Morrison-Knudsen Co., Inc./Yonkers Contracting Co., Inc., A Joint Venture
Willful lead-protection violations draw $40,000
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
A Morrison-Knudsen and Yonkers Contracting joint venture used cutting torches to demolish a lead-painted bridge in New York City, exposing employees to hazardous airborne lead. The Commission held that the construction air-contaminant standards applied alongside the more specific welding and cutting provisions because those provisions incorporated the respiratory-protection and exposure-control requirements. It affirmed violations involving inadequate respirator cleaning and storage, the use of mixed and unapproved respirator components, excessive lead exposure without effective engineering or administrative controls, and the lack of protective clothing. The Commission upheld the willful classification because the employer's safety program and outside advice identified the needed protections, employees developed markedly elevated blood-lead levels, and on-site management still failed to implement reasonable preventive measures. It vacated a separate respirator-inspection item as duplicative after the Secretary abandoned that theory. The Commission also affirmed a nonserious failure to timely record one elevated blood-lead result and assessed four $10,000 penalties, for a total of $40,000.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1904.2(a), 1926.55(a), 1926.55(b), 1926.103(a)(2), and 1926.103(c)(2)
- Outcome: Five willful citation items affirmed, one duplicative willful item vacated, one nonserious recordkeeping item affirmed, and $40,000 assessed.
- Key point: An employer's safety program and consultants' warnings can establish awareness of required protections, and a limited response is not good faith when known lead exposures continue and core controls remain unimplemented.
Full text (OSHRC public release)
- UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON. DC 20006- 1246
FAX
. COM (202) 6344008
SECRETARY OF LABOR, .. FTS (202) 634-4008
.
..
L
Complainant,
V. .
. OSHRC Docket No. 88-572
MORRISON-KNUDSEN CO., INC./YONKERS I
CONTRACTING CO., INC., A JOINT VENTURE, :
Respondent. .
DECZSZON
BEFORE: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
In September 1987, a compliance officer of the Occupational Safety and Health
Administration (“OSHA”), of the United States Department of Labor, inspected a bridge
demolition project in New York City, where certain employees of a joint venture (“the
employer”), comprised of Morrison-Knudsen Company, Inc., and Yonkers Contracting
Company, Inc., were using cutting torches on structural steel to demolish a bridge that was
covered with lead-based paint. The inspection disclosed that, although this cutting work was
done in open air, it was generating hazardous levels of airborne lead to which the employees
were being exposed. Accordingly, in March 1988, OSHA issued two citations pursuant to
the Occupational Safety and Health Act of 1970, 29 USC. 66 651 et seq. (“the Act”).
Willful citation 1 alleged seven items of violation, one of which the Secretary of Labor
(“the Secretary”) withdrew prior to the hearing; therefore that item, item 4, was vacated by
the Commission administrative law judge who heard the case. The judge affirmed the
remaining six items, as well as nonserious citation 2, which alleged a single item of violation.
2
On review are numerous issues that we address in the sequence followed by the judge in his
decision.
I. Citation 1, Item 6
The Secretary cited two construction standards, 29 C.F.R. 0 1926.55(a) and (b),’
which the employer contends are preempted by more specifically applicable construction
standards, 29 C.F.R. $0 1926.353(c) and 1926.354(~).~ The employer further contends that
the construction standards as a whole were improperly promulgated.
l These standards state:
g 1926.55 Gases, vapors, fumes, dusts, and mists.
(a) Exposure of employees to inhalation, ingestion, skin absorption, or contact with any
material or substance at a concentration above those specified in the “Threshold Limit Values -
of Airborne Contaminants for 1970” of the American Conference of Governmental Industrial
Hygienists[ ] shall be avoided.
(b) To achieve compliance with paragraph (a) of this section, administrative or engineering
controls must first be implemented whenever feasible. When such controls are not feasible
to achieve full compliance, protective equipment or other protective measures shall be used
to. keep the exposure of employees to air contaminants within the limits prescribed in this
section. Any equipment and technical measures used for this purpose must first be approved
for each particular use by a competent industrial hygienist or other technically qualified
person. Whenever respirators are used, their use shall comply with 0 1926.103.
2 The two standards state:
3 1926.353 Ventilation and protection in welding, cutting, and heating.
(C) WeldingCWtin~ or heating of metals of toxic significance.
(3) Employees performing such operations in the open air shall be protected by filter-type
respirators in accordance with the requirements of Subpart E of this part, except that
employees performing such operations on beryllium-containing base or filler metals shall be
protected by air line respirators in accordance with the requirements of Subpart E of this
Pan .
i.ii26.354 Welding, cutting, and heating in way of preservative coatings.
. . . .
(c) Rotectiorz against toxic preservative coatings:
(2) In the open air, employees shall be’ protected by a respirator, in accordance with
requirements of Subpart E of this part.
-
3
A. Preemption
The judge rejected the employer’s preemption argument, reasoning that the standards
to which the employer refers are “additional requirements, rather than preemptive ones.”
In support of this reasoning, the judge stated in his decision:
Section 1926.353(a) expressly states that compliance with 6 1926.55(a) is
required. l3 Also both $5 1926.353(c) and 354(c) expressly require compliance
with the respiraior requirements of Subpart E. . . . Those requirements in
turn expressly incorporate the requirements of Subpart D, including
5 1926.55(a).
131t requires that mechanical ventilation be sufficient to “maintain welding fumes and smoke
within safe limits, as defined in Subpart D of this part [including 8 1926.55(a)].”
On review, the employer asserts that there is no such thing as an additional
requirement not preemptive in nature because, whenever another standard is specifically
applicable, it is preemptive pursuant to 29 C.F.R. 5 1910.5(~)(1).~ The employer reasons
that, inasmuch as sections 1926.353(c) and 1926.354(c) “provide particular means and
methods of employee protection when they are engaged in cutting toxic preservatives or lead
based metals in the open air,” the standards preempt the more general standards cited by
the Secretary. .
l
.
The Secretary, agreeing with the judge, notes that sections 1926.353(c)(3) and
1926.354(c)(2) both require respirators “in accordance with the requirements of Subpart E”
3 The Secretary’s regulation on applicabilitv * states:
8 1910.5 Applicability of standards.
.. ..
(c)(l) If a particular standard E specifically applicable to a condition, practice, means,
method, operation, or procxx, rt shall prevail over any different general standard which might
othenvise be applicable to the WIK wndition, practice, means, method, operation, or process.
For example, 9 1501.23(c)( 3) of thts We prescribes personal protective equipment for certain
ship repairmen working in spcmfied areas. Such a standard shall apply, and shall not be
deemed modified nor superwxk~ bv any different general standard whose provisions might
otherwise be applicable, to the - ship repairmen working in the areas specified in
8 191523(c)(3).
(2) On the other hand, any stmkud shail apply according to its terms to any employment and
place of employment in any industrv, even though particular standards are also prescribed for
the industry, as in Subpart B or Subpart R of this part, to the extent that none of such
particular standards applies. To illustrate, the general standard regarding noise exposure in
# 1910.95 applies to employments and places of employment in pulp, paper, and paperboard
mills covered by 0 1910.261.
4
of Part 1926. Section 1926.103(a)(l) in Part 1926, Subpart E, states that, “[i]n emergencies,
or when controls required by subpart D of this part either fail or are inadequate to prevent
harmful exposure to employees, appropriate respiratory protective devices shall be provided
by the employer and shall be used” (emphasis added). Thus, the Secretary argues that, by
the terms of the two standards to which the employer refers, the two cited standards apply
to the type of work that the employer was doing in open air.
Because of these cross-references, we conclude that the cited standards do apply and
are not preempted. The gravamen of the Secretary’s case is that the employer, having
employees exposed to airborne lead in concentrations above the threshold limit mentioned
in section 1926.55(a), must implement administrative or engineering controls required by
section 1926.55(b). But the standards to which the employer refers govern these matters
only indirectly, through the cross-references; the explicit subject of sections 1926.353(c)(3)
and 1926.354(c)(2) is the necessity for respirators in open air work. Some unstated assump-
tions in the employer’s argument may be that open air is always adequate ventilation, that
no other engineering
. controls are ever needed, and that respirators rather than administra-
tive or engineering controls therefore constitute complete protection for open air work under
sections 1926.353(c)(3) and 1926.354(c)(2). Th e cross-references to section 1926.55 indicate,
however, that these assumptions are incorrect. The well-established rule of statutory
construction is that “each part or section should be construed in connection with every other
part or section so as to produce a harmonious whole.” 2A Sutherland Statutory Construction
6 46.05 (5th ed. 1992). See, e.g., Richardr v. United States, 369 U.S. 1, 11 (1962), cited in
Simplex 7Eme Recorder Co. 12 BNA OSHC 1591, 1594 n.6, 1984-85 CCH OSHD ll 27,456,
pa 35,569 n.6 (NO. 8242, 1985) (two paragraphs of National Fire Protection Association
standard read to be consistent); Spot-Bilt, Inc., 11 BNA OSHC 1998,2000-01, 1984-85 CCH
OSHD ll 26,944, p. 34,55 1 (No. 79-5328, 1984) (purpose of assuring adequate exits
“pervades” section 1910.36, with section 1910.36(b)(4) construed accordingly). See ako
General Motors Corp., Electra-Motive Div., 14 BNA OSHC 2064, 2066 & n.8, 1991 CCH
OSHD 7 29,240, p. 39,165 & n.8 (No. 82-630, 1991) (statutes should be construed so as to
avoid conflict between them). We conclude, therefore, that the judge was correct in
regarding sections 1926.353(c)(3) and 1926.354(c)(2) as additional requirements that are not
preemptive, and that the Secretary therefore cited the standards that apply to these facts.
-
5
B. Promulgation
The cited construction standards, section 1926.55(a) and (b), were originally
promulgated pursuant to the Contract Work Hours and Safety Standards Act, 40 U.S.C.
8 333 et seq. (“the Construction Safety Act”). They were later adopted as occupational
safety and health standards pursuant to section 6(a), 29 U.S.C. 8 655(a), of the Occupational
Safety and Health Act. Section 6(a) of the Act states, in pertinent part:
Without regard to [the Administrative Procedure Act] or to the other
subsections of this section, the Secretary shall, as soon as practicable during
the period beginning with the effective date of this Act and ending two years
after such date, by rule promulgate as an occupational safety or health
standard any national consensus standard, and any established Federal
standard . . . .
The Act, at section 3(10), 29 U.S.C. 0 652(10), provides a definition of an “established
Federal standard.” It states:
The term “established Federal standard” means any operative occupational
safety and health standard established by any agency of the United States and
presently in effect, or contained in any Act of Congress in force on the date -
of enactment of this Act.
The Construction Safety Act was “in force on the date of enactment of this Act,” which was
December 29, 1970, but the construction safety standards promulgated pursuant to the
Construction Safety Act did not become effective until thereafter, on April 27, 1971. Our
Act became effective the next day, April 28,197l. Thus, the “established Federal standards”
were “operative” and “presently in effect” on the effective date of the Act but not on “the
date of enactment,” in the language of section 3(10) of the Act. The employer in this case
argues that, therefore, the construction standards are invalid pursuant to sections 6(a) and
3(10) of the Act.
The judge rejected this argument on the basis of section 4(b)(2) of the Act, 29 U.S.C.
0 653(b)(2). It states:
The safety and health standards promulgated under the Act of June 30, 1936,
commonly known as the Walsh-Healey Act (41 U.S.C. 35 et seq.), the Service
Contract Act of 1965 (41 U.S.C. 351 et seq.), Public Law 91-54, Act of
August 9,1969 (40 U.S.C. 333), Public Law 85-742, Act of August 23,1958 (33
U.S.C. 941), and the National Foundation on Arts and Humanities Act (20
U.S.C. 951 et seq.) are superseded on the effective date of corresponding
standards, promulgated under this Act, which are determined by the Secretary
to be more effective. Standards issued under the laws listed in this paragraph
6
and in effect on or afterthe eff;ectivedate of this Act shall be deemed to be
occupational safety and health standards issued under this Act, as well as
under such other Acts.
(Emphasis added.) In view of this provision, the judge concluded that “the procedure used
to adopt the Construction Safety Act standards was expressly permitted under section
4(b)(2) of the OSH Act,” for those “standards were in effect ‘on or after’ the effective date
of the OSH Act.”
On review, the employer insists that section 3( 10) precludes adoption of any
“established federal standard” not in effect on the enactment date of the Act and “submits
that, so far as it is able to determine, the foregoing argument has never previously been
before the Commission.” The Secretary retorts that “[t]he argument now advanced by [the
employer] was considered and rejected 17 years ago by the Commission in Lance Roofing
Co.,” 1 BNA OSHC 1501, 1973-74 CCH OSHD II 17,101 (No. 1102, 1974), rev’d on other
groundi, 528 F.2d 645 (5th Cir. 1976)(“Lance”).
The argument was rejected years ago, but in a different case, Home Plumbing and
Heating Co., 2 BNA OSHC 1271, 1974-75 CCH OSHD ll 18,824 (No. 1096, 1974), vacated
on other ground&528 F.2d 564 (5th Cir. 1976) (“Home ”), wherein the Commission “affirmed
in all respects” a judge’s decision rejecting the invalidity argument presentednow.4 The
judge in Home reasoned as follows:
The employer’s argument misconstrues the words “presently in effect.”
Section 4(b)(2) of the Act provides that standards issued under certain
Federal laws and “in effect on or after the effective date of this Act” shall be
standards under the Act. Thus Congress indicated that the effective date of
the Act is to govern in determining whether established Federal standards are
“established” within the meaning of the Act. Also, the language in Section
3(10) that standards contained in an Act of Congress in force on the date of
enactment distinguishes such standards from those established by a federal
agency and “presently in effect.” Furthermore, Section 6(a), which contains
that authority for the Secretary to promulgate established Federal standards
4A look at Lance will disclose that it is not precedent on the issue now before us. As the employer points
out:
That decision is inapplicable on its face. It was reviewedby the Commissionand “adopted
only to the extent it is consistent with this decision.” . . . That Commission decision made no
mention whatsoever of the matters upon which the Secretary places [his] reliance l l l l
(Case citation omitted).
7
as standards under the Act states that he may do so starting with the effective
date of the Act. Considering all these provisions together, it is clear that the
words “presently in effect” in Section 3( 10) must be construed to refer to the
effective date of the Act. Therefore, the standards in question were validly
promulgated.
2 BNA OSHC at 1273 (judge’s decision); see also 1971-73 CCH OSHD ll 15,475 (judge’s
decision). The Commission applied essentially the same analysis in Coughlan Constr, Co.,
3 BNA OSHC 1636,1975-76 CCH OSHD lI 20,106 (No. 5303,1975), to reject an employer’s
argument that the Construction Safety Act’s standards cannot be applied to employers whose
work is not federally subsidized or assisted. The Commission stated:
Congress itself prescribed that the Walsh-Healey standards “shall be deemed.
to be occupational safety and health standards issued under this Act.“2 The
same is true of the Construction Safety Act standards.3 Furthermore, the
standard at issue is an “established Federal standard,“4 and Congress
authorized Complainant to promulgate such standards as standards of general
applicability without further rulemaking proceedings? Thus, the standard was
validly promulgated and is enforceable against Coughlan.
39 U.S.C. 653(b)(2).
31bid.
99 U.S.C. 652(10).
‘29 U.S.C. 655(a).
3 BNA OSHC at 1638, 1975-76 CCH OSHD at p. 23,923. On the basis of these case .
precedents alone, we could reject the employer’s argument in this case. But, to ensure that
this issue is entirely resolved, we provide the following, additional analysis.
The employer relies on a portion of the legislative history of the Occupational Safety
and Health Act in which its “enactment” is mentioned as the time by which any established
Federal standard must be in effect for the purpose of adoption pursuant to the Act’s section
6(a). The portion of the legislative history states:
During this two-year period, the Secretary has discretion to promulgate any
standard which has been adopted by a nationally recognized standards-
producing organization by other than a consensus method,povided that such
standard has been adopted on or before the enactment of this act.
Thk’bill also provides for the issuance in similarfashion of those standards
which have been issued under other Federal statutes and which under this act
may be made applicable to additional employees who are not under the
protection of such other Federal laws. Such standards have already been
- 8
subjected to theprocedural scrutinymandated by the law under which they were
issued; such standards, moreover, in large part, represent the incorporation of
voluntary industrial standards.
S. Rep. 1282,91st Cong. 26 Sess. 5-6 (1970), reprinted irr Senate Comm. on Labor and Public
Welfare, 926 Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act
of 1970, at 145-46 (1971) (emphasis added). We also find a comment, by an individual
Senator, that interim occupational safety and health standards could include any established
Federal standard in effect on the Act’s date of “enactment.” Id. at 421. The legislative
history is inconsistent, however, inasmuch as the term “enactment” was not always used to
refer to the date on which the Act would become law. In fact, the conference report used
the term “enactment” when describing section 6(a), which as we have quoted actually uses
the term “effective date,” the date on which the Act would go into effect. Specifically, the
conference report inaccurately stated: “These early standards could only be adopted
pursuant to the authority in section 6(a) within the first 2 years following the day of
enactment . . . .” Conf. Rep., 91st Cong., 2d Sess. 19 (1970), id. at 1217-18 (emphasis
added). Earlier in the legislative proceedings; nevertheless, an individual Representative had
commented accurately and explicitly that section 6(a) permits adoption of eligible established
Federal standards on the Act’s effective date rather than its enactment date. Id. at 978.
More importantly, the Act itself and the circumstances existing on the date of its
enactment suggest that Congress intended to refer to the Act’s effective date as the date by
which established Federal standards must have been in effect for adoption pursuant to
section 6(a). Section 4(b)(2) of the Act that Congress sent to the President for signature
and that became law stated plainly that “standards promulgated under the . . . Act of
August 9, 1969 (40 U.S.C. 333) . . . in effect on or after the effective date of this Act shall
be deemed to be occupationai safety and health standards issued under this Act . . . .” Thus
the Act that Congress sent to the President for enactment looked forward to another date
for the purpose of finding interim standards, and the reason is plain. On the date of
enactment, no standards had been promulgated under “40 U.S.C. 333,” popularly known as
the Construction Safety Act. See Daniel Intl. Cop. v. OSHRC, 656 F.2d 925,927.28 (4th Cir.
1981) (setting forth the history of the construction standards). We must not presume that
Congress included meaningless instructions in the statute, but must presume that Congress
intended standards to be promulgated under “40 U.S.C. 333” after the Act’s enactment date
9
and in time to be adopted under sections 6(a) and 3( 10) of the Act. Therefore, because the
construction standards were effective on the Act’s effective date, they are valid. Accordingly,
the judge’s decision affhming item 6 of citation 1 alleging noncompliance with section
1926.55 is affirmed.
II. Citation 1, Item I
Item 1 alleged, in the words of the Secretary’s complaint, that the employer’s respira-
tors were “not cleaned or disinfected before or after use by . . . employees.” The Secretary
cited two standards, 29 C.F.R. 8 1926.103(c)(3)’ and 29 C.F.R. 0 1910.134(b)(5).6 The
unrebutted testimony of the compliance officer was that, during his inspection, he saw two
employees using dirty respirators which, the employees told him, were never cleaned. As
well as arguing that the Secretary failed to establish the employer’s knowledge of the
violative condition, the employer argues that the Secretary failed to cite the specifically
applicable standard and that the judge erred in correcting this fault by amending the
pleadings sua sponte to allege the specifically applicable standard. We first isolate the
specifically applicable standard, then address issues of amendment and of the employer’s
knowledge of the violative condition.
A. Apphbdity
The judge held section 1926.103(c)(3), the cited construction standard, inapplicable
on a factual basis, finding no proof either that “the same respirator was issued to different
5 The cited construction standard states:
$1926.103 Respiratory protection.
....
(c) Selection issuance, use and care of respirators.
& kespiratory protective equipment which has been previously used shall be cleaned and
disinfected before it is issued by the employer to another employee. Emergency rescue
equipment shall be cleaned and disinfected immediately after each use.
’ The cited general industry standard states:
$&1910.134 Respiratory pmtection.
. . . .
@) Requirements for a minimal acceptable program.
$ kespirators shall be regularly cleaned and disinfected. Those used by more than one
worker shall be thoroughly cleaned and disinfected after each use,.
- 10
employees” or that “the respirators were for emergency rescue.” The judge regarded
section 1910.134(b)(5), the cited general industry standard, as “clearly” applicable, but not
as specifically applicable as another construction standard, 29 C.F.R. 0 1926.103(c)(2).7 The
employer raised this standard in arguing that the Secretary’s citation item should be vacated
because of his failure to identify the specifically applicable standard that the employer had
allegedly infringed. The employer also argued to the judge that the cited general industry
standard merely covers what criteria must be included in an employer’s written safety
program. According to the employer, other provisions in 29 C.F.R. 6 1910.134 pertain to
the cleaning of respirators.8
On review, the employer has reversed direction, now arguing that the construction
standard on which the judge focused, section 1926.103(c)(2), originally raised by the
employer, is actually not applicable to the cited conditions. According to the employer, that
standard “does not contain any specific guidelines or procedures concerning regular cleaning
and disinfecting of respirators . . . .” The employer believes section 1910.134(f)(3) to be the
applicable standard, see supra note 8, and would have us vacate the citation item on the basis
’ This construction standard states:
(5 1926.103 Respiratory protection.
&)‘selelectio~ issuance, use and care of respirators.
& iespiratory protective equipment shall be inspected regularly and maintained in good
condition. Gas mask canisters and chemical cartridges shall be replaced as necessary . . . .
Mechanical filters shall be cleaned or replaced as necessary so as to avoid undue resistance
to breathing.
8 In particular, the employer cites 29 C-F R. 08 1910.134(f)(l) and (3), which state:
(f) Maintenance and care @ nspvarm. (1) A program for maintenance and care of
respirators shall be adjusted 1~3the TV of plant, working conditions, and hazards involved,
and shall include the following IXSK se~&s:
(i) Inspection for defects (includq a leak check),
(ii) Cleaning and disinfecting,
(iii) Repair,
(iv) Storage
Equipment shall be properly mamrained to retain its original effectiveness.
(ii Routinely used respirators shall be collected, cleaned, and disinfected as frequently as
necessary to insure that proper protection is provided for the wearer. Respirators maintained
for emergency use shall be cleaned and disinfected after each use.
