United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

                                  1120 20th Street, N.W., Ninth Floor

                                        Washington, DC 20036-3457

 

 

SECRETARY OF LABOR,

	

 

Complainant,

	

 

 

 

 

v.

	

OSHRC Docket No.  05-0055

 

L & L PAINTING COMPANY, INC.,

	

 

Respondent.

 

	

 

 

ON BRIEFS:

John Shortall, Attorney; Charles F. James, Counsel for Appellate
Litigation; Joseph M. Woodward, Associate Solicitor; M. Patricia Smith,
Solicitor; U.S. Department of Labor, Washington, DC

                          For the Complainant

Nancy B. Schess and Peter Dugan; Klein, Zelman, Rothermel LLP, New York, NY

              For the Respondent

*DECISION AND ORDER*

Before:  ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

This case, which is on review before the Commission for a second time,
involves a twenty-item serious citation issued to L & L Painting
Company, Inc. (“L&L”)following an inspection of its worksite on the New
York side of the George Washington Bridge (“the Bridge”) by the
Occupational Safety and Health Administration (“OSHA”).  OSHA initiated
the inspection after being notified by the New Jersey Department of
Health and Senior Services that L&L employees working at the Bridge had
elevated blood lead levels (“BLLs”).  In the citation, OSHA alleged
violations of the Occupational Safety and Health Act of 1970 (“the
Act”), 29 U.S.C. §§ 651-678, primarily under the lead in construction
standard, 29 C.F.R. § 1926.62.

The late Chief Administrative Law Judge Irving Sommer issued his initial
decision in this matter in 2006, following a hearing at which L&L was
represented by a non-attorney safety consultant.  After the hearing, but
prior to issuance of the decision, L&L obtained counsel who filed L&L’s
post-hearing brief and two motions with the judge.  In the first motion,
L&L sought reconsideration of the judge’s earlier ruling denying the
admission of monitoring results for airborne lead that L&L had obtained
from its worksite on the New Jersey side of the Bridge.[1] <#_ftn1>  In
the second motion, L&L sought to reopen the record to introduce
additional evidence, including the New Jersey air monitoring results. 
In his decision, the judge rejected both motions, affirmed all of the
citation items, and assessed the $33,500 proposed penalty.^^[2] <#_ftn2> 

The judge’s decision was directed for review, and the Commission
remanded the case to him to determine whether L&L complied with its
obligation to conduct initial monitoring for lead exposure on the New
York side of the Bridge under 29 C.F.R. § 1926.62(d)(1).  In this
regard, the Commission noted that the judge should determine whether L&L
met the requirements of the “historical monitoring exception” set forth
at 29 C.F.R. § 1926.62(d)(3)(iii) based on L&L’s previous air monitoring
on the New Jersey side of the Bridge.  /L & L Painting Co./, 22 BNA OSHC
1353, 1355 (No. 05-0055, 2008).  The Commission instructed the judge “to
admit the results of the [New Jersey] air monitoring . . . and allow the
parties to introduce any additional evidence regarding the [historical
monitoring] exception . . . .”  /Id./  The Commission also directed the
judge to “allow the parties to make any further arguments regarding
those citation items . . . that are specifically affected by the results
of the New Jersey air monitoring in terms of L&L’s knowledge of the
cited conditions” and “reconsider his decision as to the affected
citation items.”[3] <#_ftn3> /Id./

In his decision on remand, the judge found that L&L failed to establish
the historical monitoring exception and affirmed the serious violation
alleged under Item 2 for L&L’s failure to conduct initial monitoring for
exposure to lead.^^[4] <#_ftn4>  The judge also affirmed the serious
violations alleged under Items 3, 8, 10, and 11, all of which relate to
various hygiene and personal protective equipment provisions of the lead
in construction standard. 

On review now before the Commission are the following issues from the
judge’s decision on remand:  L&L’s challenges to the judge’s credibility
determinations, his finding that L&L failed to establish the historical
monitoring exception, and his affirmance of Items 2, 3, 8, 10, and 11. 
Also at issue is the judge’s affirmance in his initial decision of Items
1a, 1b, 1c, 4, 5, instances a and b, and 15b, the items that were not
addressed in the Commission’s remand order.^^[5] <#_ftn5>  For the
following reasons, we vacate Items 3, 8, 10, and 5, instance b, affirm
Items 1a, 1b, 1c, 4, 5, instance a, 11, and 15b as serious, and assess
the total proposed penalty of $14,000 for the seven affirmed items.
 With regard to Item 2, we affirm the portion of the judge’s decision
with respect to that item but accord it the precedential value of an
unreviewed decision.**

*FACTUAL**BACKGROUND*

In 2001, under a contract with the Port Authority of New York and New
Jersey, L&L began to remove lead-based paint from the Bridge by abrasive
blasting inside containment enclosures.  The Bridge has four large
towers—one north tower and one south tower located on the New York side
of the Bridge, and two identical towers located on the New Jersey side. 
L&L’s work included removing the lead-based paint from the New Jersey
and New York towers, and then repainting them.  In mid-2004, while
finishing up its work on the New Jersey side, L&L started working on the
New York side of the Bridge. 

On July 7, 2004, Regan Branch, an OSHA Industrial Hygienist (“the IH”),
initiated an inspection of the New York side of the Bridge.  She was
accompanied during the inspection by C&E Ventures’ consultant and L&L’s
safety supervisor William LePage, L&L’s site supervisor Declan
Farrington, and L&L’s site foreman John Lawson.  L&L’s worksite
consisted of a containment area surrounding each tower where employees
used abrasive blasting equipment to remove lead-based paint from the
bridge.  The worksite also contained a decontamination unit, an
equipment trailer, and a machine that supplied compressed air to workers
on the bridge.  During the inspection the IH took wipe samples from
various surfaces at the worksite, and she also requested the results of
any area sampling and personal air monitoring for employee lead exposure
that L&L had conducted.  L&L told her that it had conducted no sampling
at its New York worksite, but gave her the results of the sampling it
conducted at the New Jersey worksite. 

The IH testified that upon her September 21, 2004 return to the New York
worksite to conduct air sampling, L&L had completed its work on the
south tower and had begun work on the north tower.  At this time, she
saw five L&L employees breaking down the containment and vacuuming up
debris in the south tower and another L&L employee, identified here as
“J.G.,” vacuuming up debris outside the active north tower containment
and in the area between the north and south towers.  The IH attached a
sampling device to J.G. while he vacuumed debris for almost four and a
half hours.  The IH testified that she also sampled two of L&L’s
blasters and one of its vacuumers, all of whom were working inside the
active north tower containment, and took more wipe samples in the
decontamination area.  

*DISCUSSION*

*A.  Credibility Determinations*

As a threshold matter, we first address L&L’s challenges to the judge’s
credibility determinations and their effect on his disposition of most
of the citation items before him.  At the hearing, the IH and L&L’s
management employees testified regarding the inspection.  In discussing
that testimony in his initial decision, the judge stated that he
“observed the demeanor[] of [safety supervisor] LePage and IH Branch as
they testified” and found LePage “to be a less than reliable witness.” 
He also found L&L’s site foreman Lawson to be unreliable based on his
demeanor.

In his decision on remand, the judge reiterated his credibility findings
regarding Lawson and stated that he had thoroughly considered the
affidavits of safety supervisor LePage and site supervisor Farrington,
submitted by L&L on remand, in light of the “adequate and well
supported” credibility findings he had made in his initial decision.  In
so doing, the judge focused on the two affiants’ assertions that they
were with the IH during her second visit to the worksite and recalled
that she had entered the active containment area despite their warnings
not to do so.  Although the IH did not testify as to whether she entered
the active containment without protective equipment, the judge did not
believe LePage and Farrington because he found it “incredible” that the
IH would enter an active containment where abrasive blasting was taking
place without protective equipment.  He also noted that contrary to the
affiants’ claims, the IH testified that only foreman Lawson was present
on the day of her second visit to the worksite.  For these reasons, the
judge “credit[ed] the testimony of IH Branch over the statements of Mr.
Farrington and Mr. LePage in their affidavits, to the extent there are
conflicts between her testimony and their statements.”

The Commission generally accepts a judge’s credibility finding where it
is based on “the judge’s observation of a witness’ demeanor.”  /Hern
Iron Works, Inc./, 16 BNA OSHC 1206, 1214, 1993 CCH OSHD ¶ 30,046, p.
41,257 (No. 89-433, 1993) (citation omitted).  Such a finding normally
will not be disturbed “because it is the judge ‘who has lived with the
case, heard the witnesses, and observed their demeanor.’ ”  /Hackney,
Inc/., 15 BNA OSHC 1520, 1522,  1992 CCH OSHD ¶ 29,618, p. 40,106 (No.
88-0391, 1992) (citation omitted).  Nonetheless, the judge must explain
his findings and “identify the oral testimony that is conflicting.” 
/P&Z Co./, 6 BNA OSHC 1189, 1192, 1977-78 CCH OSHD ¶ 22,413, p. 22,024
(No. 76-431, 1977) (citations omitted).  The judge may not support his
finding simply “by applying a ‘credible’ or ‘not credible’ rubber stamp
to witnesses’ testimony without explanation.”/  Id.  /Thus, a “wholesale
rejection of unnamed witnesses’ testimony under the color of a
credibility evaluation /without any explanation/ for its rejection is
unacceptable.”  /Id./ (emphasis added).

Here, we find that the judge provided a sufficient basis for his
rejection of LePage’s testimony and affidavit, and Farrington’s
affidavit, where they conflict with the IH’s statements.  The judge made
clear that he was convinced both affiants were not believable because of
their “incredible” assertions.  The judge’s credibility findings are
also entitled to deference because he analyzed the demeanors of the IH,
LePage, and Lawson, “including their facial expressions and body
language,” and found the IH “to be a sincere and credible witness.” 
/E.g/., /Waste Mgmt. of Palm Beach/, 17 BNA OSHC 1308, 1309-10, 1995-97
CCH OSHD ¶ 30,841, p. 42,892 (No. 93-128, 1995) (noting Commission
generally defers to judges’ demeanor-based credibility determinations). 
Accordingly, we find no basis to disturb the judge’s credibility
determinations.

