This case was directed for review on December 16, 2009. On January 6, 2010,
the Commission issued a Briefing Notice asking the parties to brief certain issues that
were solely related to Citation 1, Item 2, which alleged a serious violation of 29 C.F.R.
§ 1926.62(d)(2)(v). The Briefing Notice did not ask the parties to brief any issues
regarding Citation 1, Item 1, which alleged a serious violation of 29 C.F.R.
Consequently, in the Briefing Notice, the Commission limited the
scope of its review to Citation 1, Item 2. Bay State Refining Co., 15 BNA OSHC 1471,
1476, 1992 CCH OSHD ¶ 29,579, p. 40,025 (No. 88-1731, 1992) (“[T]he
Commission … has [the] discretion to limit the scope of its review.”)
On March 8, 2010, the Secretary notified the Commission of her decision to
withdraw Citation 1, Item 2. Pursuant to the Briefing Notice, this withdrawal resolves
the only item selected for review. See Cuyahoga Valley Ry. Co. v. United Transp. Union,
474 U.S. 3, 6 (1985) (holding Secretary has unreviewable discretion to withdraw
citation). Accordingly, Respondent’s motion dated March 11, 2010, requesting that the
Commission enter judgment in Respondent’s favor on both citation items or,
alternatively, issue a decision regarding Citation 1, Item 1, without complete briefing, is
Therefore, the Commission sets aside the judge’s Decision and Order to the
extent that it is inconsistent with the Secretary’s notice of withdrawal and accords the
remainder of his decision the status of an unreviewed judge’s decision. Leone Constr.
Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ¶ 20,387, p. 24,322 (No. 4090,
1976) (unreviewed part of judge’s decision does not constitute binding Commission
By Direction of the Commission
Dated: 3/29/2010 Ray H. Darling, Jr.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Secretary of Labor,
OSHRC DOCKET NO. 09-0035
Allstate Services, Ltd. dba A&R
Brian L. Hurt, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas,
Joseph A. Kral, Esq., Houston, Texas
Before: Administrative Law Judge James R. Rucker, Jr.
AMENDED DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review
Commission (Athe Commission@) pursuant to Section 10(c) of the Occupational Safety
and Health Act of 1970, 29 U.S.C. '651 et seq. (Athe Act@). The Occupational Safety and
Health Administration (AOSHA@) conducted an inspection of an Allstate Services, Ltd.
dba A&R Demolition (ARespondent@) worksite in Vanderbilt, Texas on September 17,
2008. As a result of the inspection, OSHA issued a Citation and Notification of Penalty
to Respondent alleging three violations of the Act. Citation 1 Item 1 alleges a serious
violation of 29 C.F.R. '1926.62(d)(1)(i). Citation 1 Item 2 alleges a serious violation of
29 C.F.R. '1926.62(d)(2)(v). Citation 1 Item 3 alleges a serious violation of 29 C.F.R.
'1926.62(l)(1)(i). The Secretary proposes a penalty of $1,250.00 each for Citation 1
Items 1 and 2, and a $750.00 penalty for Citation 1 Item 3. Respondent timely contested
the citation and an administrative trial was held on June 25, 2009 in Austin, Texas. Both
parties filed post-trial briefs and the case is ready for disposition.
Jurisdiction of this action is conferred upon the Occupational Safety and
Health Review Commission pursuant to Section 10(c) of the Act. The record
establishes that at all times relevant to this action, Respondent was an employer
engaged in a business affecting interstate commerce within the meaning of Section
3(5) of the Act, 29 U.S.C. '652(5). (Complaint and Answer).
This OSHA inspection resulted from a referral made by an OSHA Compliance
Safety and Health Officer (ACSHO@) who was conducting an unrelated investigation of an
explosion at a gas plant in Vanderbilt, Texas (AVanderbilt plant@). (Tr. 69-70). CSHO
Michael Morris was assigned to conduct this inspection and first traveled to the jobsite
on July 7, 2008, where he learned that Respondent=s crew was not working that day. (Tr.
71). He returned the next day but Respondent=s employees were still not present. (Tr.
73). Finally, when CSHO Morris traveled to the jobsite a third time, on September 17,
2008, Respondent=s employees were present and working at the location. (Tr. 73).