- 11
that, “if OSHA itself didn’t know the applicable standard, [and] nor did the NJ,” the
employer surely did not know either. According to the employer, the Secretary presumably
has failed to provide adequate notice of the charge if he has failed to identify the applicable
standard.
The Secretary asserts that these arguments about which standard applies, either a
construction standard or a general industry standard, are “pointless” in the context of this
case. Section 1926.103(c)(2) ‘s requirement that respirators be “maintained in good
condition” amounts to the same thing in this case, the case of the never-cleaned respirators,
as section 1910.134(b)(5) ‘s requirement that respirators be “regularly cleaned and disin-
fected,” section 1910.134(f)( 1)’s re q uirement that respirators be “maintained to retain [their]
original effectiveness” by “[clleaning and disinfecting,” and section 1910.134@(3)‘s
requirement that “[rloutinely used respirators shall be collected, cleaned, and disinfected as
frequently as necessary to insure that proper protection is provided for the wearer.” In
essence, the Secretary argues, under either body of standards respirators must be regularly
cleaned, and an employer’s failure to clean -them is a violation.
We agree that construction industry employers must do essentially the same thing
pursuant to section 1926.103(c)(2) that general industry employers must do pursuant to the
general industry standards. The construction standard requires construction employers to
inspect respirators “regularly” and assure that they are “maintained in good condition,”
which is what general industry employers must do under sections 1910.134(b)(5) (“regularly
cleaned and disinfected”), 1910.134(f)( l)(ii) (“ maintenance and care of respirators shall be
adjusted to the type of . . . working conditions, and hazards involved, and shall in-
clude . . . [clleaning and disinfecting”), and 1910,134(f)(3) (“[rloutinely used respirators shall
be collected, cleaned, and disinfected as frequently as necessary to insure that proper
protection is provided”). As the judge noted in his decision, section 1910.134(f)(l)(i) shows
that “[clleaning and disinfecting” are aspects of “maintenance and care.” Therefore, section
1926.103(c)(2) ‘s reference to respirators being “maintained in good condition” means the
same thing as the general industry standards governing the same matter, i.e., that respirators
must be cleaned to maintain their expected level of protection. We note that this employer
has already demonstrated its understanding of these requirements by formulating a safety
program that requires regular respirator cleaning and sanitization, see infra note 27.
12
In summary, a comparison of the construction standard to the general industry
standards governing the same matter sheds light on the meaning and scope of the
construction standard. But, although both bodies of standards establish the same duties, it
is the construction standard that must be cited, inasmuch as the construction standard is
preemptive pursuant to section 191OS(c)( l), see supra note 3. See ako L.R WWon and
Sons, Inc. v. OSHRC, 698 F.2d 507, 51142 (D.C. Cir. 1983); Dravo Corp. v. OSHRC, 613
F.2d 1227, 1234 (3d Cir. 1980); Lowe Constr. Co., 13 BNA OSHC 2182, 2183-85, 1987-90
CCH OSHD 128,509, pp. 37,79698 (No. 85.1388,1989); i&on Corp., 10 BNA OSHC 1153,
1156, 1981 CCH OSHD l’l25,749, pp. 32,158.59 (No. 78-2923, 1981), afd, 691 F.2d 503 (8th
Cir. 1982).
B. Amendkent
In his decision, the judge amended the pleadings sua sponte to allege a violation of
section 1926.103(c)(2), the more specifically applicable standard. The judge reasoned that
the employer, having raised the matter of this standard’s possible applicability, “squarely
recognized that the applicability question was in issue, and it could raise no defense under
that standard that it could not raise under the general industry standard.” The employer did
therefore have “a full opportunity to present evidence rebutting this charge.”
The employer takes exception to the judge’s decision on the basis that the
posthearing amendment sua sponte to an uncited standard, however applicable that standard
may be, deprived the employer of a defense, i.e., the inapplicability of the cited standard,
and thereby produced prejudice to the employer. The employer also makes an argument
suggesting that the amendment changed the factual nature of the charge and, by putting new
facts in issue, prejudiced the employer. Exactly what new facts and sudden prejudice have
been presented, however, the employer does not disclose, except in asserting the following,
regarding only the characterization of this item:
To prove a willful violation there must be evidence that establishes that the
cited employer (‘knew of the applicable standard or provision prohibiting the
conduct or condition and consciously disregarded the standard.” Secretary v.
William Enterprises, 13 BNA OSHC 1249, 1256 (1987), emphasis added. It
seems self-evident that if OSHA itself didn’t know the applicable standard, nor
did the ALJ until after the completion of the trial and extensive post-trial
briefing, the evidence at trial could hardly have established that Respondent
knew. The ALJ did not specifically address that requirement in his discussion
13
of willfulness and did not make any finding that Respondent knew the
applicable standard. ALJ 40-52.
The Secretary argues in support of the judge’s posthearing amendment on the basis
that there could have been no prejudice to the employer because the amended standard’s
requirements do not differ from those of the cited standard. The factual issues, relating to
proof of violation and any factual defense against it, are the same no matter which standard
is cited. Both standards require the regular cleaning of respirators, which the employer
altogether failed to perform.
For the procedural analysis upon which to evaluate the propriety of an amendment,
we look to Rule 15 of the Federal Rules of Civil Procedure. See 29 C.F.R. 8 2200.35(f)(3).
Paragraph (a) of Rule 15 provides that, after the pleading stage of the proceedings, “a party
may amend his pleading only by leave of court . . . and leave shall be freely given when
justice so requires.” Paragraph (b) of the rule elaborates on amendments after the hearing,
stating:
(b) AMENDMENTS To CONFORM To THE EVIDENCE. [l]When
issues not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised in
the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be-made
upon motion of any party at any time, even after judgment; but failure so to
amend does not affect the result of the trial of these issues. [2] If evidence
is objected to at the trial on the ground that it is not within the issues made
by the pleadings, the court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the action will be sub-
served thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action or
defense upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
(Bracketed numbers added.)
More than fifteen years ago, the Second Circuit (covering New York City, the
location where this case arose) decided, pursuant to Rule 15, to permit an amendment
substantially similar to the one in this case. Usery v. Marquette Cement Mfg. Co., 568 F.2d
902 (2d Cir. 1977)(“Marquette ”). The amendment came into Marquette after the hearing had
been completed; the Secretary wanted the amendment because the employer was arguing,
in its brief to the judge, that the cited standard did not apply. The judge granted the
amendment, a ruling which the Second Circuit upheld on the basis that the amendment did
14
not change any of the factual issues relating to the merits; it changed only the specific
provision allegedly violated. The court recognized that the employer opposed the
amendment on the ground that it would eliminate one of the defenses raised before the
judge. That is, in the employer’s brief to the judge, the employer objected to any change
in the theory of the Secretary’s case. The court held, however, that a change in legal theory
is permissible even after the hearing is completed as long as the employer has not suffered
any prejudice to its presentation of its case. In this regard, the court relied generally on
Rule 15(a) and particularly on the second part of Rule 15(b), Le., its third and fourth sen-
tences that we have designated [2] in the foregoing quotation of the rule. Inasmuch as the
employer never argued that any evidence would have been relevant to the amended charge
beyond that which had come in regarding the cited charge, the court found no prejudice.
The court’s application of Rule 15(a) and Rule 15(b) is instructive; particularly
instructive is the court’s reliance on the second part of Rule 15(b). The court’s analysis
indicates that . consent, express or implied, with which Rule 15(b)‘s first part deals, is always
out of the question where an employer defends on the ground that an uncited provision is
applicable and that the cited charge should therefore be vacated. Compare A4cFWZiam.s
Forge Co., 11 BNA OSHC 2128, 2130, 1984-85 CCH OSHD ll 26,979, p. 34,670 (No.
80-5868, 198d)(“AkMlZiams ”) (no consent, express or implied, where parties explicitly
disagreed, at trial, about cited provision’s applicability). Obviously, when an employer argues
that a citation item must be vacated because there is an uncited, more specifically applicable
standard., the employer does not consent to affirm the citation on the basis of that uncited
provision. Nor does such an employer consent to have the evidence used to establish a
violation of the uncited provision. Here, then, is where the second part of Rule 15(b) comes
into play. There having been, in effect, an express objection to any use of the evidence in
support of an unpleaded charge, we must examine whether there is any prejudice. This is
essentially what the Second Circuit decided in Marquette. See also Dole v. Arco Chemical
Co., 921 F.2d 484, 488 (3d Cir. 1990) (a discussion of “the required showing of prejudice,
regardless of the stage of the proceedings” that indicates that prejudice arises only from
changes in the facts and evidence, not from changes in the standard at issue). Compare
Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065, 1068-69 (5th Cir. 1982) (no prejudice
argued in response to an amendment that did not change the factual basis of the Secretary’s
- 15
case), withMcLean-Behm Steel Erectors, Inc V. OSHRC, 608 F.2d 580, 582 (5th Cir. 1979)
(amendment disallowed where it altered the abatement method at issue).’
We therefore turn to the question of whether the amendment in the case now before
US gave rise to any prejudice to the employer. “To determine whether a party has suffered
prejudice, it is proper to look at whether the party had a fair opportunity to defend and
whether it could have offered any additional evidence if the case were retried.” Cotigra
Co., 15 BNA OSHC 1817, 1822,1992 CCH OSHD ll 29,808, p. 40,592 (No. 88.
FZourMiZZing
2572, 1992) (possibility of prejudice from lack of particularity), citing Monad v. Futura, Inc.,
415 F.2d 1170, 1174 (10th Cir. 1969). This is how the Commission essentially resolved
Mcwilliams, our principal recent precedent regarding posthearing amendments. There, the
Commission gave dispositive consideration to whether the amendment substantially altered
the facts at issue. The Commission was applying only the first part of Rule 15(b), not the
second part, see 11 BNA OSHC at 2130 n.5, 1984-85 CCH OSHD at p. 34,670 n.5. But
pursuant to the rule’s first part, the Commission examined whether substantive differences
in the wording of the Secretary’s allegations under the cited and amended provisions might
have altered the factual issues and thus altered the evidence that the parties could have
presented. MclVTZZiam,11 BNA OSHC at 2130-31, 1984-85 CCH OSHD at 26,979,
pp. 34,670-71.
The fact that there were substantive differences in the standards, in the allegations,
and in the evidence that could have been presented distinguishes McWZZiams from
Marquette, as well as the case‘now before us. The record in the case now before us reveals
a clear and unrefuted noncompliance with all of the standards that have been raised in
connection with item 1 of citation 1 in this case, and the terminology of the standards does
not materially or substantively vary. In fact, in this case the employer’s own respirator
program called for cleaning, in virtually the same terminology as the standards raised in this
case, see infia note 27. Thus, a perusal of the defenses raised in the employer’s posthearing
9 The Secretary went from a standard requiring safety belts to one requiring safety nets. The court regarded
this alteration of the factual and legal issues as “a quick reversal of direction” that was impermissible after
the close of the hearing. Not only was the employer denied the opportunity to present evidence in defense
against the new requirement for safety nets instead of safety belts but the employer was denied the opportunity
to defend against or object to some evidence presented at the hearing that was relevant to the safety belt
charge originally at issue but that became relevant also to the safety net charge added by the amendment.
-
16
brief, to which the employer refers on review, discloses that they either apply equally as well
to the amended standard or are essentially legal in nature, not factual (such as that the
Secretary erroneously cited a general industry standard rather than the correct construction
industry standard, or erroneously cited a general industry standard that pertains to an
employer’s safety program, only). We therefore, pursuant to the second part of Rule 15(b),
uphold the judge’s decision to amend the pleadings to allege a violation of section
1926.103(c)(2).
c. Kiwwlkde
To establish a violation of a standard, the Secretary must show that the cited standard
applies, its terms were not met, employees had access to the violative condition, and the
employer knew or could have known of this fact with the exercise of reasonable diligence.
See, e.g., Astra Pharmaceutical Prod., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD
II 25,578, pp. 31,899.900 (No. 78-6247, 1981), afs’d in part, 681 F.2d 69 (1st Cir. 1982). In
this case, employee exposure to a condition that is violative of the amended standard is
unrebutted, and applicability was examined above. The remaining issue involves the employ-
er’s knowledge of the violative condition, which the judge found established on the basis that
.
the employer, having control of the worksite and authority over the employees and their
equipment, and having articulated a safety program including a requirement that “a qualified
individual” perform regular cleaning of respirators, could have examined the respirators at
any time and could have seen their dirty condition.
The employer takes exception to the judge’s decision in three respects. First, the
employer asserts that the Secretary limited his case to two days in September 1987; the case
did not concem‘%om June on,” as the judge stated in finding that the employer could have
known of the dirty respirators. This objection is, however, immaterial. As our preceding
paragraph indicates, the evidence on which the judge relied concerning the period from June
onward pertains equally as well to the two days in September, and the employer has neither
argued nor shown otherwise.
Second, the employer asserts that the judge impermissibly “based his findings upon
unidentified and unspecified ‘employees.’ ” The employer has neither argued nor shown,
however, that it was unable to identify the employees whom the compliance officer
inteniewed during the inspection and on whose statements the Secretary premised his case
17
of noncompliance. In fact, the Secretary named the employees in his responses to
interrogatories, the compliance officer named them in his testimony, and the employer
actually quoted this testimony in its posthearing brief. Furthermore, at no time did the
employer ask for a postponement of the hearing or its continuance to prepare rebuttal
testimony. Therefore, this objection is misleading and baseless.
Third, the employer objects that there ought to be further findings concerning what
“regularly” means as it is used in section 1926.103(c)( 2). In the context of this case,
however, the employer’s objection is frivolous and immaterial to the finding of a violation.
The Secretary need not show how frequently an employer may do nothing, or that an
employer could have recognized a necessity to do something other than nothing at
specifically frequent intervals. Surely an employer contemplating the fact that there was
nothing being done could have suspected a strong potential for liability; fair notice is
obvious. C’ Onnet Corp., 14 BNA OSHC 2134,2136, 1991 CCH OSHD !l 29,254, p. 39,200
(No. 85-531, 1991) (employers can be expected at least to apply reasonable judgment to
indefinite terminology). Also, the employer is aware of section 1910.134(f)(3) which
indicates that the cleaning would need to be frequent enough to ensure that the respirators
continue to provide the expected protection. Accordingly, we affirm the judge’s decision
finding the employer in violation of section 1926.103(c)(2).
III. Citation I, Item 2
Item 2 alleged that the employer failed to store its respirators as required by 29
C.F.R. 5 1910.134(b)(6).‘” Th e uncontradicted testimony of the compliance officer was that
respirators either were stored in open milk containers inside a dusty storage trailer or were
simply stowed inside the employees’ automobiles. These practices were contrary to the
employer’s own safety program, which called for storage that would protect the respirators
from dust, sunlight, extreme temperatures, moisture and chemicals, see infia note 27. On
‘@The ci ted general industry standard states:
§ 1910.134 Respiratory protection.
;b;i equ’uements for a minimal acceptable program.
& kspiramrs shall be stored in a convenient, clean and sanitary location.
‘9
-
18
review, the employer makes essentially the same arguments as we have addressed for item
1 -- applicability, amendment, and knowledge.
A. Appkability
As was the case for item 1, the employer argued to the judge that the Secretary cited
the wrong standard for this item. The employer contended that the violative condition is
addressed by section 1926.103( c)( 2), see supra note 7. The judge agreed, reasoning that
proper storage is an aspect of maintenance and care, as demonstrated by section
1910.134(f)(l), see supra note 8, and section 1910.134(f)(S)(i).”
On review, however, the employer asserts that the applicable standard is instead
section 1910.134(f)(5)(i). Th e employer’s arguments are those that we have already
reviewed in connection with item 1. In response, the Secretary essentially repeats his argu-
ments, asserting that the general industry standard and the construction standard impose the
same requirement -- clean storage -- and that the employer violated both standards. For the
reasons we have already given in connection with item 1, we hold that the applicable
standard is section 1926.103(c)(2) and that it imposes materially the same requirements as
the cited general industry standard and the related general industry standards that we
mentioned at the end of the oreceding
.- paragraph.
B. Amedment
The judge amended the pleadings sua sponte to allege a violation of section
1926.103(c)(2). He reasoned that the employer “squarely recognized that the applicability
of that standard was in issue” and “had a full opportunity to rebut this charge under either
the cited standard or the amended standard.” The employer takes exception on the same
basis as we have already addressed with respect to item 1, and our analysis there applies
here. Accordingly, we uphold the amendment.
“29 C.F.R. 9 1910.134@(5)(i) states:
After inspection, cleaning, and necessary repair, respirators shall be stored to protect against
dust, sunlight, heat, extreme cold, excessive moisture, or damaging chemicals. . . . Routinely
used respirators, such as dust respirators, may be placed in plastic bags. Respirators should
not be stored in such places as lockers or tool boxes unless they are in carrying cases or car-
tons.
19
Employee exposure to a condition that is violative of section 1926.103(c)(2) was
unrebutted, and we have decided that the standard applies. The judge inferred that the
employer, having control of the worksite and authority over the employees and their equip-
ment, and having even articulated a safety program including a requirement that “respirators
shall be stored to protect against dust” and other specified agents of harm, could have
scrutinized the existing storage practices at any time and could have seen the improper
conditions. The employer makes the same arguments that we have rejected with respect to
item 1. They are no more valid with respect to item 2. Thus we reject them and uphold
the judge’s decision finding a second violation of section 1926.103(c)(2).
IK Chtion 1, Item 3
Item 3 alleged that the employer did not use approved respirators, even though they
were available. Rather, the employer allegedly fitted together the components of two
different respirator brands, an action that “nullified” the governmental approval for the
brands. The complaint cited 29 C.F.R. $ 1910.134(b)( 11), a general industry standard.12
Then, in his posthearing brief, the Secretary moved to amend to a more specifically
‘%he cited gen era1 industry standard states:
9 1910.134 Respiratory protection.
(b) Requirements for a minimal acceptable program.
;&Approved or accepted respirators shall be used when they are available. The respirator
furnished shall provide adequate respiratory protection against the particular hazard for which
it is designed in accordance with standards established by competent authorities. The U.S.
Department of Interior, Bureau of Mines, and the U.S. Department of Agriculture are
recognized as such authorities. Although respirators listed by the U.S. Department of
Agriculture continue to be acceptable for protection against specified pesticides, the U.S.
Department of the Interior, Bureau of Mines, is the agency now responsible for testing and
approving pesticide respirators.
20
applicable construction standard, 29 C.F.R. 0 1926. 103(a)(2).13 Before us for review are
various issues regarding applicability, amendment, noncompliance, and seriousness.
A. Applkability
The judge held section 1926.103(a)(2) applicable in lieu of section 1910.134(b)( 11)
because, although “the standards both require that respirators be approved,” the
construction standard “is the more specifically applicable standard” for a construction
industry employer. In response to our briefing notice, the Secretary emphasized that respi-
rators composed of components from approved brands cannot be approved respirators:
If employers could freely substitute parts from other manufacturers
after purchasing an approved respirator, . . . there may as well have been no
approval process in the first place. Respirators are approved as entire units
and must be used as entire units. This means that substitute parts from
different manufacturers cannot be permitted under section 1910.134(b)( 11) or
1926.103(a)(2).
The employer, however, made only a general response to our briefing notice, only asserting
that the Secretary ought to cite the correct standard when formulating his pleadings. The
employer did not, however, specify which standard is applicable or argue that the
construction standard affirmed by the judge is inapplicable. We therefore have before us
now no apparent dispute between the parties as to the applicability of the construction
standard to which the judge amended the pleadings. We will therefore assume, without
deciding, that the construction standard applies for the purposes of further review in this
case. See Savard M&r Freiglzt, Inc., 13 BNA OSHC 2230, 2232 n.5, 1987-90 CCH OSHD
ll 28,506, p. 37,785 n.5 (No. 86- 1691, 1989)(‘%ward”) (assumption without decision that
acquiescent employer violated general duty clause).14
‘3This constructio n standard states:
f$ 1926.103 Respiratory protection.
. . l
;,c
a eneral.
. . . .
(2) Respiratory protective devices shall be approved by the U.S. Bureau of Mines or
acceptable to the U.S. Department of Labor for the specific contaminant to which the
employee is exposed.
14Aho raised as an issue for review in our briefing notice is the applicability of 29 C.F.R. 5 1910.134(f)(4),
another general industry standard which the employer raised before the judge. In pertinent part, this general
(continued...)
21
B. Amendment
In his posthearing brief, the Secretary moved to amend his pleadings to allege a viola-
tion of section 1926.103(a)(2) rather than section 1910.134(b)( 11). We have before us two
issues on review: (1) whether the improper form of the motion warrants some sanction
against the Secretary, such as disallowing the amendment; and, (2) if not, whether the
amendment is nevertheless prejudicial to the employer.
1. Improper Form of the A4otion to Amend
Our procedural rules prohibit a party from including a motion in its posthearing brief
as the Secretary did; instead, any motion must be separately presented, i.e., in a separate
document entitled as a motion, to which the opposing party may file a separate response.
29 C.F.R. fj 2200.40(a) and (c)? In this case, the employer did not file a response and the
employer now asserts that the Secretary’s procedural violation deprived it of an opportunity
to respond. We see, however, from our review of the posthearing proceedings, that there
actually was a sufficient opportunity. The judge here authorized the filing of reply briefs
upon the employer’s request, but in its reply brief the employer did not respond to the
industry standard states: “Replacement or repairs shall be done only . . . with parts designed for the
respirator. No attempt shall be made to replace components . . . beyond the manufacturer’s recommenda-
tions. . . .” Judge Sommer held section 1910.134(f)(4) inapplicable because there was no evidence that
componentshad been removed or replaced. The Secretary further argues on review that section 1910.134(f)(4)
is simply an additional requirement telling employers that replacement parts must “be both from the same
manufacturer of the approved unit and be parts approved by the manufacturer of that unit.” The employer,
however, does not continue to argue that section 1910.134(f)(4) is applicable; in fact, on review the employer
does not even mention the standard, despite its mention in our briefing order. We therefore find abandon-
ment and decline to address the issue. See Georgia Pacific Cop., 15 BNA OSHC 1127, 1130, 1991 CCH
OSHD lI 29,395, p. 39,576 (No. 89-2713, 1991) (no review of issues on which a party expresses no interest);
Lone Star Steel Co., 10 BNA OSHC 1228, 1982 CCH OSHD IT25,825 (No. 77-3893, 1981) (absent compelling
pubhc interest, abandoned issues are not addressed on review).