*B.  Citation 1, Item 2 (initial determination)*

 

            Section 29 C.F.R. § 1926.62(d)(1), the standard cited under
this item, provides that “[e]ach employer who has a workplace or
operation covered by this standard shall initially determine if any
employee may be exposed to lead at or above the action level.”  Two
methods of making this determination permitted by the standard are
relevant here:  (1) an employer can monitor employee exposure, or (2) it
can establish the historical monitoring exception by relying on
monitoring results from a previous worksite if conditions were
sufficiently similar to the employer’s current worksite.  29 C.F.R.
§ 1926.62(d)(3)(i),(iii).  Here, the Secretary alleges that L&L violated
the cited provision because it did not conduct initial monitoring to
determine employee J.G.’s lead exposure while he was vacuuming dust and
debris.

            L&L does not dispute that it did not conduct any air
monitoring for lead exposure on the New York side of the Bridge.  It
argued before the judge that it nonetheless complied with the initial
determination requirement at the New York worksite because employee air
monitoring it had conducted on the New Jersey side of the Bridge met the
standard’s historical monitoring exception.  The judge affirmed the
citation item.  He found that L&L’s previous monitoring did not include
the work J.G. was performing and, therefore, did not satisfy the
historical monitoring exception.  

            We turn first to whether L&L has demonstrated that its New
Jersey monitoring satisfies the historical monitoring exception to the
standard’s initial determination requirement.^^[6] <#_ftn6>

*/Historical Monitoring Exception/*

            To establish the exception, L&L must prove that the
workplace conditions at its New Jersey worksite “closely resembl[e] the
processes, type of material, control methods, work practices, and
environmental conditions used and prevailing” at its New York
worksite.^^[7] <#_ftn7>  29 C.F.R. § 1926.62(d)(3)(iii); Lead Exposure
in Construction, 58 Fed. Reg. 26,590, 26,599 (May 4, 1993) (interim
final rule); /see Bianchi Trison Corp./ /v. Chao/, 409 F.3d 196, 203(3d
Cir. 2005) (holding that the judge correctly placed the burden on the
employer to establish it appropriately relied on exception);/Kaspar
Electroplating Corp./, 16 BNA OSHC 1517, 1522, 1991-93CCH OSHD ¶ 30,303,
p. 41,759(No. 90-2866, 1993) (“[T]he party claiming the benefit of an
exception to the requirements of a standard has the burden of proof of
its claim.”).^ We find that L&L has failed to make such a showing. 

            Contrary to L&L’s assertions, the record establishes that
L&L had different job tasks at the two separate Bridge worksites.  Site
supervisor Farrington stated in his affidavit that the work assigned to
L&L’s containment cleanup crew at the New Jersey worksite was not
performed near the active containment and involved only “small amounts”
of airborne lead.  He also indicated that L&L’s monitoring results for
this job classification on the New Jersey side of the Bridge showed
exposure levels below the PEL.  The IH testified that on September 21,
2004, she observed a cloud of dust around J.G.—who was assigned to the
containment cleanup crew—as he vacuumed debris outside the active north
tower containment and in the area between the north and south towers,
and that his measured lead exposure was above the PEL.  According to the
IH, “the New Jersey sampling results did not have sampling conducted for
an employee performing this kind of work.”  The judge expressly credited
the IH’s testimony over Farrington’s statements to the contrary in his
affidavits, a determination we have already declined to disturb. 
Therefore, we find that the IH’s observations of J.G., coupled with
J.G.’s established overexposure, demonstrate that the job tasks J.G.
performed on September 21, 2004, at the New York worksite were not the
same as those performed by the cleanup crew at the New Jersey worksite.

            L&L has also not shown that the monitoring data from the New
Jersey side of the Bridge was obtained under workplace conditions
involving the same type of material or the same environment as that on
the New York side of the Bridge.  In his affidavit, Farrington claimed
that L&L was removing the same original paint on both sides of the
Bridge.  He based his conclusion on the presence of “Mill Scale,” a
substance that forms on steel while it is being fabricated and must be
blasted off before /non-lead/ paint is applied.  Farrington stated that
the presence of Mill Scale confirmed for him “that the [entire] Bridge
had not been blasted to the metal and the original paint coatings had
not been removed prior to L&L’s work.”  He did not consider, however,
that the Bridge could have been repainted at different times and in
different places with any number of coats of /lead/ paint before L&L
began its work on the Bridge in 2004, because using such paint would not
have required the removal of Mill Scale.  Indeed, L&L has provided no
evidence showing either that the Bridge: (1) was never repainted before
2004 or (2) was repainted the same number of times on each side using
the same lead paint.  As for the environmental conditions on both sides
of the Bridge, the sole basis for L&L’s contention that they were the
same is simply the proximity of one worksite to the other; the New York
worksite was located approximately two-thirds of a mile from the New
Jersey worksite.  But we find no basis in this record for concluding
that environmental similarity is established by proximity alone. 
Consequently, we find that L&L has not shown that the two worksites were
sufficiently similar to meet the criteria necessary to establish the
historical monitoring exception.  L&L cannot, therefore, rely on the New
Jersey results to satisfy its obligation to conduct an initial
determination on the New York side of the Bridge.   

            While we agree that L&L has not established the historical
monitoring exception, we are divided as to whether the Secretary has
otherwise established that L&L violated the initial determination
requirement under § 1926.62(d)(1).  To resolve this impasse and permit a
more speedy resolution of this case, we agree to affirm the judge’s
decision with respect to Item 2, but to accord that portion of the
judge’s decision “the precedential value of an unreviewed judge’s
decision.”  29 U.S.C. § 661(e) (official action by the Commission
requires the affirmative vote of at least two members);/Westar Mech.
Inc./, 19 BNA OSHC 1568, 1584, 2001 CCH OSHD ¶ 32,483, p. 50,297 (Nos.
97-0226 & 97-0227, 2001); /see Life Science Products Co./, 6 BNA OSHC
1053, 1977-78 CCH OSHD ¶ 22,313, pp. 26,870-71 (No. 14910, 1977).  The
Commissioners’ separate views follow.

*/Chairman Rogers’ View/*

            I would find that the Secretary did not show that L&L
violated § 1926.62(d)(1)’s initial determination requirement based on
its specific failure to monitor J.G.’s exposure to lead.  To begin with,
§ 1926.62(d)(3)(ii) required L&L only to monitor the employees it
reasonably believed to be the greatest exposed—a group that the
Secretary has not shown would have included J.G. and a failure for which
she did not cite L&L.  Thus, § 1926.62(d)(3)(ii) imposes no obligation
on an employer to monitor /each/ job classification for lead exposure to
comply with the initial determination requirement.  Instead, as OSHA
explained in the preamble to the lead in construction standard, the
initial determination provision “/only requires/ monitoring of a
representative sample of the employees believed to have the highest
exposure levels.”  Lead Exposure in Construction, 58 Fed. Reg. at 26,599
(emphasis added).  Only if the initial determination shows any employee
exposure at or above the action level is an employer required to conduct
monitoring that is representative of the exposure /for all/ exposed
employees as set forth under 29 C.F.R. § 1926.62(d)(4).  /Id./ (emphasis
added).

            Here, OSHA’s monitoring results for the four L&L employees
sampled by the IH on the New York side of the Bridge show that it was
the abrasive blasters who had the greatest lead exposure.^  These
results are consistent with L&L’s New Jersey monitoring results, which
also showed that the abrasive blasters had the greatest lead exposure. 
Indeed, under the lead in construction standard, OSHA has identified
abrasive blasting as a task that poses a high risk of exposure to
employees.  /See A.G. Mazzocchi Inc./, 22 BNA OSHC 1377, 1380, 2004-09
CCH OSHD ¶ 32,988, p. 54,133 (No. 98-1696, 2008) (citing Lead Exposure
in Construction, 58 Fed. Reg. at 26,594-96) (stating that
§ 1926.62(d)(2)(iv) “is based on the Secretary’s finding that certain
tasks related to lead normally expose employees to very high
concentrations of airborne lead”). 

            But the Secretary limited her allegation under this citation
item to L&L’s failure to initially monitor J.G. and only J.G.  At the
hearing, the Secretary’s counsel reiterated that this was the sole basis
for the citation:  “Citation 1, Item 2 deals with [L&L] not doing
initial exposure assessment tests /of a particular employee/ /and, this
employee was [J.G.]/.”  (Emphasis added).  However, L&L would only have
been required to choose J.G. as the employee to initially monitor if he
was representative of employees believed to have the highest exposure
levels.  I find nothing in the record evidence to show that L&L had any
reason to believe the job tasks assigned to J.G. exposed him to greater
levels of airborne lead than the levels experienced by its abrasive
blasters such that it was required by the cited provision to
specifically identify and monitor J.G. in order to comply with the cited
initial determination requirement.  Absent such evidence, the Secretary
cannot prove that L&L’s failure to monitor J.G. alone was a violation of
§ 1926.62(d)(3)(ii).  Accordingly, I would vacate Citation 1, Item 2.

*/Commissioner Attwood’s View/*

I would affirm Citation 1, Item 2.  The Secretary alleges in the
citation that L&L violated the lead standard’s requirement that “[e]ach
employer who has a workplace or operation covered by this standard shall
initially determine if /any/ employee may be exposed to lead at or above
the action level.”  29 C.F.R. § 1926.62(d)(1)(i) (emphasis added).  The
initial-determination provision of the standard is designed to inform an
employer whether any of the standard’s other requirements are applicable
to its worksite, and employee monitoring for the initial
determination “/may/ be limited to a representative sample of the
employees who the employer reasonably believes are exposed to the
greatest airborne concentrations of lead.”  29 C.F.R.
§ 1926.62(d)(3)(ii) (emphasis added). 