Respondent=s crew was engaged in the demolition and removal of Aold pipes@ from the
Vanderbilt plant between August 2008 and April 2009. (Tr. 21-23). Respondent had five
employees present at the site: John Sample, Superintendent; Vernon Carr, Safety
Director; Daniel Stimson, truck driver; Daniel Mojica, Bobcat operator/laborer; and
Antonio Avila, excavator operator. (Respondent=s Brief, p. 2). CSHO Morris told Safety
Director Carr that he was concerned about the
presence of lead on the pipes being demolished. (Tr. 135). Safety Director Carr
acknowledged during the inspection that there was a possibility of lead-based paint on
some of the pipes. (Tr. 136).
Superintendent Sample, who supervised employees and directed their work,
conceded at trial that this project consisted of Ademolishing materials that contained lead-based paint.@ (Tr. 20-21, 38). He believed there was lead on the pipes being removed
because this particular plant was constructed in the 1970=s and Amost of the paint back
then had lead base in it.@ (Tr. 31-32). In an attempt to address this hazard, prior to the
OSHA inspection, Respondent decided to use a hydraulic shear attachment fitted on an
excavator to remove the pipe. (Tr. 21-22). Respondent believed that shearing the pipe
would eliminate the possibility of dust, thereby preventing any lead from becoming
airborne. (Tr. 31, 133). The shear attachment consisted of two blades which closed
around the pipe to separate it into pieces. (Tr. 39, Ex. C-2). Superintendent Sample
described the process as Atearing the metal in half.@ (Tr. 22). The sheared pipe pieces
were then piled-up and moved by a Bobcat front-end loader onto a truck to be transported
to another location. (Tr. 22-24).
While Superintendent Sample testified that he did not observe any dust being
created during the pipe removal process, he conceded that he does not know whether
shearing pipe could cause lead to become airborne. (Tr. 39, 63). It is important to note
that despite his assertions that shearing the pipe created no dust, he testified that
employees on this jobsite were required to wear dust masks. (Tr. 41, 134). Safety
Director Carr contradicted Superintendant Sample by testifying employees were not
required to use any type of respiratory protection on this site. (Tr. 134). Safety Director
Carr also conceded that he has never done any testing to conclusively determine whether
shearing pipe could cause lead to become airborne. (Tr. 133-134).
Prior to the OSHA inspection, Respondent prepared and distributed an employee
handout entitled ALead Safety in the Workplace.@ (Tr. 128; Ex. R-9). The handout was
specifically used to train the two employees conducting the pipe removal at this site on
lead hazards in the workplace. (Tr. 128-130; Ex. R-4). Superintendent Sample also
discussed lead exposure and precautions for working around lead during daily Atailgate
safety talks@ at this site. (Tr. 43-44). He instructed the two equipment operators who
performed the pipe removal, with regard to lead hazards at this location, to Akeep an eye
on each other as far as their attitude and as far as their -- if there was anything that they
felt was wrong with them. If they noticed anything that was not normal for their attitude
or behavior, I was to be notified immediately.@ (Tr. 54-55). Superintendent Sample and
Safety Director Carr also advised employees not to ingest or inhale lead while working at
the Vanderbilt plant. (Tr. 55, 132).
Despite Respondent=s belief that lead was present on the pipes being removed, its
acknowledgement that lead is a hazardous substance, and its communications to
employees while on this site regarding lead hazards, Respondent failed to conduct any
type of actual employee exposure assessment for lead at this location. (Tr. 30-31, 63,
132). Respondent did not take any samples of paint or pipe-coating to determine lead
content. (Tr. 31). Respondent did not perform any type of air monitoring to determine
employee exposure to lead while performing their demolition work. (Tr. 32, 39-40).
Respondent did not provide any cleaning/laundering of employee clothing, no employee
changing area, no employee showering area, no lead warning signs, and no medical
surveillance of employees. (Tr. 42-43, 65-66, 135).
The employee operating the open-cab Bobcat came within 5-10 feet of cut pipe
while stacking and moving it around the site. (Tr. 63). The employee operating the
shear-equipped excavator came within 15-20 feet of the pipe while it was being removed.
(Tr. 48). Superintendent Sample also occasionally acted as a Aspotter@, standing as close
as 25 feet from the pipes while they were being sheared. (Tr. 27-28).
The most disputed issue at trial was whether or not Ashearing@ pipe is the same as
Acutting@ pipe. Respondent maintains that Ashearing@ is distinguishable from Acutting@, as
well as all of the other activities for which interim lead protection is required under the
cited regulations. (Tr. 38). See 29 C.F.R. '1926.62(d)(2)(iv)(C) & (d)(2)(v).