%ese provisions state, in pertinent part, the following:
(a) How to make. A request for an order shall be made by motion. Motions shall be in
writing . . . . A motion shall not be included in another document, such as a brief or a
petition for discretionary review, but shall be made in a separate document. Unless a motion
is made by all parties, the moving party shall state in the motion any opposition or lack of
opposition of which he is aware.
(c) Responses. Any party or intervener upon whom a motion is served shall have ten days
from service of the motion to file a response. . . .
- 22
Secretary’s motion? That the employer did not object to the motion, after having had
opportunity to do SO, was one reason the judge granted the motion.
The employer’s argument on review suggests a belief that the judge was required to
sanction the Secretary for his error. We disagree, based on our procedural rules. Pursuant
to Commission.Rule 41(a)(2), 29 C.F.R. § 2200.41(a)(2),” a judge has “discretion” to hold
a party in default for noncompliance with procedural rules and orders. In other words,
whether to impose a sanction is explicitly a matter for the judge’s sound exercise of “discre-
tion” in the circumstances of the case. Also, a judge’s failure to impose a sanction is only
reviewable for abuse of discretion, and a sanction is justified only if the Secretary’s misbe-
havior was contumacious or the employer suffered prejudice, or if other aggravating
circumstances were present. See ChartwellCop., 15 BNA OSHC 1881, 1883, 1992 CCH
OSHD Ii 29,817, pp. 40,626-27 (No. 91-2097, 1992).
We conclude that the judge did not abuse his discretion in this case. The employer
does not argue either contumacy or prejudice and we find neither contumacy, prejudice, nor
160ur rules allow -- though they do not encourage -- a judge to authorize such full briefing:
Any party shall be entitled, upon request made before the close of hearing, to file a brief,
proposed findings of fact and conclusions of law, or both, with the Judge.
. . . Reply briefs shall not be allowed except by order of the Judge.
29 C.F.R. (52200.74(a) & (b). In this case, the employer requested authorization to file a reply brief because
the Secretary had submitted what amounted to a reply brief, a letter taking exception to portions of the
employer’s brief. Judge Sommer granted the employer’s request and the employer duly filed its reply brief.
Yet the employer did not include any objection whatsoever to the Secretary’s improper footnote-made motion
to amend, which began with language plain enough to alert a party to the need to respond: The Secretary
hereby moves to amend citation 1, item 3 to reflect a violation of 5 1926.103(a)(2) instead of
0 1910.134@)( ll).” Also, inasmuch as our rules expressly allow responses to motions, see supra note 15, they
thereby give notice of the need to consider making a response.
“In full, 29 C.F.R. 5 2200.41(a), states:
5 2200.41 Failure to obey rules.
(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these
rules or as required by the Commission or Judge, he may be declared to be in default either:
(1) On the initiative of the Commission or Judge, after having been afforded an
opportunity to show cause why he should not be declared to be in default; or
(2) On the motion of a party. Thereafter, the Commission or Judge, in their
discretion, may enter a decision against the defaulting party or strike any pleading or
document not filed in accordance with these rules.
-
23
any other aggravating circumstance compelling the sanction of default. As a general rule,
a lone instance of noncompliance with a procedural rule is not, in and of itself, a showing
of contumacy, and there were no further instances of noncompliance by the Secretary.
Additionally, the employer did not make a timely objection, did not request that the judge
order the Secretary to put his motion into the proper form, did ask to file a reply brief, and
thus was permitted to reply before the judge granted the Secretary’s motion to amend.
Accordingly, there was no prejudice.18
2. Propriety of the Amendmeti
The judge held that the amended standard established materially the same
requirement as the originally cited standard and that, as a construction standard, the
amended standard was more specifically applicable. He further held that the amendment
did not prejudice the employer. The employer disagrees, asserting that the amendment
eliminates a defense, i.e., the inapplicability of the cited standards, and changes the factual
nature of the charge. The employer further contends that the amended standard is
unenforceably vague because it -- unlike the cited standard--requires respirators to be
“acceptable to the U.S. Department of Labor for the specific contaminant to which the
employee is exposed.” The employer also contends that the amendment alters
. the theory
on willfulness, inasmuch as the Secretary cannot establish the characterization without estab-
lishing knowledge of the applicable standard.
The Secretary supports the judge’s decision to allow the amendment, arguing that the
employer did not object and was not prejudiced because the amended standard’s essential
requirements do not differ substantially from the cited standard. That is, both standards
require employers to use approved respirators, which the employer did not do.
To a large extent, our analvsis
I regarding item 1 applies to item 3, but the matter of
prejudice from the portion of the amended standard that the employer regards as vague
requires our further comment. FM the reasons set forth in the next paragraphs, we find that
“we note that the employer too has placed a motion in a brief. The employer’srequest for a sanction against
the Secretary under Commission Rule 4 1(a )(2) is, in essence, a motion. Of course, this kind of motion too,
by an employer, should not be made in a brief. We only mention this circumstancein passing, however, and
hereby essentially overlook the procedural infraction, because the briefing notice in this case apparently invited
argument by this employer for a sanction against the Secretary. The briefing notice asked the following: “In
particular, should the motion [to amend] have been denied on the ground of noncompliance with 29 C.F.R.
8 2200.40(a)?”
24
portion of the amended standard on which the employer now focuses has no relationship to
the facts of this case and that the amendment actually had no effect on the employer’s
defense of the case.
Our inquiry is focused on whether the amendment altered the factual and legal issues
of the case at hand. If it did not, there cannot have been prejudice. Therefore, we must
compare the provisions of the two standards that are now at issue, because of the motion
to amend, with the factual and legal matters that were at issue throughout the case. The
cited standard requires approval by “competent authorities.” See supra note 12 (“[tlhe
respirator furnished shall provide adequate respiratory protection against the particular
hazard for which it is designed in accordance with standards established by competent
authorities,” such as the U.S. Department of Agriculture or the U.S. Department of Interior,
Bureau of Mines). More limited and quite different, apparently, is the standard to which
the Secretary would amend, for it specifies approval by the “U.S. Bureau of Mines” or, as
an alternative, the Labor Department. See supra note 13 (in the alternative, respirators shall
be “acceptable to the U.S. Department of Labor for the specific contaminant to which the
employee is exposed”). And, as the employer correctly points out, in some cases this alter-
native could be unenforceable; if the Labor Department were to grant or withhold approval
arbitrarily, ie., not upon the basis of standards setting forth criteria for approval, employers
.
could lack notice of what is required to gain approval and to avoid citation.
In this case, however, this alternative and the other differences between the two
standards as to the authorities for respirator approval never came into play. The Secretary’s
compliance officer testified that governmental approval is based on entire units from individ-
ual respirator manufacturers, not on units composed of parts from two manufacturers; there-
fore, an employer such as the one in this case who was using composite respirators --
composed of parts from two manufacturers -- could not have been using approved respira-
tors. Significantly, the employer in this case made no effort to show that any authority did
in fact approve such respirators; the employer made no attempt to refute the Secretary’s evi-
dence that, under either standard, the cited one or the amended one, a composite respirator
could not have been approved. The compliance officer also testified that he found, from
a certification list compiled by the National Institutes of Safety and Health (“NIOSH ”), that
one manufacturer’s face piece this employer was using on another manufacturer’s respirator
25
was not approved for positive pressure useal Also, as to this matter, the employer did not
try to show, by way of rebuttal, any such respiratory approval by any governmental authority.
In short, on the facts of this case the amendment has not worked any material alteration in
the Secretary’s case and has therefore produced no prejudice to the employer’s defense.
C. NIOSH Certiiation
As the preceding discussion indicates, testimony regarding a certification list from
NIOSH figured in the Secretary’s case. The employer argues that’ the judge erred in
premising a finding of violation on a lack of NIOSH approval inasmuch as no standard
requires NIOSH approval. In particular, NIOSH approval cannot constitute Labor
Department approval within the meaning of the amended standard, the employer asserts,
because that standard does not give employers adequate notice (and there is no proof) that
NIOSH approval really does constitute Labor Department approval. Therefore the ‘item
must be vacated, the employer submits, additionally pointing to testimony from the
compliance officer admitting that he did not know whether the employer’s respirators had
been approved by authorities actually listed in the cited standard. The compliance officer,
after admitting that he had rot checked with the authorities listed in the cited standard,
avowed that to the best of his knowledge NIOSH had taken over the approval function of
?he following p assage from the judge’s decision (transcript references omitted) summarizes the evidence:
The evidence clearly establishes a violation, whether this item is considered under the
cited standard or the amended standard. Respondent’s office engineer in charge of safety,
Norman Kramer, told [compliance officer] Bustria that as far as he knew, the air line
respirators were “Willson 1820.” However, during his inspection Bustria noticed that the air
line respirators used by four employees had a face piece marked Pulmosan, and a specific face
piece number. He searched for U.S. government approval for the Pulmosan face piece for
use as an air line respirator, and found none.31
Bustria testified that Federal approval of respirators is based on the entire unit.
Thus, all parts of the air line respirator would have to be from one manufacturer. He
explained that the entire unit must be approved so that a respirator system is not used that
has both approved and unapproved parts. Thus, based on the evidence presented, the
respirators were not approved because (1) they were a mixture of parts of different
manufacturers, and (2) they had a face piece that is not approved as a positive pressure
device.
31The certification list he consulted was by NIOSH (National Institute for Occupational
Safety and Health, within the U.S. Department of Health and Human Services). He noted
that the Pulmosan face piece had been approved for another use-as a negative pressure
respirator.
26
MSHA, which in turn had taken over the approval function from the Interior Department’s
Bureau of Mines. Moreover, the employer argues, the Secretary’s citation and complaint
had relied on an entirely different theory, that creating a composite respirator from parts
of two approved respirators nullifies their approval. All the same, the employer notes, the
amended standard does not require that, for approval, all parts of a respirator must have
been manufactured by one manufacturer. Accordingly, evidence regarding an employer’s
use of a composite respirator does not establish a violation.
The Secretary argues that the compliance officer’s use of the NIOSH certification list
was proper because, under the amended standard, the Labor Department has discretion to
refer to any rational source of approval that it might choose, within the sound exercise of
its discretion. And, in any event, the functions of the Interior Department’s Bureau of
Mines now belong to the Labor Department.
Our own research reveals that the respirator approval function delegated to the
Interior Department’s Bureau of Mines is now delegated to NIOSH. See 30 U.S.C. 6 957
(pursuant to which the following regulations regarding respirator approval were promul-
gated); 30 C.F.R. 6 11.10 (regarding respirator approval application procedures for and
submissions to the Testing & Certification Laboratory of NIOSH); 30 C.F.R.
. 5 11.2
(regarding use of approved respirators and indicating that approval functions were formerly
performed by the Interior Department’s Bureau of Mines). Moreover, the employer in this
case evidently knew of NIOSH’s authority, for the employer’s own safety program required
that “NIOSH/MSHA approved respirators” be used? On these bases, then, we reject the
argument against reliance on the NIOSH certification list and hold the Secretary’s evidence
sufficient to sustain his case, especially inasmuch as it is unrebutted. We do not hold here
that composite respirators are per se a violation of these standards, only that the employer
failed to present any evidence which would show that such respirators met the standards and
requirements of approved respirators.
% its arguments, the employer has not acknowledged this provision of its safety program and has not
explained the reference to NIOSH rather than the Bureau of Mines.
-
27
D. Seriousness
The judge characterized the violations as serious based upon “the fact that employees
were suffering serious symptoms as a result of their lead exposure,” in that employees had
suffered significant weakness, nausea, dehydration, and circulatory system changes. Some
employees required several days of bed rest and medical treatment for recovery, and one
employee actually required hospitalization to undergo chelation therapy, which is
administered only for high blcod lead levels because the therapy itself poses serious risks to
the kidneys and the heart. The judge further found that the employer’s use of unapproved
respirators contributed to the excessive exposure.21
The employer asserts that the Secretary’s proof of knowledge and serious harm is
insufficient; in particular, as to serious harm, the employer believes there is insufficient
evidence of a substantial probability of serious physical harm arising out of the employee
exposure detected on the two days of the inspection. In response, the Secretary argues that
the harm was surely serious inasmuch as this employer relied almost entirely on respiratory
protection against exposure to lead, and unapproved respirators can malfunction or fail to
provide the requisite protection, as the compliance officer testified.
- We note that the compliance officer testified that, in general, an unapproved
respirator may be ineffective ‘and that the specific face piece on the employer’s composite
respirators,was not approved for positive pressure use. This testimony raises an inference
I
.
that these respirators were ineffective, and that they presented a serious hazard to this
employer’s employees. The employer has not provided rebuttal testimony to indicate that
the composite respirators were effective despite being unapproved. Moreover, the employer
does not argue that the judge overlooked any pertinent evidence about the instances of
debilitation that occurred because of the exposure on the worksite and the serious risks to
the employees that these instances of overexposure tend to establish. As will be discussed
in greater detail with regard to item 5, persistent exposure to excessive levels of airborne
lead is substantially likely to result in serious physical harm. See Johnson Controls, Inc., 15
BNA OSHC 2132, 2139-42, 1993 CCH OSHD ll 29,953, pp. 40,969.73 (No. 89-2614,
1993)(“Johtion”). Moreover, as the judge correctly reasoned, the employer could have
210n the same basis, the judge upheld the Secretary’s characterization of all of the items of @ation 1 as
serious, but the briefing order raised the issue as to this one item, item 3, only.
- 28
known of the noncomplying condition through the exercise of reasonable diligence.
Therefore, the use of unapproved respirators in this case was a serious violation.
Y. Citation I, Item 5
This item concerns the employer’s failure to require the wearing of protective work
clothing, to be taken off at the end of work shifts, to eliminate or reduce the risks of inhaling
and ingesting lead particles after work hours. The citation described the alleged violation
as follows:
Employees were exposed to concentrations of inorganic lead in excess of the
OSHA PEL of 0.2 mg/M3 TWA over 8-hours and were not wearing protective
work clothing. Lack of work clothing increases potential for lead exposure
through inhalation and ingestion - g/17/87 & 9/22/8X
The citation cited the personal protective equipment standard for construction, 29 C.F.R.
8 1926.28(a)? The complaint amended the citation to allege in the alternative a violation
of the Act’s general duty clause, section 5(a)(l)? The judge found a violation of the gen-
eral duty clause.
A. Applicability
The briefing notice raised two issues of applicability. First was whether the judge
erred in holding section 192&28(a) inapplicable. Both parties assume, however, that the
judge correctly rejected section 1926.28(a),% as our next paragraphs reciting their
2%s standard states:
The employer is responsible for requiring the wearing of appropriate personal protective
equipment in all operations where there is an exposure to hazardous conditions or where this
part indicates the need for using such equipment to reduce the hazards to the employees.
%e general duty clause, 29 U.S.C. 8 654(a)(l), states:
Each employer . . . shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees[.]
%4s the judge stated:
Under [our] precedent, the Secretary must prove that some other section of Part 1926
indicates the need for the particular personal protective equipment [he] advocates, to
establish a violation of 8 192628(a). L.E. Myers Co., [12 BNA OSHC 1609, 1614, 1986-87
CCH OSHD ll 27,476, pp. 35603-04 (No. 824137, 1986), rev’d on other ground& 818 E2d
1270 (6th Cir.), cm. denied, 484 U.S. 989 (1987)]. The only other section noted by the
(continued...)
- 29
arguments will show, and therefore we will not address the issue. See Georgia Pacific Cop,
15 BNA OSHC 1127, 1130, 1991 CCH OSHD ll 29,395, p. 39,576 (NO.89-2713, 1991) (no
review of issues on which a party expresses no interest); Lone Star Steel Co., 10 BNA OSHC
1228, 1982 CCH OSHD li 25,825 (No. 77-3893, 1981) (absent compelling public interest,
abandoned issues are not addressed on review).
There remains, then, the second issue, whether the Act’s general duty clause applied.
The Secretary maintains that the general duty clause must have applied since section
1926.28(a) did not. The employer disagrees on the theory that the Secretary cannot use the
general duty clause to impose a personal protective equipment requirement not found in the
construction standards and thus not enforceable by section 1926.28(a). This broad construc-
tion standard is, the employer maintains, the one source of a construction employer’s duties
with regard to personal protective equipment?
The employer relies on cases which indicate that section 5(a)( 1) may be inapplicable
in certain limited circumstances, amounting to unfairness, i.e., where the Secretary has stated,
or in a substantially clear way has implied, that an existing applicable standard or body of
standards cover the hazard or hazards, and set forth the entire duty of employers and
employees engaged in the particular operations or activities presenting such hazards. See
Amoco. Chem. Cop., 12 BNA OSHC 1849, 1856 1986-87 CCH OSHD Tl27,621, p. 35,905
(No. 7%250,1986) (general duty clause inapplicable to require disclosure of medical records
to employees directly where standard on disclosure of medical records requires disclosure
to governmental officials and employees’ physicians upon request of employees); Farthing
& Weidman, Inc., 11 BNA OSHC 1069, 1070-71, 1983-84 CCH OSHD ll 26,389, p. 33,490
(No. 78-5366, 1982) (general duty clause inapplicable where non-mandatory standard
=(...continued)
secretary is 0 1926.300(c), which does not specifically mention protective clothing. We are
awareof no construction standard that specifically mentions protective clothing. In addition,
Respondent argues that the emplovees’ tools were not hand or power tools, which are the
topic of 8 1926.300. The Se-creta&does not address this objection. Thus, this item will be
analyzed under 5 S(a)(l) of the A&.
25The judge did not address this contention, for it was not argued before him. The employer’s posthearing
brief took virtually the opposite position, that the elements of the Secretary’s we are essentially the same
under the general duty clause and the personal protective equipment standard for construction, an argument
which assumes that either provision applies in lieu of the other.
- 30
specifies abatement methods for hazardous condition of carrying loads over employees’
heads); Daniel In& Inc., 10 BNA OSHC 1556, 1558-59, 1982 CCH OSHD 1 26,033,
p. 32,683 (No. 78-4279, 1982) (general duty clause inapplicable to add abatement method
for hazards of falling materials during steel erection where steel erection standards address
the abatement of such hazards).
These and other cases indicate, however, that the general duty clause is applicable
to require a particular form of personal protective equipment to abate a hazardous condition
where, as here, there is no standard, ie., no construction industry standard requiring protec-
tive clothing for employees exposed to airborne lead during welding or similar work, such
as demolition. See also InternationalUnion, UnitedAuto Workersv. General Dynamics Land
Sys. Div., 815 F.2d 1570, 1577-78 (D.C. Cir. 1987), cert. denied, 484 U.S. 976 (1987) (general
duty clause applicable to require confined space entry procedure to prevent asphyxiation by
toxic compounds used in military tank construction where no standard addresses short-term
exposure in confined spaces). Compare Donovan v. Adams Steel Erection, Inc., 766 F.2d 804,
(3d Cir. 1985), rev’g 11 BNA OSHC 2073, 2076-78, 1984-85 CCH OSHD ll 26,976,
pp. 34647-49 (No. 77-4238 1984) (steel erection standards not preemptive regarding exterior
fall hazards); Bratton Corp., 14 BNA OSHC 1893, 1895-96, 1987-90 CCH OSHD II 29,152,
pp. 38,991.92 (No. 83-132, 1990) ( same). Furthermore, Commission case law indicates that
the mere lack of an applicable standard for a hazard to a segment of the construction
industry would not render the general duty clause inapplicable also. Compare Kastalon, Inc.,
12 BNA OSHC 1928, 1929-30, 198687 CCH OSHD Ii 27,643, pp. 35,971,72 (No. 79-3561,
1986) (dicta suggesting that OSHA’s failure to bring rulemaking to completion after court
ruled standard invalid might preclude resort to section 5(a)( 1) to abate hazardous chemical
exposure because of unfairness involved in Secretary’s prosecutorial decision to rely primarily
on general duty clause rather than standards). Accordingly, we cannot accept the employer’s
assumption in this case that OSHA, by promulgating various personal protective equipment
requirements for construction (29 C.F.R. Part 1926) and by promulgating airborne lead
hazard requirements for general industry but not for construction (29 C.F.R.
8 1910.1025(a)(2)), h as effectively indicated that these standards comprehensively cover the
hazards and preclude resort to the general duty clause.
-
31
B. LikeWwd of Serious Physical Harm
The judge explicitly found that the airborne lead particles generated by the bridge
demolition work were “causing or . . . likely to cause serious physical harm” to the employ-
er’s employees. The Secretary contends that this finding is correct because, among other
things, employee exposure to airborne lead at the excessive levels found in this case have
already been documented, through OSHA’s rulemaking regarding lead, as capable of causing
serious physical harm. See 29 C.F.R. 0 1910.1025 (airborne lead standards for general
industry). The employer disagrees, asserting that the gravamen of the violation is the lack
of protective clothing, and that there is no evidence its lack was “causing or . . . likely to
cause serious physical harm” and its use would materially reduce any harm?
To establish a violation of section 5(a)( 1), the Secretary must show that the employer
“failed to free the workplace of a hazard . . . that was causing or likely to cause death or
serious physical harm, and that could have been materially reduced or eliminated by a
feasible and useful means of abatement.” E.g., Pelron Corp., 12 BNA OSHC 1833, 1835,
1986-87 CCH OSHD ll 27,605, p. 35,871 (No. 82-388, 1986)(“PeZron”). This formulation of
%e employer also asserts that the Secretary changed his theory on review, now arguing that the lack of
protective clothing exposes the employees to lead after work hours, rather than during them. But there has
been no change, as the following portions of the complaint show:
Employees were exposed to inorganic lead at levels above the permissible exposure
limit. There were inadequate or no feasible administrative or engineering controls in place.
Employees wore street clothing while working on lead-painted steel structures and then wore
the same clothing home and in their cars. This condition increased the potential for extended
lead exposure through inhalation and ingestion.
&&oyees were exposed to inorganic lead at levels above the permissible exposure
limit in at least seven instances. Employees did not wear work clothing. They wore their
own clothing at work and then wore it home, often without showering or washing up.