In describing this allegation here, the Secretary states in the citation
that L&L did not perform initial monitoring to determine the exposure of
an employee who was vacuuming lead-containing debris.  L&L concedes that
it did not monitor this employee and does not contend that it monitored
a different employee at the New York worksite to satisfy its initial
monitoring obligation.  Indeed, L&L admits that it did not monitor any
employee at the New York worksite.  L&L’s only defense to this citation
item is that it complied with the cited standard by relying on its New
Jersey worksite exposure monitoring under the historical monitoring
exception to the standard’s initial monitoring requirement.  /See/ 29
C.F.R. § 1926.62(d)(3)(iii).  For the reasons described above, the
Commission has determined that L&L failed to establish the elements of
this defense.  As L&L admits that it performed no initial-determination
monitoring of any employee at the New York worksite, its non-compliance
with the cited provision of the lead standard is established. 

My colleague would find that the Secretary did not prove her case with
respect to this citation item because the citation narrows the
allegation to a particular employee whose exposure L&L could not have
believed was representative of the most-exposed employees.  But L&L
monitored no one.  It failed to determine the exposure of the identified
employee who was performing “potentially-high-exposure” work and failed
to determine the exposure of /any/ other employee at this worksite. 
/See/ 58 Fed. Reg. at 26,595.  Accordingly, I would find the Secretary
proved this violation as alleged.

*C.*  *Citation 1, Items 3, 8, 10, and 11 (coveralls, lunchroom,
showers, face/hand washing)*

The requirements of the standards cited under these four citation items
are triggered by employee exposure to lead above the PEL.  Thus, before
considering whether L&L complied with these provisions, we first address
whether the Secretary has shown that employees assigned to the job tasks
identified in these items were, in fact, overexposed and whether L&L
knew or could have known with the exercise of reasonable diligence that
they were overexposed.  /See Contour Erection & Siding Sys., Inc./, 22
BNA OSHC 1072, 1073, 2004-08CCH OSHD ¶ 32,943, p. 53,787 (No. 06-0792,
2007) (citation omitted) (stating to establish a violation, Secretary
must prove that employer “knew or could have known with the exercise of
reasonable diligence of the conditions constituting the violation”). 
According to the Secretary, the lead exposure levels for employees
assigned to perform abrasive blasting (abrasive blasters) and employees
assigned to perform vacuuming (members of the containment cleanup
crew)—the two job tasks identified under these citation items—were shown
by the IH’s sampling results to exceed the PEL, and L&L could have known
of this overexposure had it met its monitoring obligations under the
lead in construction standard.  In affirming these four items in his
decision on remand, the judge simply concluded that L&L had knowledge
that its employees were doing work that had not been previously
monitored.  

On review, L&L challenges the judge’s knowledge determination based
primarily on its contention that it made out the historical monitoring
exception and, therefore, reasonably relied on its monitoring results
from the New Jersey side of the Bridge.  Those results show that only
the abrasive blasters were exposed to lead levels above the PEL; members
of the containment cleanup crew were exposed to lead levels below//the
PEL.  But we have already rejected L&L’s claim that it was entitled to
rely on the New Jersey monitoring results given its failure to show that
the two worksites were sufficiently similar.  And as noted above, it is
undisputed that L&L performed no monitoring at the New York worksite. 
Accordingly, we must consider whether L&L, had it complied with its
monitoring obligations under the standard on the New York side of the
Bridge, would have known that the employees assigned to these two job
tasks were overexposed.  For the reasons discussed below, we find that
the Secretary has established knowledge with respect to Items 8
(lunchroom) and 11 (face/hand washing), but not Items 3 (coveralls) and
10 (showers).

*/Knowledge Based on Compliance with Standard/*

            Although L&L did not conduct air monitoring at the New York
worksite, it does not dispute that it expected the abrasive blasters
working at the active north tower containment would be exposed to lead
at levels above the PEL.  Indeed, this expectation was confirmed by the
IH’s monitoring results, which show that the two abrasive blasters she
sampled at the New York worksite were overexposed.  /See /Lead Exposure
in Construction, 58 Fed. Reg. at 26,594-96 (explaining basis for
presumption in § 1926.62(d)(2)(iv) that lists abrasive blasting as
high-risk task requiring use of interim protections during exposure
assessment).  Thus, we find that if L&L had conducted monitoring at the
New York worksite as required under the lead in construction standard,
it would have known that employees assigned to the job classification of
abrasive blaster were exposed above the PEL. / See/ /S. Scrap Materials
Co./, 23 BNA OSHC 1596, 1624, 2012CCH OSHD ¶ 33,177, p. 55,579(No.
94-3393, 2011) (finding that Respondent would have discovered its
employees were potentially exposed to airborne cadmium above the action
level and the PEL if it had exercised reasonable diligence). 

However, we cannot find that even if L&L had complied with its
monitoring obligations, it would have known that any employee assigned
to the containment cleanup crew would have been overexposed.  The judge
found that J.G. vacuumed debris at two different locations on the day he
was monitored and shown to be overexposed, but the record contains no
evidence regarding whether J.G. had previously performed similar work
under similar conditions at the New York worksite.  In these
circumstances, we cannot find that even if L&L had previously monitored
J.G., it necessarily would have known of his overexposure.

Nor can we find that the monitoring results the IH obtained for J.G. are
representative of the level of exposure L&L would have obtained had it
monitored other employees assigned to the containment cleanup crew at
the New York worksite.  According to the IH, the five containment
cleanup crew employees she observed during the inspection, none of whom
she monitored, experienced the same level of overexposure as J.G., their
fellow crew member, because all six were performing similar tasks.  As
the Commission has held, where direct evidence shows that an unsampled
employee worked in the same location and under the same conditions as an
overexposed, sampled employee, the Secretary can establish overexposure
for the unsampled employee.  /E. Smalis Painting Co. /(“/Smalis/”), 22
BNA OSHC 1553, 1559, 2009 CCH OSHD ¶ 33,030, p. 54,353(No. 94-1979,
2009).  The IH testified that the five containment cleanup crew
employees she observed were working in the /inactive /south tower
containment throughout their eight-hour shift.  But she also testified
that J.G. was working outside the /active /containment at the north
tower and on the platform in between the two towers when she monitored
him.  Thus, although J.G. and the other employees were assigned to the
same job classification, they performed their work in different
locations and under different environmental conditions on the day that
J.G. was found to be exposed above the PEL.  Under these circumstances,
the Secretary has failed to show that J.G.’s overexposure was
representative of the exposure of his fellow containment cleanup crew
members.  /Id. /(rejecting “the judge’s principal reliance on job
classification to establish overexposure”).  Accordingly, the record
lacks any basis for concluding that L&L’s compliance with its monitoring
obligations would necessarily have provided the requisite knowledge of
overexposure with regard to this job classification.

Based on the foregoing conclusions, we find that the Secretary has shown
that L&L had knowledge of overexposure to lead only for the abrasive
blasters.  Thus, we vacate Items 3 (coveralls)[8] <#_ftn8> and 10
(showers), as these items are based on the alleged overexposure of the
containment cleanup crew employees. We now turn to the remaining issues
in dispute under Items 8 and 11.

*/Citation 1, Item 8 (lunchroom)/*

Under this item, the Secretary alleges that L&L violated 29 C.F.R.
§ 1926.62(i)(4)(i) by failing to provide required lunchroom facilities
or eating areas for the abrasive blasters.  In both of his decisions,
the judge found that the Secretary established the alleged violation
based on the IH’s testimony, which he described as indicating that there
was “no set area for employees to have lunch and that they sat on planks
or on the platform itself to eat.”  And he rejected LePage’s testimony
indicating there was “a make-shift table with planks to sit on for
employees to have lunch.”  Based on our review of the record, we vacate
this citation item. 

The gravamen of the Secretary’s charge is that the surfaces of the
planks on which L&L’s employees sat while eating lunch were covered with
measurable amounts of lead, a condition for which L&L was not cited
under this provision.[9] <#_ftn9>  However, the cited standard,
§ 1926.62(i)(4)(i), requires only that an employer “provide lunchroom
facilities or eating areas[.]”  Although the IH claimed that L&L had
provided “no specified [eating] area” even though its safety program
requires one, she also acknowledged observing lunch containers resting
on a plank that Farrington indicated employees sat on while eating
lunch.  Indeed, the IH testified that photographs she took on September
21, 2004, showed employees sitting on these same planks and on the
platform eating lunch, which is consistent with LePage’s testimony that
L&L had set up planks as a make-shift table to function as a lunch area
for employees.  The standard permits an employer to provide an “eating
area” as an alternative to a “lunchroom,” but does not describe its
characteristics.  Nor has the Secretary identified any specific
deficiencies with L&L’s eating area other than its alleged contamination
with lead, which is the subject of a separate citation item addressed
below.  Under these circumstances, we find that the Secretary failed to
establish that the eating area L&L provided its employees did not
satisfy the requirements of the cited provision,
§ 1926.62(i)(4)(i). Accordingly, we vacate Item 8.

*/Citation 1, Item 11 (face/hand washing)/***

Under this item, the Secretary alleges that L&L violated 29 C.F.R.
§ 1926.62(i)(4)(iii) because it failed to assure that employees whose
airborne exposure to lead was above the PEL washed their hands and face
before eating, drinking, or smoking.  Specifically, the IH testified
that she observed employees at lunchtime who, upon leaving the north
tower’s active containment and the south tower, washed only their hands
and had visible dust on their faces while eating.  She testified that
although foreman Lawson observed this conduct, no employees were ever
told to wash their faces.  And the IH stated that based on the sampling
she conducted, all the employees she observed were exposed above the PEL.   

On remand, the judge credited the IH’s testimony and affirmed Item 11. 
He rejected L&L’s claim that “the IH did not identify the employees [she
saw] or show they were exposed to lead above the PEL.”  Instead, the
judge found that the record:  (1) “clearly shows that [J.G. and] the
employees working in the north tower containment were exposed to lead
above the PEL”; and (2) “also shows that the five employees working in
the south tower area were more than likely exposed to lead above the
PEL, as found in Item 10 . . . .”