Superintendent Sample attempted to distinguish Ashearing@ from Acutting@ by explaining
that Acutting makes stuff snap. Shearing is like ripping paper.@ (Tr. 38-39).
Complainant=s position is that Ashearing@ is a type of Acutting@, and therefore, the
interim lead protection regulations apply pursuant to 29 C.F.R. '1926.62(d)(2)(iv).
Complainant offers the American Heritage Dictionary of the English Language (Fourth
Edition, 2000) definition of Ashearing@ as Ato remove by cutting or clipping.@ The
Merriam-Webster Dictionary (2009) defines Ashear@ as Ato cut with something sharp.@
Complainant also points to the fact that Respondent=s Safety Director, in documenting his
tailgate safety talks with employees, wrote that one of the crews= tasks on this jobsite was
to Acut metal.@ (Tr. 132; Ex. R-1). Even Superintendent Sample treated the terms
Ashearing@ and Acutting@ synonymously during his testimony: A...shearing the metal off,
cutting it up into small pieces.@ (Tr. 21).
During the OSHA inspection, Respondent=s employees were not using the
hydraulic shear attachment. (Tr. 77). Therefore, CSHO Morris did not personally
observe the actual shearing process. During his testimony about the alleged training
violation, Citation 1 Item 3, CSHO Morris acknowledged that Respondent=s lead hazard
training program complied Ain part@ with regulatory requirements but that the written
program was deficient because it did not overtly state that death could result from lead
overexposure. (Tr. 110, 117). This was the only deficiency CSHO Morris identified in
Respondent=s lead hazard training program. (Tr. 117).
CSHO Morris characterized all three lead-related citation items as serious
violations of the Act because lead is poisonous and can negatively affect reproductive
systems, nervous systems, kidney function, liver function, and brain function. (Tr. 113).
In calculating the proposed penalties for each alleged violation, CSHO Morris concluded
and considered that employees were exposed to the cited conditions for at least two
weeks (although the project lasted approximately nine months), that no alternative
methods of protection were used, and that there was a low likelihood of an actual
accident occurring. (Tr. 23, 95). He reduced the penalty calculations because Respondent
is a Asmall company@ with no history of OSHA violations within the past three years. (Tr.
96-97). He declined to further reduce the penalties for Agood faith@ because he believes
Respondent failed to follow the provisions of its own lead protection program. (Tr. 97;
To establish a prima facie violation of the Act, the Secretary must prove by a
preponderance of the evidence that: (1) the cited standard applies to the condition; (2) the
terms of the standard were violated; (3) one or more of the employees had access to the
cited condition; and (4) the employer knew, or with the exercise of reasonable diligence
could have known, of the violative condition. Astra Pharmaceutical Prod., 9 BNA
OSHC 2126, 1981 CCH OSHD &25,578 (No. 78-6247, 1981).
Citation 1 Item 1
The Secretary alleged in Citation 1 Item 1 that:
29 CFR 1926.62(d)(1)(i): Each employer who has a workplace
covered by this standard did not initially determine if any
employee may be exposed to lead at or above the action level: On
or about September 17, 2008, and times prior thereto, at this
location, employees performing metal shearing operations and
removing protective coatings from piping for cutting operations
were exposed to lead from lead-based paint, containing 29% lead,
and the employer did not initially determine if the employees
performing the task were exposed to lead.
The cited regulation applies to all construction work, including demolition, at
which employees may be occupationally exposed to lead. 29 C.F.R. '1926.62(a). The
standard requires employers with workplaces covered by the lead construction standard
to Ainitially determine if any employee may be exposed to lead at or above the action
level@ (emphasis added). Initial determinations of lead exposure levels are generally
required to be performed through air monitoring. 29 C.F.R. '1926.62(d)(3). In this
instance, the record clearly establishes that Respondent believed lead was present on this
site, trained employees specifically working on this site about lead hazards, and
instructed employees working on this site to watch each other for unusual symptoms and
behaviors that might be attributable to lead overexposure. Despite these beliefs and
actions concerning the presence of lead, Respondent failed to conduct any type of actual
monitoring to determine whether their suspicions regarding lead content were correct and
to what extent employees might be actually exposed.