Also, the Secretary alleged in the complaint that the hazard was the excessive lead, not the lack of protective
clothing:
Section 5(a)(l) of the Act applies to respondent’s operation because respondent’s employees
were exposed to the hazard of overexposure to inorganic lead. That hazard was [recognized]
by respondent or generally within respondent’s industry. That hazard was likely to cause
death or serious physical harm, and there were feasible means by which respondent could
have eliminated or materially reduced the hazard.
Furthermore, the hazard of wearing lead-contaminated clothing home was addressed in testimony at the
hearing.
- 32
the law indicates that the hazard is not the absence of the abatement method; instead, a
hazard must be defined in terms of a preventable consequence of the work operation.
Compare Pehn, 12 BNA OSHC at 1835.36,1986-87 CCH OSHD at pp. 35,871.72 (hazards
defined in terms of operational conditions or workplace practices which employers can
reasonably control because they do not constitute risks inherently necessary to production),
withBethlehem Steel Corp., 11 BNA OSHC 1877, 1880 n.5, 1983-84 CCH OSHD 1 26,848,
p. 34,392 n.5 (NO. 765004, 1984) (hazards not defined in terms of abatement methods
because general duty clause may be used to require upgraded methods that are feasible,not
merely recognized methods). Moreover, as our formulation of the law indicates, the Secre-
tary need only show that the abatement method would materially reduce the hazard, not that
it would eliminate the hazard. The Secretary is therefore not required to show that the
abatement method’s absence was the sole likely cause of the serious physical harm. See
Chevron Oil Co., California Co. Div., 11 BNA OSHC 1329, 1331-32 & 1333, 1983-84 CCH
OSHD li 26,507, pp. 33,722.23 & 33,724 (No. 10799,1983) (likely serious consequences ana-
lyzed separately from abatement method’s effect, which need not be elimination of serious
harm). In sum, when evaluating whether the hazard presented a likelihood of serious
physical harm, we do not inquire into whether the absence of the abatement method was
what presented the likelihood; we remain focused on the hazard alone, and a hazard is likely
to cause serious physical harm if the likely consequences of employee exposure would be
serious physical harm. See Pratt & Whitney Aircraft, 8 BNA OSHC 1329, 1335, 1980 CCH
OSHD lI 24,447, p. 29,825 (No. 13591, 1980), vacated in part on other grounds, 649 F.2d 96
(2d Cir. 1981). Compare Corsolidated Freightways Corp., 15 BNA OSHC 1317, 1324, 1991
CCH OSHD ll 29,500, p. 39,813 (No. 86-351, 1991)(“Freigh~ays ”) (serious section
1910.132(a) violation if accident is possible and serious physical harm is substantially proba-
ble result); KaiserAluminum & Chem. Co., 10 BNA OSHC 1893, 1896.97,1982 CCH OSHD
lI 26,162, p. 32,974 (No. 77-699, 1982) (serious section 1910.132(a) violation if disease could
result from violative condition and serious physical harm is substantially probable from
disease).
The hazard in this case is the excessive levels of airborne lead being generated by the
ongoing bridge demolition work; these excessive levels endangered the employees at their
work, were by no means inherently necessary to its accomplishment, could have been dis-
- 33
pensed with, and were thus preventable. The absence of protective clothing was not the
1
hazard; its use would be but one way to reduce the hazardous exposure. In general,
persistent exposure to excessive levels of airborne lead is substantially likely to result in
serious physical harm. See United Steelworkersv. Marshall, 647 F.2d 1189, 1203-04 & n.7
(D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) (citing cases); Johnson, 15 BNA OSHC
at 2139-42, 1993 CCH OSHD at pp. 40,969.73. See also 29 C.F.R. 6 1910.1025, Appendix
A. Also, in this case there was undisputed evidence of serious harm having occurred to
employees who had worked on the bridge demolition. See Freightways,15 BNA OSHC at
1324, 1991 CCH OSHD at p. 39,813 (persistent debilitating effects such as gastric problems
are serious); ConAgra, Inc., 11 BNA OSHC 1141, 1145, 1983-84 CCH .OSHD ll 26,420,
p. 33,527 (No. 79-1146, 1983) (potential for kidney damage is serious); Mahorte Grain Cop.,
10 BNA OSHC 1275, 1279, 1982 CCH OSHD ll 25,836, pp. 32,317.18 (No. 77-3041, 1981)
(severely incapacitating illness commonly requiring hospitalization is serious; evidence of
potential for permanent disability is unnecessary).
At the worksite, the compliance officer, who had a bachelors degree .in chemical
engineering and more than ten years experience as an industrial hygienist, measured the
exposure of employees to airborne lead particles. From these measurements, he discovered
that seven employees were being exposed to levels ranging from three to twenty times the
permissible eight-hour time-weighted average limit. At the hearing, he testified, without
rebuttal, that the lead particles had been accumulating on the employees’ clothes and that,
because the employees were wearing only street clothes rather than protective clothing such
as coveralls which could be removed at the end of the work shift, the employees’ exposure
to excessive levels of lead particles was being prolonged beyond the work shift. Specifically,
the compliance officer testified:
If the employees do not wear protective clothing or they carry home their
work clothes[,] . . . it increases their exposure to the lead dust. The lead
fumes were condensed and go back to their work clothes and so while driving
home they have this additional exposure. Also when they removed it at home,
they contaminate their homes . . . increasing their exposure . . . .
-
34
The compliance officer further testified that “[tlhis is a hazard which has been documented
in the literature.” He also testified that “it’s basically an industrial hygiene . . . problem . . .
which has to be addressed in order to minimize exposure.” According to the compliance
officer, health professionals recommend protective clothing. Notably, this employer had a
requirement in its safety program for protective clothing and had purchased disposable
coveralls, but had not enforced the wearing of them because the union had objected. See
infia note 28.
From this evidence, the judge found that “[tlhe failure to implement protective cloth-
ing significantly aggravated the excessive lead exposure that was causing serious harm . . . .”
In view of the unrebutted evidence about the exposure and the rationale behind expert
recommendations for protective clothing in the field of industrial hygiene, we regard the
judge’s statement as an implicit finding that protective clothing would have materially
reduced the harm, and we uphold the finding. See also 29 C.F.R. 8 1910.1025(g) (OSHA’s
lead standard for protective work clothing in general industry, discussed in paragraph V of
Appendix B thereof).
VT6 Citation I, Item 7
This citation item involves respirator inspection under section 1926.103(c)(2), the
same standard
. cited in items 1 and 2, on respirator cleaning and respirator storage. See
supra note 7. The complaint alleged in item 7 that “respirators were not inspected regularly
and maintained in good condition as they were dirty, not disinfected, and were stored in
open containers unprotected from dusts . . . .” The respirators at issue are the same ones
involved in items 1 and 2. The judge affirmed item 7 as well as items 1 and 2.
On review, the employer asserts that item 7 is duplicative of items 1 and 2, and the
Secretary essentially agrees, as shown by the following statement in his brief:
The Secretary does not contend in this appeal that respondent violated the
duty to inspect embodied in 29 C.F.R. 0 1926.103(c)(2) and alleged in Item 7.
Separate penalties for failure to clean the respirators under both Item 1 and
Item 7 would, therefore, be inappropriate.
The Secretary’s abandonment of his former contention “that the Respondent violated the
duty to inspect” implies that the Secretary has withdrawn item 7. We therefore reverse the
judge and vacate item 7.
35
-
VIZ. Willfulness
The judge found willful all six violations alleged in citation 1, but, grouping three of
them, assessed only four penalties: $10,000 for items 1, 2, and 7 together; $10,000 for item 3;
$10,000 for item 5; and $10,000 for item 6. Inasmuch as the Secretary implicitly withdrew
item 7, we only have before us the classification of items 3, 5, and 6 separately, and items
1 and 2 together, for the Secretary does not ask that the latter two items be separately
penalized.
Turning now to their classification as willful violations, we will first dispose of several
minor and meritless arguments. Contrary to the employer’s assertions, the judge did make
separate analyses of the four willful violations and did correctly find constructive knowledge
of the violative conditions on the basis that they were either readily visible or patently
apparent to the employer; in fact, the employer does not point to any evidence undermining
the judge’s findings. Also, in analyzing willfulness, the judge correctly relied on evidence
regarding conduct and occurrences prior to the inspection. Tampa Shipyards,Inc., 15 BNA
OSHC 1533, 1534 n.3, 1541, 1992 CCH OSHD II 29,617, pp. 40,097 n.3, 40,104 (No. 86-360,
1992).
The employer’s principal argument against willfulness is that the Secretary
continuously vacillated as to which standard applied to the facts of each item and obviously
failed to establish the employer’s awareness of any duty from any applicable standard. The
employer also argues that the Secretary failed to present sufficient evidence of the
employer’s awareness of its duties under applicable OSHA standards.
An employer’s knowledge of a standard’s requirement can be an important aspect of
willfulness, inasmuch as a willful violation is differentiated from the other classifications of
violation by the employer’s state of mind toward the safety or health duty imposed by a
standard. Bay State Ref: Co., 15 BNA OSHC 1471, 1475, 1992 CCH OSHD ll 29,579,
pp. 40,024.25 (No. 88-1731, 1992); Seward, 13 BNA OSHC at 2234, 1987-90 CCH OSHD
at pp. 37,787~88. Willfulness can be established by evidence that an employer knowledge-
able of a standard’s requirement either intentionally disregarded it or showed plain indif-
ference to it; that an employer harbored a “state of mind . . . such that, if he were informed
of the [applicable standard], he would not care” demonstrates willfulness. Brock v. Morello
Bras. Constr., 809 F.2d 161, 164 (1st Cir. 1987)(“Morello”). Compare A. Schonbek & Co. v.
Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (actual awareness of hazardous condition along
- 36
with failure to correct it or eliminate employee exposure to it demonstrates plain
indifference for purposes of willfulness). Of course, an employer’s mere familiarity with the
applicable standard does not automatically establish willfulness. See Wrightand Lopez, Inc.,
8 BNA OSHC 1261, 1265, 1980 CCH OSHD Tl24,419, pa 29,777 (No. 76-3743, 1980); see
also National Steel & ShipbuildingCo. v. OSHRC, 607 E2d 3 11, 315-16 n.6 (9th Cir. 1979)
(willfulness characterized by a “particularly improper” state of mind in violating standard).
If a willful violation did not additionally require a heightened knowledge, it would be
indistinguishable from a serious infraction. Morello, 809 F.2d at 164. Familiarity with the
applicable standard is not an essential aspect of willfulness. See id. (reckless state of mind
“if he were informed of’ the standard).
In defense against the state-of-mind aspect of willfulness, the employer in this case
argues that it made significant efforts to comply with OSHA requirements by reducing and
controlling the employee exposure to airborne lead. Willfulness is negated by evidence that
the employer had a good faith opinion that the conditions in its.workplace conformed to
OSHA requirements. E.g., Calang Corp., 14 BNA OSHC 1789, 1791, 1987-90 CCH OSHD
lI 29,080, p. 38,870 (No. 85-319, 1990). But the test of good faith is an objective one, i.e.,
whether the employer’s belief concerning the factual matters in question was reasonable
under all of the circumstances. In other words, the employer’s belief must have been
“nonfrivolous.” See Secretary v. Union Oil, 869 F.2d 1039, 1047 (7th Cir. 1989), citing
Morello, 809 F.2d at 165.
A. Fm
The judge found that this employer knew of the duties stated in the applicable
standards. He also, as a part of his finding of the requisite willful intent, rejected employer
good faith. We turn now to the facts regarding these two issues, knowledge of duties and
good faith, for each of the four alleged willful violations.
1. Items I and2
As we have discussed, these two items involve the employer’s duty to ensure that
respirators are adequately cleaned and stored, so as to protect employees from day-to-day
accumulations of lead. Several OSHA standards express the duty -- the general industry
standard stating it in a particularized way, see supra notes 6 and 8, and the construction
standard stating it in a generalized way, see supra note 7. Furthermore, there is no question
-
- 37
that one of these standards applied at the bridge demolition worksite involved in this case.
Although the employer has quibbled about which standard the Secretary ought to have cited,
never has the employer claimed that no standard imposed the alleged duty. Thus, unsur-
prisingly, we note that the employer’s own safety program required, at the time of the
inspection (and before the demolition project began), adequate cleaning and storage of
respirators.”
Nevertheless, from the outset of the demolition project up to the inspection, the
employer made no apparent efforts to ensure adequate cleaning and storage. The employer
did make efforts to implement a respirator program for the demolition project, and the
employer asserts that these efforts to provide necessary extra protection to employees
resulted in costs exceeding the bid for the job. The whole course of the employer’s efforts
is well described and documented in the judge’s decision, which carefully outlines the failure
of the employer’s on-site supervisors to implement measures that the employer’s off-site
managers had directed be implemented. The judge also documents the failure of all
supervisory personnel, on-site and off-site alike,
- to use the employer’s own written safety
program as a mandatory outline of procedures and ensure implementation of the applicable
measures described therein. The judge imputed to the employer the knowledge and actions
of the lower level supervisors, i.e., those who were on-site and were thereby responsible for,
among other things, implementing changes in the use and maintenance of respirators.D On
27The employer’s safety program indicates that, whenever respirators are used, the selection, training, use, and
care requirements of the program are mandatory:
All operations where potential exposures to harmful dusts, fumes, mists, gases, or vapors
cannot be controlled by accepted engineering control measures, and the use of respiratory
protective devices is required, are subject to the provisions of this directive.
The following are the specific cleaning and storage requirements:
Routinely used respiratory equipment shall be regularly cleaned, inspected, and sanitized by
a qualified individual.
khere respirators are assigned to individual employees, area management shall ensure
compliance with cleaning and maintenance requirements by periodic inspection and field
audits of respiratory equipment.
When not in use, respirators shall be stored to protect against dust, sunlight, extreme
temperatures, excessive moisture, or damaging chemicals.
38
review the employer does not take exception to any of the judge’s determinations in this
regard.
To summarize, from the judge’s decision and the evidentiary record, the employer
knew from the outset of the project that the bridge was covered with lead-based paint (al-
though the employer may not have realized how “exceptionally high” the amount of lead
was), and therefore the employer provided and required the wearing of respirators. The
employer did not, however, explore feasible engineering controls and did not plan any
administrative controls to preclude overexposure. Also, respirators soon proved inadequate;
filters clogged and air lines carried contaminated air. The employer began the work with
negative pressure respirators but, when they proved to be ineffective, the employer
converted to positive pressure respirators with air lines from a compressor. With the
employer’s cooperation, the city health department conducted tests of employee blood lead
levels and the employer then learned that some employees were absorbing lead particulate
to such an extent that, despite the short time they had been working on the demolition
project (1% to 3 weeks) and despite wearing respirators, they exhibited unusually excessive
blood lead levels. One employee even required hospitalization for doctor-supervised
chelation, which can have harmful side effects, as we have already mentioned. The city’s
report regarding this overexposure explicitly informed the employer that its use of respirators
required enhancement. Although the employer did hire a consultant to investigate the
overexposure, the employer did not implement the consultant’s recommendations for specific
engineering controls. It also appears that the employer ignored recommended administrative
controls; one of the employer’s own officials recommended rotating employees between
areas of high-lead levels and low-lead levels, but we do not see that this was ever done
(other than for employees who had already developed excessive blood-lead levels, i.e.,
medical removal). We should note, however, that the employer implemented medical
removal even though the lead standard does not apply to construction. See 29 C.F.R.
0 1910.25(a)(2)).
The consultant also recommended using NIOSH-approved respirators, but as we have
found, the employer continued to use unapproved composite respirators. The recommen-
dation that the employer did implement was for continued blood-lead testing; the employer
even consulted a hospital to perform tests. The employer also acted on the one official’s
recommendations to conduct additional employee training about lead hazaras and to move
39
-
the air compressor to a more remote, upwind area. We note, however, that the compressor
was not moved as far away as recommended and the air lines were not tested for lead
content until after the OSHA inspection, at which time they were found to be lead-
contaminated. We should note also that, besides the additional training, the employer
provided showers and instructed the employees to use them. Yet, even though medical tests
were showing elevated and violative blood lead levels, the employer did nothing to imple-
ment the applicable requirements for respirator use, including cleaning and storage, that are
the subject of this case and that were mandatory in the employer’s own safety program.
There was some testimony that the employer provided the employees with materials for
cleaning their respirators, but the employer did not do anything more, such as supervise and
enforce regular cleanings.
The employer asserts that it could do no more, because the union had responsibility
for respirator care and because the union resisted the wearing of protective clothing. But
the judge found against the employer on these matters,28 and the employer does not point
to anything in the record that would undermine these findings.
%e judge stated (transcript references omitted):
As Respondent notes, its ironworkers were selected and provided by a union hiring
hall, and its union contract stated:
On all jobs there shall be a foreman . . . and the foreman is the only
representative of the Employer who shall issue instructions to the workmen.
However, [compliance officer] Bustria testified that M-K’s Vice President for the Eastern
Region, Mr, Poteat, whom [project manager] Kassap and [regional safety coordinator]
Dockery said was their boss, told Bustria that “the union did not run the job,” (including
safety) -- M-K did. Dockery knew that too. Union officials confirmed to Bustria that that
was their understanding too. No witness testified inconsistently with that understanding.
Bustria testified that (office engineer] Kramer and Kassap told him during his
investigation that they thought the responsibility for cleaning, disinfecting and caring for
respirators was on the employee and the union shop steward. However, their understanding
is inconsistent with Respondent’s respirator program, which states, “Routinely used
respiratory equipment shall be regularly cleaned, inspected, and sanitized by a qualified
individual.” Respondent gave no indication that it had trained the shop steward or
employees to be “qualified individuals.”
Bustria testified that Kassap told him that the union rejected the idea of requiring
employees to wear coveralls. However, that does not rebut the feasibility or likely utility of
Respondent enforcing their use. The union apparently was saying only that it would not
attempt to require coveralls. Respondent knew, however, that enforcing safety was its own
responsibility, not the union’s, There was no evidence that employees would not have
complied with orders from Respondent to wear coveralls.
40
2. Item 3
As we have discussed, this item involves the employer’s duty to ensure that employees
use only approved respirators, so as to ensure the maximum possible protection from daily
exposure to excessive lead. Several OSHA standards express the duty, see supra notes 12,
13, and 14, and the employer does not question that one of these standards did apply at the
bridge demolition worksite involved in this case. Thus the employer’s own safety program
required, at the time of the inspection (and before the demolition project began), the use
of approved respirators. B Yet, as we discussed in regard to items 1 and 2, the employer
continued to use unapproved composite respirators.
3. Item 5
As we have discussed, this item involves the employer’s duty to ensure that employees
wear protective clothing, to minimize the daily exposure to excessive lead, and in this item
the Secretary relied on the general duty clause to impose the duty. Nevertheless, the
employer’s own safety program required, at the time of the inspection (and before the
demolition project began), the use of protective clothing? And as we discussed in regard
to items 1 and 2, the employer took steps to provide protective clothing but not to require
its use.
c
%e employer’s mandatory program stated:
The employer shall provide only that respiratory equipment that has been approved by the
Mining Enforcement and Safety Administration or the National Institute for Occupational
Safety and Health.
%is provision of the employer’s program states:
Protective clothing shall be provided to employees exposed to lead above the PEL. The
clothing shall be cleaned, repaired or replaced when needed. Protective clothing is to be
removed only in designated areas and immediately after use. Contaminated clothing and
equipment must be placed in closed containers labeled: “CAUTION: CLOTHING
CONTAMINATED .WITH LEAD. DO NOT REMOVE DUST BY BLOWING OR
SHAKING. DISPOSE OF LEAD CONTAMINATED WASTE WATER PROPERLY”.
It comes from the employer’s “Lead Procedures,” the purpose of which the following:
This procedure describes the minimum requirements for demolition, handling and installation
of lead and lead-containing materials. Following this procedure will protect workers from
the toxic effects of lead and assure compliance with the legal requirements of OSHA.
41
4. Item 6
As we have discussed, this item involves the employer’s duty to ensure that daily
employee exposure to airborne lead is kept below excessive levels by means of all feasible
engineering and administrative controls, and/or personal protective equipment, if necessary.
The construction standards express the duty, see supra note 1, and the employer’s own safety
program required, at the time of the inspection (and before the demolition project began),
compliance with these construction standards.31
There is no dispute that this employer did not implement the engineering controls
and administrative controls that could have prevented excessive blood-lead levels from
occurring. As we have discussed, the employer voluntarily implemented medical removal,
but this measure only provided relief for employees who had developed high blood-lead
levels; it did not prevent high blood-lead levels in the first place. As for the employer’s use
31These provisions of the employer’s lead procedures state:
D. GENERAL PROCEDURES
AI1 OSHA requirements that q@y to the job-site (manufacturing, construction, etc.)
as found in 29 CFR 1910.1025, 29 CFR 1926 sections 55, 353 and 354 shall be
followed.
E EXPOSURE MONITORING
Employee exposures must be monitored by personal air sampling if any information
exists that would indicate potential employee exposure to lead. This monitoring
must be done regularly if concentrations are at or above the action level. Monitoring
must be repeated if there are any changes which may result in additional exposure.
The employee must be notified in writing of the results within 5 days of receipt of
monitoring results.
REDUCING EXPOSURE
1. Engineering and work control practices shall be used to reduce employee lead
exposure to levels that are as low as reasonably achievable. While these controls are
being implemented, or where they are found not feasible or not sufficient, the
controls shall be supplemented with personal protective devices (e.g., respirator) to
reduce the exposure to below the permissible exposure level (PEL).
2. The Morrison-Knudsen Company, Inc. Respiratory Protection Plan shall be followed
if the use of respirators is required.
(Emphasis added).
42
of respirators, the most that can be said is that the employer provided them, and then
provided some training after instances of overexposure occurred. The employer did not,
however, take adequate steps to ensure that the respirators were the right type and that they
functioned properly. The employer also failed to enforce applicable requirements for their
maintenance in a clean condition.