As noted, L&L does not dispute that the abrasive blasters working inside
the active containment on the New York side of the Bridge were exposed
to lead levels above the PEL.^ And the judge credited the IH’s testimony
that she told Lawson that employees working inside the active
containment ate lunch without first washing their visibly dust-covered
faces.  L&L does not challenge the IH’s testimony on this point.  Under
these circumstances, we find that Lawson had knowledge that the abrasive
blasters were eating without first washing their faces, and that his
knowledge as foreman can be imputed to L&L.  /See Conie Constr. Co./, 16
BNA OSHC 1870, 1872, 1993-95 CCH OSHD ¶ 30,474, p. 42,090(No. 92-0264,
1994) (finding that the foreman’s knowledge of the violative condition
is imputable to the company), /aff’d/, 73 F.3d 382 (D.C. Cir. 1995);
/see also/ /Pride Oil Well Serv./, 15 BNA OSHC 1809, 1814, 1992CCH OSHD
¶ 29,807, p. 40,584 (No. 87-692, 1992) (“The actual or constructive
knowledge of the employer’s foreman or supervisor can be imputed to the
employer.”).  Accordingly, we affirm Item 11.

*D.*  *Citation 1, Items 1a, 1b, 1c, 4, 5, and 15b*

We now turn to Items 1a, 1b, 1c, 4, 5, instances a and b, and 15b.  For
the following reasons, we affirm each of these citation items except
Item 5, instance b, which we vacate.

*/Citation 1, Item 1a (facial hair/respirators)/*

Under this item, the Secretary alleges that L&L violated 29 C.F.R.
§ 1910.134(g)(1)(i)(A), which prohibits employers from “permit[ting]
respirators with tight-fitting facepieces to be worn by employees who
have:  (A) Facial hair that comes between the sealing surface of the
facepiece and the face or that interferes with valve function . . . .” 
The judge affirmed the citation based on the IH’s testimony that during
the September 2004 inspection, she observed five workers with obvious
facial hair wearing tight-fitting half-face respirators and told foreman
Lawson about it, but “nothing was done.”   Having found their testimony
unreliable, the judge discounted claims from both Lawson and LePage that
the IH did not mention these five employees to them, as well as LePage’s
testimony that an L&L policy prohibits an employee who is not clean
shaven from working.  On review, L&L raises—for the first time—the
unpreventable employee misconduct defense with regard to the actions of
the five workers at issue.  In addition, L&L renews its request to
reopen the record, asserting that if these five employees were allowed
to testify they would directly contradict the IH’s testimony.  In
response, the Secretary argues that L&L waived the employee misconduct
defense by not bringing it up at trial, and, in any event, L&L failed to
prove the defense. 

We find that the Secretary has established a violation based on the IH’s
credited testimony about the cited conditions.  In addition, we agree
with the Secretary that L&L waived the unpreventable employee misconduct
affirmative defense because it failed to raise the defense in its answer
as required by Commission Rule 34(b)(3), 29 C.F.R.
§ 2200.34(b)(3).^^[10] <#_ftn10>  Further, we find no support for L&L’s
claim that the defense was tried by consent.  “Consent will be found
only when the parties ‘squarely recognized’ that they were trying an
unpleaded issue.”  /NORDAM Group Inc./, 19 BNA OSHC 1413, 1414-15, 2001
CCH OSHD ¶ 32,365, p. 49,684 (No. 99-0954, 2001), /aff’d/, 37 Fed. App’x
959 (10th Cir. 2002) (unpublished).  Andthere is simply no indication in
the record that the Secretary consented to try the defense.[11] <#_ftn11>

We also find that the judge did not err in declining to reopen the
record.  In making such a determination, the Commission takes “into
account the character of the additional evidence, the effect of opening
the record, and the time the motion was made,” as well as whether
reopening would be “in the interest of fairness and substantial
justice.”  /E.g. Article II Gun Shop, Inc./, 16 BNA OSHC 2035, 2036,
1993-95 CCH OSHD ¶ 30,563, p. 42,299 (No. 91-2146, 1994)
(consolidated).  L&L had ample opportunity here to introduce any
evidence before the judge it believed to be relevant to this citation
item.  Indeed, L&L could have cross-examined the IH at the hearing
regarding her testimony that five of its employees were not clean shaven
and wore tight-fitting respirators, but did not do so.  Accordingly, we
reject L&L’s request for a second chance to present evidence on this
issue and affirm Item 1a. 

*/Citation 1, Item 1b (clean respirators)/*

Under this item, the Secretary alleges that L&L violated 29 C.F.R. §
1910.134(h)(1) by failing “to provide each respirator user with a
respirator that was clean, sanitary, and in good working order.”  The
standard requires the employer to “ensure that respirators are cleaned
and disinfected using the procedures in Appendix B-2 of this section, or
procedures recommended by the respirator manufacturer, provided that
such procedures are of equivalent effectiveness.”  29 C.F.R. §
1910.134(h)(1).  The judge affirmed the citation based on the IH’s
testimony that L&L’s respirators were visibly dirty and had dirty
cartridges, as well as on OSHA’s wipe sample results establishing the
presence of lead on three separate respirators at levels ranging from 76
to 140 mg. 

On review, L&L claims the judge erred in relying on the wipe-sample
results because the IH took the samples before employees “would have
donned their respirators,” and L&L’s unwritten policy required employees
to clean their respirators immediately before wearing them.  However,
based on his credibility determinations, the judge rejected LePage’s
testimony about L&L’s unwritten policy and noted that L&L’s /written/
policy stated respirators “will be cleaned at the end of the workday.” 
Given these findings, which establish that any respirator cleaning would
have been accomplished prior to the start of the workday, and the lead
residue the IH measured on the respirators, we find that L&L failed to
provide respirators that were “clean, sanitary, and in good working
order” in violation of 29 C.F.R. § 1910.134(h)(1).  Accordingly, we
affirm Item 1b.

*/Citation 1, Item 1c (respirator storage)/*

Under this item, the Secretary alleges that L&L allowed its employees to
improperly store their respirators in violation of 29 C.F.R. §
1910.134(h)(2)(i).  This provision requires that “[a]ll respirators
shall be stored to protect them from damage, contamination, dust,
sunlight, extreme temperatures, excessive moisture, and damaging
chemicals, and they shall be packed or stored to prevent deformation of
the facepiece and exhalation valve.”  29 C.F.R. § 1910.134(h)(2)(i). 
The judge affirmed the citation, finding that L&L allowed its workers to
hang their respirators from their belts or from scaffolding for up to
forty-five minutes, and the IH’s unrebutted testimony established that
leaving respirators out in the sun for that long could result in
contamination or deformation.  Finally, he rejected L&L’s argument that
the cited standard did not require respirators to be stored when unused
for brief periods of time.

On review, L&L argues that the judge’s interpretation of the standard is
unreasonable.  We disagree.  Although the standard does not specify any
threshold time period necessary to invoke the standard’s requirements,
the IH’s undisputed testimony was that the respirators were not properly
stored during the 30- to 45-minute lunch break because they were not
“protected from the sun” or were “left on a nail in the shanty.” 
Indeed, one of the express purposes of the standard’s storage
requirement is to provide protection from the sun.  In support of its
contrary view, L&L cites to a document entitled “OSHA Office of Training
and Education, /Respiratory Protection Frequently Asked Questions/ (Nov.
2004).”  But this document actually supports the judge’s conclusion
because it states that the proper way to store a regularly-used
respirator is to protect it “from damage, contamination, dust, sunlight,
[and] extreme temperatures.” 

Thus, we find that the plain language of the standard and the IH’s
undisputed testimony support the Secretary’s claim that the manner in
which L&L employees stored their respirators violated §
1910.134(h)(2)(i).  /See Summit Contractors Inc./, 23 BNA OSHC 1196,
1202, 2010 CCH OSHD ¶ 33,079, p. 54,692 (No. 05-0839, 2010) (“[T]his
reading of the Secretary’s [standard] is consistent with, and
effectuates, the remedial purposes of the Act.”), /aff’d/, 442 F. App’x
570 (D.C. Cir. 2011).  Accordingly, we affirm Item 1c. 

*/Citation 1, Item 4 (protective work clothing)/*

            Under this item, the Secretary alleges that L&L allowed its
employees to use compressed air to remove lead dust from their clothing
in violation of one of the “protective work clothing and equipment”
provisions of the standard, 29 C.F.R. § 1926.62(g)(2)(viii).  This
provision “prohibit[s] the removal of lead from protective clothing or
equipment by blowing, shaking, or any other means which disperses lead
into the air.”  /Id/.  The L&L employees identified in the citation used
compressed air to remove the lead dust from their clothing while inside
the ventilated containment unit.  In affirming the violation, the judge
rejected L&L’s argument that using compressed air to remove lead dust
from clothing was permitted by the housekeeping provision of the
standard, 29 C.F.R. § 1926.62(h)(5), which allows the use of compressed
air to remove lead from any /surface/ when used “in conjunction with a
ventilation system designed to capture the airborne dust created by the
compressed air.”  The judge reasoned that the cleaning and replacement
of protective clothing is the activity specifically addressed by the
cited provision, and the provision L&L relies on, § 1926.62(h)(5),
applies /only/ to housekeeping.  On review, L&L argues that there was no
lead dispersal “into the air” because its employees used compressed air
inside the ventilated containment unit.  The Secretary responds that
“the cited standard absolutely prohibits the use of compressed air to
clean clothing and makes no allowance for the presence or absence of
ventilation.” 