Therefore, although Complainant failed to present admissible evidence regarding
the actual amounts of lead on the piping, the court concludes that Respondent=s clear
belief that the pipe contained lead, as well as its lead-related training and instructions to
employees, evidenced an obligation under the cited regulation to conduct an assessment
of actual lead exposure levels as described at 29 C.F.R. ''1926.62(d)(1)(i) & (d)(3).
Respondent=s argument that its decision to shear the pipe and provide employee training
constituted an adequate Ainitial determination@ is rejected. An acceptable Ainitial
determination@ requires consideration of actual employee exposure monitoring results
and several other relevant factors. See 29 C.F.R. '1926.62(d)(3).
An employer who believes and acts as if he is exposing his employees to lead
cannot then implement the Aostrich approach,@ affirmatively choosing to not evaluate
actual employee exposure levels. See E. Smalis Painting Co., 22 BNA OSHC 1553 (No.
94-1979, 2009). It is undisputed that Respondent conducted no actual monitoring of
employee exposure to lead at this site. The cited standard applies to these working
conditions and Respondent failed to comply with its terms.
To prove employee exposure to a violative condition, Complainant must establish
that Respondent=s employees were either actually exposed or that it was Areasonably
predictable either by operational necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger.@ Fabricated Metal Prods., 18
BNA OSHC 1072, 1995-1997 CCH OSHD &31,463 (No. 93-1853, 1997). The record
establishes that at least three of Respondent=s employees were operating equipment or
standing between five and twenty-five feet from the pipe while it was being cut, piled-up,
and transported. Complainant established employee exposure to the violative condition.
Superintendent Sample and Safety Director Carr both clearly had knowledge that
an employee lead exposure assessment was never conducted. Their knowledge of this
violative condition is imputable to the Respondent. A.P. O=Horo Co., 14 BNA OSHC
2004, 1991 CCH OSHD &29,223 (No. 85-0369, 1991).
CSHO Morris provided undisputed testimony about various systems of the human
body that can be seriously and adversely affected by overexposure to lead. In this
instance, it is not the specific lead level which is relevant to the characterization of the
violation. Rather, it is the fact that Respondent believed and acted as if this demolition
work involved potential employee exposure to lead and still directed employees to
perform their work without bothering to monitor actual exposure levels. Safety Director
Carr even conceded that without actually conducting air monitoring, Respondent would
not know whether the air at the site had a high lead content. (Tr. 134). Citation 1 Item 1
was properly characterized as a serious violation.
In calculating an appropriate penalty for this violation, Section 17(j) of the Act requires
the Commission to give Adue consideration@ to four criteria: (1) the size of the
employer's business, (2) the gravity of the violation, (3) the good faith of the employer,
and (4) the employer's prior history of violations. 29 U.S.C. '666(j). Gravity is the
primary consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood of an
actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD
&29,964 (No. 87-2059, 1993). Considering the totality of the circumstances, the
proposed penalty of $1,250.00 for Citation 1 Item 1 is appropriate.
Citation 1 Item 2
The Secretary alleged in Citation 1 Item 2 that:
29 CFR 1926.62(d)(2)(v): Until the employer performed an
employee exposure assessment as required under paragraph
(d) of this section and determined actual employee exposure,
the employer did not provide to the employees performing the
tasks described in paragraph (d)(2)(i), (d)(2)(ii), (d)(2)(iii),
(d)(2)(iv) of this section with interim protection as described in
Sub item 1, (A) through (F): On or about September 17, 2008,
and times prior thereto, at this location, employees involved in
a demolition operation were metal shearing and removing
protective coatings from piping for torch cutting and were
exposed to lead from paint containing 29% lead. The employer
did not provide appropriate respiratory protection, protective
clothing, change areas, monitoring, and training until the
extent of exposure was determined.
Pursuant to the cited regulation, once the requirement to conduct a lead exposure
assessment has been triggered, employers are required to provide various interim
employee protective measures (respiratory protection, appropriate personal protective
clothing and equipment, changing areas, hand washing facilities, biological monitoring,
and training) if certain work activities are performed, until actual exposure levels are
determined. The standard clearly applies to the cited condition and the court has already
concluded above that Respondent had a regulatory obligation to determine whether its
employees were being exposed to lead at or above the action level on this jobsite.