B. The Secretary’s Case Regarding Willfilness
This employer’s safety program establishes awareness of the duties embodied in the
cited standards or enforceable through the general duty clause. Plainly, this employer was
aware of the utility of protective clothing and of the other abatement measures mentioned
in the cited standards, inasmuch as the standards were cited and virtually quoted in the
employer’s own safety program. By reference to the standards themselves, the employer
could have determined the standards’ applicability to the demolition work. Furthermore, the
employer had urgent reason to make such determinations of applicability since employees
were quickly becoming seriously ill. Also, as we stated in our recitation of the facts relevant
to willfulness, the employer had been warned to implement some of the measures contained
in the applicable standards, such as engineering and administrative controls and improved
overall implementation of respiratory protection. Yet, the employer apparently ignored its
own safety program -- its mandatory requirements were not implemented and the employer
did not determine which OSHA standards mentioned therein were legally applicable to the
worksite involved in this case. On the basis of this record, then, we decide that the judge
was justified in finding willful violations.
Because the employer did not entirely sit idly by while employees continued to fall
ill, the case may seem close, but the evidence regarding the employer’s response shows that
it was unreasonably limited. The employer’s own safety program indicated that engineering
controls could be appropriate for demolition work, see supra note 31, yet the employer chose
to rely entirely on respirators. Even so, much of the employer’s own respiratory program
was ignored and, once it was clear that employees were being affected, the employer
concentrated on providing treatment for those who had fallen ill rather than on making a
stronger effort to prevent further illness. To reiterate, the employer could at least have
implemented its own program. The employer’s persistent failure either to take reasonable
43
steps toward accomplishing the already-prescribed measures for abatement or, at least, to
make a careful determination that they were unnecessary shows a willful state of mind. That
is, to paraphrase Morello, the employer’s on-site supervisors harbored a “state of mind . . .
such that, if [they had been specifically reminded] of the [applicable standards], [they] would
not [have] care[d].” After all, persons had reminded the employer’s officials of the duties
embodied in the standards, but the employer did not implement the suggested abatement
methods, such as engineering controls and a proper respiratory protection program. This
evidence indicates that this employer either intentionally violated the standards or showed
plain indifference to them. Accordingly, we affirm the judge, who heard the witnesses, in
his finding of the requisite willful intent.
The employer argues that it is being impermissibly held in willful violation for failure
to adhere to its own safety program rather than OSHA standards. This is not the case. The
safety program is evidence that the employer was aware of the cited standards and their
requirements, and further shows awareness of the utility of protective clothing, which was
the subject of the general duty clause violation in this case. Moreover, contrary to the
employer’s assertions, case law holds that abatement measures taken by an employer prior
to an inspection may be considered in conjunction with other evidence demonstrating that
an employer or its industry recognized a hazard. See, e.g., Ttinity I&US., Inc., 15 BNA OSHC
1481, 1485 n.8, 1992 CCH OSHD li 29,582, p. 40,035 n.8 (No. 88-2691, 1992) (cases cited).
Accordingly, the employer’s safety program in this case may be considered, along with the
evidence of warnings from other sources regarding the applicable occupational safety and
health duties, to establish a willful awareness of responsibilities.
C. Good Faith
The foregoing indicates that the employer knowingly disregarded the consultant’s
advice and warnings corresponding to plainly written and applicable portions of the safety
program, which closely tracked the language of applicable and related standards. This
indicates that the employer’s efforts were not reasonable. Inasmuch as an unreasonable
belief that abatement efforts were sufficient cannot constitute good faith, we conclude that
the judge correctly rejected the employer’s good faith defense and held the employer
accountable for the four willful violations.
44
The emplover
4
claims a wgood faith belief that it complied with all applicable standards.
l a a
Pointing out that its safety program only mandated compliance with OSHA standards if they
were applicable, see supra note 27 (emphasized words), the employer argues that the
program cannot give rise to any inference of awareness of the applicable duties on this
worksite. Furthermore, pointing to some evidence suggesting that one or more of the
employer’s officials only accepted one small part of the OSHA standards as applicable, i.e.,
section 1926.353(c) and section 1926.354(c), seesupra note 2, the employer claims that there
was not “any indication of bad faith” in disregarding the rest of the OSHA standards
referenced in the safety program.
We are mindful, however, that the employer has the burden of proof on good faith.
A finding of objective good faith is not possible in light of the cross-references from the
above-mentioned standards to the others that were applicable, i.e., the standards in
section 1926.55 and section 1926.103. See supra notes 2 and 1 (in that order) and our
discussion regarding the employer’s preemption argument for item 6 (to which the footnotes
pertain). A reasonably diligent employer whose safety program referred to several possibly
applicable standards, and whose consultants had been pointing to the need for better
abatement measures, surely would have taken careful note of the cross-references in the
standards thought to be applicable, and surely would have made a careful evaluation
regarding the applicability of other standards. In this case there is no evidence that the
employer exercised this necessary level of care.
VW. Penaltiks
As we have mentioned, the judge assessed four $10,000 penalties based on the
employer’s willful disregard of its occupational safety and health duties and serious harm that
had been resulting to employees. In view of the gravity of the exposure to airborne lead,
we affirm the judge’s assessments.
Ix, Citation 2
The standard cited in the one item of nonserious citation 2 is 29 C.F.R.
-
45
0 1904.2(a).32 The judge found that the employer failed to record one elevated blood-lead
level, 54 &dl (micrograms per deciliter); the employer had been recording test results at
levels above 5O&dl and simply failed to record this one test result. The Secretary’s record-
keeping guidelines speak in terms of &lOOg (micrograms per 100 grams), requiring that
levels above 50 pg/lOOg be recorded. See JOhlt~~n, 15 BNA OSHC at 2137, 1993 CCH
OSHD at p. 40,966 (quotation from recordkeeping guidelines). The appendix to the lead
standard states, however, that 1 deciliter equals 100 grams.33 Accordingly, the test result
involved in this case comes within the recordkeeping guidelines with which we dealt in
Johnson, 15 BNA OSHC 2136-43, 1993 CCH OSHD at pp. 40,965-73, and with which the
employer in this case seems to have no dispute. The employer only argues,inaccurately, the
lack of evidence that the blood-lead level involved in this case came within OSHA’s record-
keeping guidelines. We therefore affirm this nonserious item. The Secretary has proposed
no penalty and we assess none.
X Order .
We affirm five of the six items on review from willful citation 1 -- items 1, 2, 3, 5, and
- We classify them as willful violations, but for penalty purposes we combine items 1 and
3%is standard req uires employers to log “recordable occupational injuries and illnesses.” It states, in
pertinent part:
Each employer shall . . . (1) maintain . . . a log and summary of all recordable occupational
injuries and illnesses . . . and (2) enter each recordable injury and illness on the log and
summary. . . . For this purpose form OSHA No. 200 or an equivalent . . . shall be used.
The log and summary shall be completed in the detail provided in the form and instructions
on form OSHA No. 200.
A related definitional regulation, 29 C.F.R. 5 1904.12(c) defines “recordable occupational injuries or illnesses”
as “[nlonfatal cases without lost workdays which result in transfer to another job” and “any diagnosed
occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday
CAWS.”
33Appendix A, II.B(3), states (in pertinent part):
The measurement of your blood lead level is the most useful indicator of the amount
of lead being absorbed by your body. Blood lead levels (PbB) are most often reported in
units milligrams (mg) or micrograms @g) of lead (1 mg= 1000 pg)per 100 grams (lOOg), 100
milliter (100 ml) or deciliter (dl) of blood. These three units are essentially the same.
-
46
2 and assess four $10,000 penalties. We vacate item 7 of willful citation 1. Finally, we
affirm the one item of nonserious citation 2, with a $0 penalty..
f%$#&t/U&
Edwin G. Foulke, Jr.
Chairman
Donald G. Wiseman
Commissioner
V&kVelma Montoya
Commissioner
Dated: April 20, 1993
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-l 246
FAX :
COM (202) 634-4008
FTS (202) 6344008
SECRETARY OF LABOR,
Complainant,
. Docket No. 884572
V. .
!VORRISON-KNUDSEN CO./
I’ONKERS CONTRACTING CO.,
INC., a Joint Venture,
Respondent. ..
..
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
April 20,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.
FOR THE COMMISSION
April 20, 1993
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 88-0572
-
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014
Robert D. Moran, Esquire
919 18th Street N. W.
Suite 800
Washington, D. C. 20006
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417B
1825 K Street, N.W.
Washington, D.C. 20006-1246
&cu~A~~oNALSAFETY AND HEALTH REVIEVVCOMMlSSlON
1825 K STREEfm N-W.
4TH FLOOR
wASt=ttNGTON. 0.c. 200061246
FAX 81(202) 634-ooo8
March 28, 1990
IN REFERENCE TO SECRETARY OF LABOR v.
Morrison-Knudsen Co., Inc./ Yonkers Contracting Co., Inc.,
A Joint Venture and its Successors OSHRC
M)CKET‘No. 88-572
NOTICE IS GIVEN TO THOSE LISTED BELOW:
NOTICE OF DMKETIN6 .
Daniel 3. Mick, Esq. Notice is given that the above case was
Counsel for Regional Trial Litigation docketed with the Commission on,
Office of the Solicitor, USDOL The decision of the
200 Constitution Ave., N. W.) Room S-4004 a ha1 order of the
Washington, 0. C. 20210
decision on or before that date.
Petitions for discretionary review should be
Patricia M. Rodenhausen, Regional received on or before in
Solicitor order to penit suffi
U. S. Departmen; of Labor review. See Commission Rule 91, 29 C.F.R.
Office of the Solicitor sec. 2200.91. Under Rule 91(h) petitioning
201 Varick Street, Room 707 corporations must also file a declaration of
New York, New York '10016 parents, subsidiaries, and affiliates.
All pleadings or other documents that may be
filed shall be addresses as follows: -
Robert D.'Moran, Esquire
Executive Secretary
Cooter & Gel1
Occupational Safety and Health
1201 New York Avenue, N. W.
Review Commission
Suite 900 1825 K St., NJ., Room 401
Washington, 0. C. 20005
Washington, D. C. 20006-1246
A copy of any petition for discretionary
review must be served on the Counsel for
Regional Trial Litigation, Office of the
Solicitor, USDOL, 200 Constitution Ave.,
Irving Somner, Judge.
N.W., Room 54004, Washington, D. C. 20210.
Occupational Safety & Health
If a Direction for Review is filed the Counsel
Review Commission
for Regional Trial Litigation will represent
1825 K Street, N. W.
the Department of Labor.
Washington, D. C. 20006
n43
FOR THE CUWISSION
0
I
g,
Ray H. Darling, Jr.
Executive Secretary
(3/W
B II)
-
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR
Complainant
v. Docket No. 88-0572
0
0
MORRISON-KNUDSEN CO., INC./
YONKERS CONTRACTING CO., INC.
Respondent
ORDER OF CORRECTION
On page 31 of the decision dated March 7, 1990, in the
first complete paragraph the last sentence should read as
follows:
He testified that proper storage would include
placing the respirators, after cleaning, in sealed plastic
bags I and then putting them where they would not be exposed
to the sun. .
v'\
'b
1\ r
\i,
'\
T 1 4. :
q) ‘t;- /
\ \
IRVING S&%M!ER
Judge, OSHRC
DATED: MAR151990 -
Washington, D.C.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
osmc DOCKET No. 88-572
v.
MORRISON-KNUDSEN CO./ INC./YONKERS
CONTRACTING CO.I INC., a Joint Ven-
ture and its Successors,
Respondent.
APPEARANCES: Diane Wade
Office of the Solicitor
U. S. Department of Labor
201 Varick Street
New York, New York 10014
. for the Secretarv
Robert D. Moran
Cooter brGel1
1201 New York Avenue, N.W.
Suite 900
Washington, D. C. 20005
. for the Remondent
DECISION AND ORDER
SOMMER, J.:
This decision resolves the merits of a willful Citation
containing six items, and an other than serious Citation, issued
bY the Secretary to the Respondent concerning its bridge
demolition project in Brooklyn, New York. Proposed penalties
totalling $60,000 are at issue.
All the alleged willful violations are of OSHA requirements
relating to employee lead exposure. Respondent's employees were
exposed to fumes of lead-based paint on the old Greenpoint Avenue
-
2
Bridge while cutting sections of it with oxygen propane
t0rches.u The demolition project began in late April, 1987, and
finished at the end of October, 1987. (Tr. 67, 74)
OSHA inspected the worksite on September 17 and 22, 1987.
It issued its Citations on March 4, 1 9 88l After protracted
pleading and discovery disputes, a hearing on the merits of the
Citations was held in New York City on July 11, 12, 13 and 14,
-
The parties have briefed the issues exhaustively.
The alleged willful violations (Citation 1) are as follows: Item 1 -- Respirators were not regularly cleaned and disinfected, in violation of 29 CFR 5 1910.134(b)(5) and/or Q 1926.103(c)(3); I Item 2 -- Respirators were not stored in a convenient, clean and sanitary location in violation of 5 1910.134(b)(6); -Item 3 -- Approved or accepted respirators were not used, in
violation of 5 1910.134(b)(ll) and/or 5 1926.103(a)(2);Item 4 -- [Withdrawn by the Secretary before hearing]Item 5 -- Protective work clothing was not worn by employees
where there was exposure to lead in excess of the
permissible exposure limit (gtPELtt)I in violation of
Q 1926.28(a), or, in the alternative, 5 5(a)(l) of the Act;Item 6 -- (a) Employees were exposed to lead at levels above the PEL, in violation of 5 1926.55(a); w Feasible administrative or engineering controls were not used to reduce employee exposures to lead, in violation of 5 1926.55(b); (c) Use of respiratory protective devices was not enforced when required, in violation of 5 1926.103(a)(l); Item 7 -- Respirators were not inspected regularly and
WA new bridge was built adjacent to the old one. The
Greenpoint Avenue Bridge spans- Newtown Creek and connects the
Boroughs of Queens and Brooklyn.
3
maintained in good condition, in violation of
5 1926.103(c)(2).
Citation 2 alleged a nonserious failure to record a case of
elevated blood lead level as required by 5 1904.2(a).
To summarize the discussion below, the evidence amply
supports the Secretary's claims in general, including the
willfulness of the violations. Respondent called no witnesses ,
and produced very little evidence. It has made a great array of
legal and procedural arguments, many of which are *unworthy of
serious attention. The statements of fact and of legal authority
supporting those arguments are generally without serious merit.
A few arguments have technical merit, but they do not affect the
outcome.
In particular, Respondent has called attention to a
construction provision (5 1926.103(c)(2)) that is more
specifically applicable than the general industry standards cited
in Item 1 and 2 of Citation 1.u However, amendment of the
pleadings is appropriate. Respondent squarely recognized even
before the hearing that the applicability question was in issue.
The evidence overwhelmingly establishes the violation under
either the general industry or the construction standard. The
pleading problems do not warrant dismissal of any charges.
UThe general industry standards cited in this case are among
those identified as applicable to construction in OSHA Program
Directive # 200-88 (October 10, 1978). 1978-79 CCH Emplovment
Safety and Health Developments 9 11,473. That Directive was
prepared in response to requests for guidance on the subject by
both labor and industry groups. However, it did not constitute
formal incorporation of those standards into the construction
standards.
-
4
A. JURISDICTION
The Commission has jurisdiction over' the case and the
parties. Respondent filed a timely notice of contest to the
Citations. It admits that it is "a corporation engaged in
commerce and is subject to the Act and the jurisdiction of the
Commission.Vg (Answer, 3 1) Respondent is engaged in a business
affecting commerce within the meaning of 5s 3(3) and 3(5) of the
Act and is an employer within the meaning of 5 3(5) of the Act.
B. FINDINGS OF FACT AND CONCLUSIONS OF LAW
CITATION 1
To put the other issues in perspective, it seems best to
start with Item 6, which addresses the levels of lead to which
employees were exposed, and countermeasures generally. Then, the
other items will be discussed in the order that they were cited.
The alleged willfulness will be discussed last.3
3Respondent argues that the Citations must be vacated because
they were not issued with reasonable promptness, as required by
5 9(a) of the Act. However, it has presented no evidence that it
was adversely affected (prejudiced) by the fact that the
Citations were issued almost 6 months after the inspection.
Absent such evidence, its claim must be rejected, under
Commission precedent. E.g., Stripe-A-Zone, Inc., 10 BNA OSHC
1694 (Rev. C~mt NO. 79-2380, 1982).
Respondent notes a recent decision by a Commission judge,
not reviewed by the Commission, which vacated a Citation for lack
of reasonable promptness without finding prejudice to the
employer. A. 0 Smith Corp., 13 BNA OSHC 1095 (Rev. Comm No. 860
548, 1987). However, that case concerned equitable
considerations not present here. The Secretary's local officials
had entered into an informal agreement to settle a Citation, and
subsequently issued another one on the same subject.
5
Item 6(a): Alleged exposure to lead at levels above the PEL
The cited standard provides:
5 1926.55 Gases, vapors, fumes, dusts, and
mists,
(a) Exposure of employees to inhalation,
ingestion, skin absorption, or contact with
any material or substance at a concentration
above those specified in the "Threshold Limit
Values [TLVs] of Airborne Contaminants for
1970" of the American Conference of
Governmental Industrial Hygienists [ACGIH],
shall be avoided.
The TLV for lead in the 1970 ACGIH document is 0.2 mg/M3. WX 0
C-27 at 11)
1 l The Secretary's measurements
OSHA*s air samples were taken on September 17 and 22, 1987.
They indicated that one employee was exposed to about 20 times
the limit- permitted under the ACGIH document; that three others
were exposed to about 15 times the limit; and that the other was
exposed to about 3 times the limit, on at least one day.4
e
4Specifically, OSHA's results were:
EMPLOYEE DATE LOCATION a-HOUR TWA (ma/ma1
M. Horn g/17/87 Queens side 3.21
M. Jackson g/17/87 Queens side 3.45
J. Mullen g/17/87 Brooklyn side 0.65
J. Curtis g/22/87 Brooklyn side 2.95
D. DIConstanzo g/22/87 Brooklyn side 4.05
M. Horn g/22/87 Queens side 2.98
H. Jackson g/22/87 Queens side 1.44
(Ex. c-17, c-18) 0
-
6
Based on the evidence, OSHA*s sampling techniques were
proper, and its results reliable (with the possible exception of
certain samples for Horn and Jackson discussed below). OSHA'S
industrial hygienist (IH) in charge of the inspection, Jesus
Bustria, and his assistant, IH Alvaro Mora, testified in detail
about the standard procedures under which the air samples were
collected, sealed and calculated. (Tr. 126-31, 673; Ex. C-17, C-
18)
Respondent does not attack the IHs* procedures generally.
However, it argues that certain samples taken from Horn and
Jackson were invalid, because Jackson left the site for lunch on
both days without removing the samplers, and Horn lay his pump
next to him while eating lunch at the site on September 17.
There is no need to evaluate this objection, because other
.
samples showed comparable levels of lead exposure (see n. 4
suPra) and were not affected by those factors.
Respondent has not found fault with the handling of the
samples after they were collected, or with the laboratory
analysis. Bustria sealed the samples and sent them by certified
mail to OSHA*s Salt Lake City laboratory for analysis. Philip
Giles, a biochemist at the laboratory, testified about the
detailed measures used to assure accurate measurements. Giles
performed some of the tests and supervised the other tests.
(Tr. 213-23, 227-31)
OSHA*s sampling results are corroborated by air sampling
done for Respondent in July, 1987, by a private consultant,
7
Enviro-Probe, Inc. That sampling showed that the four
ironworkers sampled were exposed to between 14 and 42 times the
ACGIH TLV for 1ead.w Enviro-Probe was a laboratory accredited
by the American Industrial Hygiene Association. Id. at 10.
Respondent produced no contrary sampling results.
2 l Respondent's validity arguments resardins sam-plinq
results generally
Nevertheless, Respondent raises a plethora of objections to
relying on OSHA*s and Enviro-Probe's results. It argues that the
Secretary failed to prove the propriety of her sampling technique
in light of comments by the D. C. Circuit on the limitations of
lead monitoring on some construction sites. United Steelworkers
of America v. Marshall, 647 F.2d 1189, 130940 [8 BNA.OSHC 1810,
1900-011 (I). C. Cir. 1980), cert. denied, 453 U .S. 913 (1981)
(Steelworkers~). There, the court upheld OSHAs decision to
exclude the construction industry from the general industry lead
standard, 5 1910.1025. It termed OSHA*s decision adequately
explained.
Respondent relies on the court's statements that OSHA had
decided that applying 5 1910.1025 and its environmental
monitoring requirements to the construction industry would be
highly impractical. 647 F.2d at 1309-10 [a BNA OSHC at 1900-011.
%pecifically, Enviro-Probe found:
EMPLOYEE 8-HOUR TWA (mq/M1
Edward Solomon 4.99
Terry Conish 2.87
Robert Hill 3.41
Harold Jackson a.54
a
However, OSHA*s preamble to the lead standard shows that it did
not draw those conclusions. OSHA did not resolve the
feasibility of the lead standard for construction generally. It
decided that further study was appropriate, and it left Part 1926
intact. 43 Fed. Reg. at 52,986 col. 3. It specifically noted
that there was no claim that environmental monitoring is
infeasible except on very short projects:
Environmental monitoring is not claimed to be
infeasible other than where the length of the
job could be shorter than the time it could
take ,for air samples to be taken and
analyzed.4
4The Council of Construction Employers
states that **large construction companies
use air monitoring techniques to determine
toxic concentrations of airborne
contaminants. There is no doubt that such
techniques are available and can readily
provide useful informatidn . . .**
43 Fed. Reg. at 52,986 col. 2 (citations omitted). M-K is one
of the nation's largest construction firms. In fact,
Respondent's argument is disingenuous because M-K's written lead
procedures require environmental monitoring:
Employee exposures must be monitored by
personal air sampling if any information
exists that would indicate potential employee
exposure to lead. This monitoring must be
done regularly if concentrations are at or
above the action level.
WX l C-5 at 2) . Also, the court in Steelworkers noted with
approval OSHA*s existing protections for construction workers
against air contaminants including lead exposure, under
!$ 1926.55:
9
Of course, osm would be shirking its
statutory responsibilities if it made no
effort to protect workers in the construction
industry from lead exposure. But we construe
OSHA*s decision here as only to exempt the
construction industry form this particular
standard, not from OSHA jurisdiction
generally. . . . [O]ther OSHA regulations now
in effect will protect construction workers
against general air contamination through
engineering, work practice, and respirator
controls. E.g., 29 C.F.R. 55 1926.55,
1926.57, 1926.103, 1926.354(c) (1979).
