American Bridge Company
Lead-exposure washing-facilities violation affirmed
Apply this precedent to your situation
This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
American Bridge Company rehabilitated two Ohio bridges by cutting and burning steel coated with lead-based paint. OSHA monitoring found one employee's full-shift airborne lead exposure was about 3.8 times the applicable limit, and wipe samples found lead on his hand, shoe, hard hat, and lunch box. The Commission held that the sanitation standard required adequate washing facilities because the employees were engaged in operations where harmful contaminants could be present. It rejected the judge's fair-notice ruling because American's bridge-work experience, internal lead policy, and OSHA guidance made the hygiene obligation reasonably clear. The Commission reversed the judge, affirmed the violation as serious, and assessed a $3,750 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.51(f).
- Outcome: Affirmed. The serious washing-facilities violation was affirmed with a $3,750 penalty.
- Key point: A broad sanitation standard can provide fair notice when the employer's own knowledge and safety materials show that washing is necessary to prevent ingestion of a harmful contaminant.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
..
SECRETARY OF LABOR, .
l
.
.
Complainant, ..
..
v. .. OSHRC Docket No. 92-0959
..
AMERICAN BRIDGE COMPANY, ..
..
Respondent. ..
.0
DECISION
BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
This case arises out of an OSHA inspection of a bridge rehabilitation project that
involved torch cutting and burning on steel coated with lead-based paint. At issue on review
is a citation item (citation no. 1, item 3) alleging a serious violation of 29 C.F.R.
0 1926Sl(f’)l in that American Bridge Company (“American”) failed to provide “adequate
I At the time of the alleged violation, the cited standard provided, as follows:
5 1926.51 Sanitation.
&Washing facilities. The employer shall provide adequate washing facilities
for employees engaged in the application of paints, coating, herbicides, or
insecticides, or in other operations where contaminants may be harmful to the
employees. Such facilities shall be in near proximity to the worksite and shall
be so equipped as to enable employees to remove such substances.
The standard has since been recodified at 29 C.F.R. 8 1926.51(f)(l).
1995 OSHRC No. 19
2
washing facilities” at the worksite for the removal of “harmful [contaminants].” We
conclude that Administrative Law Judge Paul L. Brady erred in vacating this item on the
ground that American lacked fair notice of the standard’s applicability to the cited
conditions. We further conclude that the Secretary met his burden of proving the alleged
violation.
BACKGROUND
American, which was described by its safety administrator as “one of the largest steel
erection companies in the . . . world,” was aware that employees engaged in rehabilitating
bridges covered with lead-based paint were potentially exposed to accumulations of surfacer
lead dust and high levels of airborne lead. American had therefore, according to its
posthearing brief, “voluntarily developed guidelines and procedures to control lead
exposure.“2 These were embodied in work rules incorporated into the company safety
manual and also in a 5-page attachment to American’s hazard communication program
(hereafter “American’s lead policy”). These documents reveal that, at the time of the
alleged violation, American was knowledgeable about the harmful effects of overexposure
to lead, the routes of entry into the body (inhalation and ingestion), the types of
overexposure (acute and chronic), and the importance of good personal hygiene practices
as a means of preventing overexposure through ingestion.3
2 At the time of the alleged violation, the permissible exposure limit (“PEL”) for employees
exposed to airborne lead during construction operations was an &hour time weighted
average (‘TWA”) exposure to 200 pg/m3. 29 C.F.R. 0 1926.55(a). American assertedly
believed that its only legal obligation at the time, with respect to employees exposed to lead,
was to comply with section 1926.55(a) and that any other action it may have taken to protect
these employees was done “voluntarily.”
3 For example, the foreward to section 17 (“Painting”) of American’s safety manual stated:
You should realize that lead and other toxic contents of paint may
enter your system through the skin, the mouth, and by inhaling into the lungs.
These harmful substances are taken into the system most commonly by
inhaling the fumes or dust, but just as readily, in eating or putting the hands
to the mouth.
(continued...)
3
The construction project at issue involved rehabilitation work on two bridges (the
Eagle Avenue and Carter Road bridges) crossing the Cuyahoga River in Cleveland, Ohio.
American had approximately 27 employees performing work on this project over a period
of several months. Compliance officer and industrial hygienist Fioritto (“the CO”) testified,
without contradiction, that American could have provided the washing facilities needed at
this worksite by maintaining an on-site mobile trailer equipped with wash basins and a
shower.4
American’s failure to provide the type of washing facilities sought by the Secretary
was a decision made by construction manager Krizner, safety administrator Mykich, and
construction superintendent DelCostello at a February 1991 pre-job meeting. According to
Mykich, the planning group anticipated that the exposures of employees engaged in burning
on the Eagle Avenue Bridge would exceed 200 pg/m3. American therefore adopted a policy
3(...continued)
This discussion was immediately followed by safety rule 17.1, which emphasized the
“importan[ce]” of “personal cleanliness” and instructed employees to “[wlash carefully
before you eat” and “pb]athe each evening.”
Similarly, American’s lead policy included the following provisions on “hygiene facilities and
practices”:
Wash-up facilities and clean change rooms are desirable for all
employees exposed to lead dust or lead fume. Where practical, a facility to
wash the hands and face, shall be provided and all employees encouraged to
wash their face and hands before eating and at the end of the workday or
before going home. Showering before going home is recommended where
facilities are available.
4 The Secretary’s expert witness, OSHA compliance program manager Newman, testified
that “adequate washing facilities” at the worksite in question would have been a “shower . . .
on the work site . . . and some sort of sink. . . with running water” so that employees could
have washed their hands and faces before eating and smoking and showered at the end of
the day before going home. Similarly, the CO testified that the employees should have been
provided with “water, soap and some type of towels” for use at lunch time and a shower for
use at the end of the day. This testimony was corroborated by the Secretary’s documentary
evidence, e.g., an April 1991 OSHA pamphlet captioned “Working with Lead in the
Construction Industry” and an August 1991 NIOSH Alert dealing with this same subject.
4
of requiring these employees to wear respirators whenever they performed burning on
surfaces covered with lead-based paint, based on their belief that the respirators would be
needed “to maintain exposures below the permissible exposure level.”
On the other hand, construction manager Krizner informed his colleagues that “very
little” burning would be required on this project in comparison to other bridge rehabilitation
projects. Accordingly, the planning group concluded that, by eliminating all unnecessary
burning on the Eagle Avenue Bridge and requiring use of respirators whenever burning took
place, American could meet its obligations under OSHA’s standards. See supra note 2.
They specifically decided not to implement the other protective measures in American’s lead
policy, including the hygiene practices described supra note 3.
