CUSTOM PAINTING COMPANY
OSHRC Docket No. 1255
Occupational Safety and Health Review Commission
June 11, 1973
Before MORAN, Chairman; VAN NAMEE, Commissioner.
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On March 2, 1973, Review Commission Judge William J. Risteau issued a decision in this case. Thereafter, on April 3, 1973, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.
[The Judge's decision referred to herein follows]
RISTEAU, JUDGE, OSAHRC: This is a proceeding pursuant to Section 19 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting three Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The Citations allege that as a result of an inspection of a workplace under the ownership operation, or control of the Respondent, located at Soldotna, Alaska, and described as "New Sewage Treatment Plant," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6, thereof.
The Citations, which were issued on July 18, 1972, allege that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in Part 1910, of Volume 29 of the Code of Federal Regulations. The description of the alleged violations is said Citations states:
Citation for Serious Violation Number 1: 29 CFR 1910.134(a)(2)
Failure to provide applicable and suitable respirators when such equipment is necessary to protect the health of the employee.
Citation for Serious Violation Number 2: 29 CFR 1910.134(b)(8)
Failure to maintain surveillance of work area conditions and degree of employee exposure and stress.
Citation No. 1: 29 CFR 1910.134(e)(3)(i)
Failure to require presence of additional man with proper rescue equipment to assist in case of emergency.
The standards as promulgated by the Secretary provide as follows:
29 CFR 1910.134(a)(2):
Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.
29 CFR 1910.134(b)(8):
Appropriate surveillance of work area conditions and degree of employee exposure or stress shall be maintained.
29 CFR 1910.134(e)(3)(i):
In areas where the wearer, with failure of the respirator, could be overcome by a toxic or oxygen-deficient atmosphere, at least one additional man shall be present. Communications (visual, voice, or signal line) shall be maintained between both or all individuals present. Planning shall be such that one individual will be unaffected by any likely incident and have the proper rescue equipment to be above to assist the other(s) in case of emergency.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated July 18, 1972, from R. L. Beeston, Area Director of the Seattle area, Occupational Safety and Health Administration, stating that the Secretary of Labor proposed to assess penalties for the violations alleged in the amount of $1,125.00. After Respondent contested this enforcement action and a Complaint and Answer had been filed by the parties, the case came on for hearing at Anchorage, Alaska, on January 15, 1973.
DISCUSSION
By counsel, who withdrew from the case prior to the hearing, Respondent initially raised a variety of defenses to the action of the Secretary, including lack of jurisdiction, constitutionality of the Act, and denial of the substantive allegations of the Citation and Complaint. At the hearing, however, Respondent, appearing for himself, indicated a desire to raise no legal or factual issue, asking only that his financial inability to pay the proposed penalties and the fact that he has since gone out of business be considered as his defense (Tr. 4-19, Respondent's Exhibit 1).
With specific reference to Respondent's contention in this regard, there would appear to be precedent for non-assessment of penalties because of the unfavorable financial position and small size of the employer. n1 In the present case, moreover, it would be difficult to find a more adverse business situation for a Respondent, since Mr. Cariveau has been advised by the State of Alaska that he can no longer function under the firm name of Custom Painting Company, his bond has been cancelled, and his insurance has been terminated (Tr. 17). The firm is no longer in existence in any respect and Mr. Cariveau is now working for other persons for wages (Tr. 5). Further, it is apparent from Mr. Cariveau's financial statement that his business was never anything but an operation of the smallest magnitude (Exhibit 1). Under the circumstances, it is the opinion of the undersigned that the ends of the Act would not be served by assessment of any penalty against Mr. Cariveau at the present time.
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n1 See Secretary of Labor v. Colonial Craft Reproduction,
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This case is also distinguished by the fact that the Citations were issued some 51 days following alleged commission of the offenses, a period clearly excessive under the concurring opinion of Chairman Moran in Secretary of Labor v. Pleasant Valley Packing Co., Inc. On the facts of this case, however, it would appear desirable to decide the issues on the merits in the absence of a decision in which the full Commission has ruled directly on the point. In particular, as pointed out above, Respondent will be required to pay no penalty under the terms of the Judge's decision. Further, the offenses charged are serious ones, they are admitted by the Respondent, and the delay does not appear to have materially affected the rights of the Respondent in any respect.
In view of the foregoing, this decision will not discuss the proper amount of penalty except to state that the proposed penalty of $1,125.00 appears to be of the proper order of magnitude, considering in particular the gravity of the violations.
FINDINGS OF FACT
1. On May 28, 1972 and until November 15, 1972, Respondent was in the painting business in Alaska; in the course of such business Respondent used materials and machinery and other goods which had their origins outside of the State of Alaska, including paint, paint additives, and painting equipment. Respondent also utilized the United States mails.
2. On May 28, 1972, employees of Respondent were, in the course of their employment, carrying out a painting job at a site in Soldotna, Alaska, described as the Soldotna Sewage Treatment Plant.
3. Paint in use by Respondent's employees at the Soldotna site on May 28, 1972, contained approximately 30 percent of perchlorethlene, a highly toxic substance. The atmosphere at Respondent's worksite where this paint was in use contained approximately 6,000 parts per million of perchlorethylene; at this density there is a substantial possibility of death or serious injury to an exposed person.
4. On May 28, 1972, a Mr. Morris, one of Respondent's employees, was asphyxiated as a result of exposure to an atmosphere containing perchlorethylene in the amount described in the preceding finding.
5. On May 28, 1972, respirators were not provided to its employees, including Mr. Morris, by Respondent which were suitable for spraying paint containing 30 percent of perchlorethylene. Suitable respirators would have been those which supplied fresh air.
6. On May 28, 1972, Respondent did not provide and maintain appropriate surveillance of work area conditions and degree of employee exposure and stress at its worksite at the Soldotna Sewage Treatment Plant.
7. On May 28, 1972, Respondent did not have present at the above described worksite during the painting operation some person who would be unaffected by the presence of poisonous substances and who was provided with proper rescue equipment to assist the painter who was asphyxiated.
8. There was a substantial probability that death or serious physical harm could result to Respondent's employees while spray painting a paint containing 30 percent perchlorethylene without effective respirators and under the conditions which existed at the above described worksite on May 28, 1972.
9. There was a substantial probability that death or serious physical harm could result to at least one employee at Respondent's Soldotna worksite on May 28, 1972, by reason of Respondent's failure to provide appropriate surveillance of work area conditions and degree of employee exposure of stress.
10. Respondent here is an individual who formerly carried on a painting business under the name of Custom Painting Company. On November 15, 1972, Respondent ceased to transact business under the firm name and the company ceased to exist.
CONCLUSIONS OF LAW
1. Respondent on May 28, 1972, was an "employer" and a person engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Act.
2. On May 28, 1972, Respondent violated Sections 1910.134(a)(2), 1910.134(b)(8) and 1910.134(c)(3)(i) of Title 29, Code of Federal Regulations, comprising safety standards promulgated by the Secretary pursuant to the Act; the first two of these three violations were "serious" violations as defined in the law.
3. Penalties of $500 for each of the two serious violations noted above and a penalty of $125 for the non-serious violation are appropriate on the facts of the case; such penalties should, however, be vacated by reason of the fact that Respondent is no longer an employer in a business affecting interstate commerce.
ORDER
Based on the foregoing Findings of Fact, Conclusions of Law, and the entire record, it is ORDERED that the Citation issued herein on July 18, 1972, be, and the same are AFFIRMED. It is further ORDERED that the proposed penalties for the cited violations be vacated.