647 F.2d at 1310 [8 BNA OSHC at 1901]. OSHA*s reliance on air
samples under 5 1926.55 was appropriate.
Respondent also argues that OSHA*s measurements are invalid
because they were not taken inside the employees* respirators.
This objection is unfounded. Section 1926.55 makes clear that
the employees* exposure to air contaminants is to be determined
initially without regard to respirators. Only in that way can it
be determined whether there is a need for engineering or
administrative controls, respirators or other protective
measures. Thus, the Secretary properly measured the lead levels
outside the respirators in order to determine whether any
controls were warranted.w
Respondent argues that the Secretary did not prove that the
measurements were solely of inorganic lead as she defined it.
However, the evidence is sufficient, and Respondent's attack on
WOn the other hand, it may duplicative to find a violation
of both 5 1926.55(a), for excessive exposure, and of
§ 1926.55(b), for failure to properly reduce that exposure.
This question need not concern us here, however, because the
Secretary has treated all the subitems of Item 6 as a single
violation for penalty purposes.
-
10
that evidence misses the mark. Even if Respondent were correct
in its argument, an amendment of the pleadings would be
appropriate, and a violation still would be f0und.u
To explain, the Secretary defines **inorganic lead** in this
case as it is defined in the general industry lead standard
(5 1910.1025(b)) and the **NIOSH Criteria for a Recommended
Standard -- Occupational Exposure to Inorganic Lead, 1972.** (Tr .
234038)u On cross-examination of Giles, Respondent
UThe Secretary argues that this line of defense should not
be permitted because Respondent refused to respond during
discovery to her request for All facts upon which Respondent
relies for its defense that it did not violate either the Act or
any provision thereof or the cited standards as alleged. * (Ex.
c-28, c-29, fl 3) Because Respondent's argument does not affect
the case, there is no need to evaluate this counter-argument.
UThe definition in 5 1910.1025(b) states:
**
Le ad ** means metallic lead, all
inorganic lead compounds, and organic lead
soaps. Excluded from this definition are all
other organic lead compounds.
The NIOSH definition states:
**Inorganic lead** means lead oxides,
metallic lead, and lead salts (including
organic salts such as lead soaps but
excluding lead arsenate).
(EX R-2 at 5 and Attachment at p. I-l) Respondent's written
lead procedures defined lead in substantially identical terms to
Q 1910.1025(b). (Ex. C-S at 1)
Respondent appears to argue that by relying on the definition of
lead in 5 1910.1025(b), the Secretary is impermissibly
attempting to apply the lead standard to it. There is no basis
for that argument. The Secretary merely replied to Respondent's
request during discovery for a specific definition of the lead
regulated by fi 1926.55(a). As noted above, Respondent's
understanding of the definition of lead**for purposes of its
construction work was the same.
-
11
specifically raised the question whether there was present in the
substance analyzed any lead chromate, lead arsenate, tetramethyl
lead or tetraethyl lead. (Tr. 237-39) Giles testified that OSHA
did not make those determinations. Respondent notes that lead
arsenate is excluded from the NIOSH definition of "inorganic
lead.** It also notes that tetraethyl lead is an organic lead
compound and excluded from the definition of lead in
5 1910.1025(b). (Tr. 236-37)
However, Giles also testified that the filters were analyzed
for "inorganic lead** as defined in Q 1910.1025. Giles had
performed that analysis at least 5000 times in his 9% years as an
OSHA chemist. Never had an error been found in his methods, to
his recollection. (Tr . 222) Respondent's cross-examination did
not establish that Giles incorrectly measured the amount of
"inbrganic lead.@* Respondent merely showed that he did not know
whether the other lead substances it mentioned also were present
in the substance analyzed before the inorganic lead was.
separated out. (Tr. 237-39) Respondent did not show that the
portion separated out as inorganic lead was erroneous.
Even if Respondent were correct that the measurement of
**inorganic lead@@ in the substance analyzed was erroneous, that
would not change the outcome. Each of the four lead substances
for which OSHA did not test is regulated by the same ACGIH
document as inorganic lead. In fact, each has a lower TLV than
12
inorganic lead.w Thus, if any of those substances were
measured as inorganic lead, the overall TLV would be lower than
0.2 mg/M3. Respondent still would be in violation of
5 1926.55(a), and its violations would be more severe. Amendment
of the pleadings would be appropriate in that event to include in
the charge a violation as to any or all of the lead substances
Respondent has raised. Thus, a violation still would be
f0und.w
WLead arsenate has a PEL of J5 mg/M3. Tetraethyl lead has a
PEL of .l mg/M3. Tetramethyl lead has a PEL of .15 mg/M3. (EX
C-27 at 11, 14) (The latter two substances are followed by the
notation -Skin. That notation is intended to alert the reader
that the substance may be readily absorbed by the skin
(including mucous membranes and eyes), as well as inhaled. The
notation is to suggest that appropriate skin protection be
afforded in addition to keeping the amount in the air below the
PEL. (Ex. C-27 at 3))
Respondent asserts that the parties stipulated that lead
arsenate is not regulated by 5 1926.55(a). This assertion is
frivolous. There was no such stipulation. Also, Respondent's
claim'is flatly contrary to the ACGIH document incorporated in
the cited standard.
WThe Secretary has not moved for an amendment. However, she
objected at the hearing and still objects to the introduction of
the evidence Respondent relies on. Her grounds are that
Respondent failed to plead the issue or mention it during
discovery. (E.q., Tr. 234-37; see n. 7 supra)
Thus, amendment would be proper in the circumstances under the
second part of Fed. R. Civ. P. lS(b) I which applies in our
proceedings under 29 U.S.C. 5 661(g). The Secretary objected to
the introduction of the evidence adduced by Respondent on cross
examination of Giles. and both parties squarely recognized that
it went to the issue Respondent presses here. That issue is
whether a violation may be found even though OSHA does not know
whether lead chromate, lead arsenate, tetraethyl lead and
tetramethyl lead was present in the samples. The parties'
counsel discussed the relevance of that line of questioning at
the hearing. (Tr. 234-35) The Secretary would not be prejudiced
by the amendment because she would prevail even if the new issue
(continued...)
-
13
Respondent also complains that OSHA*s results are invalid
because Giles testified that its analysis did not determine
whether the lead was in the form of fumes or dust, and whether it
was metallic or non-metallic lead. (Tr. 239) However,
Respondent did not show why these distinctions would make a
difference. The samples were analyzed for inorganic lead as
defined under the general industry lead standard. (Tr. 233-36;
Ex . C-18) There was no showing that further specificity was
required. Respondent's argument is unsupported.
Respondent argues that the samples were invalid because the
evidence did not show that the air sampled **was confined to
Respondent's worksite or to employee working hours.** It notes
that the worksite was in the open air in the heart of an
industrial area with a great deal of vehicular traffic and other
potential lead sources. However, there also was no evidence that
the air sampled was not basically the product of the work.
Indeed, OSHA's analysis of the paint on the bridge showed that it
contained 52% lead, and the evidence showed that the lead
exposure would have been basically to fumes of that paint. W .
40842; Exe C-26 at 140) Respondent's own sampling by Enviro-
Probe did not suggest that lead in the air from causes other than
Respondent's operations was wholly or partly responsible for the
excessive exposures. (Exe C-27) Respondent's argument also must
W( ...continued)
is considered. Nor would Respondent have reason to complain,
because it consciously introduced the issue. Amendment would be
proper.
14
be rejected because even if off-site sources'had contributed to
the lead exposure, Respondent still would be legally responsible
for its employees* exposure that it reasonably could have known
about.
Respondent argues that because lead was not the only
substance found on the filters, the Secretary was under a duty to
determine the other substances and their amounts and calculate
the TLV to' the mixture of substances. This mixturesargument
is unfounded. Nowhere in the ACGIH document incorporated by
reference in the cited standard (Ex. C-27) is such a procedure
required,ll/
Respondent argues that the cited standard is preempted by
certain specifically applicable standards not cited by the
Secretary -- 5s 1926.353(c) and 354(c).w Those standards
UIn fact, the ACGIH
. document makes clear that it frequently
is not feasible to measure for multiple contaminants which are -
known to exist. In such cases, according to the document, the
PEL for the substance measured actually should be reduced. W .
C-27, Appendix B, p. 20)
12/ 5 1926.353 Ventilation and protection in
welding, cutting, and heating.
* * *
(C 1 Weldins, cuttins, or heatinq of
metals of toxic sisnificance.
* * *
0 Employees performing [welding,
cutting, or heating of metals coated with
lead-bearing materials] in the open air shall
be protected by filter-type respirators in
accordance with the requirements of Subpart E
of this part, except that employees
(continued...)
15
relate to respiratory protection during welding of toxic metals
and preservative coatings like lead-based paint. However, both
those provisions are additional requirements, rather than
preemptive ones. Section 1926.353(a) expressly states that
compliance with 5 1926.55(a) is requiredew Also, both
QQ 1926.353(c) and 354(c) expressly require compliance with the
respirator requirements of Subpart E, including 8 1926.103.
Those requirements in turn expressly incorporate the requirements
of Subpart D, including 5 1926.55(a). Respondent's preemption
argument is unfounded.
Respondent also argues that OSHA*s construction standards
are invalid on two grounds. The first ground is that they were
12/( ...continued)
'performing such operations on beryllium-
containing base or filler metals shall be
protected by air line respirators in
accordance with the requirements of Subpart E
. of this part [including 5 1926.103J.
* * *
5 1926.354 Welding, cutting, and heating in
way of preservative coatings.
* * *
(C 1 Protection against toxic
preservative coatings:
* * *
(2) In the open air, employees shall be
protected by a respirator, in accordance with
requirements of Subpart E of this part
[including 5 1926.103].
Wit requires that mechanical ventilation be sufficient to
maintain welding fumes and smoke within safe limits, as defined
in Subpart D of this part [including 5 1926.55(a)].
16
adopted from standards under the Construction Safety Act, and
were not in effect when the Occupational Safety and Health Act
(OSH Act) became law (Dec. 29, 1970). The second ground is
that they were issued without the required notice-and-comment
rulemaking. The Secretary objects to considering these arguments
now because Respondent failed to state them in response to the
Secretary's discovery request. Because neither of Respondent's
arguments has merit, it is unnecessary to consider the
Secretary's procedural objection.
As to the first argument, the procedure used to adopt the
Construction Safety Act standards was expressly permitted under
Q 4(b)(2) of the OSH Act. The Construction Safety Act standards
became effective on April 27, 1971, under 5 107 of the Contract
Work Hours and Safety Standards Act, PubeL. 91-54, 40 U.S.C.
5 333. 36 Fed. Reg. 7340 (April 17, 1971). Section 4(b)(2)
provides:
Standards issued under the laws listed
in'this paragraph [including Public Law 910
541 and in effect on or after the effective
date of this Act shall be deemed to be
occupational safety and health standards
issued under this Act, as well as under such
other Acts.
(Emphasis added.) The effective date of the OSH Act was April
28 , 1971, 120 days after its enactment. Pub. L. 91-596, 5 34.
1970 u. se Code Cons. & Admin. News (a4 Stat.) 1887. The
Construction Safety Act standards were in effect on or after
the effective date of the OSH Act and are properly considered
OSHA standards.
17
Respondent% second invalidity argument has been rejected in
persuasive opinions by the Commission and by the court of appeals
that has reviewed the issue. E.cx., Daniel International Corp. v.
OSHRC, 656 Fe2d 925, 930-31 [9 BNA OSHC 2102, 2105-061 (4th Cir.
1981); Daniel Construction Co., 9 BNA OSHC 1854, 1855-56 (Rev.
Comm. No. 12525, 1981), aff*d on other grounds, 705 Fe2d 382
(10th Cir. 1983). I am constrained to follow Commission
precedent in any event.
Thus, Respondent's arguments against the validity and
accuracy of the Secretary's air lead measurements must be
rejected. The Secretary has made out the necessary elements of a
violation: (1) the standard applies to the conditions: (2) it was
not complied with; (3) employees had access to the hazards; and
(4) Respondent had the required knowledge of the violation. It
reasonably should have known of the violative conditions, even if
it did not actually know. E.q., Dun-Par Engineered Form Co., 12
BNA OSHC 1962, 1965 (Rev. Comm. No. 82-928, 1986). A violation
of 29 C.F.R. 5 1926.55(a) was proven.
Item 6(b): Engineering and administrative controls
The evidence shows that Respondent failed to use feasible
engineering controls to reduce the amount of lead fumes to which
employees were exposed. The cited standard, 5 1926.55(b),
provides:
To achieve compliance with paragraph (a)
of this section, administrative or
engineering controls must first be
implemented whenever feasible. When such
controls are not feasible to achieve full
compliance, protective equipment or other
-
-
18
protective measures shall be used to keep the
exposure of employees to air contaminants
within the limits prescribed in this
section. Any equipment and technical
measures used for this purpose must first be
approved for each particular use by a
competent industrial hygienist or other
technically qualified person. Whenever
respirators are used, their use shall comply
with 5 1926.103.
Enviro-Probe's report of its July 24 survey made the
following recommendations for use of engineering controls to
reduce lead exposure:
The surface paint removal from the steel
6 beams by scraping and sanding of the work
area prior to torch cutting will help in
reducing the airborne lead levels.
The concentration levels of lead in the air
approaching the iron workers can be reduced
by diverting fumes &way from the breathing
zone by the use of fan blower or exhaust
. . . . -
(EX. C-7 at 8) Nothing was done between the time Enviro-Probe
got involved and OSHA*s September inspection in the way of
engineering controls. August Manz, a private consultant in
welding technology and safety, testified that engineering
controls such as those suggested by Enviro-Probe were feasible.
There was no testimony to the contrary.
Manz was well-qualified to speak to the subject. He was,
among other things, chairman of the American National Standards
Institute (ANSI) committee on Safety in Welding and Cutting;
chairman of the American Welding Society's Committee on Labeling
and Safe Practices; and chairman of the National Fire Protection
1Q
Association (NFPA) committee on Cutting and Welding Safety. (Tr.
634; Exe C-31)
Manz described how the bridge paint could be removed from
the areas to be torch-cut, by using "needle scalers** or abrasive
blasting. Most of the dust and debris generated by that
operation could be removed from the air by a vacuum system. That
system would be portable, using flexible hose similar to that on
a household vacuum cleaner, attached to a stationary canister
devise. (Tr. 637-40)
.Manz reviewed hundreds of pictures of the work, and
testified that at least one of the devices he described could be
used in each location pictured. (Tr. 634-35, 641, 649) He no.ted
that such devices are readily available commercially. (Tr . 6420
43) He also testified that those devices are not unreasonably
expensive and that he did not believe they would cost more money
than the technology Respondent was using. (Tr. 655) Bustria's
testimony was consistent with Manz's on costs.w
Also, Manz noted that their use likely would eliminate the
need for the air line respirators, resulting in much lower
respirator costs. (Tr . 657-58) He testified that he would
expect a reduction in lead exposure agreat deal more than 50%,
1Q/When asked how much extra cost there would be due to
exhaust blowers, Bustria testified, I have no idea, sir, but
probably it would not have been prohibitive. (Tr. 569, emphasis
added) The typed.Gnscript did not include the word not,but
the Secretary moved to correct the transcript. (Doc. J-57) That
unopposed motion is granted.
20
although he could not state what the specific exposure level
would be. (Tr. 657, 659)w
He acknowledged that using needle scalers might add time to
the job, and thus extra labor cost. He was unable to estimate
the extra time and cost. However, he testified that the
equipment is well known, readily available, widely used, and
that he would expect that in bidding for the job, Respondent
would have taken the cost of using needle scalers into
consideration. (Tr. 661-64)
Moreover, 5 1926.354(d), specifically raised by Respondent
at the hearing and on brief, requires removal of .toxic
preservative coatings like the lead paint here before torch-
cutting.w Respondent clearly failed to comply with that
requirement.u
WRespondent *s arguments about inadequacies in Manz's
testimony regarding the costs and benefits of his suggested
engineering controls are based on inaccurate and incomplete
statements of that testimony.
16/ 5 1926.354 Welding, cutting, and heating in
way of preservative coatings.
f * *
(a) The preservative coatings shall be
removed a sufficient distance from the area
to be heated to ensure that the temperature
of the unstripped metal will not be
appreciably raised. Artificial cooling of
the metal surrounding the heating area may be
used to limit the size of the area required
to be cleaned.
URespondent does not argue that 5 354(d) is more
specifically applicable than the cited standard. Even if it
(continued...)
21
Respondent called no witness to present a contrary view to
Manz's. It notes, however, that some debris would fall during
paint removal, even if a vacuum system is used. The bridge
spanned Newtown Creek. Respondent questions whether lead-based
materials falling into the water would violate environmental
laws.
Manz testified, however, that falling debris could be caught
by a number of means, such as a barge beneath the work. He noted
that the photographs indicated that the lead fumes were not being
dispersed by the wind. Even if there were legal obstacles to
using the techniques he described over water, he noted that much
of the cutting was done on land, where those problems would not
obtain. (Tr. 652053)w Thus, the Secretary established all the
W-( ...continued)
were, an amendment would be appropriate because Respondent
consciously injected the issue into the case. A violation would
be found because the evidence is uncontradicted that it failed to -
remove the paint before torch-cutting.
Also, as noted above, 5 1926.353, also raised by Respondent,
discusses general mechanical ventilation systems and local
exhaust systems. Section 353(a) provides that they that meet
Subpart D requirements (including Q§ 1926.55(a) and (b)).
WBustria mentioned that certain officials of Respondent had
questioned the feasibility of surface paint removal and portable
exhaust blowers, which Bustria explained to them. (The exhaust
blowers he discussed apparently would act like a fan, blowing the
lead fumes upwards and away from the employees. Tr. 139)
Bustria testified (1) that Kramer had said those methods would be
impossible and would create hazards from falling or dripping
debris; (2) that Dockery had said those methods were not
practical or cost effective; and (3) that Schoenewaldt had said
hydro blasting and abrasive blasting could be used. (Tr. 140)
Whatever opinions Kramer, Dockery or Schoenewaldt held, none
of them testified on the subject, and there was no showing that
(continued...)
22
elements of a violation: the standard applies, Respondent1 failed
to use feasible engineering controls to reduce the excessive lead
exposure, the employees were exposed to the violative conditions,
and Respondent had the requisite knowledge of the violation.
As to knowledge, Respondent's written lead procedures state
in part, **Engineering and work control practices shall be used to
reduce employee lead exposure to levels that are as low as
reasonably achievable.** (EX. C-5 at 2) It had to know the
importance of stripping the lead paint, because it has
consistently pointed to 5 1926.354 as an applicable standard.w
Stripping the lead-based paint is required by 5 1926.354(d).
Section 1926.353, also raised by Respondent, discusses exhaust
systems. Its -agent, Enviro-Probe, also knew about those methods
and recommended them. Respondent had a great deal of notice of
what was requiredew A violation of 29 C.F.R. Q 1926.55(b) was
proven.
LB/( ...continued)
any of them .were unavailable to testify. Kramer testified on
other matters, in fact. The reported statements of those three
were unexplained factually, except for the problem of dripping
debris, and Manz explained how that problem feasibly could be
solved, as discussed above. Thus, the reported statements of
Respondent's officials do not rebut Manz's expert testimony.
wE.g., Ex. R-4; Respondent's brief at 50.
URespondent argues generally that the abatement dates listed in
the Citations for the various alleged violations are
unreasonable. The Citations called for immediate abatement of
the violations. However, the abatement requirement is tolled by
a timely notice of contest. 5 10(b) of the Act. The evidence
indicates that each of the violations found in this decision
could reasonably be abated by this time. Respondent has
presented no evidence to the contrary. Its argument is moot.
23
Item 6(c): Failure to wear respirators at certain times
The factual basis of this item was that ironworkers and
other employees of Respondent were observed not wearing
respirators when torch-cutting for short periods of five to
fifteen minutes. (Tr. 674-78; Exe c-20, c-33) The cited
standard is Q 1926.103(a)(1), which provides:
In emergencies, or when controls
required by Subpart D of this part [including
Q 1926.551 either fail or are inadequate to
prevent harmful exposure to employees,
appropriate respiratory protective devices
shall be provided by the employer and shall
be used.
Because Respondent failed to comply with 55 1926.55(a) and (b),
as alleged in subitems 6(a) and w I and because the full
proposed penalty ($10,000) for Item 6 is appropriate on that
basis, as discussed below, it is unnecessary to resolve this
subitem. Respondent's gave employees certain warnings to wear
respirators. It is unnecessary to determine whether those
efforts were sufficient to comply with the standard.
Item 1: Cleaning of respirators
The basis of this item is that Respondent's "respirators
were not cleaned or disinfected before or after use by . . .
employees.** Complaint, 1 V(c). The evidence fully supports the
charge. The complicated aspect of this item is finding the most
specifically applicable standard.
The Secretary cited a construction standard and a general
industry standard in the alternative. The cited construction
standard, Q 1926.103(c)(3), was not shown to be applicable
24
because there was no evidence (1) that the same respirator was
issued to different employees, or (2) that the respirators were
for emergency rescue.u The cited general industry standard
provides:
5 1910.134 Respiratory protection.
* * *
(b) Recxuirements for a minimal accePtable Droqram.
* * *
(5) Respirators shall be regularly
cleaned and disinfected. Those used by more
than one worker shall be thoroughly cleaned
and disinfected after each use.
That standard clearly is applicab1e.u Respondent argues,
however; that the same hazard is covered by a construction
industry respirator provision that was not cited regarding this
item -- 5 1926.103(c)(2). Thus, it argues, that construction
UThat standard provides:
5 1926.103 Respiratory protection.
* * *
(c) Selection, issuance, use and care of
resDirators.
* * *
(3) Respiratory protective equipment
which has been previously used shall be
cleaned and disinfected before it is issued
by the employer to another employee.
Emergency rescue equipment shall be cleaned
and disinfected immediately after each use.
WAS noted above (n. 2), 5 1910.134 is one of the standards
the Secretary identified in 1978 as applicable to construction,
pursuant to requests for guidance from industry and labor groups.
Respondent's respirator program referred its personnel to both
§ 1910.134 and 5 1926.103, and reiterated their requirements.