A few months later, OSHA issued its pamphlet on lead in the construction industry,
see supra note 4, which highlighted the “[s]ignificant lead exposures” that can occur during
bridge rehabilitation work. Prominently displayed in this pamphlet was a list of safe work
practices that included the personal hygiene practices described supra notes 3 & 4. The
pamphlet also included a list of Part 1926 standards containing “related requirements,”
which was headed by “1926.51 Sanitation,” and it expressly warned construction contractors
that these “[listed] OSHA standards may apply to lead work in construction.” At the
hearing, safety administrator Mykich acknowledged that he had received a copy of this
pamphlet sometime around the time it was issued (in April 1991). Nevertheless, American
did not alter its earlier decision not to provide washing facilities at the worksite in question.
THE ALLEGED VIOLATION
On the record before us, the Secretary has established the alleged violation of 29
C.F.R. 8 1926.51(f) by sustaining his burden of proving that employees at the inspected
workplace were “engaged in . . . operations where contaminants . . . [might have] be[en]
harmful” to them within the meaning of the cited standard. Air contaminant monitoring
conducted by the CO on December 10,1991, while burning operations were in progress near
the top of the Eagle Avenue Bridge, revealed that one of the employees engaged in that
burning, Thomas McTaggart, had been exposed as a result to an S-hour TWA concentration
of airborne lead of 760 cLgg/m3,
which was approximately 3.8 times the 200 clglm3 PEL then
5
applicable.’ Wipe sampling demonstrated that McTaggart had additionally been exposed
on that same day to surface lead dust, under circumstances where lead ingestion was
certainly possi%le, if not likely? The CO also observed employees during the burning
operations, surrounded by a “fairly thick cloud” of “fairly thick heavy smoke” in the vicinity
of the face and hair.
American was therefore required under the terms of the cited standard to “provide
adequate washing facilities” for employees exposed to lead that were “so equipped as to
enable [them] to remove such substances.” See McGraw Constr. Co., 15 BNA OSHC 2144,
2148, 1991-93 CCH OSHD ll 29,947, p. 40,948 (No. 89-2220, 1993). On this record, it is
beyond dispute that American failed to provide the required facilities at the workplace in
question.’ The CO testified that there were no washing facilities of any kind at the
inspected site, and employee McTaggart confirmed this by testifying that there had been no
place at the worksite where he could wash his hands.
We are not persuaded by American’s argument that “the objective evidence from
lead testing at the worksite confirms . . that any requirement for showers and other washing
l
5 Although American questions the reliability of OSHA’s determination, we agree with the
judge that, in view of the reported result of 760 &m3, “there is no question that
McTaggart’s exposure exceeded the TLV.”
6 The CO conducted his wipe sampling in two areas where employees customarily ate. Four
samples were taken in the operator’s room on the bridge while McTaggart was eating his
lunch. They established the presence of lead dust on McTaggart’s left hand, the outside of
his lunch box, the top of his right shoe, and the outer surface of his hard hat, which was
sitting on the table where McTaggart was eating. The other two samples were taken later
in the day in a shanty where employees sometimes ate breakfast and changed their clothes.
Five of the six samples detected amounts of surface lead in the range of 17 to 71 kg. The
sixth (taken from the surface of McTaggart’s hard hat) picked up 165 rug of lead.
7 American argues that Judge Brady found that American complied with the cited standard
by providing “employees with a waterless type of hand cleaner which could be deemed
‘adequate.’ ” We doubt that the judge intended to enter such a finding, particularly after
American, in its post hearing submissions, proposed a finding that “Respondent did not
provide washing or shower facilities for employees who worked on the Eagle Avenue and
Carter Road bridge rehabilitation projects” (emphasis added). If there were such a finding,
we would have little difficulty in setting it aside on the ground that it was not supported by
the evidence.
6
facilities was inapplicable due to the limited nature of the burning of lead-based paint.”
Neither OSHA’s wipe sampling as described supra note 6 nor the blood lead level tests
administered by American over the course of several months establish that the levels of lead
at the project in question were not potentially “harmful” within the meaning of the cited
standard.
American urges us to compare the Secretary’s wipe sample results with “clearance
criteria” adopted by the U.S. Department of Housing and Urban Development (HUD) for
lead abatement projects in public and Indian housing. However, the purpose of the CO’s
wipe sampling was merely to establish whether lead was present on the surfaces tested, not b
to provide any qualitative information. Accordingly, the wipe sample results are stated only
in terms of micrograms and are not directly comparable to the limits American relies on,
which are stated in terms of “weight of lead present per relevant surface area.” In any
event, it would not be appropriate to apply the HUD guidelines in the context of a
long-term bridge rehabilitation project. The HUD guidelines were developed for application
to a situation where the source of any further lead contamination has been removed. Here,
in contrast, the likelihood was that the lead contamination levels would either sporadically
increase or fluctuate due to ongoing burning and cutting operations.
We acknowledge that the results of American’s biological monitoring consistently
showed employee blood lead levels below 40 @lo0 g, Le., the level at which an employee
may be safely returned to ordinary work duties following medical removal. See 29 C.F.R
6 1910.1025(k)(l)(iii)(A)(3). H owever, we agree with OSHA compliance program manager
Newman that these test results did not establish that American’s employees were “in no
danger.” As noted in American’s lead policy, lead poisoning is usually the result of
44
[c]hronic overexposure,” which “occurs with the slow, continual overabsorption of lead over
a long period of time.” The test results therefore did not negate the possibility that
employees at this site could have been harmed by continuing exposure to lead over the
course of the lengthy bridge rehabilitation project.
7
Here, as in McGraw, we need not resolve the parties’ dispute over whether the
Secretary can require an employer to provide showers under 29 C.F.R. 0 [email protected] We
decide only that American failed to provide “adequate washing facilities” at the worksite in
question and that “one way [American] could have complied with the standard was by
providing its employees [with the facilities advocated by the Secretary].” McGraw, 15 BNA
OSHC at 2148, 1991-93 CCH OSHD at p. 40,948.
FAIR NOTICE
We reverse the judge’s holding that American lacked fair notice of the applicability
of the cited standard to the cited conditions and the actions that were required of it under
the terms of that standard. Constitutional due process requires only that the cited employer
be given “a fair and reasonable warning”; it “does not demand that the employer be actzdfy
aware that the regulation is applicable to his conduct or that a hazardous condition exists.”
Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretaryof Labor, 674 F.2d 1177, 1185 (7th
Cir. 1982). Moreover, “a standard is not impermissibly vague simply because it is broad in
nature.” JA. Jones Const~ Co., 15 BNA OSHC 2201,2205,1991-93 CCH OSHD ll29,964,
p. 41,024 (No. 87-2059, 1993). Instead, “a broad regulation must be interpreted in the light
of the conduct to which it is being applied, and external objective criteria, including the
knowledge and perceptions of a reasonable person, may be used to give meaning to such
a regulation in a particular situation.” Id. at 2205-06, 1991-93 CCH OSHD at p. 41,025.
