S. E. Johnson Companies

Plain-English summary

S. E. Johnson Companies cut painted steel beams during an Ohio Turnpike bridge-demolition project. OSHA alleged that disposable suits were unsafe for torch cutting, that helpers had not received representative lead monitoring, and that the company had not made the required cadmium determination. The judge vacated the protective-equipment item because the Secretary did not authenticate the product documents or otherwise prove that the suits were unsafe. The lead item was vacated because recent monitoring from a closely similar bridge project satisfied the standard's exception for representative prior data. The cadmium item was also vacated because prework bulk sampling established cadmium's presence and supported the company's determination that exposure above the action level was not expected. All three serious items were vacated, so none of the proposed $7,550 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.95(c); 29 C.F.R. § 1926.62(d)(4)(i); 29 C.F.R. § 1926.1127(d)(1)(i)
• Outcome: All three serious items vacated; no penalty assessed.
• Key point: Reliable prior exposure data and appropriate prework material testing can satisfy monitoring and determination duties when the cited standards permit those methods.

Full text (OSHRC public release)

                     UNITED STATES OF AMERICA
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 97-1087
S. E. JOHNSON COMPANIES,
Respondent,

Appearances : For Complainant: Anthony Stevenson, Esq. and Bruce Hezlett, Esq., Office of the Solicitor,
U. S. Department of Labor, Cleveland, OH.; For Respondent: Patrick Lewis, Esq. and John T. Billick, Esq.,
Belkin, Billick, Harrold, & Wiencek Co., L.P.A., Cleveland, OH.
Before: Judge Covette Rooney

                               DECISION AND ORDER
    This proceeding is before the Occupational Safety and Health Review Commission

pursuant to Section 10(c) the Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et
seq.)(“the Act”). Respondent, S. E. Johnson Companies, at all times relevant to this action
maintained at a worksite at the Ohio Turnpike, Silica Road Bridge, Marker 218.4, Youngstown, OH.,
where it was engaged in the business of bridge demolition and related construction activities.
Respondent admits that it is an employer engaged in a business affecting commerce and is subject to
the requirements of the Act.
On May 9, 1997, Industrial Hygienist Mark Snitzer conducted an inspection pursuant to a
complaint received in his office1. The record reveals that Respondent had been engaged in a series
of Ohio Turnpike bridge demolition projects. At the time of the inspection Respondent was engaged
in cutting steel beams at the instant worksite at Silica Road As a result of this investigation, on June
17, 1997, Respondent was issued a citation alleging three serious violations with a proposed total
penalty in the amount of $7,550.00. By timely Notice of Contest, Respondent brought this
proceeding before the Review Commission. A hearing was held before the undersigned on March
18, 1998. Counsel for the parties have submitted Post-Hearing Briefs and Reply Briefs, and this
matter is ready for disposition.
SECRETARY’S BURDEN OF PROOF
The Secretary has the burden of proving his case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the

    1
     The term “Tr” refers to the transcript of the hearing and “Exh” refers to Exhibits introduced

into evidence at the hearing.
 employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (the employer either knew or with the exercise of reasonable diligence could
have known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Citation 1, Item 1
§1926.95(c) "Design." All personal protective equipment shall be of safe design and construction
for the work to be performed.
(a) Employees using disposal suits during the cutting of steel beams.
The suits were not of fire retardant design.
During IH Snitzer’s inspection, he learned that two foremen had been involved in cutting steel
beams with torches while two more employees were using gasoline powered leaf blower devices (Tr.
15). He testified that during his interviews of Respondent’s safety coordinator, David Furiate, and
employees, he learned that the employees had been wearing disposable suits made of “Tyvek”. He
testified that he determined that the suits were not fire retardant because he had observed employees
at another jobsite scorch a similar suit while using a torch (Tr. 16, 18, 32). He also testified that he
had also obtained information from Dupont which described the fabric as non-fire retardant and not
recommended for use with heat (Tr. 17-18). He obtained information for Dupont’s Website with
regard to the properties of “Tyvek”. (Exh. C-1). He also testified that he contacted Dupont and
received information about “Tyvek”. (Exh. C-2)2 (Tr. 18-19). He utilized these two documents in
recommending this citation.
The undersigned accords no probative weight to these documents - Exhs. C-1 and 2. They
were admitted into evidence as documents which IH Snitzer testified that he utilized in recommending
a citation, however, their contents are of no probative value. The Secretary presented no witness or
evidence to authenticate these documents. See Fed. R. Evid. 901 and 902. The undersigned
recognizes that the Secretary attempted to introduce these records for the truth of the matters
asserted therein. These documents are hearsay. The Secretary failed to establish any foundation to
support a finding that these documents fell within the ambit of any rule defining hearsay exceptions,
such as, a business record [Fed. R. Evid. 803(6)]. Accordingly, these documents are of no value in
proving that the suits were not fire retardant.
The Respondent presented testimony from Douglass McDowell, a laborer foreman at the
subject worksite. He testified that he has cut steel for 20 years and had has experienced burns from
sparks while performing burning operations. He testified that on those occasions he was not wearing
a Tyvek suit. He further testified that while burning steel and wearing the Tyvek suit, it had never
burned (Tr. 62-64).
The undersigned finds that the Secretary failed to prove by a preponderance of evidence that
the Tyvek suit was not of a safe design and construction for the burning operations which
Respondent’s employees performed. The IH’s testimony with regard to what he had previously
observed with regard to this type of suit was speculative and failed to prove that the suits worn by
the employees on the instant worksite were violative of the cited standard. The Secretary failed to

