Document aB5xM5ME8QxLxwvLyYJD4X329

FILE NAME: Westinghouse (WH) DATE: 1991 Oct 11 DOC#: WH087 DOCUMENT DESCRIPTION: Legal - Answer to Complaint with Cover Letter from Lawyer - Presented to OSHA Westinghouse Electric Corporation -a* !eoarrrem iVesTi^oLse 3ui>sir la'fway Zs^x SSUJT 13 5 ' e-'fccoef 4:2 642 43C CERTIFIED MAIL RETURN RECEIPT REQUESTED October 11, 1991 ^ ' ' Honorable Edwin G. Salyers >> Administrative Law Judge "zrz Occupational Safety and Health Review Commission rrr 1365 Peachtree Street, N.IL, Room 240 - Atlanta, Georgia 30367 Re: MartitLv. Westimhause Electric Corporation. Docket No. 91-1874 ^ Dear Judge Salyers: CTZ* In accordance with the Rules of the Commission, I enclose the originals and one copy of the Answer to the Complaint, received by Westinghouse Electric Corporation on September 13, 1991, in the above-referenced matter and the Notice of Appearance of the undersigned counsel for Westinghouse. I request that the originals be filed and that a conformed copy of each be returned to me in the enclosed preaddressed envelope. As shown in the Certificate of Service attached to the Answer, I have served copies of the enclosed documents on the Complainant and the Steward of the Millwrights Union Local 1544. Enclosure Honorable Edwin G. Salyers October 11, 1991 Page 2 cc. (w/enclosures) Ralph O. York, Esq. Associate Regional Solicitor United States Department of Labor 2002 Richard Jones Road, Suite B-201 Nashville, Tennessee 37215 Mr. Harry Roberts, Steward Millwrights Union Local 1544 295 Plus Park Boulevard, Suite 203 Nashville, Tennessee 37217 BEFORE THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION OF THE UNITED STATES OF AMERICA SECRETARY OF LABOR, Complainant, V ' WESTINGHOUSE ELECTRIC CORPORATION, Respondant. ) OSHRC DOCKET NO. ' ) ) SI.~ 18.21 c : ) ) REGION IV ) ^ ) =-- - ) ANSWER TO COMPLAINT 33 ) -3_- > Now comes Westinghouse Electric Corporation, the Respondent, by and through its undersigned counsel, files this ansver and admits, denies and alleges as follows: I. Respondent denies each and every allegation contained in the complaint not otherwise specifically admitted herein. II. The Respondent denies the allegation of a violation of 3^ Section 5(a)(2) of the Act and the Safety and Health Regulations ^ contained in the preamble to the Complaint. The Respondent neither admits or denies the allegations of Paragraph I of the Complaint in that these allegations set forth conclusions of law. ^ III. The Respondent admits in part and denies in part the ' allegations of Paragraph II of the Complaint. The Respondent has \_/ a place of business in Chicago, Illinois and a principal place of SALLATIN business in Pittsburgh, Pennsylvania. Further, Respondent is not required to admit or deny the allegations in Paragraph II of the complaint to the extent that they set forth conclusions of law as to jurisdiction. IV. The Respondent admits in part and denies in part the allegations of Paragraph III of ths Complaint. The Respondent admits that an inspection of the workplace took place on May 30 and 31, 1991 by a representative of the Complainant and that it received a form entitled Citation and Notification of Penalty. V. The Respondent admits in part and denies in part the allegations of Paragraph IV of the Complaint. Respondant admits that the form entitled citation and Notification of Penalty is attached as Exhibit X and danias tha allegations that tha violations, which ara tha subject of the Notice of Contest, occurred at the workplace. VI. The Respondent admits in part and dsniss in part tha allegations of Paragraph v of ths Complaint. Ths Rsspondent admits that Respondant submitted a notification of intent to contest ths Citation and Notification of Penalty Items No. l and 2b. The Respondent is without sufficient information and knowledge to form an opinion or belief as to the date the Complainant received the Respondent's notification. The Respondent neither admits or dsniss the remainder of Paragraph v in that these allegations set forth conclusions of law. VII. *The Respondent admits in part and denies in part the allegations of Paragraph VI of ths Complaint. Ths Rsspondent admits that it employed employees at ths workplace and that one 2 uLum or nor employees wer represented by the United Brotherhood of Millwrights, Millwrights