Applying these principles to the case before us, we conclude that the notice provided
American by the cited standard’s terms was clearly adequate in view of this employer’s
extensive experience in bridge rehabilitation work, its acute awareness of the hazards
presented by employee exposure to lead, and its familiarity with such related guidelines as
the April 1991 OSHA pamphlet on lead exposure during construction work and the hygiene
provisions of the general industry lead standard. Indeed, American’s own
8 We also need not address American’s claim that the Secretary is improperly attempting to
enforce the general industry lead standard against it. We have not relied on the provisions
of 29 C.F.R. 6 1910.1025 in determining that American failed to comply with the
requirements of 29 C.F.R. 8 1926.51(f). q McGraw, 15 BNA OSHC at 2149 n.8, 1991-93
CCH OSHD at p. 40,944 n.8 (similar disclaimer relating to the coke oven standard).
8
internally-developed lead policy negates its claim that it could not determine from the broad
language of the cited standard what actions were required on its part.
The factors cited by Judge Brady and/or American in support of their opposite
conclusion do not in fact establish that American was deprived of fair notice.
The exemption at $1910.1025(a)(2)
The Secretary’s adoption in 1978 of the general industry lead standard, 29 C.F.R.
9 1910.1025, with its construction industry exemption (subsection (a)(2)), did not create any
“ambiguity” over the steel erection industry’s continuing obligation to comply with its
pre-existing duty under section 1926.51(f). As the Secretary correctly points out, there is,
nothing in either the language of 1910.1025(a)(2) or its legislative history to even suggest
%ny intention by the Secretary to revoke or preempt other construction standards that
would otherwise be applicable.” Even if there was any uncertainty on this matter initially,
it was soon dispelled by the appellate court decision in United Steelworkersof America v.
Marshall, which expressly construed the provision in question as a decision “only to exempt
the construction industry from this particular standard, not Tom OSHA jurisdiction
generally,” adding that, until OSHA adopted a new construction industry lead standard,
“other OSHA regulations now in effect will protect construction workers against general air
contamination through engineering, work practice, and respirator controls.” 647 F.2d 1189,
1310 (D.C. Cir. 1980) (emphasis supplied by the court). Here, of course, American had
more than the comtictive notice provided by this court decision that Part 1926 standards
such as section 1926.51(f) could still be applied to its operations to protect employees
exposed to lead. The April 1991 OSHA pamphlet that American’s safety administrator
received shortly after its publication gave American actual notice of the potential application
of section 1926.51(f).
l%e lack of specificityin § 1926.5I(fj
Given American’s background and experience, we fully agree with the Secretary that
“a reasonable reading of the [cited] standard as a whole should have put [American] on
notice of the standard’s applicability” to its bridge rehabilitation work. The standard by its
terms, see supra note 1, clearly requires “adequate washing facilities” for employees engaged
9
in applyinglead-based paints and coatings, since lead is universally recognized as a “harmful
[contaminant]” contained in paints and coatings. A reasonable employer in the steel
erection industry should therefore draw the logical inference that the standard also requires
“adequate washing facilities” for employees performing cutting and burning on these same
lead-based paints and coatings.
“Limited” nature of the burning operations
We do not agree with American that it “reasonably exercised its judgment” in
determining that the washing facilities at issue here were not needed at the inspected
worksite “because any exposure of its employees to particulate lead would be very limited,
and therefore, could not be ‘harmful’ [within the meaning of the cited standard].” Safety
administrator Mykich essentially conceded on cross-examination that the planning group’s
decision finds no support in American’s written lead policy, which amply demonstrates that
American knew or should have known that respirator usage alone would not protect
employees from the hazard of lead ingestion. We also question the characterization of the
exposure at this workplace as “limited.” OSHA’s monitoring results confirmed American’s
prediction that, on those occasions when burning would be performed, employees would be
exposed to air contaminant levels in excess of 200 &m3. Moreover, construction
superintendent DelCostello estimated that approximately 5 percent of the total work hours
expended on this project were devoted to burning operations. As the Secretary correctly
points out, this constitutes an admission that as many as 18 work days on this project
involved potential exposures to airborne lead levels in excess of the PET..
Indusny custom and practice
The only evidence American cites in support of its industry custom and practice claim
is the opinion testimony of safety administrator Mykich. Aside from the fact that Mykich
provided no foundation for the opinions he expressed, the testimony on its face is
inadequate to establish that there was any common understanding or practice within the
steel erection industry concerning the providing of washing facilities, let alone an industry
custom and practice that conflicted with the Secretary’s enforcement action in this case.
10
ORDER
The evidence fully supports the Secretary’s characterization of the instant violation
as serious. As for the Secretary’s proposed penalty of $3750, American has presented no
challenge to it, and the record evidence relating to the four statutory penalty criteria (gravity,
size, good faith and past history) establishes that it is “appropriate[].” See section 17(j) of
the Act, 29 U.S.C. 6 666(j). We therefore reverse the judge, affirm item 3 of citation 1, and
assess the proposed penalty of $3750.
Stuart E. Weisberg
Chairman
Edwin G. Foulke, Jr.
Commissioner
Velma Montoya
Commissioner
Dated: April 7, 19%
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
COM (202) 6064100
m(202)606-6100
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 92-0959
.
AMERICAN BRIDGE COMPANY, I
.
Respondent. ..
.
The attached decision by the Occupational Safety and Health Review Commission was issued on
Aoril7,1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISECESTO
OBTAIN REVIEW OF TEIIS DECISION MUST FILE A NOTICE OF APPEAL WITH TEIE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF TEIIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.
FOR THE COMMISSION
April 7, 1995
Date
Executive Secretary
Docket No. 92-0959
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
Benjamin Chinni, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Richard R. Nelson, II, Esquire
Cohen & Grigsby
2900 CNG Tower
625 Liberty Avenue
Pittsburgh, PA 15222-3115
Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0959
AMERICAN BRIDGE CO.
Respondent.
9
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Admmistrative Law Judge’s Report in the above referenced case was
docketed with the Commission on August 12, 1993. The decision of the Judge
will become a final order of the Commission on September 10, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
September 1, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
SecreTa+ or call (202) 606-5400.y
FOR THE COMMISSION
Date: August 12, 1993 Ray’H. Darling, jr.
Executive Secretary
DOCKET NO. 92-0959
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
William S. Kloepfer
Assoc. Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
-Cleveland, OH 44199
Richard R. Nelson, Esq.