   2
    This document was an incomplete document in that it consisted of a cover page and

one other page.

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produce any admissible evidence with regard to the properties of Tyvek. The violation is Vacated.
Citation 1, Item 2
§1926.62(d)(4)(I) Where a determination conducted under paragraphs (d)(1), (2) and (3) of this
section shows the possibility of any employee exposure at or above the action level the employer shall
conduct monitoring which is representative of the exposure for each employee in the workplace who
is exposed to lead.
(a) Monitoring conducted by the employer revealed that two employees were exposed to lead
above the permissible exposure limit (PEL). One employee was exposed to 15 times the PEL;
another was exposed to lead above at 31.8 times the PEL. Other employees in the area were not
monitored.
IH Snitzer testified that this violation was recommended because not every job classification
on the jobsite had been sampled for lead exposure (Tr. 24). He concluded this as a result of his
conversation with the safety coordinator, who had informed him that the two employees performing
the cutting had been monitored for lead, but the other employees in the area had not been monitored
for lead (Tr. 25). It was his concern that without the monitoring, they might not have had on the
appropriate protective equipment. (Tr. 25). These employees, who handled the leaf blowers, wore
half-mask respirators, which were acceptable up to 500 micrograms per cubic meter of air (hereinafter
“F g/m3 ”)(Tr. 26, 39).
Respondent presented the testimony of Douglas H. McDowell, a laborer foreman, who
worked on the instant worksite. He described the protective equipment worn while cutting steel as
“pretty self contained”. He testified that the cutters wore hooded Tyvek suits with respirators and
full face masks. They wore burning gloves and put duct tape around the gloves (Tr. 55-56, 60). He
testified that the helpers wore Tyvek suits and half masks with dual filters. He testified that the
cutters and helpers had all had been fit tested for their masks (Tr. 57). In describing the method of
work he testified that as the cutters cut the steel, the helpers would blow in the same direction that
the wind was blowing to clear the air. He also testified that prior to the commencement of the project,
he performed the lead and cadmium sampling by scrapping chips of paint from the bridge (Tr. 58, 62).

     Robert DiNardo a certified industrial hygienist, certified professional engineer, and certified

hazardous materials handler of Foley Occupational Health Consulting testified that he had been
retained as a consultant for Respondent to advises them on their lead program on the Turnpike
project. His qualifications included 20 years experience in the areas of lead and cadmium control
(Tr. 69). He had personally performed services on at least seven bridge demolition projects of the
Respondent. He described the standard protocol which similarly situated contractors involved in the
same work used along the turnpike and which the Turnpike Commission had approved with regard
to the removal of structural steel - torch cutter and helper with leaf blower to dissipate the fumes out
of the cutter’s breathing zone (Tr. 71). He testified that he had personally conducted air sampling,
personal work zone and downwind air sampling for lead and testing for cadmium on the cutter and
helper at Respondent’s Ohio Turnpike Exit 8 worksite on April 4, 1997. He testified that based upon
the testimony of the witnesses at trial, the work which was being done at Exit 8 was the same work
being done at Silica Road. The work involved the standard protocol which he had become familiar
and employees wore the same protective equipment. (Tr. 72-73,75, 82-83). The monitoring at Exit
8 took place a week to ten days within the time that work commenced at the instant worksite (Tr.

