) of

.01. Plautz’s next sample, called an “excursion sample,” was taken

from inside the work area on the boat deck and indicated a fiber

count of 3.49/cubic centimeter.            This was above the permissible

excursion limit of 1.0.1       These high fiber counts were evidently

the result of the friability of the wallboard--according to Boone,

“if you touch[ed] [the panels], the stuff would just fall out,”

J.A. 150--and Poole’s use of a reciprocating saw (a “Sawzall”) to

remove wallboard from around a pipe.

      Plautz informed Poole of the high fiber counts, and then he

informed the general manager of Phoenix Envirocorp, Thomas Green.

Green consulted Arcon’s safety manager, C.J. Morey, and advised her

to   shut    down   the   project.     When   Arcon’s   president,    Arthur

Hawthorne, called Poole to discuss the situation, Poole stated that

the sample results were high because of the way he removed the

panels and possibly because a piece of the material fell on the air

monitoring equipment.        Poole did not inform Hawthorne that the

panels were breaking apart or that he had used the Sawzall to

remove one of the panels.         After this conversation, it was Morey’s




      1
      This test result was initially reported as 35.5 fibers/cubic
centimeter, an impossibly high level. Although this caused some
confusion, it appears that everyone involved agreed that the
problem was likely a misplaced decimal point.

                                       3
understanding that the boat deck would be cleaned up and clearance

samples would be obtained before the work continued.

     That night, Poole traveled to Norfolk to obtain a negative air

machine, additional plastic sheeting, and an airless water sprayer.

The following morning, March 10, the crew proceeded with work on

the poop deck without first obtaining clearance samples from the

boat deck.   Plautz’s air samples from the poop deck indicated that

fiber counts were within the PEL, but Green nevertheless reported

to Morey that he was concerned that Poole had not finished cleaning

the boat deck.    However, the work on the poop deck apparently

proceeded without incident.

     At the beginning of the day on March 11, Poole asked Gregory

Baccari, the official responsible for approving the work area, to

approve the containment area on the upper deck.   Baccari refused,

pointing out that the plastic sheeting that had been used to

contain the area had tears, holes, and gaps, and that no sheeting

had been placed on the ceiling, which was open as the result of the

previous removal of ceiling tiles. Baccari left the area, but when

he later returned he found that the crew had proceeded with the

work without correcting the problems.    According to Baccari, the

area was “anywhere from ankle deep to knee deep” in broken panels

and there was visible dust in the air.   Id. at 81.

     Later that morning, Allen Mosby, a compliance officer with the

North Carolina Department of Health and Human Services, boarded the


                                 4
CAPE LOBOS in response to an anonymous complaint about Arcon’s work

practices.     Mosby took numerous photographs of the dust, debris,

and holes in the plastic sheeting. Among other things, Mosby noted

that it did not appear that the Arcon crew was wetting down the

panels prior to wrapping them in the plastic sheeting.                            Mosby

ordered the site to be shut down that afternoon.                  He also notified

the   Occupational       Safety   and    Health      Administration       (OSHA)     of

possible regulatory violations.

      OSHA compliance officer Andrea Reid investigated the site and

issued two citations containing a total of 12 items.                      Citation 1

alleged four serious violations of OSHA regulations, denoted as

Items   1,   2a,   2b,    and   3.      Citation     2   alleged    eight       willful

violations of OSHA regulations, denoted Items 1a-c and 2a-e.                       Reid

imposed a total fine for the violations of $108,500.

      Arcon sought review by an ALJ, who vacated three of the

violations, reduced four of the willful violations to serious

violations,     and   reduced     the    fine   to    $40,450.          Arcon    sought

additional review from the Review Commission, which vacated another

three items and reduced the fine to $36,200.                      Arcon now seeks

further review.


                                        II.

      The    Secretary    of    Labor   bears   the      burden    of    proving    the

violation of an OSHA standard.          To do so, she must demonstrate “(1)

the applicability of the standard, (2) the employer’s noncompliance

                                         5
with   the   terms    of   the    standard,   (3)   employee   access    to   the

violative condition, and (4) the employer’s actual or constructive

knowledge of the violation.”           N&N Contractors, Inc. v. OSHRC, 255

F.3d 122, 126 (4th Cir. 2001).          We must affirm the holdings of the

Review Commission if they are supported by substantial evidence in

the record as a whole.           See id. at 125.    “Substantial evidence is

more than a mere scintilla”; it is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

                                        A.