Cohen & Grigsby
2900 CNG Tower
625 Liberty Avenue
Pittsburgh, PA 15222
Paul L. Brady
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
0010883745 1: 05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404) 347-4197 COM (404) 347-0113
FTS (404) 347-4197 FE (404) 347-0113
SECRETARY OF LABOR,
Complainant,
v. .. OSHRC Docket No.: 92-959
AMERICAN BRIDGE COMPANY,
Respondent.
Appearances:
Bruce C. Heslop, Esquire Richard R. Nelson, Esquire
U. S. Department of Labor Cohen and Grisby
Office of the Solicitor Pittsburgh, Pennsylvania
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Paul L. Brady
DECISION AND ORDER
This proceeding is brought pursuant to Section 10 of the Occupational Safety and
Health Act of 1970 (Act) to contest two citations and proposed penalties issued by the
Secretary of Labor (Secretary) pursuant to Section 9(a) of the Act.
The basic facts surrounding inspection of respondent’s worksite are not in dispute.
Respondent, American Bridge Company (American Bridge), was engaged in the steel
erection business. At the time of the inspection, it was performing rehabilitation work on
the Carter Road, and Eagle Avenue bridges, over the Cuyahoga River in Cleveland, Ohio.
American Bridge was engaged in a business affecting interstate commerce and employed
approximately 27 employees at these worksites.
The following items remain in issue after various amendments of the citations.
Items la, lb, 2 (as amended), 3, 4a, 4b, 5c, 5e, 5h, 6a, and 6b of Citation No. 1, and Item 1
of Citation No. 2.
American Bridge raises the question of jurisdiction regarding several of the alleged
violations. It is argues that the construction industry is specifically exempted from the lead
standard and the Secretary’s attempt to impose these requirements must .be rejected.
It is true that 29 C.F.R. 8 1910.1025, which pertains to lead, states “this section
applies to all occupational exposure to lead, except as provided in paragraph (a)(2).”
Paragraph (a)(2) states in pertinent part that “this section does not apply to the construction
industry . . ..” When the lead standard was promulgated, it is noted the Occupational Safety
and Health Administration (OSHA) contemplated a lead standard for the construction
industry. OSHA explained at that time the exemption was made because of insufficient
information about applicability of the standard to conditions in the construction industry (43
Federal Register 52986, Nov. 14, 1978). The exemption was challenged in court and in
upholding OSHA’s decision to exempt the industry, the Court of Appeals stated:
Of course, OSHA 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
from this particular standard, not from OSHA jurisdiction generally . . . .
[Olther OSHA regulations now in effect will protect construction workers
against general air contamination through engineering, work practice, and
respirator controls. United Steelworkers of America v. Marshal, 647 F.2d 1189
(D. C. Circuit, 1980).
The court made it clear that any other decision would be contrary to OSHA’s
responsibility and the purpose of the Act to “assure safe and healthful working conditions.”
While the construction industry is exempt from the lead standard, OSHA is not, otherwise,
without jurisdiction.
Alleged Violation of 29 C.F.R. 8 1926.21(b)(2)
The standard provides as follows:
The employer shall instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his work environment
to control or eliminate any hazards or other exposure to illness or injury.
2
The citation alleges that employees were not instructed in the recognition and
avoidance of lead exposure while cutting and buring on the Eagle Avenue bridge which
involved lead-based paint.
Ms. Nancy Newman, industrial hygienist, testified that she believed necessary
instruction should include: (1) health effects and signs and symptoms of lead exposure;
(2) proper use of respiratory protection; (3) proper use of engineering controls; (4)
proper use of other personal protective equipment; (5) good hygiene practices such as
washing the hands before eating or smoking and showering at the end of the workshift
(Tr. 77-78).
In addition, “an effective rind adequate lead training program” is. contained in an
OSHA/NIOSH pamphlet entitled Working with Lead in the Constn~tion Industry published
in April, 1991, which includes the following:
Construction standard, such as 29 C.F.R. 8 1926.21 require that a potentially
exposed employee be informed of the hazards of lead and be trained in the
precautions to take when working around it. The employee shall also be
trained in the proper work practices, personal hygiene procedures, and the use
and limitations of protective equipment, such as eye and face protection, head
protection, hand protection, coveralls and respirators (Exh. C-2, p. 9).
Mr. Robert Fioritto, an industrial hygienist/compliance officer, conducted the
inspection. He stated the training document provided him at the opening conference
(Exh. C-l) and the company safety manual (Exh. R-l) did not provide adequate instruction.
He believed employees should have been instructed on how to protect themselves in the use
of protective equipment and hygiene practices (Tr. 190-192). In this regard, the Secretary
refers to the testimony of Thomas McTaggart, an iron worker who engaged in torch cutting.
McTaggart testified that although he was told to wear a respirator when burning, he was not
shown how to check it’s fit (Tr. 19-20). Also, there was no discussion about eating or
drinking in areas where he was working with lead and there was no place at the Eagle
Avenue bridge to wash his hands (Tr. 21-22).
In response to the allegations, respondent asserts that through its safety program
employees were properly instructed in accordance with the standard. It is shown that Mr.
3
McTaggart received a copy of the company safety manual when he first became employed.
The manual at section 16.19 states:
“use a respirator when burning material that has been painted or material that
gives off fumes and smoke” (Exh. R-l).
In addition, McTaggart testified that weekly safety meetings were held and employees
were required to attend. He stated the purpose is “to make everyone aware of what
hazardous conditions might be going on at the time . . ..” This included discussion of
avoiding exposure to lead. On July 15, 1991, he attended a meeting where one of the topics
discussed was “use a respirator when burning material that has been painted or material that
gives off fumes and smoke” (Tr. 34-38, 40; Exhs. R-l, R-3).
Respondent argues that the safety manual also specifically concerns the recognition
and avoidance of hazards resulting from lead expcsure. Section 17 states:
You should realize that lead and other toxic contents of paint may enter your
system through the skin, the mouth, and by inhaling into the lungs. These
harmful substances are taken into the system most commonly by inhaling the
fumes or dust, but just as readily, in eating or putting the hands to the mouth.
In regard to hygiene, section 17.1 provides:
Obviously, personal cleanliness is most important. Wash carefully before you
eat. Bathe each evening. Change work clothes as often as possible, but at
least once each week.
Mr. McTaggart stated that he used waterless hand cleaner at the work site (Tr. 40).
A statement of McTaggart indicated his use of a respirator at the time of the
inspection. He stated:
“On the day of December 10,1991, I, Pat McTaggart, state that I was wearing
my respirator while burning with a torch on Eagle Avenue bridge taking it off
only when I was not burning or in the area of any burning.”
“1 was notified prior to the commencement of work on this job that
respirators were available and that their use was mandatory.”
He indicated that he was able to make the respirator fit tightly, even over his beard (Tr. 19,
50; Exh. R-4).