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80, 98). He testified that the results were adjusted for an 8-hour average. He testified that his results
at the Exit 8 location revealed that the exposure level for the leaf blower was five times the OSHA
limit -240 Fg/m3. The half-mask would allow for ten times the exposure -500 Fg/m3. Accordingly,
they wore the proper protection (Tr. 73-74). In light of the fact that the helper wore the same safety
equipment on the instant worksite, it was his opinion that the helper was fully protected (Tr. 75, 79).
He testified that based upon the testimony of Mr. McDowell, the protective equipment used at the
Silica Road site was the same as that used at the Exit 8 site. He acknowledged that he had conveyed
the results of the Exit 8 site to Respondent and that they were aware of those results (Tr. 97).
The cited standard requires that the employer conduct representative sampling for each
employee on the worksite. This standard provides for an exception to this requirement at section
1926.62(d)(4)(ii) which sets forth that
. . .Where the employer has previously monitored for lead exposure, and the data
were obtained within the past 12 months during work operations conducted under
workplace conditions closely resembling the processes, type of material, control
methods, work practices, and environmental conditions used and prevailing in the
employer's current operations, the employer may rely on such earlier monitoring
results to satisfy the requirements of paragraph (d)(4)(I) of this section if the sampling
and analytical methods meet the accuracy and confidence levels of paragraph (d)(10)
of this section.
As a general rule, one who claims an exception was the burden of proving its application.
United States v. First City National Bank, 386 U.S. 361, 366 (1967); McCormick, Law of Evidence
787 (2d ed. 1972). Review Commission precedent establishes that “the party claiming the benefit of
an exception has the burden of proving that its claim comes within the exception.” StanBest Inc., 11
BNA OSHC 1222, 1226 (No. 76-4355, 1983). The undersigned finds that the Respondent had met
its burden of proof. The record establishes that the helpers, air blower operators, had not been
monitored for lead. However, the record establishes that that testing had been performed on these
employees at the Exit 8 worksite which closely resembled processes, type of material, control
methods, work practices and environmental conditions (same time of the year) of Silica Road
worksite. The test had been performed within a two week period which meets the 12 month
requirement. The helpers’wore the same protective equipment which protected them against lead
exposure in accordance with the Exit 8 results. The Respondent presented this evidence in support
of its claim that it had not violated the cited standard.
The Secretary does not claim that Respondent did not meet the terms of the exception but
argues that Respondent should not be afforded this exception because the Respondent did not rely
on the exception when it decided to forgo monitoring the Silica Road site. Furthermore, the
Secretary argues that there was no evidence that Respondent knew of and relied upon its allegations
that the processes and materials at Exit 8 closely resembled the processes and materials at Silica
Road, or that the work practices and environmental conditions at Exit 8 closely resembled the
practices at Silica Road.(Secretary’s Post-Hearing Brief, p. 9). The record reveals that at the
commencement of the hearing, the Secretary’s counsel raised an issue of prejudice with regard to
testimony concerning prior monitoring. Counsel for the Respondent represented at the hearing that
he had become aware of documentation which supported a defense of testing at another site and its
effect on the requirement to monitor at the instant site while preparing its expert witness for trial a