            We agree with the judge that the provision relied upon by
L&L applies only to “housekeeping.”  In contrast, the cited standard
applies to “protective work clothing and equipment.”  And although the
containment in which L&L employees cleaned their clothes with compressed
air was ventilated, the cited provision of the standard prohibits,
without exception, the use of compressed air for “protective clothing.”
 /Caminetti v. U.S./, 242 U.S. 470, 485 (1917) (statutory language
construed according to its plain meaning); /Reich v. Gen. Motors Corp/.,
89 F.3d 313 (6th Cir. 1996) (interpreting OSHA standard based on its
“plain language”).  Accordingly, we affirm Item 4.  *__*

*/Citation 1, Item 5 (housekeeping/clean surfaces)/*

             Under this item, the Secretary alleges that L&L failed to
keep surfaces “as free as practicable of accumulations of lead” in
violation of 29 C.F.R. § 1926.62(h)(1).  The judge affirmed the
violation based on eight wipe sample results showing the presence of
lead on the following surfaces: (1) lockers in the clean side of the
decontamination unit; (2) an outside water cooler; (3) a plank where
employees sat to eat lunch; and (4) a “rag bag” containing rags used by
employees after they washed their hands.  L&L argued before the judge
that the standard is vague, OSHA’s sampling procedures were improper,
and the wipe samples only established a /presence/ of lead and not a
/concentration/, as recognized in a 1993 OSHA Instruction which states
as follows:

In determining whether an employer has maintained surfaces of hygiene
facilities free from contamination, OSHA recommends the use of HUD’s
recommended level for acceptable decontamination of 200 mg/ft^2 for
floors in evaluating cleanliness of change areas, storage facilities,
and lunchrooms/eating areas.  OSHA would not expect that surface levels
should be any cleaner than this level.

OSHA Instruction CPL 02-02-058, p. 16 (Dec. 13, 1993).  With respect to
OSHA’s sampling, the judge found that the IH’s monitoring procedures
were proper.  He also found the OSHA Instruction referenced by L&L
inapplicable to the cited conditions because, in his view, it only
pertains to the cleanliness of floors. 

On review, L&L renews its vagueness argument and its contention that the
Secretary did not evaluate the “/concentration/ of lead . . . in
determining whether [L&L] complied with the [cited] housekeeping
provisions . . . .”  The Secretary counters that the presence of lead
shown by the results of the wipe sampling supports the judge’s
conclusion that the standard was violated, and contends that the OSHA
Instruction pertains only to the standard’s hygiene provision, §
1926.62(i), and not the housekeeping provision at issue here, §
1926.62(h).  She also argues that the cited standard is not irreparably
vague because “L&L knew full well what the standard required, but failed
to live up to that requirement.” 

We agree with the Secretary that the cited standard is not irreparably
vague.  /See Cont’l Oil Co., /11 BNA OSHC 2114, 2117, 1984-85 CCH OSHD ¶
26,993, p. 33,840(No. 79-570-E, 1984) (“The Commission will not declare
a standard unenforceably vague merely because the wording is not exact
or because it requires the employer to exercise some judgment . . . . 
‘So long as the mandate affords a reasonable warning of the proscribed
conduct in light of common understanding and practices, it will pass
constitutional muster.’ ” (citations omitted)).  L&L’s own written
policy required that the worksite be maintained “as free as practical of
accumulation of lead,” which shows that L&L was aware of the
housekeeping requirement and understood its obligation.  /See New
England Tel. & Tel. Co./,11 BNA OSHC 1501, 1506, 1983-84 CCH OSHD ¶
26,535, p. 33,840 (No. 80-6519, 1983) (stating that employer’s “own work
rule shows it had no difficulty understanding the Secretary’s standard”).

But we also agree with L&L that, given the OSHA Instruction,[12]
<#_ftn12> the evidence in this case does not establish a concentration
of lead sufficient to support a violation with regard to six of the
eight wipe samples taken by the IH.^^[13] <#_ftn13>  The eight wipe
samples proffered in support of Item 5, instances a and b, as amended,
were taken by the IH on two different dates—July 7, 2004, and September
21, 2004, respectively.  We find that the evidence is sufficient to
establish the concentration of lead for two of the wipes samples—one
from the locker and one from the plank—both of which are cited under
instance a and showed levels of 1400 mg.  According to the IH, the wipe
sample she took from the plank was from “about an eight by eight square
inch area.”  She explained that sampling “the entire bench” would have
resulted in “the piece of sampling wipe that was used . . . be[ing]
destroyed[, and] [s]o, only a /small area/ was sampled and placed in a
vial and sent to the laboratory for analysis.”  (Emphasis added.)  This
unrebutted testimony establishes a concentration of lead on the plank
that is well beyond the range OSHA has identified in its Instruction as
“free from contamination.”  The IH also described the wipe sample she
took from a locker on the same date as having been taken from a “/small
surface area/.” (Emphasis added.)  Although the IH did not specify the
size of the locker area, we find that her description of the area as
“small” establishes that it, like the sampled area of the plank, was
approximately eight-by-eight square inches, which results in a
concentration well beyond that identified in the OSHA Instruction.  /See
Manganas Painting Co./, 21 BNA OSHC 1964, 1981, 2007 CCH OSHD ¶ 32,908,
p. 53,397 (No. 94-0588, 2007) (“reasonable inferences can be drawn from
circumstantial evidence”). 

In contrast, the record lacks similar evidence about the size of areas
sampled for the remaining six wipe samples.  These comprise three of the
five wipe samples from July that are cited under instance a, and all
three of the wipe samples from September that are the subject of
instance b.  Because we cannot determine the concentration of lead for
these six sample results, we do not rely on them in affirming instance
a, and we vacate instance b in its entirety.

Finally, the evidence shows that it was “practicable” for L&L to have
done more to keep surfaces at this worksite free from lead
accumulation.  At the hearing, safety supervisor LePage acknowledged
that housekeeping is always an issue at a worksite of this size. 
According to LePage, the platform area measured about 180 feet by 120
feet, and the Bridge’s tower was “tremendous.”  But LePage testified
that L&L had assigned only one worker “to clean the job site, top to
bottom,” even though seventy L&L employees were present on this large
worksite at the time of OSHA’s inspection.  Based on this evidence, we
find that it was feasible for L&L to have implemented a “more stringent
housekeeping program” to keep work surfaces free from lead
accumulation.  /Atl. Battery Co./,16 BNA OSHC 2131, 2162,1993-95CCH OSHD
¶ 30,636, p. 42,478 (No. 90-1747, 1994) (assessing whether it was
“practicable” for employer to “implement a more stringent housekeeping
program”).  Indeed, L&L could have reduced the lead accumulation by
assigning more than just one of its seventy employees to perform all of
its housekeeping duties.  /Cf. id. /(vacating citation item alleging
violation of general industry lead standard’s housekeeping provision
based on evidence that employer “devoted a full 20 percent of its
production workforce to the task of complying” with cited provision and
washed lunchroom surfaces twice a day).  L&L also could have provided
lockers on the dirty side of its decontamination unit so that employees
would not have stored their contaminated work clothing and equipment in
a clean-side locker, as shown in a July 7, 2004 photograph.  In fact,
LePage and other L&L representatives who were present when the July 7,
2004 wipe samples were taken, acknowledged that “there was a
housekeeping issue in the locker room, especially because of the debris”
and dirty clothes in the lockers.  Accordingly, we affirm instance a and
vacate instance b.   

*/Citation 1, Item 15b (hazard communication/chemical inventory list)/*

Under this item, the Secretary alleges that L&L violated 29 C.F.R.
§ 1910.1200(e)(1)(i) because there was no complete chemical inventory
list at the New York side of the bridge.  This provision requires that
employers “maintain /at each workplace/, a written hazard communication
program,” which includes “[a] list of the hazardous chemicals known to
be present using an identity that is referenced on the appropriate
material safety data sheet [“MSDS”] . . . .”  29 C.F.R.
§ 1910.1200(e)(1)(i) (emphasis added).  The judge rejected L&L’s
post-hearing request to reopen the record and admit into evidence a
chemical inventory list the company maintained at its main office which,
according to L&L, would establish compliance with the cited provision. 
On review, L&L renews its request to admit this evidence. 

We find that the judge properly denied L&L’s request to reopen the
record.  First, although L&L claims it was precluded from introducing
the chemical inventory list at the hearing, the record reflects that
L&L’s representative tried to introduce the New Jersey air-monitoring
results, but not the chemical inventory list.  Second, even if L&L
proved that it maintained this chemical inventory list at its “main
office,” doing so would not constitute compliance with the cited
standard’s requirement that the list be “maintain[ed] at /each
workplace/,” because the main office was not located at the New York
worksite at issue in this citation.  29 C.F.R. § 1910.1200(e)(1)
(emphasis added); /see Safeway Store No. 914/, 16 BNA OSHC 1504,
1514-15, 1993-95 CCH OSHD ¶ 30,300, p. 41,746-47 (No. 91-373, 1993)
(affirming violation of § 1910.1200(e)(1) for employer’s failure to
include a hazardous chemical present at its site in its hazard
communication program list); /Thomas Lindstrom Co./, 15 BNA OSHC 1353,
1354, 1991-93 CCH OSHD ¶ 29,526, p. 39,853 (90-1084, 1991) (holding that
employer violated standard’s requirement that MSDSs be located “at the
worksite” because MSDSs were kept at central office ten minutes away and
were not, therefore, “ ‘readily accessible’ at the worksite”).  L&L has
made no other arguments with regard to Item 15b.  Accordingly, we affirm
this item.   

*E. Characterization and Penalties*

L&L does not challenge the judge’s serious characterization of any of
the citation items at issue on review, or the penalties he assessed for
Citation 1, Items 1a, 1b, 1c, 4, 5, and 15b.  Therefore, we affirm the
judge on these issues./  See, e.g., KS Energy Servs. Inc./, 22 BNA OSHC
1261, 1268 n.11, 2008 CCH OSHD ¶ 32,958, p. 53,925 n.11 (No. 06-1416,
2008) (affirming judge’s serious characterization and judge’s assessed
penalty amount where parties did not dispute these findings on review). 
L&L argues, however, that the $2,000 penalty the judge assessed for Item
11 should be reduced, and the Secretary urges affirmance of this penalty
amount. 