The gist of the standard is to require an employer to “instruct” his employees. While
the Secretary has the burden to show respondent failed to instruct its employees as required,
the nature and extent of such instructions are not specified. A plain reading of the cited
4
standard makes clear there are no special instructions required for employees exposed to
certain materials including lead.
The Secretary maintains that respondent should be held to a higher level of
responsibility than set forth in the standard. The standard, however, does not require that
an employee “shall also be trained in proper work practices” or “proper use” of certain
controls or equipment.
There is no question that the presence of lead in the work place constitutes a hazard.
The Commission has held an adequate safety program including appropriate instructions
about such hazards, will satisfy the standard. Archer-Western, 15 BNA OSHC at 1020,
1991 CCH OSHD at p. 39,381; Dravo Ertgrs. & Cons~~~tors, 11 BNA OSHC 2010,
1984-85 CCH OSHD ll 26,930 (No. 81-748, 1984). In this case, the Secretary has failed to
carry his burden to show respondent’s safety program and instructions do not satisfy the
terms of the standard.
Alleged Violation of Section 4.3, ANSI Z 35.1
- 1968, as AdoDted bv 29 C.F.R. !$ 1926.200(i)
The standard requires compliance with the American National Standards Institute
(ANSI). Specifications for accident prevention signs which provides:
Safety instruction signs shall be used where there is a need for general .
instructions and suggestions relative to safety measures.
There is no dispute that respondent did not use a safety instruction sign regarding
lead exposure at the worksite. The question is whether the Secretary has proven the
necessary elements to establish the violation. The Commission has held that in order to
establish a violation of the standard, the Secretary must show by a preponderance of the
evidence that (1) the cited standard applied, (2) its terms were not met, (3) employees had
access to the violative condition, and (4) the employer knew or could have known of the
violation with the exercise of reasonable diligence. Seibel Modem Mfg. & Welding Corp.,
15 BNA OSHC 1218,199l CCH OSHD lI 29,442, p., 39,678 (No. 88-821, 1991). The issues
relate to whether the standard applies and whether the respondent had knowledge of the
violations.
5
The Secretary contends there was a need for instruction regarding measures to avoid
hazardous lead exposure. Mr. Fioritto explained that a sign would serve as a warning and
to alert employees of the lead hazard (Tr. 196-197). He acknowledged, however, that
Section 4.3 does not specify under what working conditions safety instruction signs are
warranted. This includes the need for a safety sign regarding lead exposure (Tr. 302).
Mr. Henry Mykich, respondent’s safety administrator and member of the National
Erector’s Association’s task force on lead, testified he has no knowledge of an employer
engaged in bridge rehabilitation work using safety instruction signs to warn against the
hazards of lead exposure (Tr. 392).
It is also noted that ANSI Z 35.1-1968 relates to ‘Specifications for Accident
Prevention Signs.” Under Section 1.1 it is indicated that the signs are intended to apply to
the “design, application, and use of signs . . . to define specific hazards of a nature such that
failure to designate them may lead to accidental in.wy to workers . . . .” (Exh. C-20,
emphasis added).
Although the Secretary exempted the construction industry from the lead standard,
it is indicated in this case that special consideration is sought under the construction
standards to cover lead. The evidence is convincing that employee knowledge of the
presence of lead at the site coupled with the employer’s safety program and instruction,
renders unnecessary any special safety instruction signs for lead.
Alleged Violation of Section 5(a)(l) of the Act
Section 5(a)(l) requires each employer to 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. The
Secretary alleges that respondent failed to provide employees exposed to airborne and
surface lead contamination with appropriate protective clothing or change areas.
In order to prove a violation of 6 5(a)(l) of the Act the Secretary must establish that:
(1) there was an activity or condition in the employer’s work place that constituted a hazard
to employees; (2) either the cited employer or the employer’s industry recognized that the
activity or condition was hazardous; (3) the hazard was causing, or was likely to cause, death
or serious physical harm; and (4) there was a feasible means to eliminate the hazard or
6
materially reduce it. Iiadustrid Glass, 15 BNA OSHC 1594, 1992 CCH OSHD ll29,655,
p. 40,170 (No. 88-348, 1992).
To meet the required burden, the Secretary asserts that on December 10, 1991, air
monitoring revealed Pat McTaggart’s full-shift exposure to airborne lead was 760 Vg/M3 (Tr.
168-171; Exhs. C-17, C-18). Wipe samples revealed the presence of lead on McTaggart’s
hand, shoe, hard hat, and lunch box (Tr. 160-162; Exh. C-16, C-17, C-18). While working,
he wore his own clothing, which included coveralls, jacket, hand gloves, and work shoes (Tr.
25-26; Exh. C-5). He left his work clothes in the ground level shanty, but wore his
contaminated work shoes home. He took his work clothes home “when they got too dirty,”
sometimes once a week (Tr. 26-27; 160-162; 187-188; Exh. C-18).
Ms. Newman testified that the period of Mr. McTaggart’s exposure was extended by
taking the contaminated clothing home. Also, the protective clothing should be cleaned
often to prevent accumulation of the dust which adds to the overall exposure (Tr. 79.80,92).
The Secretary points out that respondent recognized that lead dust presented a
hazard in the workplace that could build up on clothing. This is indicated by documents sent
to the worksite (Tr. 377-379, 450-451; Resp. Exhs. R-13, R-14). In addition, it is shown that
the safety administrator had an OSHA/NIOSH pamphlet, (Tr. 394; Exh. C-2). The
pamphlet noted at page 7:
At no time should workers be allowed to leave the worksite wearing lead
contaminated clothing and equipment. All contaminated clothing and
equipment should be prevented from reaching the worker’s home or vehicle.
This is a significant step in reducing the movement of lead contamination from
the workplace into a worker’s home and provides added protection to
employees and their families.
Ms. Newman testified to the harmful effects of lead exposure She stated that lead
can be absorbed into the body by either inhalation or ingestion. Such exposure could result
in damage to the blood forming system, renal system, central nervous system, and
reproductive system (Tr. 68-72; Exhs. C-2, C-7, C-8).
It is asserted that respondent knew of the means to abate the hazard as evidenced
by Exhibit R-14, its hazard communication program. Appendix E, page 3, provides as
follows:
7
Protective Work Clothing and Equipment: Employees exposed to lead dust
or lead fume should be provided with coveralls or similar full body work
clothing, gloves and disposable shoe coverlets. (Emphasis supplied).
Hygiene Facilities and Practices: Employees exposed to lead dust or lead
fume should be encouraged to refrain from carrying home work clothing
contaminated with lead dust.
Respondent admits that employees were not provided with cleaning, laundering, or
disposal of personal protective equipment. It is argued that such action was not necessary
since the limited burning of lead-based paint was not recognized as hazardous. Mr. Mykich
also testified that he was not aware of any steel erection company in the country that
provides for cleaning or disposal of personal protective equipment for employees engaged
in limited burning as in this case (Tr. 381, 393).