        Arcon first argues that the Secretary failed to establish

that the cited standards apply because she did not prove that the

fibers in the air were asbestos fibers, as opposed to some other

kind of fiber.        The Review Commission rejected this claim in a

single sentence:        “The argument is not a valid challenge to the

applicability of the cited standards, whose applicability does not

depend on whether asbestos dust is present.”             J.A. 456.

       The Review Commission was correct.           The pertinent regulatory

provision,    29     C.F.R.   §   1915.1001   (2004),   “regulates      asbestos

exposure in all shipyard employment work ..., including but not

limited to ... [r]emoval or encapsulation of materials containing

asbestos.”    29 C.F.R. § 1915.1001(a)(2).            Arcon admits that the

wallboard panels contained amosite asbestos, and Mosby testified to




                                         6
this fact.2    Accordingly, the regulations apply to the work Arcon

was doing.

     One of the citations--alleging a failure to provide adequate

respiratory    protection--relies             on   a   regulatory   standard   that

applies, as is relevant here, to certain forms of Class II asbestos

work.    See       29   C.F.R.    §   1915.1001(h)(1)(ii),       (iv)   (requiring

respirator protection “[d]uring all Class II work where the ACM

[asbestos-containing material] is not removed in a substantially

intact state” or when no negative exposure assessment is supplied).

Substantial evidence supports the determination that Arcon’s work

on the CAPE LOBOS was Class II asbestos work, which is defined as

“activities involving the removal of ACM ... includ[ing], but ...

not limited to, the removal of asbestos-containing wallboard.”                   29

C.F.R. § 1915.1001(b).            As noted above, Arcon admits that the

wallboard     it    removed      from   the    CAPE    LOBOS   contained   amosite

asbestos.     Its removal therefore was Class II work.

     In light of the clear applicability of the regulations,

Arcon’s assertion that the Secretary failed to prove the presence

of airborne asbestos fibers appears actually to be a challenge to

the finding of a violation of the applicable standards.                    Such a



     2
      On appeal, Arcon contends that Mosby’s testimony--that tests
of the wallboard “came back am[o]site,” J.A. 36--was improper
because Mosby was not an “expert.” Arcon did not challenge his
testimony on this basis during administrative proceedings, however,
and thereby waived this claim.     See 29 U.S.C.A. § 660(a) (West
1999).

                                          7
challenge would apply only to Citation 2, Item 1c, which alleges a

failure to use a proper respirator.             Since the type of respirator

required varies according to the amount of airborne asbestos, see

29   C.F.R.   §    1915.1001    tbl.1,    the    Secretary     was   required   to

demonstrate       the    presence   of   airborne      asbestos   fibers   in   the

workplace in order to establish a violation.

      The Secretary’s evidence on this point consisted of the

results of Plautz’s environmental monitoring.                     Plautz employed

phase-contrast microscopy (PCM) to count airborne fibers.                  In the

absence of other information, OSHA regulations require any fiber at

least 5 micrometers long with a 3:1 or greater length/width ratio

to be counted as an asbestos fiber.               See 29 C.F.R. § 1915.1001

appx. A(13)(a), (b).         Although PCM does not definitively establish

a given fiber as asbestos, see id. appx. B § 1.3, the regulations

provide that PCM is adequate to establish the presence of airborne

asbestos, see id. § 1.2.            However, the regulations also provide

that a differential counting method, which will positively identify

fibers   as   asbestos,        “should    be    used     if   discrimination     is

desirable.”       Id. § 6.7.

      Arcon maintains that the Secretary failed to carry her burden

of proof with respect to Citation 2, Item 1c because she did not

employ a differential counting method to positively demonstrate the

concentration of airborne asbestos fibers.                    This argument is

without merit.          The Review Commission has explicitly stated that


                                          8
compliance    with   the   respirator        standard   “is    premised   on   the

painstaking, microscopic measurement of samples required” by PCM.

Sec’y of Labor v. Dec-Tam Corp., 1993 WL 27401, at *13 (O.S.H.R.C.

Jan. 19, 1993).      This evidence is thus sufficient to meet the

Secretary’s burden of making a prima facie case for a violation and

thereby to shift the burden to Arcon to rebut.                See Sec’y of Labor

v. EBAA Iron, Inc., 1995 WL 49331, at *1 (O.S.H.R.C. Feb. 7, 1995).