Section 17(j) of the Act provides that the Commission shall assess an
appropriate penalty for each violation, giving due consideration to the
size of the employer, the gravity of the violation, the good faith of
the employer, and the employer’s history of previous violations.  29
U.S.C. § 666(j).  After considering these factors and L&L’s failure to
provide any basis for reducing the penalty amount assessed by the judge,
we find that the $2,000 penalty assessed by the judge for Item 11 is
appropriate.  /See ConAgra Flour Milling Co./, 15 BNA OSHC 1817,
1826-27, 1992 CCH OSHD ¶ 29,808, p. 40,597 (No. 88-2572, 1992) (finding
no reason to amend the judge’s assessment after considering the penalty
factors and the parties lack of argument on this question).

*ORDER*

            We affirm Citation 1, Items 1a through 1c, 4, 5, instance a,
11, and 15b, and characterize the violations as serious.  We vacate
Items 1d, 3, 5, instance b, 8, 10, and 15a.  We assess a total penalty
of $14,000, as follows:  Items 1a through 1c - $3,500; Item 4 - $3,500;
Item 5, instance a - $3,500; Item 11 - $2,000; and Item 15b - $1,500. 
As discussed above with respect to Citation 1, Item 2, we affirm the
judge’s decision as to that item, including his assessment of a $2,000
penalty, but accord these portions of his decision the precedential
value of an unreviewed judge’s decision.

SO ORDERED.

 

 

__/s/_______________________________

Thomasina V. Rogers

Chairman

                                               

 

 

__/s/______________________________ _

Cynthia L. Attwood

Dated:              June 28,
2012                                                 Commissioner



 


* *

*                                     *

*
*

*United States of America*

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

*                                  1120 20th Street, N.W., Ninth Floor*

*                                        Washington, DC 20036-3457*

* *

* *

SECRETARY OF LABOR,                         

	

 

                         Complainant,

	

 

 

	

 

         v.

	

 

 

	

OSHRC DOCKET NO. 05-0055

L & L PAINTING CO., INC.,

	

 

 

	

 

                        Respondent

	

 

 

	

 

 

 

 

Before:            Chief Judge Irving Sommer

 

 

                                           */_DECISION AND ORDER ON
REMAND_/*

 

This matter is before me as a result of the Commission=s remand order
dated September 29, 2008. The issue to determine is whether Respondent
has proved that it met the historical monitoring exception to OSHA=s
lead in construction standard, such that it was not required to monitor
employee exposure to lead at its work site. I find that Respondent has
not met its burden of proof.

                                                          */_Procedural
Background_/*


My decision in this case was issued on May 4, 2006. That decision
addressed numerous citation items issued to Respondent, L & L Painting
Co., Inc. (AL&L@), stemming from its work on a project involving the
removal of lead paint from the towers on the New York side of the George
Washington Bridge.[14] <#_ftn14> At the hearing in this matter, L&L
attempted to introduce the results of air monitoring for employee
exposure to lead that it had conducted on the New Jersey side of the
bridge. L&L sought to introduce the results as relevant to establishing
a defense of several of the violations alleged under OSHA=s lead in
construction standard, relating to the New York side of the bridge. I
declined to admit the results, finding them irrelevant to the cited
conditions on the New York side of the bridge. All of the citation items
were affirmed. The Commission disagreed with my decision to not admit
the monitoring results and remanded this matter to me.

In its remand order, the Commission found the New Jersey results were
relevant to L&L=s claim that it could have established the Ahistorical
monitoring@ exception to the initial monitoring requirement of the
standard. The Commission stated that if L&L had had the opportunity to
present evidence as to why it met the Ahistorical monitoring@ exception,
it would have had the burden to show that the Aprocesses, type of
material, control methods, work practices, and environmental conditions@
used on the New Jersey side Aclosely resemble[d]@ those on the New York
side. /See Bianchi Trison Corp. v. Chao/, 409 F.3d 196, 207 (3d Cir.
2005). The Commission accordingly remanded this matter to me to admit
the air monitoring results and to Aallow the parties to introduce any
additional evidence regarding the exception to the initial monitoring
requirement at issue here.@ The Commission also remanded this matter to
Aallow the parties to make any further arguments regarding those
citation items alleged under the [standard] that are specifically
affected by the results of the New Jersey air monitoring in terms of
L&L=s knowledge of the cited conditions.@

Upon receiving the remand, I issued an order on October 2, 2008, and
admitted the New Jersey monitoring results. I advised the parties that
they would be allowed to submit further evidence regarding the
above-noted exception and to make further arguments as to the citations
issued under the standard that were specifically affected by the
monitoring results. I also directed the parties to inform me of any
evidence and arguments they wished to submit and if they required a
hearing to present additional evidence. On February, 10, 2009, after
receiving the parties= filings, I issued another order, stating that
this matter would proceed upon written submissions without a hearing. On
April 30, 2009, L&L submitted its brief on remand, which included, among
other things, the New Jersey monitoring results, affidavits of L&L=s
safety supervisor and site supervisor, and the cover page of L&L=s
contract in regard to the lead-removal project. On May 14, 2009, the
Secretary submitted her brief in this matter.[15] <#_ftn15> On June 12,
2009, L&L filed a reply.


                                                            */_The OSHA
Inspection_/*

As set out in my initial decision, Reagan Branch, the OSHA industrial
hygienist (AIH@) who inspected the site, went to the site on July 7,
2004. She testified that each side of the bridge had two towers that had
to be repainted, that there was scaffolding around the towers on the New
York side of the bridge, and that the towers were covered with tarp for
the blasting work. She also testified that there was a decontamination
unit at the site, as well as an equipment trailer and a machine that
supplied compressed air to the workers on the bridge, and that there was
more equipment up on the bridge. Upon arriving, IH Branch met with
Declan Farrington, L&L=s site supervisor, John Lawson, L&L=s site
foreman, and William LePage, a consultant with C&E Ventures and L&L=s
safety supervisor at the site. The IH conducted a walk-around inspection
on July 7, 2004, with Messrs. Farrington, Lawson and LePage, and she saw
conditions that violated the lead standard and L&L=s own lead program.
In particular, the IH saw that there were no lockers on the dirty side
of the decontamination unit and that it appeared employees were putting
their contaminated work clothes and equipment in the lockers on the
clean side along with their street clothes. She took wipe samples of a
locker handle and the inside of a locker, and the analysis results of
her samples showed the presence of 1400 and 1700 _gs of lead,
respectively. The IH also saw planks up on the bridge platform, and Mr.
Farrington indicated employees sat on the planks to eat their lunch; the
IH took a wipe sample of one of the planks, where lunch containers were
being stored, and the analysis of that sample showed the presence of
1400 _gs of lead. After her initial visit, IH Branch requested employee
sampling or monitoring results from L&L, to determine the lead exposures
of employees at the site. She was told no sampling had been done at the
New York site, but L&L later sent her sampling results from the New
Jersey site. (Tr. 16-17, 21-26, 49, 65-74, 83-92, 166-69).


On September 21, 2004, IH Branch returned to the New York site to do her
own employee sampling.[16] <#_ftn16> By that time, work on the south
tower at the site was completed and five employees were breaking down
the containment and vacuuming up debris in that area. Another employee
was vacuuming up debris outside the north tower containment and in
between the two containment areas. The north tower containment was still
active, with abrasive blasting going on. The employees doing the
vacuuming and cleanup work were using portable vacuums that were not
equipped with HEPA filters.[17] <#_ftn17> They emptied the vacuum
contents into 5-gallon containers, which they then emptied into a larger
pile; the larger pile was cleaned up by a containment vacuum, which had
greater suction.[18] <#_ftn18> The IH noted there was no wetting down of
surfaces and that the work created clouds of dust. She sampled the
employee who was vacuuming outside the active containment, and the
analysis results of that sampling revealed his exposure to lead was over
three times the PEL.[19] <#_ftn19> She also sampled three employees who
were working inside the north tower containment; two were doing blasting
work, one was doing vacuuming, and their exposures were 287, 224 and 170
times the PEL, respectively.[20] <#_ftn20> The IH testified that the
vacuuming being done in the south tower area and outside of the north
tower containment was of concern as the New Jersey sampling results did
not indicate that L&L had done any sampling or monitoring of such work.
(Tr. 18-19, 29-34, 49-59, 75-79, 190-92).


The IH saw other conditions on September 21 that violated the lead
standard. For example, she saw visibly dirty respirators and respirators
being improperly stored. She also saw employees wearing regular clothes
instead of protective coveralls, employees leaving the site without
going into the decontamination unit, and employees leaving the active
containment and not washing up properly before smoking or having lunch.
The IH held a closing conference on September 22, 2004, at which time
she discussed with L&L the violations she had seen. (Tr. 36-46, 58-60,
81-83, 95-101).

                                                              */_The
Initial Decision_/*

My initial decision addressed in detail all of the citation items issued
in this case. Items 1 through 12 of the citation alleged violations of
the lead in construction standard, while Items 13 through 15 alleged 
violations of OSHA=s fire extinguisher, flexible cord and hazard
communication requirements. All 15 items were affirmed, based on the
evidence adduced at the hearing and my credibility findings in regard to
the witnesses who testified. My credibility findings were based on
observing the demeanor of the witnesses as they testified and on certain
statements of specific witnesses who were determined to be not credible
in light of other evidence in the record. In particular, I found IH
Branch to be a sincere and believable witness and Messrs. Lawson and
LePage to be less than reliable. I thus credited her testimony over that
of Messrs. Lawson and LePage.

            */_The Standard Requiring Exposure Monitoring and the
Exception to the Standard_/*

(d) /Exposure assessment/B(1) /General/. (i) Each employer who has a
workplace or operation covered by this standard shall initially
determine if any employee may be exposed to lead at or above the action
level. (ii) For the purposes of paragraph (d) of this section, employee
exposure is that exposure which would occur if the employee were not
wearing a respirator. (iii) With the exception of monitoring under
paragraph (d)(3), where monitoring is required under this section, the
employer shall collect personal samples representative of a full shift
including at least one sample for each job classification in each work
area either for each shift or for the shift with the highest exposure
level. (iv) Full shift personal samples shall be representative of the
monitored employee=s regular, daily exposure to lead.

