Kaiser Foundation Hospitals v. Occupational Safety & Health Appeals Board

Opinion

BLEASE, Acting P. J. Kaiser Foundation Hospitals (Kaiser) appeals

from denial of relief in an administrative mandamus action seeking to overturn a decision of the California Occupational Safety and Health Appeals Board. (See Lab. Code, § 6627 et seq.; Code Civ. Proc., § 1094.5.) The board affirmed, in pertinent part, the order and decision of an administrative law judge upholding a citation and imposition of a $500 civil penalty against Kaiser for violation of an industrial safety order. (See Lab. Code, § 6317.)1 The safety order requires employers to report, inter alia, “Maintenance . . . activities in which any materials containing more than 1% asbestos (dry weight) are sanded, ground, abrasive blasted, sawed, cut, shoveled, removed, or otherwise handled in such a manner that asbestos dust would be raised.” (Cal. Admin. Code, tit. 8, § 5208, subd. (Ɩ)(1)(C).) Kaiser contends the decision of the board was not supported by substantial evidence. We will affirm the judgment.

Facts

An investigator of the Division of Occupational Safety and Health conducted a permissive search of Kaiser’s hospital facility on MacArthur Boulevard in Oakland. He discovered that when the building had been constructed beam supports and floor parts had been coated with an insulating material with the trade name Monicote, as a fire retardant. He gathered samples of debris from the floor adjacent to areas coated with the Monicote on the mezzanine floor near the bottom of the building and from the penthouse on or near the roof. This material appeared identical with the material coating the beams. He also gathered a sample of dust from the stairway leading to the penthouse area.

[285]Laboratory analysis revealed the floor debris samples contained between 15 percent and 30 percent asbestos. The analysis of the stairway dust sample revealed it contained between 5 percent and 10 percent asbestos. The asbestos in the samples included free fibers and fibrils.

Edward Raubot, a Kaiser housekeeping employee, testified one of his infrequent tasks was to sweep the stairs from which the dust sample was taken. He used a dry broom to perform the task and had last done so approximately one year before the hearing on the matter. He had dust mopped the room in the mezzanine where the debris sample was collected approximately two years earlier.