Respondent contends that the OSHA/NI@SH pamphlet Working With Lead in the
Construction Irtdusny (Exh. C-2) does not establish that respondent or the industry
recognized the alleged hazard. It is also argued that the Secretary failed to prove employees
were exposed to a hazardous condition. The wipe samples were not shown to have levels
of lead high enough to result in a recognized hazard. In support of this contention,
respondent asserts there is no federal standard which requires that specific action be taken
by an employer when certain levels of lead dust are detected (Tr. 273-274).
The elements necessary to establish a Q 5(a)(l) violation have been proven. The
evidence clearly demonstrates that lead burning at the worksite constituted a hazard to
employees and that respondent recognized it was hazardous. The evidence also shows that
the hazard of lead absorption into the body by inhalation or ingestion is likely to cause death
or serious physical harm. A feasible means to eliminate the hazard or materially reduce it
was proven.
Respondent strenuously argues that no prudent employer engaged in limited burning
projects as in this case would undertake the proposed abatement steps. Also, that the levels
of lead on the clothing were not established as high enough to expose employees to a
recognized hazard.
There is no question that respondent engaged in bridge rehabilitation work would
look to the broad construction standards as a source of its duties and responsibilities. It is
8
also true that there is no construction standard requiring the use and manner of use of
protective clothing for employees exposed to airborne lead resulting from lead burning.
There is no question, however, that exposure to lead in the workplace constituted a hazard,
and that American Bridge recognized such hazard. Therefore, Section 5(a)( 1) does
apply and the Secretary has adequately established the violation in showing that respondent:
“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 fl 27,605,
p. 35,871 (No. 82-388, 1986).
Section 5(a)( 1) was violated as alleged.
Alleged Violation of 29 C.F.R. 5 1926.5l(Q
The standard provides in pertinent part as follows:
The employer shall provide adequate washing facilities for employees engaged
in... operations where contaminants may be harmful to the employees.
The Standard further provides:
“such facilities shall . l l be so equipped as to enable employees to remove
such substances.”
The Secretary refers to levels of airborne lead employee McTaggart was exposed to
during his workshift. In addition, reference is made to the wipe sample taken while the
employee was eating lunch. It is, therefore, argued that respondent’s employees were
exposed to a contaminant which “may be harmful” within the meaning of the standard.
Both Ms. Newman and Mr. Fioritto testified that soap and water should be available to
employees for washing before eating. In addition, shower facilities were needed to enable
employees to shower and change clothes before going home (Tr. 70, 80, 204-206). Mr.
Fioritto noted that mobile trailers with showers and change rooms are available which could
be used at the site (Tr. 206).
Respondent admits that no washing or shower facilities were provided at the worksite
(Tr. 22, 26, 204-205). Mr. Myrick testified that it is not a recognized industry hazard for
employers engaged in bridge rehabilitation work to provide washing or shower facilities
(Tr. 381). It is, therefore, argued that no prudent employer in the construction industry and
under the circumstances of this case, would require washing or shower facilities, citing Cape
9
& Vkyard Div. of NW Bedford Gas & Edison Light Co. v. OS’HRC, 512 F.2d 1148, 2 BNA
OSHC 1628 (1st Cir. 1975).
In considering the elements necessary to establish a violation under Seibel Supra,
questions arise regarding applicability of the standard and knowledge of a violative condition.
Clearly, the construction industry is exempt from the general industry lead standard
which includes provisions for showers. 29 C.F.R. 8 1910.1025(i)(3) requires employers to
assure that employees shower at the end of the workshift when they are exposed to levels
of lead above the PEL (permissible exposure limits).
The cited standard, however, does not specify the type of contamination or level of
exposure considered to be harmful. Also, the standard does not indicate what facilities
should consist of or would be adequate under the circumstances. In this regard, it is noted
that respondent provided employees with a waterless type of hand cleaner which could be
deemed “adequate” (Tr. 40).
Based upon the facts in this case, respondent can hardly be held to know of the
violative conditions. In view of the exemption, a reasonably prudent employer, under the
facts presented, is not on notice to provide washing and showering facilities because lead is
involved on a limited basis, on the job to be performed.
The standard was not violated as alleged.
Alleged Violation of 29 C.F.R. 8 1926.55(a) and 5 1926.55(b)
The standards state in pertinent part as follows:
.55(a): Exposure of employees to inhalation, ingestion, skin absorption,
or contact with any material or substance at a concentration
above those specified in the 77zresholdLimit Values of Airborne
Contaminants for 1970 . . . shall be avoided.
.55(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 measures shall be used to keep the exposure of
employees to air contaminants within the limits prescribed in
this section. . . . Whenever respirators are used, their use shall
comply with 6 1926.103.
10
The citation allege the violations as follows:
.55(a): Employee(s) were exposed to material(s) at concentrations
above those specified in the Zbeshold Limit Values of Airborne
Contaminants for 1970 of the American Conference of
Governmental Industrial Hygienists:
On December 10,1991, an ironworker who was cutting/burning
on the Eagle Avenue Bridge, was exposed to lead at an 8-hour
time-weighted average of 760 micrograms per cubic meter of
air, approximately 3.8 times the TLV of 200 micrograms per
cubic meter of air.
.55(b): Feasible administrative or engineering controls were not
implemented to reduce employee exposure(s):
For the employees as described in Citation No. 1, Item No. 4a.
General methods of control applicable in these circumstances
include, but are not limited to, the following:
(1) Increase the length of the cutting torch, thereby
increasing the distance from the source of
contamination.
(2) Strip the paint away from areas to be cut with a torch.
(3) Work upwind of the cutting torch when possible.
(4) Use (Hepa) high efficiency particulate .air filter
vacuuming equipment to vacuum off clothing of
employees.
(5) Use air movers (air horns) to remove airborne lead away
from the employees.
The Secretary presented evidence that employee McTaggart’s full-shift exposure was
760 Vg/M3 or 3.8 times the limit of 200 Vg/M3 specified by the standard (Tr. 168-171;
Exh. C-18).
Mr. Fioritto determined that air movers as used on the Carter Road bridge worksite
by respondent would be an effective engineering control (Tr. 209-210). He also believed
that an effective administrative control would be for employees to work upwind of the
cutting torches (Tr. 212-213).
Mr. Krizner, construction manager, testified that he determined from the plans and
drawings that work on the project would involve very little cutting. Removal of most of the
steel was performed by knocking out rivets. He stated that burning was kept to a minimum,
11
and when performed, was in the open air at the top of the structure (Tr. 333-334). Mr.