(d)(3)(iii) Where the employer has previously monitored for lead
exposures, 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 paragraphs (d)(3)(i) and (d)(6) of this
section if the sampling and analytical methods meet the accuracy and
confidence levels of paragraph (d)(10) of this section.

 


                                                            */_The
Parties_/**/_= Positions_/*

There is no dispute that L&L did not conduct sampling or monitoring of
employee exposure to lead on the New York side of the project. There is
likewise no dispute that the citation items affected by the now-admitted
sampling results from the New Jersey side of the project are Items 2, 3,
8, 10 and 11. Respondent contends the New Jersey sampling results,
together with other evidence it has submitted, such as the affidavits of
Mr. Farrington and Mr. LePage, establish that it meets the Ahistorical
monitoring@ exception to the exposure assessment requirement of the lead
standard. The Secretary contends the New Jersey results change nothing,
as they did not include monitoring of work or conditions closely
resembling those on the New York side of the bridge. The Secretary also
indicates that Respondent=s reliance on the affidavits it has submitted
is misplaced, as the credibility of the affiants, who testified at the
hearing, has already been determined.

                                                                  
*/_The Affidavits_/*

As noted above, Mr. Farrington was L&L=s supervisor at the site, and Mr.
LePage, a consultant with C&E Ventures, was L&L=s safety supervisor at
the site. The affidavits of Messrs. Farrington and LePage set out their
qualifications, training and experience. They also contain much of the
same information.[21] <#_ftn21> In summary, and taken together, the
affidavits state that the New Jersey and New York sites were simply two
parts of the same project, as indicated on the cover page of the
contract with the Port Authority of New York and New Jersey. The sites
were two-thirds of a mile apart, and the same lead-removal and painting
work was done at both sites and in the same way; the same tools and
equipment and many of the same employees were utilized at both sites,
and the work site conditions, tasks, practices and training were also
the same. The affidavits further state that Messrs. Farrington and
LePage worked at both sites throughout the project and were present at
one site or the other on most workdays. Mr. LePage oversaw all safety
and health aspects of the work, utilizing L&L=s safety and health
program and his own expertise, and he and Mr. Farrington, who oversaw
the entire project and supervised all aspects of the job, worked closely
together and consulted with each other often as to safety and health on
the job. Mr. LePage also worked closely with Port Authority
representatives, who likewise monitored and supervised the job.


As to the actual work on the project, the paint removal and painting was
done on the New Jersey side first. That work was completed around
mid-2004, after which work began on the New York side. On each side,
before any removal work began, a subcontractor constructed containment
support systems around the towers and provided platforms for those
systems and protective shielding for the roadway. L&L itself put up
containment areas around the parts of the towers to be painted. L&L=s
containment/cleanup crew (Acleanup crew@) did this work, using plywood,
tarps and fasteners. Once the containment areas were finished, L&L
employees performed abrasive blasting inside the containment areas,
where mechanical ventilation systems were in place. Once the blasting
was finished in a containment, L&L blasters and vacuumers cleaned the
area of debris and dust so that paint could be applied. After the area
was painted, Mr. LePage and a Port Authority representative inspected
the area to ensure it was safe so that the containment could be taken
apart and removed. L&L=s cleanup crew then took apart the containment
and did residual cleaning. As this work occurred, blasting would be
going on in another containment but not in the same vicinity.

The affidavits indicate there were two categories of L&L employees,
/i.e./, those that worked in or near an active containment and those
that worked in the cleanup crew. Those that worked inside an active
containment included blasters, vacuumers and sprayers. Blasters and
vacuumers had the highest lead exposures as they worked in close
proximity to pulverized lead and were not in the open air. Blasters and
vacuumers were required to wear abrasive blasting hoods, which provide
the highest level of respiratory protection. Sprayers also had to wear
respiratory protection, but as their work was done after blasting and
cleaning was performed, they were not required to wear the blasting
hoods. Vacuumers worked almost entirely inside the active containment.
They vacuumed up the used abrasive as the paint was blasted off the
tower surfaces, and, on this project, they used large long-range 3-inch
corrugated hoses that connected through piping to a very large vacuum
that sat at the base of the bridge. The abrasive was sucked through the
hoses and collected at the bottom of the towers, in sealed lead-waste
containers. On rare occasions a vacuumer might step outside of an active
containment and use a 3-inch hose to clean the area just outside the
containment.


The second category of employees, the cleanup crew, worked only at the
site of a dormant containment, after the blasting and painting were
completed, and their work was done almost entirely in the open air. The
cleanup crew were required to wear half-face negative pressure
respirators with protection for up to 500 _g/m; of lead, due to the
residual dust and debris that resulted when the containment was broken
down. The cleanup crew used small hand-held HEPA vacuums to clean up
this residue. The vacuuming work was a minor aspect of the overall work
of the crew and was done on an intermittent basis and for short
durations. The crew=s work did not involve large piles of
lead-containing debris, and L&L had no position dedicated to vacuuming
outside of a containment.[22] <#_ftn22>

Mr. LePage was responsible for ensuring that L&L=s lead heath and safety
program was implemented at the site. That program covered, among other
things, monitoring employee exposure to lead and ensuring the use of
proper protective clothing and equipment and proper personal hygiene
practices. The monitoring program applied to both sides of the project,
and Mr. LePage considered the monitoring results from the New Jersey
side representative of the exposures on the New York side since the work
and conditions on both sides were virtually identical.[23] <#_ftn23> Mr.
LePage administered the exposure sampling himself and sent all the
sampling materials to the same accredited laboratory. When the results
were received, he reviewed them and then prepared the reports that went
to L&L. The reports included the job and location of the work,
engineering controls used, respirator type required with maximum
exposure  limits, and the duration of the sampling and the exposure
results (both actual and as an eight-hour time-weighted average
(ATWA@)). When IH Branch asked for monitoring results during her
inspection, the results from the New Jersey side were  provided to her.


Mr. LePage was also responsible for identifying the work described in
the Ajob classification@  space on the reports; he chose the terms used
not to describe all aspects of the work but as descriptive of the major
aspect of the work. For example, full-shift sampling done of cleanup
crew work was described as Aremoving contaminated tarps@ but included
other tasks performed, such as vacuuming. Testing of this work from May
to August 2004 at the New Jersey site showed worker exposure to lead to
be below the PEL based on an eight-hour TWA. In particular, test results
for five employees performing this work ranged from 20.8 to 28 _g/m; of
lead.[24] <#_ftn24> Sampling of work performed inside the containment
areas showed much higher lead exposure levels, as expected.
Specifically, test results for four employees doing blasting and
vacuuming inside a containment on the New Jersey side from March to May
2004 were all well over the PEL, ranging from 383 to 1,186 _g/m; of lead
based on an eight-hour TWA. Mr. LePage intended this monitoring to be
relied upon for employees working in the same job and performing
generally the same tasks during the course of the project, including
when the work moved from New Jersey to New York.

As an example of a circumstance where testing was done because a task
had changed, a member of the cleanup crew performed vacuuming for a full
day on May 27, 2004. The reason was a flood situation that had caused
lead-containing debris to collect at the base of one of the New Jersey
towers; the debris became disturbed, mixed with water and then dried.
The cleanup crew member performed the job of vacuuming and removing the
accumulated debris, which had become matted down. His exposure results
were very low, that is, 1.1 _g/m; of lead.


The affiants state that paint removal work on the south tower on the New
York side began  in July 2004 and that on September 21, 2004, when the
IH returned to the site, work on the south tower was completed and the
cleanup crew=s work was in progress there. The north tower was  active,
with abrasive blasting going on at that time. The affiants also state
that AJ.G.,@ the employee the IH claimed she saw vacuuming outside the
active containment, was performing the ordinary tasks  at the south
tower that the cleanup crew did whenever they broke down a dormant
containment. According to the affiants, there was no plausible reason
for J.G. to have been working at the north tower, since cleanup crew
members do not work near an active containment. The affiants claim that
the IH=s description of what J.G. was doing, that is, vacuuming up dust
and debris, emptying the contents into a 5-gallon bucket and then
emptying the bucket into a pile to be collected with the containment
vacuum, do not comport with the tasks of anyone on the job. They also
claim that there were no circumstances where J.G. would have worked at
or near a Apile@ of debris or in Aclouds@ of dust. The affiants note
that Photograph 13 of C-12, which the IH testified depicted the area of
J.G.=s work, shows a pile of dust and the 3-inch corrugated hoses. They
also note that the photo cannot be of J.G.=s work area as he was working
at the dormant south tower that day. The affiants conclude the photo
actually depicts the inside of the north tower=s active containment
since it shows unpainted and rusted surfaces (which would be the
condition of an active containment and not the south tower, which was
newly painted) and a large pile of debris (which would be in an active
containment but not in an inactive one). Farrington Affidavit, pp. 3,
13-15; LePage Affidavit, p. 12.

Both affiants state that they were with the IH on September 21, 2004.
They recall that, upon approaching the active containment at the north
tower, the IH wanted to enter it. Both affiants advised her not to do so
because, without wearing the necessary protection, it was dangerous. The
IH, however, disregarded their warnings and entered the active
containment. The IH was in the containment for a short time, after which
she rejoined the affiants outside. The affiants conclude that the IH=s
observations more closely resemble the work of a vacuumer than that of a
member of the cleanup crew. Farrington Affidavit, p.15; LePage
Affidavit, p. 12.