-
25
provision is more specifically applicable than the cited
standard. Section 1926.103(c)(2) states:
(c) Selection, issuance. use and care of
resDirators.
* * *
(2) Respiratory protective equipment
shall be inspected regularly and maintained
in good condition. Gas mask canisters and
chemical cartridges shall be replaced as
necessary . . . Mechanical filters shall
l
be cleaned or replaced as necessary so as to
avoid undue resistance to breathing.
Respondent is c‘orrect. It is clear from 5 1910.134(f)(l) that
cleaning is an aspect of respirator maintenance. **Cleaning and
disinfecting" are expressly listed as required maintenance items
under that secti0n.w The same conclusion may be drawn from the
last sentence of 5 1926.103(c)(2), which speaks of filter
cleaning as an aspect of maintenance. Cf., Brown 61Root, Inc., 9
BNA OSHC 1833, 1839 (Rev. Comm. No. 76-190, 1981) (5 1910.134
applies to hazard of failure to test and clean filters on air
23/S 1910.134(f)(l) provides:
(f) Maintenance and care of resDirators. (1) A program
for maintenance and care of respirators shall be
adjusted to the type of plant, working conditions, and
hazards involved, and shall include the following basic
services:
(i) Inspection for defects (including a leak check),
(ii) Cleaning and disinfecting,
(iii) Repair,
(iv) Storage
Equipment shall be properly maintained to retain its
original effectiveness.
26
compressors on construction sites, because 5 1926.103 does not
cover inspection and testing of air compressor filters).u
The pleadings will be amended to allege a violation of
5 1926.103(c)(2) regarding the alleged cleaning problems.
Respondent raised the applicability of 5 1926.103(c)(2) and the
inapplicability of the cited general industry standards in its
discovery responses. (EL C-29, 1 4(a)) It squarely recognized
that the applicability question was in issue, and it could raise
no defense under that standard that it could not raise under the
general industry standard. Thus, it had a full opportunity to
URespondent argues that all the other Citation items are
duplicative of the 5 1926.55(b) item because that provision
covers all the other protective devices at issue, in a general
way. The practical benefit to Respondent of a favorable ruling
in this assertion might be a reduction of the number of items and
penalties. However, there is no merit to the argument. Section
1926.55(b) (quoted in full, pp. 17-18 supra) states in part:
When [engineering or administrative] controls
are not feasible to achieve full compliance,
protective equipment or other protective
measures shall be used to keep the exposure
of employees to air contaminants within the
limits prescribed in this section.
However, it also states that Whenever respirators are used,
their use shall comply with 5 1926.103JV Thus, respirator
violations like this item properly may be cited under 5 1926.103,
or under more specifically applicable provisions of Q 1910.134.
The only items affirmed under provisions other than 5 1926.103
are violations of 5 5(a)(l) of the Act and 5 1904.2(a). The
latter section concerns recordkeeping, which is not covered in
5 1926.55(b). Also, Respondent cannot claim that Q 1926.55(b)
preempts 5 5 (a) (1) in this case. The Q 5(a)( 1) item is analyzed
under that section because of Respondent's claim that under
current Commission precedent, the construction standards do not
provide adequate notice that protective clothing is required in
the circumstances.
L/
present evidence rebutting this charge. Cf., McWilliams Forse
co., 11 BNA OSHC 2128.25
The evidence overwhelmingly establishes a violation,
regardless whether the case is analyzed under 5 1926.103(c)(2) or
5 1910.134(b)(5). IH Bustria testified that late on September
17 I he observed the "extremely dirty" respirators of two
employees who were about ready to leave the site. There was dust
both inside and outside the face piece of the air line (positive
pressure) respirators. (Tr0 103-04, 106-07) One of the
employees indicated to the inspector that the respirators were
never cleaned, and the inspector saw the other employee nod his
head in agreement with that statement. (Tr. 103)
Also, Bustria saw no facilities available on the Queens side
of the bridge, where the employees were, suitable for *cleaning
the respirators. He testified that the respirators must be
cleaned with a germicide or disinfectant, brushed, and then
rinsed in clean water, air dried and then placed in sealed
containers. (Tr 0 103-05) (The manual which Respondent
maintained regarding the air line respirators contained similar
25Even if the issue Respondent raised in its brief had not
been squarely recognized at the hearing stage, it could not gain
dismissal of the charge on that basis. It bore the burden of
raising the more specific applicability of § 1926,103(c)(2), once
the Secretary proved the applicability of § 1910,134(b)(5). If
Respondent claimed that the issues regarding Q 1926.103(C)(2)
were not sufficiently raised at the hearing stage, it would bear
any adverse consequences.
28
instructions. (Ex. C-16 at 3)) There was no contrary evidence
on these points.26
Respondent knew, or had reason to know, of the extremely
dirty condition of the respirators. They were available for
inspection each day. Respondent argues essentially that
knowledge was not shown because the respirators were locked in a
trailer when in use, and only certain employees had the key.
However, they still could have been inspected during the
workday. In any event, the evidence does not establish that
Respondent
. had no access to the trailer. (cf., Tr. 533) To the
contrary, the evidence establishes that Respondent retained full
control over employee safety matters.27
26Respondent argues, regarding this and other items, that
because the interrogatories and responses of both parties were
stipulated into evidence, those responses control the case, and
that other evidence may not be used against it. However,
Respondent did not object to any evidence at the hearing because
it went~ beyond the responses to interrogatories. At the very
least, a timely objection was necessary. Fed R. Evid. 103(a)(l).
The interrogatories and responses do not control the evidence in
this case, Also, the Secretary% interrogatory response
regarding this item (Ex. R-2 and R-3) put Respondent on notice of
the issue it claims lack of notice of -- that it reasonably
should have known from June on that its employees wore 'extremely
dirty* respirators.
27As Respondent notes, its ironworkers were selected and
provided by a union hiring hall, and its union contract stated:
all jobs there shall be a foreman
On
and the foreman is the only
representative of the Employer who shall
issue instructions to the workmen.
Wx C-21, p. 37, 5 25) However, Bustria testified that M-K's
Vi& President for the Eastern Region, Mr. Poteat, whom Kassap
and Dockery said was their boss, told Bustria that "the union did
not run the job," (including safety) -- M-K did. (Tr 159-6'0)
Dockery knew that too. (Ex. C-3 p. 200 -- letter of IH'F.adel to
29
To avoid a finding of knowledge and seriousness as to
various items including this one, Respondent also asserts that
the Secretary restricted her case to the exposures on the two
inspection days. This argument is baseless. Clearly, the
Secretary relied throughout the case and the hearing on several
months of inadequate protection against lead fumes. E.g.,
Complaint. A violation of 29 C.F.R. 5 1926.103(c)(2) was
proven.28
Kassap). Union officials confirmed to Bustria that that was
their understanding too. (Tr 488-89) No witness testified
inconsistently with that understanding. (Cf .I Tr. 50-54).
Bustria testified that Kramer and Kassap told him during his
investigation that they thought the responsibility for cleaning,
disinfecting and caring for respirators was on the employee -and
the union shop steward. (Tr0 109 f 154) However, their
understanding is inconsistent with Respondent's respirator
program, which states, **Routinely used respiratory equipment
shall be regularly cleaned, inspected, and sanitized by a
qualified individual/ Wx C-2 at 5) Respondent gave no
indication that it had trained the shop steward or employees to
be "qualified individuals."
28Respondent complains that the Secretary did not call the
employees as witnesses, and argues that an adverse inference
regarding their testimony is appropriate as a result. This
argument is unfounded. The inspector identified the employees by
name, and his account of what they told him is admissible and not
hearsay. See Fed. R. Evid. 804(d)(2) (D)I which is applicable in
Commissionproceedings under 29 C.F.R. 5 2200.71. Respondent had
an equal opportunity to call those employees as witnesses. It
cannot complain that they were not called.
Respondent's argument that none of the standards provide fair
notice that it did not ensure proper cleaning is frivolous. Its
own respirator program describes proper cleaning in comparable
terms to the OSHA standard. (Ex. C-2 at 2, 4-5)
Respondent's claim that courts have found OSHA*s general industry
or construction industry respirator standards unclear or
confusing is unfounded. The decisions it cites do not criticize
those standards.
30
Item 2: Storage of respirators
The basis for this item is that Yespirators were stored
unprotected from dust in open plastic containers along with other
equipment in a truck trailer.** Complaint g VI(c), The cited
standard, 5 1910.134(b)(6), provides:
(b) Reouirements for a minimal acceptable Drogram.
* * *
(6) Respirators shall be stored in a
convenient, clean, and sanitary location.
Respondent argues again that the cited hazard is addressed by
5 1926.103(c)(2) (quoted in full above, p. 25), which requires
that respirators be "maintained in good condition.** Again,
Respondent is correct. Proper storage of respirators is .an
aspect of maintenance and care under the general industry
respirator standard. See 55 1910.134(f)(l), (f)(5) (i).
The pleadings will be amended to allege a violation of
5 1926.103(c)(2). As discussed above (pp. 26027)~ Respondent
squarely recognized that the applicability of that standard was
in issue. It has had a full opportunity to rebut this charge
under either the cited standard or the amended standard.
The evidence indubitably establishes a violation, no matter
whether the cited standard or the amended standard is considered.
IH Bustria testified that the two employees on the Queens side
put their respirators in open milk container crates at the end of
the day, and Put those containers in a storage trailer
overnight. (Tr 0 111) Project Manager Kassap told Bustria that
the respirators normally were stored this way. (Tr l 112)
31
Bustria testified that the storage trailer was **full of dust on
the floor and on the walls.** (Tr. 111)2g
Bustria saw no respirator storage facility on the Brooklyn
side. When he observed the employees there at the end of the
day I they removed their equipment in the vicinity of their cars
and left soon afterwards. He inferred that they probably stored
their respirators in their cars. (Tr. 112-13) He testified that
proper storage would include placing the respirators, after
cleaning, in silk plastic bags, and then putting them where they
would not be exposed to the sun. (Tr. 112)
Respondent had the requisite knowledge of the lack of .proper
storage .facilities. Common sense indicates that storing
respirators in a dusty trailer without plastic bags or other
sealed containers does not maintain them in good condition.
Respondent knew that because its respirator program repeated the
specific guidance of 5 191&134(f)(5)(i): .
When not in use, respirators shall be
stored to protect against dust, sunlight,
extreme temperatures, excessive moisture, or
damaging chemicals.
(Ex l C-2 at 5) Section 1910.134(f)(5)(i) also indicates,
*'Routinely used respirators, such as dust respirators, may be
placed in plastic bags." The violation of 5 1926.103(c)(2) is
established.
2gBustria testified consistently on that point, as the
Secretary notes in her motion to correct the transcript, which
has been granted. (E.g.! Tr. 529)
32
Item 3: Use of Approved Respirators
The Complaint stated the basis for the alleged violation as
follows:
Respondent provided respirators of the
b;ana' **Willson Model 1820 Continuous Flow
Arline [sic, Airline] Respirator.** The face
pieces were from a different manufacturer;
they were "Pulmosan Part No. 10924.** These
respirators* approval was nullified because
components of different type or manufacture
were mixed. Approved respirators were
available to respondents.
The Citation and Complaint alleged a violation of
5 1910.134(b)(lI).30 The Secretary has moved for an amendment
to charge a violation of 5 1926.103(a)(2), which provides:
(a) General.
* * *
(2) Respiratory protective devices
shall be approved by the U.S. Bureau of Mines
or acceptable to the U.S. Department of
Labor for the specific contaminant to which
the employee is exposed.
30That provision states:
(b) Requirements for a minimal
acceptable proqram.
* * *
(11) Approved or accepted respirators
shall be used when they are available. The
respirator furnished shall provide adequate
respiratory protection against the particular
hazard for which it is designed in accordance
with standards established by competent
authorities. The U. S. Department of
Interior, Bureau of Mines, and the U. S.
Department of Agriculture are recognized as
such authorities. . .l
33
As the Secretary acknowledges, the standards both require that
respirators be approved for the specific hazard involved.
Section 1926.103(a)(2) is the more specifically applicable
standard in this case because it is a construction standard.
Respondent has not objected to amending the charge, and no
potential prejudice to its defense is apparent. An amendment to
charge a violation of 5 1926.103(a)(2) is appropriate.
The evidence clearly establishes a violation, whether this
item is considered under the cited standard or the amended
standard. Respondent's office engineer in charge of safety,
Norman Kramer, told Bustria that as far as he knew, the air line
respirators were **Willson 1820," However, during his inspection
Bustria noticed that the air line respirators used by four
employees had a face piece marked Pulmosan, and a specific face
piece number. He searched for U. S. government approval for the
Pulmosan face piece for use as an air line respirator, and found
none. (Tr. 116-17)31
Bustria. testified that Federal approval of respirators is
based on the entire unit. Thus, all parts of the air line
respirator would have to be from one manufacturer. (Tr. 116-17)
He explained that the entire unit must be approved so that a
respirator system is not used that has both approved and
unapproved parts. W a 118) Thus, based on the evidence
31The certification list he consulted was by NIOSH (National
Institute for Occupational Safety and Health, within the U. S.
Department of Health and Human Services). (Tr. 540-41) He noted
that the Pulmosan face piece had been approved for another use--
as a negative pressure respirator. (Tr. 546)
34
presented, the respirators were not approved because (1) they
were a mixture of parts of different manufacturers, and (2) they
had a face piece that is not approved as a positive pressure
device.
The requisite knowledge of the violative conditions also was
shown. Respondent's respirator program provided, for example,
**Properly cleaned, maintained NIOSH/MSHA approved respirators
shall be used at all times.** (Ex l C-2 at 3; see Id. at n
VI.A.1.b.: Ex. C-7 at 8) The conditions were in plain sight,
including the Pulmosan labels on the face pieces. Respondent
could have detected the problem when they were put into service,
or during safety inspections, using reasonable diligence.32 A
violation of 29 C.F.R. 5 1926.103(a)(2) was proven.
Item 5: Lack of protective clothinq
The Citation alleged a violation of 5 1926,28(a) in that:
Appropriate personal protective equipment was
not worn by employees in all operations where
there was exposure to hazardous conditions as
required by 29 CFR 1926.300(c);
Employees were exposed to concentrationso;
inorganic lead in excess of the OSHA PEL
and were not wearing protective work
clothing. . . .
32Respondent argues that 5 1910.134(f)(4), which addresses
replacement of respirator parts, preempts the cited standard.
However, it presented no evidence that parts had actually been
removed and replaced. Thus, it failed to show that that standard
applies to this situation.
Respondent argues that it was confused and denied due process
because the Secretary stated that the respirators were **Willson
1820," whereas at the hearing Bustria testified that Pulmosan
made the face pieces. However, what Bustria testified to is
exactly what the Complaint (quoted above) indicated.
-
35
Section 1926.28(a) provides:
The employer is responsible for requiring the
wearing of appropriate personal protective
equipment in all operations where there is an
exposure to hazardous conditions [and]33
where this part indicates the need for using
such equipment to reduce the hazards to the
employees.
The Complaint amended this charge to allege a violation- of
5 5(a)(l) of the Act in the alternative. That section provides
that the employer:
shall furnish to each of his employees
employment and a place of employment which
are free from recognized hazards that are
causing or are likely to cause death or
serious physical harm to his employees.
Section 1926.28(a) does not appear to be the appropriate section
to cite here, under current Commission precedent.34 If it is
the appropriate section, the evidence establishes that it was
33The Commission recentlyheldthatthe Secretaryimpermissibly
changed the meaning of the standard by changing the conjunctive
word andto rrorf*
without notice and comment rulemaking. L. E.
Myers Co.. Hish Voltase Systems Div., 12 BNA OSHC 1609, 1611-14,
(Rev. Comm. No. 824137) 0 rev'd on other grounds, 818 F.2d 1270
[13 BNA OSHC 12891 (6th Cir.), cert. denied, 484 U.S. 989 (1987).
34Under that precedent, the Secretary must prove that some
other section of Part 1926 indicates the need for the particular
personal protective equipment she advocates, to establish a
violation of 5 1926.28(a). L. E. Myers Co., 12 BNA OSHC at 1614.
The only other section noted by the Secretary is 5 1926.300(c),
which does not specifically mention protective clothing. We are
aware of no construction standard that specifically mentions
protective clothing. In addition, Respondent argues that the
employees* tools were not hand or power tools, which are the
topic of 5 1926.300. The Secretary does not address this
objection. Thus, this item will be analyzed under 5 5(a)(l) of
the Act.
-
36
violated.35 However, this item will be analyzed under $j5(a)(l)
of the Act.
To prove a violation of Q s(a)(l), the Secretary must prove
(1) that a condition or activity in the employer% workplace
presented a hazard to employees, (2) that the cited employer or
the employer% industry recognized the hazard, (3) that the
hazard was causing or likely to cause death or serious physical
harm, and (4) that feasible means existed to eliminate or
materially reduce the hazard. E.g., Connecticut Light & Power
co oI 13 BNA OSHC 2214, 2217 (Rev. Comm. No. 85-1118, 1989).
The failure to implement the use of protective clothing to
reduce lead exposure was a preventable hazard recognized by
Respondent. For example, Dockery wrote Kassap on June 19,
f*disposable coveralls should be implemented in the [lead exposure
abatement] program.ff (Ex l c-3, p. 171) Respondent's written
lead procedures stated, Vrotective clothing shall be provided to
employees exposed to lead above the PEL." Wx l c-5, p. 2)
Respondent's on-site managers were repeatedly made aware of the
need to follow those procedures. For example, Dockery reminded
Kassap by memo on July 29, "The lead exposure problem must be
addressed by implementing the various elements of the preventive
program as we discussed.Vf (EX0 c-3, p. 144) None of the
35Under current Commission precedent, the Secretarymustprove
two elements in addition to the one discussed in the preceding
note, Those elements are that an employee was exposed to the
hazard, and that the employer failed to require the wearing of
the necessary equipment when needed. L. E. Myers Co., 12 BNA
OSHC at 1614-15. The evidence summarized below establishes these
elements.
37
employees wore protective clothing over their regular clothes on
the days of the inspection. Thus, the Secretary proved the
existence of a recognized, preventable hazard.
The evidence also establishes that the lack of protective
clothing was **causing or . . . likely to cause serious physical
harm* to Respondent s employees. Certain employees clearly were
suffering serious physical harm due to their lead exposure. A
published scientific report on this project, admitted in
evidence, documents serious symptoms that were occurring. 44
Archives of Environmental Health No. 3, pp. 140-45 (Society for
Occupational and Environmental Health, May/June 1989). (Ex l C-
26) The
. report was written by physicians at the Mount Sinai
School of Medicine, whom Respondent hired to analyze the
employees* .blood lead levels. One case was reported as follows:
A 447y-old ironworker . . . had onset of
symptoms on Friday, July 10, 1987, 2 wk after
he had started this job. Muscle soreness,
weakness, and anorexia were his major
complaints. He felt ill all weekend and
remained at bed rest. On Monday, July 13,
1987, he became nauseated, vomited, was able
to drink only fluids; he had no bowel
movement for 2 d. He presented to clinic on
Tuesday, July 14, 1987, On physical
examination he appeared dehydrated; he had a
10 mm Hg decrease in systolic blood pressure
and a 40 beat increase in heart rate on
standing.
Id l at 141 Cole 1. That ironworkers blood level rose from 83
ug/dl to 120 ug/dl during approximately his first two weeks on
the job. Ide (see also Ex. C-6, pe 2)
Also, two of the ironworkers were hospitalized for chelation
--
38
therapy to reduce their blood lead levelse36 Chelation has
serious health risks and is administered only to persons with
high levels of blood lead, as a general rule, It is a medication
that usually is administered intravenously. The subject
generally must be kept hospitalized throughout the procedure
(usually five to seven days) because the therapy can cause kidney
damage, irregular heart beat, and allergic reactions. Life
support equipment should be readily available, (Tr l 39.6-98)
The failure to implement protective clothing significantly
aggravated the excessive lead exposure that was causing serious
harm to certain of Respondent's ironworkers, Thus, the failure
to implement protective clothing is properly characterized as
causing or l l l likely to cause serious physical harm to the
emplOpeS,
As to feasibility, Respondent's internal correspondence,
summarized above, clearly indicates that protective clothing was -
feasible and useful on the jobsite, Bustria testified that
Kassap told him that Respondent in fact had bought some
disposable coveralls as Fade1 and Dockery recommended, and had
suggested to the union that they be worne37 However, Respondent
36Kramer knew this even before M-K's IH Fadelwrotehimabout it
on September 14, 1987. (Tr. 30; Exe C-3, pe 200)
37Bustria testified that Kassap told him that the union
rejected the idea of requiring employees to wear coveralls. (Tr
121-22) However, that does not rebut the feasibility or likel;
utility of Respondent enforcing their use. The union apparently
was saying only that it would not attempt to require coveralls,
Respondent knew, however, that enforcing safety was its own
responsibility, not the union's, There was no evidence that
employees would not have complied with orders from Respondent to
-
-
. 39
admittedly did not enforce its lead protection policies on the
jobsite -- it merely made suggestions. (Tr l 109) As noted
above, Respondent retained authority and responsibility for
enforcing safety requirements on the job. The evidence shows
also that the union expected Respondent to exercise that
authority. The Secretary has proved that protective clothing was
feasible and useful on the jobsite. Thus, the elements of a
5 5(a)(l) violation have been established.
Item 7: Failure to inspect and maintain resDirators rsroperlv
As noted above, this item involves 5 1926.103(c)(2), the
same standard that has been found most specifically applicable to
Items 1 and 2. As the Secretary argues, it is clear that regular
inspections were not made of the respirators, because they were
extremely dirty and never had been cleaned. Respondent presented
no evidence contradicting this conclusion Respondent had the
requisite knowledge of the failure to inspect For example, its
safety program requires regular inspections of respirators.38 A
violation of 29 CeF.R. 5 1926.103(c)(2) was proven.
wear COVerallS,
38Respondentfs respirator program stated:
a. All respirators shall be inspected
routinely before and after each use.
b l Routinely used respiratory equipment
shall be regularly cleaned, inspected,
and sanitized by a qualified individual.