DeCostello, construction superintendent, believed about 5% of the total man hours spend
on the job were devoted to burning at the two locations. In order to reduce employee
exposure, sandblasting and air movers were considered besides respirators. He stated
sandblasting was prohibited by the contract and air movers were not deemed feasible
because their positioning would result in the employee being showered with sparks. It was,
therefore, determined respirators would provide adequate protection (Tr. 435-438).
Mr. Krizner explained that air movers were used on respondent’s Carter Road project
because of the “exceptional amount of welding” and that it was performed on the roadway
level which was very accessible (Tr. 348). He also indicated that on this job working upwind
was feasible at times depending on which way the wind was blowing (Tr. 347).
Mr. Fioritto stated that the basis for charging the 55(a) violation was that employees
did not use respirators (Tr. 214). He stated Mr. McTaggart was not using a respirator
although at times McTaggart was cutting about 100 feet up from where he was located. He
did not observe McTaggart wearing a respirator when he entered the lunch room and when
he returned to work after lunch. Fioritto said he did observe McTaggart using a welding
hood while cutting (Tr. 182-186).
Mr. Fioritto’s testimony is contradicted by Mr. McTaggart who, in his statement of
February 12, 1992, Exhibit R-4, declared he used a respirator on December 10, 1991, while
torch burning on the project. Mr. McTaggart also indicated that use of respirators while
burning was “mandatory.”
Both McTaggart and Fioritto testified the closest Fioritto was to the actual burning
site was the bridge deck some distance below. McTaggart explained that that the respirator
was stored in the “gang box” on top of the bridge span (Tr. 18, 28, 29). This explaination
is consistant with the inspector’s testimony that he did not see McTaggart take a respirator
with him up to the work location, or have one when he came down for lunch (Tr. 181-184).
The evidence of record, including the distance between the compliance officer and the work
location, supports respondent’s contention McTaggart wore a respirator while performing
the burning.
12
Respondent’s shows that controls such as having employees work upwind or using air
movers were considered. Mr. Krizner testified the practice was not feasible because of the
location of the work, the amount of work, and consistency in the direction the wind was
blowing (Tr. 346-348). Air movers were not deemed feasible because of the limited space
and the cumbersome hoses (Tr. 349, 355). Mr. Del Costello, superintendent, testified that
the only feasible location would be over the employees’ head. In thisposition, however, the
air mover would not only draw smoke and fumes but also sparks which would shower back
on the employee (Tr. 457).
Testimony on behalf of respondent showed that use of a longer cutting torch was not
feasible because of the detailed nature of the work (Tr. 345, 456). It was also not feasible
to strip away the paint because of the cost involved for the amount of work to be performed
(Tr. 346).
The evidence shows that the work area was approximately 5 by 8 at the very top of
the structure with the bridge in the up portion. The space contained the up-haul/down-haul
sheaves (Tr. 346, 456-457). The evidence also shows that respondent’s employees who
planned the job had considerable experience in implementing adminitrative or engineering
controls to reduce lead exposure (Tr. 327-331, 360-370). In this regard, respondent points
out that the inspecting officer is not an engineer and has no experience in consideration of
implementing administrative or engineering controls to reduce lead exposure (Tr. 263-264).
It is, therefore, argued that the opinions of witnesses, including Mr. Krizner, a registered
professional engineer, are entitled to more weight than the compliance officer.
The standard at 29 C.F.R. 3 1926.55(a) must be read in conjunction with
0 1926.55(b). If an employees’ level of exposure exceeds the TLV set forth in 8 1926.55(a),
the employer is in violation only if it fails to follow the procedures for compliance provided
in 9 1926.55(b). In this case there is no question McTaggart’s exposure exceeded the TLV.
However, the evidence convincingly shows that respondent achieved compliance by
implementing feasible controls. The standard was not violated as alleged.
Alleged Violation of 29 C.F.R. $ 1910.134(b)(l~
The standard pertains to requirements for a minimal acceptable respiratory protective
program and states:
13
Written standard operating procedures governing the selection and use of
respirators shall be established.
The citation alleges that such operating procedures were not established for iron
workers exposed to lead while working on the Eagle Avenue Bridge.
There is no dispute that respondent’s safety bulletin entitled Procedure for Selection,
Use and Maintenance of Respirators (Exh. R-12) was present at the worksite. Testimony
showed that the safety bulletin was part of respondent’s written safety program (Tr. 365,
366). In addition, the safety bulletin contained standard operating procedures governing the
selection and use of respirators (Tr. 373-374).
The Secretary’s basic contention is that the contents of the program were not
communicated to employees, therefore, it is argued that the written program was not
“established” as required by the standard. The express language of the standard requires
that: “written standard operating procedures . . . shall be established.” The evidence proves
that such written procedures
A
have been established.
Alleged Violation of 29 C.F.R. d 1910.134(b)(8)
The standard provides in pertinent part as follows:
Appropriate surveillance of work area conditions and degree of employee
exposure . . . shall be maintained.
The citation alleges that personal air monitoring was not performed to determine
actual employee exposure to lead during the cutting and burning at the Eagle Avenue bridge
worksite.
Mr. Fioritto testified that the basis for the alleged violation was the failure to monitor
employees to determine exposure after lead contamination was known to be on the site.
Results of the monitoring could be used to reduce levels of exposure and determine
adequate protection (Tr. 222-224). Respondent does not deny that personal air monitoring
was not performed on the worksite. Mr. Mykich explained that this was not done because
of respondent’s knowledge and experience by previous monitoring at other sites
(Tr. 390, 441). He stated that the prior experience led to the planning for lead exposure on
this job (Tr. 369-371).
14
The standard does not set forth the type of surveillance that may be required.
Therefore, “appropriate surveillance” is open to varying interpretations. Under the
circumstances presented, personal monitoring is not shown as being required to met the
terms of the standard.
The Secretary has failed to establish that respondent’s conduct did not meet the terms
of the standard.
Alleged Violation of 29 C.F.R. 5 1910.134(e)(5)(&
The standard states in pertinent part as follows:
Respirators shall not be worn when conditions prevent a good face seal. Such
conditions may be a growth of beard.
_ The citation alleged that employees with full beards were issued respirators while
cutting and burning. The record reflects that Mr. McTaggart wore a respirator while
performing torch cutting and burning on December 10, 1991. On that date, he also wore
a beard (Tr. 24; Exh. C-5).
Mr. Fioritto who, in addition to his other responsibilities, is the regional respirator fit-
testing coordinator for the Cleveland OSHA office (Tr. 113-114). He is also familiar with
fit testing and the sealing capabilities of the type respirator worn by McTaggart. Fioritto did
not believe a good face seal could be attained with a respirator while wearing a full beard.
Since he did not observe the employee wearing the respirator he was unable to check the
seal (Tr. 218-220).