It is undisputed that Respondent failed to provide most of the interim protection
measures listed in the standard. Therefore, the primary issue to determine compliance
with the standard is whether or not Respondent=s employees were engaged in one of the
work activities listed in paragraphs (d)(2)(i), (d)(2)(ii), (d)(2)(iii), or (d)(2)(iv). More
specifically, the question is whether Ashearing@ qualifies as Acutting@ as set out in 29
In Secretary v. Bianchi Trison Corp., 20 BNA OSHC 1801 (Nos. 01-1367 &
1368, 2004), a Review Commission Administrative Law Judge, analyzing similar
violations of OSHA=s lead in construction standard, treated the terms Ashearing@ and
Acutting@ synonymously: A...sections were cut up by mechanical shears...@ and
A...excavators with shear attachments were cutting the steel...@ Although the Third Circuit
did not focus on employee exposure during the mechanical shearing process, it did
comment in its rejection of a petition for review that A...mechanical shears could be used
to cut most of the steel...@ Bianchi Trison Corp., 409 F.3d 196 (3rd Cir. 2005). When the
language of the Bianchi Trison trial and appellate decisions is considered in conjunction
with the dictionary definition of Ashearing,@ and the fact that Respondent=s own
supervisors used the term Acutting@ to describe their work at this site, the court finds that
Respondent=s employees were Acutting@ pipe pursuant to 29 C.F.R.
'1926.62(d)(2)(iv)(C). AUntil an employer completes and documents a valid initial
exposure assessment, it must treat certain employees as if they were exposed to lead in
excess of the personal exposure level and provide to these employees interim
precautions.@ Techno Coatings, 177 Fed.Appx. 659, 660 (9th Cir. 2006). Respondent
failed to do so. The terms of the standard were violated.
The same findings of employer knowledge, employee exposure, and seriousness
of the violation addressed in Citation 1 Item 1 above also apply here. Respondent had
knowledge of its own failure to implement interim protective measures. Respondent=s
two equipment operators, as well as Superintendent Sample while acting as a Aspotter@,
were exposed to the violative condition. Respondent=s failure to provide interim
protection until lead exposure was actually determined could have resulted in serious
physical harm or death. The proposed penalty of $1,250.00 for Citation 1 Item 2 is
Citation 1 Item 3
The Secretary alleged in Citation 1 Item 3 that:
29 CFR 1926.62(l)(1)(i): The employer did not communicate
information concerning lead hazards according to the
requirements of OSHA=s Hazard Communication Standard for the
construction industry, 29 CFR 1926.59, including, but not limited
to, the requirements concerning warning signs and labels, material
safety data sheets (MSDS), and employee information and
training: On or about September 17, 2008, and times prior thereto,
at this location, employees involved in a demolition operation
performing metal shearing were exposed to lead from lead-based
paint containing 29% lead and the employer did not communicate
the health hazards of lead to employees performing the task.
The cited standard requires employers to Acommunicate information concerning
lead hazards to employees@ consistent with the requirements of 29 C.F.R. '1926.59. An
employer who references 29 C.F.R. '1926.59 is subsequently referred to 29 C.F.R.
'1910.1200. The minimum requirements for providing information and training to
employees on hazardous substances are found at 29 C.F.R. '1910.1200(h). Complainant
failed to establish with any clarity or persuasiveness that Respondent=s communications
to employees with regard to lead hazards was non-compliant. The only deficiency
articulated by CSHO Morris with regard to Respondent=s lead hazard training program
was the omission of the word Adeath.@ However, a review of Respondent=s ALead Safety
in the Workplace@ handout clearly states A...lead is very toxic if absorbed in lethal
quantities through inhalation or ingestion@ (emphasis added). (Ex. R-9, p.1). Therefore,
based on the content of Respondent=s ALead Safety in the Workplace@ handout, as well as
testimony regarding employee training, certification, and Atailgate safety talks@
concerning lead hazards, the court finds that Complainant failed to establish by a
preponderance of the evidence that Respondent did not adequately communicate lead
hazards to its employees. Accordingly, Citation 1 Item 3 must be VACATED.
Respondent did not argue any affirmative defenses in its post-hearing brief. Any
pled affirmative defenses are therefore deemed abandoned.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
1. Citation 1 Item 1 is AFFIRMED and a penalty of $1,250.00 is ASSESSED;
2. Citation 1 Item 2 is AFFIRMED and a penalty of $1,250.00 is ASSESSED;
3. Citation 1 Item 3 is VACATED.
Date: November 23, 2009 /s/ Denver, Colorado JAMES R. RUCKER, JR.