(Exe C-2 at 5)
-
40
Seriousness
That each of the violations discussed above was serious is
evident from the fact that employees were suffering serious
symptoms as a result of their lead exposure, and that each
violation contributed to the already-excessive exposure l As
discussed above, Respondent had the requisite knowledge of each
violation under 29 UeSeCe 5 666(k)e3'
Respondent argues that the Secretary was required to show a
significant risk of harm to establish each violation. The
Commission and the Second Circuit require such a showing for
standards under which the Secretary must prove the existence of a
hazard. Eege, Anoplate CorD., 12 BNA OSHC 1678, 1690-91 (Rev.
Comm. No. 80-4109, 1986). Here, the abundant evidence of
serious health problems that employees were suffering due to lead
exposure clearly establishes a significant risk of harm.40
Willfulness
le Legal standards
Under Commission precedent, a willful violation is one
committed with intentional, knowing or voluntary disregard for
the requirements of the Act, or with plain indifference to
employee safety. E.qc, Williams Enterprises, Inc, 13 BNA OSHC
3gRespondent*s assertionthatthe Secretary restrictedhercase
to the exposures on the two inspection days is baseless, as
discussed above under Item 1.
401t also bears noting that most of the provisions found
specifically applicable in this case, including § 1926.103(C)(2),
presume the existence of a hazard unless their terms are met,
They are not the kind of regulations which require proof of a
Qignificant risk of harm.'1
41
1249 # 1256-57 (Rev. Cornme NO. 85-355, 1987). Accord, Se Zara bl
Sons Contracting COe Ve OSHRC, 697 Fe2d 297 [ll BNA OSHC 1121]
(2d Cir. 1982).
A willful violation is differentiated from other types of
violations by a **heightened awareness -- of the illegality of the
conduct or conditions -- and by a state of mind -- conscious
disregard or plain indifference.** Williams Enterprises, 13 BNA
OSHC at 1256.57, A finding of willfulness is not justified. if an
employer has made a good faith effort to comply with a standard,
even though the employer's efforts are not entirely effective or
complete. Ide Also:
. A violation is not willful if the employer
. had a good faith opinion that the violative
conditions conformed to the requirements of
the cited standard. However, the test of
good faith for these purposes is an objective
one -- whether the employer% belief
concerning a factual matter or concerning
the interpretation of a standard was
reasonable under the circumstances,
Id I 13 BNA OSHC at 1259e41
l
2 l Evidence
Respondent's management took a number of steps to protect
employees from the ill-effects of lead exposure. However, its
jobsite officials were fully informed about other steps that were
needed for compliance with OSHA*s requirements. The jobsite
41As Respondent notes, The Seventh Circuit recently held, **A
violation is not willful when it is based on a nonfrivolous
interpretation of OSHAls regulationset* McLaughlin ve Union Oil
co of California, 869 F.2d 1039, 1047 [13 BNA OSHC 2033, 20391
(7th Cir. 1989). An opinion that may not be held in objective
good faith is frivolous.
,42
official with overall responsibility for implementing
Respondent% safety program ignored the need for those measures,
including the ones at issue here. The. conscious failure to take
the needed additional steps is properly termed willful -- it was
"intentional, knowing or conscious disregard for the requirements
of the Act/ Respondent must bear the responsibility for those
actions, notwithstanding the commendable efforts of its safety
advisors offsite to improve the situation.42
To understand what happened, it is important to understand
Respondent's supervisory structure during the relevant period
(April-September, 1987). Project Manager David Kassap had
ultimate responsibility for jobsite operations, including safety
42Under Commission precedent, a foreman's or supervisor's
knowing and voluntary violations of the Act are properly imputed
to the employer. E.q., C. N. Flaqq & Co., 2 BNA OSHC 1195, 1196
(Rev. Comm. No. 1734, 1974). The First and Tenth Circuits have
addressed the issue and they hold to the same effect. E.q.r
Central Sova de Puerto Rico. Inc., 653 F.2d 38, 39-40 19 BNA OSHC
1998, 19991 (1st Cir. 1981); Kent Nowlin Construction Co. v.
OSHRC, 648 F.2d 1278, 1280-81 [9 BNA OSHC 1709, 17100111 (10th
Cir. 1981).
The Tenth Circuit has held that the Secretary retains the burden
of proof throughout the case that the supervisor's actions were
foreseeable and preventable. .EUL, Capital Electric Line
Builders of Kansas, Inc. v. Marshall, 678 F.2d 128 (10 BNA OSHC
15931 (10th Cir. 1982). But see L. E. Mvers Co., 818 F. 2d at
1273 [13 BNA OSHC at 12931 (claim of unforeseeable supervisory
misconduct properly is affirmative defense). The evidence
supports the Secretary even under the Tehth Circuit's test. The
knowledge that M-K's offsite safety officials had of the jobsite
officials' failure to carry out the lead procedures and
respirator program, despite knowledge of the requirements, shows
that those willful violations were foreseeable by the joint
venture's officials above Kassap. The suggestions by those
safety officials over a long period of time shows that the
violations were preventable.
--
43
(Tr 0 6-7, Ex. C-l). Respondent relied on Kassap and his
subordinates to make its safety decisions.43
Kassap's second-in-command was General Superintendent Al
L'Eplattenier.44 Project Engineer Art Schoenewaldt and Off ice
Engineer Norm Kramer also had safety responsibilities. Kramer
was the first-line safety supervisor. Kramer had had no courses
in construction safety or industrial hygiene. The only safety
course he had taken was in underground fire safety, from MSHA.
(Tr. 38)
Although there was no formal safety committee, the four
officials just mentioned had safety meetings. (Tr l 4-5,, 7145
M-K safety officials off-site who provided assistance included
Lionel Dockery, regional safety coordinator for the Eastern
Region; Mark Fadel, an M-K IH; and Ben Rietze, M-K's Director of
Safety.
a. Notice to iobsite officials of reauirements and
problems from M-K safety officials offsite
43The only authority above Kassap on Respondent's
organizational chart was the joint venture operating committee,
composed of a representative from Yonkers Contracting and several
representatives from M-K. U- C-l, Tr. 6-7) (M-K, one of the
nation's largest construction firms, l
clearly was the dominant
member of the joint venture.) That committee did not make safety
decisions directly. It acted through Kassap and his
subordinates. (Tr. 6-7)
44Both Kassap and L'Eplattenier had beenM-K employees prior to
this job. Both left M-K's employ after the job.
45Those officials1 initials on safety memos are as follows:
"NK" is Kramer; "ALE" is LlEplattenier; trDK" is David Kassap;
rrAS**
is Art Schoenewaldt. (Tr. 6-7, 14)
44
M-K'S offsite safety officials made the on-site managers
aware of their safety responsibilities, and provided back-up.
The jobsite officials were aware from the outset that the bridge
contained lead-based paint. (Tr l 16 I 577) It is Common
knowledge that bridges built more than 10 years ago generally
contain lead-based paint. (Tr. 635-36) Against that background,
Dockerty wrote Kassap on April 24:
As discussed at the weekly supervisory
meeting elements of the respiratory program
must be implemented for comformance [sic] to
OSHA requirements. Attached is a copy of the
program requisites also presented to Norm
[Kramer] for guidance.
(Ex l C-3, p. 163 -- pages are in chronological order) As noted
above, l Respondent's respiratory program required regular
inspection, proper cleaning and storage of respirators, and use
of government-approved respirators. It also required the use of
feasible engineering and administrative controls to combat
excessive exposure to air contaminants. It specifically referred
the officials to 5 1910.134 and 1926.103 for further guidance.
(Ex. C-2) On July 29, Dockery wrote to Kassap:
The lead exposure problem must be
addressed by implementing the various
elements of the preventive program as we
discussed.
(Ex. C-3 p. 144) Respondent's written lead procedures stated:
All OSHA requirements that apply to the job-
site (manufacturing, construction, etc.) as
found in 29 CFR 1910.1025, 19 CFR 1926
sections 55, 353 and 354 shall be followed.
(Ex . C-5 at 1) Those procedures also required use of feasible
engineering and work practice controls, protective clothing, and
--
45
proper hygiene. Id. at 2-3. General concern about the priority
being given safety on the project was expressed by Dockery to
Kassap on July 7:
The impression that may be conveyed
[from the numerous safety violations on the
Greenpoint Ave. Bridge site] is that safety
is secondary to the field forces, especially
with foremen and superintendents not
enforcing the safety regulations, which is
not the policy of M-K. . . .
W 0 c-3, p. 150) Dockery and Fade1 reminded jobsite officials
about the need for employees to wear protective clothing, in
letters of June 19 and September 4. Wx l c-3, pp. 171, 199)
Fade1 expressed strong concerns to Kramer about inadequate
respiratory protection in his memo of September 14. (Ex. C-3, p.
200)
b0 Other notice of requirements and raroblems to
iobsite officials
Originally, the ironworkers were provided merely with filter
(negative pressure) respirators. The filters became clogged and
they were found inadequate. (Tr l 17-18) By May 15, a positive
pressure respiratory system for the ironworkers was under
discussion by Kassap and his subordinates. (Tr l 17 ; Ex 0 C-3)
Air line respirators were in use by mid-June. (Tr. 21)
However, it soon was apparent that Respondent's air line
respirator system was not solving the problem. On July 23,
Kramer spoke with Dr. Lilis of Mt. Sinai Hospital, which had
conducted blood lead tests on numerous ironworkers. His report
of that conversation to Kassap, L'Eplattenier and Schoenewaldt
stated:
-
46
Pr Lilis] indicated that the levels of
lea4 in the blood of some of our ironworkers
is [sic] unusually high. Further, that
because the high levels were obtained over a
short period of time we were doing something
wrong. She said that she had a lot of
experience with other workers on similar jobs
and that our job was unusual.
Wx l C-3, p. 183) NYC DOH sent Kramer the results of its June
blood tests on 15 of Respondent's ironworkers on July 24. Its
report indicated that two had blood levels of 50 or more ug/dl,
and that three others had levels of 40-49 ug/dl. (Ex. C-6) The
report, written by Dr. Andrew Goodman, Director of the
Environmental Epidemiology Unit, also noted symptoms of lead
poisoning reported by the ironworkers tested.46 The report
offered a free workplace health evaluation. It also recommended
ongoing medical evaluation of employees and employee training in
the hazards. Further, it stated:
It is apparent from the blood lead tests that
the current respiratory protection is not
adequate. Immediate steps should be taken to
provide appropriate respiratory protection.
On July 24, Enviro-Probe, a private consulting firm hired by
Respondent to investigate the lead exposure, surveyed the
46The report stated:
Eight of the sixteen employees reported one
or more of the following symptoms: Inability
to sleep (4) muscle aches and pain (4)
joint pain (i) anorexia (4)I constipation
(2) abdomina; pain 0 I headache (3)
clumsiness (1) nervousness (1) dizzinesk
(1) vomiting '(1) and blurred vision (1)
These symptoms may be associated with
increased lead absorption. . l l
(Ex. C-6 at 2)
-
47
conditions, including air sampling and blood testing.47 Its
report has been mentioned above. (Ex0 C-7) In summary, it
indicated that ironworkers were being exposed to between 14 and
42 times the TLV for lead. It also suggested specific
engineering controls, administrative controls, use of NIOSH-
approved respirators, and ongoing blood lead testing.
On August 12, NYC DOH notified Kramer that two ironworkers
had blood lead levels above 80 ug/dl. It again offered
assistance in reducing the lead exposure on the site. Wx 0 C-6
P l
6)
The reports of July 24 and August 12 were reviewed by all
the on-site managers with safety responsibilities during July or
August. .- Based on the results of Enviro-Probe% August 12 blood
tests, Kramer notified Kassap, L'Eplattenier and Schoenewaldt. and
47There is some dispute about when Respondent received that
report. Kramer testified that to the best of his recollection,
he did not receive Enviro-Probe's July 24 air sampling results by -
telephone, but "1 can't swear to that/ (Tr 30) It is not
credible, however, that there was no communication between
Enviro-Probe and Respondent's management about the results until
September 11. The report states:
The results of the survey show that the
workers exposure to lead is higher than the
permissible exposure levels established by
the Occupational Safety 6r Health
Administration (OSHA).
It is recommended that all employees in this
area must wear supplied air respiratory
protection, particularly the workers engaged
in cutting of steel beams and their blood
lead levels be monitored immediately.
P C-7 at 3, emphasis added) That information hardly would
ha& gone unreported for six weeks. Even if it had, Respondent%
management would be responsible for the knowledge that its agent,
Enviro-Probe, had.
48
others on August 21 that certain ironworkers should be removed
from the worksite immediately. (Ex. C-3 p. 198)48 On September
11 , NYC DOH notified Kramer that another ironworker had a blood
lead level above 80 ug/dl. (Ex. C-6 p. 7)
b0 Response bv iobsite officials to lead exDosure
problems
Respondent's jobsite officials took a number of steps to
reduce employee lead exposure.4g As discussed above, however,
those steps proved inadequate. Jobsite officials were fully
informed about the inadequacies and the further steps that were
required.
No initiative was ever taken regarding engineering controls
.
(stripping the lead-based paint before torch cutting, or
providing a vacuum system). This is inexplicable in view of the
fact that the applicable OSHA standards specifically referenced
in its lead procedures discussed them, and that Enviro-Probe
48Those tests showed that four ironworkers had blood lead
levels above 50 mg/dl. Kramer stated, "The doctor advises that
the above employees should not work until their blood lead
content falls below 40 mg/l [sic].tg Id.
4gIn addition to the steps noted above, Respondent cooperated
with NYC DOH in having ironworkers' blood lead levels tested. It
also hired Mt. Sinai Hospital to perform similar work, at the
suggestion of NYC DOH.
Also, Kramer made some useful suggestions following his
conversation with Dr. Lil is. He recommended (1) moving the air
compressor on the Brooklyn side upwind and farther away from the
workers, (2) holding another class on lead hazards and use of
respirators, and (3) rotating workers into other jobs to reduce
their lead exposure. Id. He gave a safety briefing to the
ironworkers about lead hazards on July 29. (Tr 27-28, Ex. C-3 l
Pl 184) Also, lead fumes were discussed by all the on-site
managers again on July 31. (Ex. C-3 p. 86)
.49
recommended them. Also, no initiative was taken to inspect or
clean the respirators, provide proper storage, assure that the
air line system was government-approved, or require protective
clothing. This is essentially unexplained in view of the fact
that Respondent% safety program required those steps and
referenced the applicable OSHA standards, as discussed above.
In light of the ongoing, high blood lead levels which were being
reported, Respondent must be held accountable for the knowing
failure of jobsite officials to take these steps.
3. Respondent's arguments
Respondent's arguments against finding willfulness are
legalistic and fail to supply a reasonable basis for Respondent's
failure to implement its respirator program. They lack legal
merit also.
The linchpin of Respondent's defense to willfulness is a
letter 'consisting of unsworn and self-serving hearsay statements
by Kassap, long after OSHA's inspection began. (Exa R-4)50
Kassap's letter is of no help to Respondent. It is an argument
for more money, made to an official of New York State's
Department of Transportation, on the basis that the high levels
of lead in the bridge paint resulted in increased costs. Kassap
50Respondentwas permitted to file the letter at the end of the
hearing without having the author called as a witness. This
permission was granted on the representation of Respondent%
counsel that Kassap was in Egypt and unavailable to testify.
(Tr. 701-06)
50
argued that the conditions "were not contemplated under the terms
of this contractt8 and entitled Respondent to extra pay.
That assertion is not credible because, as noted above, it
is common knowledge in the industry that older bridges, like the
old Greenpoint Avenue Bridge, are coated with lead-based paint.
Also not credible is Kassap's assertion on which Respondent pins
its defense here -- that the only portion of OSHA% construction
standards that applied to the cutting work is *%ection 1926.354
(2) [sic]? (Presumably he meant 5 354(c)(2), the respirator
requirement quoted above, n. 12.) Kassap provided no reasoning
to support that assertion, and it is flatly contrary to
Respondent's written lead procedures. That document states:
All OSHA requirements that apply to the job-
site (manufacturing, construction, etc.) as
found in 29 CFR 1910.1025, 29 CFR 1926
sections 55, 353 and 354 shall be followed.
(Ex. C-5 at 1, 9 D) As noted above, numerous other provisions of
Part 1926 in addition to 5 354(c)(2) clearly apply to the work.
For example, Respondent acknowledges that 5 1926.354 applied.
(E.q., Ex. C-29, I[ 4(a); Respondent's Brief at 50). Section
1926.354(d) (n. 16 supra) requires removal of preservative
coatings such as bridqe paint from the area to be heated, prior
to cutting. Respondent's failure to do that is inexplicable.
Also, Respondent submitted no evidence establishing that
Kassap or anyone else in its management actually believed his
unexplained, self-serving assertion. It bears the indicia of a
-
51
mere negotiating ploy. It is frivolous and could not have been
held in objective good faith?
Respondent also asserts that somehow all the OSHA
requirements and standards at issue here are so vague that
Respondent had no fair notice of what it was supposed to do. The
absurdity of this idea is illustrated by the fact that M-K% own
respirator program restated many of them in identical language
and referenced the OSHA requirements as guidance on what to'do.
Respondent asserts that because it took some safety
measures, it cannot be found in willful violation for failure to
take the ones at issue here. This assertion falls of its own
weight. .* The "good faith safety effort@ that avoid a finding of
wilfulness are objectively reasonable efforts to meet the known
requirements at issue. The responsible officials ignored the
need .for each of the measures at issue under Citation 1. That
conscious disregard for known requirements is inconsistent with a *
finding of lggood faith.1t52
The Second Circuit, which has jurisdiction over the
workplace, has upheld findings of willfulness in similar
51Respondent Is assertion that Manz "believed similarlytt to
Kassap is baseless. Manz merely acknowledged that Subpart Q of
Part 1926, including 5 1926.353(c), applied to Respondent's work.
(Tr. 646-49)
52Respondent asserts that to justify more than one willful
violation, separate acts of willfulness must be found for each
instance. The evidence shows separate acts of willfulness. Each
separate instance of conscious disregard for part of Respondent's
safety program, and for advice from M-K safety officials and
others, is a separate instance of willfulness.
--
‘52
circumstances. For example, in one case it held that the
Commission's Vonclusion was correct *)that the employer willfully
violated a standard despite certain safety measures the employer
took after being notified of the hazard. A. Schonbek & Co. v.
Donovan, 646 F.2d 799, 800 [9 BNA OSHC 1562, 15631 (2d Cir.
1981) l
The standard at issue there requires protective guarding
devices at the point of operation of machines. An employee had
had two fingers partially amputated by one of the machine's dies
a month before OSHA% inspection. After the accident, the
company had taken that die out of use, placed a plexiglass
barrier in front of it and had made safety records concerning--the
press. However, it had not guarded the other four dies on the
press, which were still in use at the time of the inspection.
Because it did not address the safety of the dies other than the
accident die, the violation was willful.
The credible evidence shows clearly that the violations
found above regarding Citation 1 were willful as alleged.
CITATION 2
The only item of this Citation alleged that an elevated
blood level of employee Harold Jackson on June 30 (of 54 ug/dl),
reported to it by NYC DOH on July 24 was not recorded in its
OSHA-required records until September 17, when OSHA began its
inspection. The evidence supports this conclusion. (Tr. 167-68;
Ex l C-3 at 3; Ex. C-24) The cited standard, 5 1904.2(a),
provides in pertinent part:
-
53
Each employer shall 0 enter each
recordable injury and ii&s on the [OSHA-
required Form 2001 as early as practicable
but no later than 6 working days after
receiving information that a recordable
injury or illness has occurred.
In mitigation of the situation, however, it should be noted that
the various other elevated blood lead levels communicated to
Respondent were recorded in a timely manner. Bustria testified
that Kramer, the manager responsible for keeping the records,
told him that he merely overlooked that blood lead test. (Tr l
598-99) A violation of 29 C.F.R. § 1904.2(a) was proven.
PENALTIES
For penalty purposes, due consideration should be given to
the conscious disregard of OSHA'S reuuirements
*
bv
*
iobsite
4
officials. Also, consideration should be given to mitigating
circumstances such as the safety efforts of M-K safety officials
offsite, and the information about the program that Respondent
gave to the union.
Considering all the circumstances, the gravity of the
willful violations, including the serious harm they were
producing, warrants the proposed penalty ($l0,000) for each
violation, despite the mitigating factors. As the Second Circuit
has noted regarding serious violations, 'IAs for the penalties, we
are amazed at their paucity, reflecting more of a license than a
penalty," Olin Construction Co. v. OSHRC, 525 F.2d 464, 467 [3
BNA OSHC 1526, 15281 (2d Cir. 1975).
Thus, as to Citation 1, Items 1, 2 and 7, which have been
affirmed as willful violations of 5 1926.103(c)(2), will carry a
-
54
combined penalty of $10,000. (They relate to the failure to
inspect, clean and properly store respirators.) Item 6 will be
affirmed as a combined willful violation of 5 1926.55(a) and (b)
(failure to avoid excessive exposure to lead by engineering and
administrative controls). A combined penalty of $10,000 will be
assessed for that violation. Item 3, a willful violation of
5 1926.103(a)(2) (failure to use approved respirators) I merits a
$10,000 penalty. Item 5, a willful violation of 5 5.(a)(l) of the
Act for failure to provide protective clothing, also merits a
$10,000 penalty. Thus, a total penalty of $40,000 will be
assessed. No penalty has been proposed for the violation of 29
C.F.R. 5 1904.2(a) -- Citation 2 (nonserious recordkeeping
violation) -- and none will be assessed.
C. ORDER
The following items of Citation 1 are affirmed as willful
violations:
Items 1, 2 and 7 (combined) -- 5 1926.103(c)(2)
Item 3 -- 5 1926.103(a)(2)
Item 5 -- 5 5(a) (1) of the Act
Item 6 -- 5 1926.55(a) and (b) (combined)
For Items 1, 2 and 7 of that Citation, a combined penalty of
$10,000 is assessed. For Item 3, a penalty of $10,000 is
assessed. For Item 5, a $10,000 penalty is assessed. For Item
6, a $10,000 penalty is assessed (based on the combined violation
of $j§ 1926.55(a) and (b)). Citation 2 is affirmed as a
nonserious violation with no penalty. A total penalty of $40,000
is assessed.
55
c
IWING SOtiER, JUDGE
MAR2 7 19%) ,/
DATE:
Washington, D. C.
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