The standard states that conditions may prevent a good face seal. In this case, the
evidence does not establish Mr. McTaggart’s beard did actually prevent such good face seal
in violation of the standard.
The standard was, therefore, not violated.
Alleged Violation of 29 C.F.R. 5 1926.106(c)
The standard which pertains to working over or near water requires:
Ring buoys with at least 90 feet of line shall be provided and readily available
for emergency rescue operations. Distance between ring buoys shall not
exceed 200 feet.
Mr. Fioritto testified that he observed employees working at both ends of the bridge
and walking back and forth. He did not observe any ring buoys and was told by
15
respondent’s assistant superintendent, Ben McClain, there were none on the bridge
(Tr. 226-229).
Mr. McTaggart did not know what a ring buoy was, but testified there was at least
one life preserver on the worksite. He also indicated that safety nets and other means of
fall protection were provided (Tr. 47-48, 54).
The testimony of the inspecting officer, which was not refuted, sufficiently establishes
the violation as alleged.
Alleged Violation of 29 C.F.R. 8 1926.106(d)
The standard provides as follows:
At least one lifesaving skiff shall be immediately available at locations where
employees are working over or adjacent to water.
The citation alleges that a lifesaving skiff was not immediately available for employees
working on the Eagle Avenue bridge.
Mr. Fioritto testified that he did not observe a lifesaving skiff at the Eagle Avenue
bridge site. He noted that there was one in an overturned position on a barge at the Carter
Road worksite. In his opinion, the skiff was too far away to be considered “immediately
available” (Tr. 229-23 1).
Mr. Del Costello estimated the distance of the skiff to be approximately 900 feet, and
he did not know how long it would take to row the skiff to the site. Del Costello explained
that the skiff was removed from the water because it had been swamped by the backwash
of passing ships. Also, in the event of an emergency, respondent’s foreman could, through
radio contact, call for the skiff (Tr. 458-460, 464-466).
The evidence clearly establishes that a skiff was not “immediately available” at the
location where the employees were working.
The standard was violated as alleged.
Alleged Violation of 29 C.F.R. 5 1910.20(g)(2)
The standard which pertains to employee exposure and medical records states in
pertinent part that:
Each employer shall keep a copy of this section and its appendices, and make
copies readily available, upon request, to employees . . ..
16
Mr. Fioritto testified that when he asked Mr. Del Costello if he had a copy of the
exposure and medical records, he was told he did not have a copy and he was not familiar
with them (Tr. 232-233).
Mr. Del Costello admitted that he was not familiar with the requirements of the
standard (Tr. 455). When respondent’s safety administrator, Mr. Mykich, was informed of
the request, he faxed a copy to the jobsite (Tr. 384).
The standard requires that the employer to “keep a copy” of the records, but does
not specify where such records are to be kept. The evidence shows the records were
provided on the day requested (Tr. 384).
Although the Secretary argues, Mr. Del Costello’s lack of familiarity with the standard
establishes the records were not available, the terms of the standard have been met.
The standard was not violated as alleged.
The violations of Section 5(a)( 1) and 29 C.F.R. 5 1926.106(c) and (d), under Citation
No. 1 were alleged to be of a serious nature. For a violation to be determined serious under
0 17(k) of the Act, there must be a substantial probability that death or serious physical
harm could result therefrom. The evidence in this case adequately establishes the serious
nature of the violations.
The Commission, in all contested cases, has the authority to assess civil penalties for
violations of the Act. Section 17(j) of the Act provides:
The Commission shall have authority to assess all civil penalties provided in
this section, giving due consideration to the appropriateness of the penalty
with respect to the size of the business of the employer being charged, the
gravity of the violation, the good faith of the employer, and the history of
previous violations.
The determination of what constitutes an appropriate penalty is within the discretion
of the Commission and the foregoing factors do not necessarily accord equal weight.
Generally speaking, the gravity of a violation is the primary element in the penalty
assessment. Ttinity Industy, Inc., 15 BNA OSHC 1481, 1483, 1992 CCH OSHD II 29,582,
p. 40,033 (No. 88-2691, 1992); Astra Phamaceutical Prods., Inc., 10 BNA OSHC 2070
(No. 78-6247, 1982). The gravity of a particular violation, moreover, depends upon such
17
matters as the number of employees exposed, the duration of the exposure, the precautions
taken against injury, and the likelihood that any injury would result.
Having considered the foregoing factors, it is determined an appropriate penalty for
violation of Section 5(a)(l) is $2,500.00. An appropriate penalty for violation of 29 C.F.R.
5 1926.106(c) and (d) is $l,OOO.OO.
Subsequent to the hearing, the Secretary filed a motion to vacate Citation No. 1,
Item 5a (alIeging a violation of 29 C.F.R. 6 1926.103(a)( 1)) and Item 5i (alleging a violation
of 29 C.F.R. 3 1926.354(c)(2)), and American Bridge moved to withdraw its notice of contest
(as to a violation only) to Citation No. 1, Item 5d (alleging, as amended, a violation of
29 C.F.R. 0 1926.103(c)) and Item 5g (alleging a violation of 29 C.F.R. 5 1910.134(e)(5)).
The parties stipulate that Items 5a and 5i should be vacated; and Items 5d and 5g should
be affirmed and a penalty in the amount of $2,500.00 should be assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rules of Civil Procedure 52(a).
ORDER
1. Citation No. 1, alleging a violation of Section 5(a)(l) of the Act, is affirmed
and a penalty in the amount of $2,500.00 is hereby assessed;
2. Citation No. 1, alleging violations of 29 C.F.R. 6 1926.106(c) and (d), is
affirmed and a penalty in the amount of $l,OOO.OOis hereby assessed;
3. Citation No. 1, alleging violations of 29 C.F.R. 0 1926.103(c) and 29 C.F.R.
8 1926.354(c)(2), is affirmed and a penalty in the sum of $2,500.00 is hereby assessed;
4. Citation No. 1, alleging the following violations, are hereby vacated: 29 C.F.R.
8 1926.21(b)(2); 29 C.F.R. 0 1926.200(i); 29 C.F.R. 8 1926.51(f); 29 C.F.R. 5 1926.55(a) and
(b); 29 C.F.R. 0 1926.103(a)(l); 29 C.F.R. 0 1910.134(b)( 1); 29 C.F.R. 6 1910.134(b)(8); 29
C.F.R. 8 1910.134(e)(5)( 1); and 29 C.F.R. 5 1926.354(c)(2); and
5. Citation No. 2 alleging violation of 29 C.F.R. f31910.20(g)(2) is hereby vacated.
Judge
Date: August 5, 1993
18
Get today's answer for your situation
You just read Commission precedent from 1995. Ezel checks whether it still stands, including any court review since, and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.