Local 1544. The Respondent denies the remaining allegations of Paragraph VI. VIII. The Respondent denies the allegations contained in Paragraph VII of the Complaint. IX. A. Respondent denies the allegations contained Paragraph v i i i A of the Complaint that it violated 29 CFR Section 1926.58(f)(1). Respondent admits that the violation alleged in Paragraph VIII of the Complaint is also alleged in the form attached to the Complaint as Exhibit A, entitled Citation and Notification of Penalty, as Citation No. 1, Item No. 1. B. The Respondent admits in part and denies in part the allegations of Paragraph VIII B of the Complaint. The Respondent admits that, under contract, its employees were engaged in the performance of maintenance and repair at a facility operated by the Tennessee Valley Authority. Respondent lacks sufficient information and knowledge as to the remaining allegations of Paragraph VIII B of the Complaint. C. The Respondent admits in part and denies in part the allegations of Paragraph VIII c of the Complaint. Respondent denies that it violated 29 CFR Section 1926.58(f)(2)(i) . The Respondent admits that it did not perform initial airborne monitoring before maintenance and repair operations were conducted on turbine units 1, 2 and 3. 1. With respect to Paragraph VIII C l of the Complaint, Respondent admits that initial airborne monitoring was not conducted at the initiation of the asbestos encapsulation on turbine units 1, 2 and 3. 3 SALLATIN 2. With respect to Paragraph V i n C 2 of the Complaint, Respondent admits that initial airborne monitoring wai not conducted prior to the initiation of repairs on turbine units_^ r, 2 and 3. Respondent denies that the work on turbine units i, 2 and 3 involved asbestos. D. Respondent denies the allegations of Paragraph V i n 0 JnL except that employees were engaged in maintenance and repair work ' on the turbine units 1, 2 and 3 referred to above. E. Respondent denies the allegation of "cited conditions, rr^ circumstances, practices, or operations" and admits the remainder"" of the allegations of Paragraph VIII E. F. Respondent denies the allegations of Paragraph VIII F. G. Respondent denies the allegations of Paragraph v m G ..-- . H. Respondent denies the allegations of Paragraph vili H. X. DEFFUSES TO FXRAOAAFH Till OF TXS COMFLXZFT A. Respondent alleges that through the data in its possession prior to the encapsulation it was not required to monitor the air. This data consisted of: 1. Its knowledge of the design of the Westinghouse turbines and the fact that the fixed cloth insulation was "non friable;* 2. That the fixed cloth insulation at the relevan times was non-friable and did not present a risk of exposure of asbestos fibers to the employees; and 0.0 4 OU.LATU 3. The condition of the fixed cloth insulation was verified and confirmed by a representative of the Tennessee Environmental Protection Agency before the encapsulation operation was conducted by one employee. 4. Respondent further alleges that only after this data was obtained and reviewed did one employee encapsulate the fixed cloth insulation. B. The provisions of 29 CFR Sections 1926.58(f)(2)(i) and (ii) authorize encapsulation without airborne monitoring if data is available with respect to the work to be performed. The provisions of 29 CFR Section 1926.58(f)(2) (ii) applied to this worlc. C. The employees engaged in the repair operations on turbine units 1, 2 and 3 were not engaged in activities that required work that could release asbestos fibers in excess of the action level and/or excursion limit. 0. Prior to initiation of work on turbine units 1, 2 and 3 Respondent had bulk samples taken from the areas covering the bolts and flanges to determine if asbestos was present in these areas. Prior to work on these units Respondent received the test results of the samples taken on each.unit and these tests demonstrated that asbestos was not present in these areas. E. The workplace was not subject to 29 CFR 1926.58 since the repair operations on turbine units 1, 2 and 3 did not involve asbestos. The articles, or class of articles, that were being repaired are not identified in 29 CFR 1926.58. ^ : F. The diligence of Respondent and its knowledge of the turbine units 1, 2 and 3 made it clear that the employees would not be exposed to asbestos. 