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few days prior to hearing. Counsel represented that his expert raised this issue a few days prior to
the hearing and the Secretary was immediately notified of this monitoring. The undersigned permitted
Respondent to present this testimony and permitted the record to remain open for the Secretary to
present rebuttal evidence (Tr. 5-9). The record reveals that the Secretary has presented no rebuttal
evidence and did not request that the record remain open for additional evidence.
The undersigned has reviewed the record before her and makes her findings based upon the
evidence presented at trial. The undersigned finds the Secretary’s arguments do not negate the
evidence which the Respondent presented at the hearing.(Tr. 73-74). Mr. DiNardo provided
testimony which was based upon his review of his office files on the instant worksite and the
testimony he heard at the hearing (Tr. 84-86). Upon having his memory refreshed during the course
of cross examination, he admitted that he had reviewed the lead compliance program for the instant
worksite prior to the commencement of work on the instant worksite (Tr. 87- 88). The undersigned
having observed his demeanor and forthright responses to questions at the hearing, finds his testimony
credible. The undersigned finds that his prior involvement with the Respondent on similar projects
for several years and his review of the lead compliance plan for the instant worksite are sufficient to
establish that the Respondent relied upon such earlier monitoring. The record contains no challenge
to the accuracy or validity of said monitoring. The Secretary has not proved by preponderance of
evidence that the Respondent violated the standard or that a hazard exited. In view of this finding
the violation is Vacated.
Citation 1, Item 3
§1926.1127(d)(1)(I) Prior to the performance of any construction work where employees may be
potentially exposed to cadmium, the employer shall establish the applicability of this standard by
determining whether cadmium is present in the workplace and whether there is the possibility that
employee exposures will be at or above the action level. The employer shall designate a competent
person who shall make this determination. Investigation and material testing techniques shall be used,
as appropriate, in the determination. Investigation shall include a review of relevant plans, past
reports, material safety data sheets, and other available records, and consultations with the property
owner and discussions with appropriate individuals and agencies.
(a) No determination was done.
CO Snitzer testified that prior to demolition at the subject worksite, the Respondent did not
make a determination with regard to exposure to cadmium on the worksite (Tr. 28, 34). He testified
that the action level for cadmium is 2.5 Fg/m3 , and the permissible exposure level is 5 Fg/m3. He did
not know what the exposure levels were at this worksite because the Respondent had not performed
any air sampling (Tr. 28). He testified that in order to have complied with the standard the
Respondent should have conducted air monitoring (Tr. 29). He acknowledged that Respondent could
not have performed air sampling prior to demolition and that the Respondent had determined that
cadmium was present, because “bulk testing” had been performed on a sample taken from the bridge
.3 The results of this testing revealed that there was less than a tenth of a percent (.1%) of cadmium
in the sample of paint tested, which was below the detectable limits of the test - the test will not
determine cadmium below a tenth of percent. He acknowledged that the testing Respondent did

   3
     Bulk testing involves the collection of paint, via scraping it off the steel beams, and

submitting it to a lab for testing (Tr. 36, 61-62).

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perform, bulk testing, was the only test for cadmium which could be done prior to demolition. (Tr.
35- 37, 45).
Robert DiNardo testified that Respondent had performed monitoring - bulk sampling - for
cadmium prior to demolition at the Silica Road site. He believed that these samples would have given
a good cross section throughout the bridge (Tr. 76). He testified that the results showed that there
was a trace of cadmium in the sample. He testified that based upon the results of the bulk sampling
the detection limit was low enough to prevent overexposure and that there was no requirement for
further monitoring of cadmium (Tr. 77). He testified that in his experience in other projects where
they have tested and where cadmium results were this low, there has been no cadmium or very low
levels of cadmium detected (Tr. 78). Mr. McDowell’s testimony confirmed that the sampling had
been performed.
The undersigned finds that the standard requires a determination be made as to whether
cadmium is present and whether there is the possibility of exposure at or above the action level. The
record establishes that Respondent made a determination via bulk testing that cadmium was present.
The Respondent determined that based upon the results of this testing, there was no possibility at or
above the action level. The undersigned also finds that the compliance officer’s belief that .1% would
cause an overexposure because .1% is much greater than 5 Fg/m3 is misleading testimony (Tr. 44).
The standard’s action and permissible exposure levels are airborne concentrations derived from an
8-hour time-weighted average. The .1% finding of cadmium was derived from a bulk sample scraped
off of steel beams - it does not represent what a worker would breathe over 8 hours. The undersigned
notes that he testified that he did not know what the levels were for cadmium at the worksite (Tr. 28).
The Respondent’s witness, who had over 20 years experience in the area of lead and cadmium
control, testified that in his experience the cadmium results indicated a detection level so low that
there would be no overexposure. The undersigned finds that Mr. DiNardo’s testimony is more
persuasive with respect to the meaning of the results of the bulk testing. IH Snitzer had only
performed 20-30 inspections out of the 450 inspections he performed over his 13 year employment
history with OSHA. The undersigned finds that the bulk sampling of the paint established the
presence of cadmium which is what the standard requires. The Respondent determined that the
results of the sampling indicated that there would be no overexposure. The undersigned finds that
the Respondent complied with the standard. The cited standard does not require monitoring. See
§1926.1127 (d)(2)(I). The violation is Vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Citation 1, Item 1 alleging a violation of 29 CFR §1926.95(c) is Vacated.
Citation 1, Item 2 alleging a violation of 29 CFR §1926.62(d)(4)(I) is Vacated.
Citation 1, Item 3 alleging a violation of 29 CFR §1926.1127(d)(1)(I) is Vacated.

                                                   Covette Rooney
                                                   Judge, OSHRC

Dated: Washington, D.C.

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