Arcon has presented no evidence to rebut the sampling results.

                                        B.

     Arcon next maintains that the Secretary failed to meet her

burden of proof with respect to Citation 1, Item 2b.                   This item

charged Arcon with failing to conduct additional monitoring after

a change in process, namely, the use of the Sawzall to cut the

wallboard panels on March 9.       There is no question that the use of

the Sawzall greatly increased the amount of airborne fibers in the

work area.    Arcon maintains, however, that this citation should be

vacated because the use of the Sawzall was abandoned after March 9.

According to Arcon, its return to its originally planned work

practices    absolved   it   of   the   need    to   conduct     any   additional

monitoring.

     Arcon did not raise this challenge to the citation before the

Review Commission.3        Accordingly, it has waived review of this


     3
      Arcon instead argued that the citation should be dismissed
because it resulted from unforeseeable employee misconduct. See
generally N&N Contractors, 255 F.3d at 128 n.3 (discussing employee

                                        9
issue.     See 29 U.S.C.A. § 660(a) (West 1999) (“No objection that

has not been urged before the Commission shall be considered by the

court, unless the failure or neglect to urge such objection shall

be     excused         because     of     extraordinary        circumstances.”).

Additionally, even if this claim were not waived, the regulation

does     not   support     Arcon’s      position;     it   requires    additional

monitoring after a change in practice, without regard to whether

monitoring       may      actually      be     needed.         See    29    C.F.R.

§ 1915.1001(f)(4)(ii).            And, Arcon cites no other authority in

support of its argument.

                                         C.

       Item 2c of Citation 2 alleged that on March 11, Arcon failed

to place “[c]ritical barriers”--here, polyethylene sheeting--at all

openings to the work area. 29 C.F.R. § 1915.1001(g)(7)(ii)(A). In

particular,      the    citation    noted     that   (1)   Arcon   failed   to   use

barriers over open portholes, (2) the sheeting that Arcon used “did

not cover all open areas,” J.A. 15, and (3) Arcon failed to use

impermeable dropcloths on the floor of the upper deck.                           This

citation was based on Mosby’s observations and photographs of the

work area on March 11.           Arcon asserts that this citation should be

vacated because (1) the Secretary failed to prove any migration of

airborne asbestos, and (2) it was prevented from proving the

efficacy of the methods it did use because Mosby shut down the work


misconduct defense).

                                         10
on March 11 before any monitoring could be employed.           See 29 C.F.R.

§   1915.1001(g)(7)(ii)(B)    (providing      that    alternative   barrier

methods may be used if the efficacy of those methods is “verified

by perimeter area monitoring or clearance monitoring”).

      Arcon’s   first   assertion   is     plainly   without   merit.   The

standard requires the use of certain methods, and thus a violation

of the standard is established by the failure to use those methods.

      Arcon’s second argument fails because there is no evidence

that it performed any perimeter area or clearance monitoring, or

that Mosby prevented it from doing so.           In the first place, the

Arcon crew began work at approximately 8:30 a.m., and Mosby did not

shut down the work until well after lunch.            There is no dispute

that Arcon did not perform any perimeter area monitoring during the

five or more hours that it worked on March 11.         And, although Arcon

now asserts that it would have performed clearance monitoring if

Mosby had not shut down the job, there is no evidence in the record

that supports this assertion.       Accordingly, there is no basis for

vacating this citation.


                                    III.

      Finally, Arcon challenges the amount of the penalty imposed on

it as an abuse of discretion.       See generally 29 U.S.C.A. § 666(j)

(West 1999) (discussing authority to impose civil penalties and

relevant considerations as to the amount of penalty).               Arcon’s

argument on this point rests entirely on its previous assertion

                                     11
that   the   Secretary   failed   to    prove   the   presence   of   airborne

asbestos fibers.     As discussed above, however, the use of phase

contrast microscopy is an accepted method for determining the

presence of airborne asbestos fibers.           The Secretary therefore met

her burden, and it was up to Arcon to challenge the validity of the

Secretary’s evidence.      Since Arcon failed to do so, there is no

basis on which to reduce the penalties imposed.


                                       IV.

       For the reasons set forth above, we deny the petition for

review.


                                                            PETITION DENIED




                                       12