5 GALLATIN XI. A. Respondent denies the allegations contained of Paragraph IX A. B. The Respondent admits in part and denies in part the allegations of Paragraph IX B of the Complaint. The Respondent admits that, under contract, its employees were engaged in the performance of maintenance and repair at a facility operated by the Tennessee Valley Authority. Respondent lacks sufficient information and knowledge as to the remaining allegations of Paragraph IX B of the Complaint. C. Respondent denies the allegations in Paragraph IX C of the complaint. 0. Respondent denies the allegations contained in paragraph IX 0. E. Respondent denies the allegations contained in paragraph IX E. F. Respondent denies the allegations contained in paragraph IX F. G. Respondent denies the allegations contained in paragraph IX G. XII. DB7XH81S TO PARAGRAPH IX OF TH1 COKPLAIHT A. The Respondent maintained an office in a mobileletraii that was within 60 feet of the workplace. There were also trailers used for change rooms. The workplace was generally subject to the weather and climatic conditions since the walls and roofs over the turbines were generally removed before work began. 6 GALLATIN B. The Respondent maintained material safety data sheets in a red three ring binder in the trailer office. C. The employees had daily access to the trailer office which contained: 1. The only telephone for the employees to use; 2. The employees' timecards; 3. project; The shop drawings for the turbines and the 4. All payroll activities; and 5. The manuals that the employees were required to use from time to time in order to perform their assigned jobs. D. The office was the only feasible structure in which V ' documents could be maintained on the worksite that was accessible to Respondent and its employees; that was heated/air conditioned; that was indoors; and that was not subject to adverse weather conditions. E. The Employees also had access to the triler office to obtain tools or materials from time to time as the employees required. ^3 d ? . The employees had access to the trailer office to also review the material safety data sheets in the red three ring binder. W , inn 7 GALLATIN `:v\ RELIST REQUESTED Respondent respectfully requests that the Commission dismiss:!^ the complaint and vacate the cits J X Wills, Jr. ^ 1 Atto"rEhey for W*tinghoue Electric Corporation = > Room 2100 Westinghouse Building 11 Stanvix Street Pittsburgh, PA 15222 (412) 642-5815 : > 8 GALLATIN CERTIFICATE OF SERVICI I hereby certify that copies of the foregoing Answer with attachments, thereto, including the Notice of Appearance, were - mailed this 11th day of October, 1991, postage prepaid, certified^ mail, return receipt requested, to the following: J Ralph 0. York, Esq. Associate Regional Solicitor United States Department of Labor 2002 Richard Jones Road, Suite B-201 Nashville, Tennessee 37215 Mr. Harry Roberts, Steward Millwrights Union Local 1544 295 Plus Park Boulevard, Suite 203 Nashvill^r-- Tennessee 37217 Roger|E. Wills, Counsel for (J Westinghouse Electric Corporation U.S. Department ot Labor C "'ca of '^e soucier Nashville, Tann< NOTICE OP APPEARANCE In the Matter o: Martin v. Westinghouse Electric Corporation Docket No. 91-1874 The undersigned hereby enters an appearance as a representative' o Westinghouse Electric Corporation in ^ abaxm=captioned matter. C Name: Title: Roger E. Wills, Jr. Chief Counsel ---- 1- CfJ o b 1991 : > ) i U- SioTnatra:--.J" > ^ u ----l-----7^-- 3 `w Employer/Organization: Westinghouse Electric Ccirporation Nature of Organization: Manufacturing ;c" w ------------- Address: Westinghouse Building, Room 2100 11 Stanwix Street Phone: Pittsburgh, PA 15222 (412) 642-5815 -- - DESIGNATION OF REPRESENTATIVE I hereby certify that Roger E. Wills, Jr. whose appearance is noted above, is authorized to act as ay representative ~ in the above matter, to discuss all facta and information related >-- < thereto, to negotiate a settlement, and to accept service of pleading^-; and other legal process on my behalf. Name: Robert E. Paters Date: October 11, 1991 Title: Assistant Secretary Employer/Organization: Nature of Organization: Address: ____ Signature: Westinghouse Electric Corporation Manufacturing Westinghouse Building, Rooa 1728 11 Stanwix Street, Pittsburgh, PA 5 15222 Igg; ~ Phone: (412) 642-3079