                                                                    
*/_Discussion_/*

It is clear from the affidavits that a significant number of the
statements of Mr. Farrington and Mr. LePage conflict with the IH=s
testimony. In my initial decision, as noted above, I credited the
testimony of the IH over that of Mr. Lawson and Mr. LePage. My
credibility findings were based on observing the demeanor of these
witnesses, including their facial expressions and body language, and on
certain statements of Mr. Lawson and Mr. LePage that were determined to
be not credible in light of other evidence in the record. /See, e.g./,
Decision, pp. 5, 7-8, 11, 16-19, 21-22. In its reply, L&L disputes my
credibility findings, especially as to Mr. LePage.[25] <#_ftn25> I have
reviewed the credibility findings in my decision and conclude that they
are adequate and well supported. I have considered L&L=s assertions in
this regard, but I do not find them persuasive. The credibility findings
set out in the initial decision are, therefore, affirmed.


Even assuming for the sake of argument that my credibility findings were
somehow inadequate or incorrect, there is one overriding reason to find
that both of the affiants here are not believable. That reason is the
one appearing on the last page of each affidavit, where the affiants
both describe being with the IH on September 21, 2004, when she decided
to enter the active containment against their advice. Farrington
Affidavit, p. 15, & 71; LePage Affidavit, p. 12, & 53. I find it
incredible that IH Branch, an OSHA industrial hygienist with extensive
education, training and experience, would enter an active containment,
where abrasive blasting work was taking place, without any protective
equipment.[26] <#_ftn26> That the affiants would made such a statement
convinces me of the unreliability of Mr. Farrington and Mr. LePage.
Also, the IH specifically testified that only Mr. Lawson was with her on
September 21, 2004, which is further evidence of the unreliability of
the affiants. (Tr. 131). For this reason, and because of the credibility
findings in my initial decision, I credit the testimony of IH Branch
over the statements of Mr. Farrington and Mr. LePage in their
affidavits, to the extent there are conflicts between her testimony and
their statements.[27] <#_ftn27>


Based on the foregoing, I credit all of the testimony of IH Branch set
out on pages 3 through 5 of this decision. In light of the testimony
concerning what the IH observed on September 21, 2004, I find that J.G.,
the cleanup crew member the IH sampled, was performing work that L&L had
not monitored previously. In particular, J.G. was vacuuming up debris
outside the north tower containment, where abrasive blasting was going
on, and in between the south and north tower containment areas. Five
other employees were breaking down the south tower containment and
vacuuming up debris in that area. All six employees doing the vacuuming
and cleanup work were using portable vacuums that were not equipped with
HEPA filters. They emptied the vacuum contents into 5-gallon containers,
which they then emptied into a larger pile; the larger pile was cleaned
up by a containment vacuum, which had greater suction. There was no
wetting down of surfaces, and the work created clouds of dust. The IH
sampled J.G., the employee who was vacuuming outside of the active
containment, and the analysis results of that sampling revealed his
exposure to lead was over three times the PEL. Although the IH did not
sample the five employees working in the south tower area, she found
them to also be of concern because they were doing the same vacuuming
and cleanup work that J.G. was performing.[28] <#_ftn28> Given that L&L
had not previously monitored this work, which exposed an employee to
three times the PEL for lead, L&L has not met its burden of proving that
it satisfied the Ahistorical monitoring@ exception to the standard.

                                                                        
/_Item 2_/

This item alleged a violation 29 C.F.R. 1926.62(d)(1), which is set out
above. The foregoing discussion establishes that L&L violated this
standard by not monitoring J.G., the cleanup crew employee the IH
sampled and determined was exposed to lead over three times the PEL. It
also  establishes that this employee did vacuuming work for nearly 4.5
hours. The other five cleanup crew employees were doing the same
vacuuming and cleanup work in the south tower area. Based on the
evidence of record, L&L knew or should have known that employees were
doing work that had not been previously monitored and that they could
have been exposed to lead over the action level of the standard.[29]
<#_ftn29> This is true in light of the affiants= statements that they
oversaw the project and were on the job most workdays. It is also true
since Mr. LePage was responsible for implementing L&L=s lead health and
safety program at the site. Farrington Affidavit, && 4-5; LePage
Affidavit, && 8-15. The Secretary proves knowledge by showing the
employer either knew or could have known with the exercise of reasonable
diligence of the cited condition. /Astra Pharmaceutical Prod., Inc./, 9
BNA OSHC 2126, 2129 (No. 78-6248, 1981). I find the Secretary has met
her burden of proving L&L=s knowledge of this citation item. For this
reason and those set out in my initial decision, this item is affirmed
as a serious violation, and the proposed penalty of $2,000.00 is assessed.

                                                                        
/_Item 3_/


This item alleged a violation of 29 C.F.R. 1926.62(g)(1)(i), which
requires the employer, when an employee is exposed to lead over the PEL,
to provide coveralls or similar full-body work clothing. The foregoing
discussion shows that J.G. was exposed to lead over the PEL, and my
initial decision, on pages 11 and 12, establishes that J.G. and the
other employees doing the same work in the south tower area wore regular
clothing such as jeans and shirts rather than coveralls. My initial
decision and the discussion relating to Item 2, /supra/, demonstrates
that L&L knew or could have known with the exercise of reasonable
diligence of the violative condition. Item 3 is affirmed as a serious
violation, and the proposed penalty of $2,000.00 is assessed.

                                                                        
/_Item 8_/

Item 8 alleged a violation of 29 C.F.R. 1926.62(i)(4)(i), which requires
the employer to provide lunchroom facilities or eating areas for
employees exposed to lead above the PEL. My initial decision, on pages
16 and 17, establishes employees stored their lunch containers and ate
lunch on planks located in between the north and south containment areas
where work was taking place on September 21, 2004. It also establishes
that the IH took a sample from one of the planks and that the sampling
results showed the presence of 1400 _gs of lead. L&L asserts that the IH
never identified which employees she saw having lunch or showed that
they were exposed to lead above the PEL. L&L=s Brief, p. 23. I disagree.
Footnote 5, /supra/, sets out the IH=s testimony about C-3, page 2, her
sketch of the platform where the cleanup and vacuuming work was taking
place on September 21, 2004; the IH indicated that the area where the
employees ate lunch was in between the north and south tower areas. The
record, as set out above, shows that J.G. was exposed to lead over the
PEL, as were the employees who were working in the active north tower.
These employees, and those working in the south tower area, presumably
all had lunch in the area the IH saw, even though she did not
specifically identify those she saw eating lunch. L&L=s assertion is
rejected. For the reasons in my initial decision and those set out
above, I find that L&L knew or could have known with the exercise of
reasonable diligence of the cited condition. This item is affirmed as a
serious violation, and the proposed penalty of $2,000.00 is assessed.

                                                                       
/_Item 10_/


Item 10 alleged a violation of 29 C.F.R. 1926.62(i)(3)(ii), which
requires the employer to assure, where shower facilities are available,
that employees shower at the end of the work shift and to provide an
adequate supply of cleansing agents and towels for affected employee
use.[30] <#_ftn30> My initial decision, on pages 18 and 19, shows that
the five employees who were working in the south tower area left the
site without going into the decontamination unit. L&L asserts that since
the IH did not identify the five employees, and did not show they were
exposed to lead above the PEL, the alleged violation has not been
established. L&L=s Brief, p. 23. I disagree. Footnote 24, on page 18 of
my initial decision, demonstrates the IH was referring to the five
employees who were working in the south tower area, and she named those
employees, except one, in the evidence set out on page 7 of my initial
decision. Also, even though the IH did not sample those employees, it is
clear from her testimony, and I find, that those employees were more
than likely exposed to lead above the PEL because they were doing the
same vacuuming and cleanup work that J.G. was doing. L&L=s assertion is
rejected. For the reasons in my initial decision and those set out above
as to knowledge, I find that L&L knew or with the exercise of reasonable
diligence could have known of the cited condition. Item 10 is affirmed
as a serious violation, and the proposed penalty of $2,000.00 is assessed.

                                                                       
/_Item 11_/

This item alleged a violation of 29 C.F.R. 1926.62(i)(4)(iii), which
requires the employer to assure that employees exposed to lead above the
PEL wash their hands and faces before eating, drinking or smoking. My
initial decision establishes, on pages 19 and 20, that employees leaving
both the south tower and north tower containment areas washed their
hands but not their faces before having lunch. The IH testified that
there was visible dust on the employees= faces, which exposed them to
lead ingestion upon eating. L&L asserts the IH did not identify the
employees or show they were exposed to lead above the PEL.  L&L=s Brief,
p. 24. I disagree. The record in this case clearly shows that the
employees working in the north tower containment were exposed to lead
above the PEL, as was J.G.[31] <#_ftn31> It also shows that the five
employees working in the south tower area were more than likely exposed
to lead above the PEL, as found in Item 10, /supra/. L&L=s assertion is
rejected. For the reasons in my initial decision, and for those relating
to knowledge set out above, I find that L&L knew or could have known
with the exercise of reasonable diligence of the cited condition. Item
11 is affirmed as a serious violation, and the proposed penalty of
$2,000.00 is assessed.

 

 

 


                                                                      
*/_ORDER_/*

Based upon the foregoing findings of fact and conclusions of law, it is
ORDERED that:

1. Items 2, 3, 8, 10 and 11 of Serious Citation 1 are AFFIRMED, and a
penalty of $2,000.00 is assessed for each of these items.

 

 

/s/

Irving Sommer

Chief Judge

 

Date:   November 23, 2009

Washington, D.C.

 


------------------------------------------------------------------------

[1] <#_ftnref1> OSHA conducted an inspection of the New Jersey worksite
that resulted in the issuance of a separate citation to L&L, which the
company also contested.  The Commission issued a decision in that case
on September 29, 2008.  /L & L Painting Co./, 22 BNA OSHC 1346, 2004-09
CCH OSHD ¶ 32,978 (No. 05-0050, 2008).

[2] <#_ftnref2>Prior to the hearing, the judge granted the Secretary’s
motion to amend her complaint.  Items 1 through 4, 6, 7, and 10 through
15 were amended to change the date the alleged violations were observed
from July 7, 2004, to September 21, 2004.  Item 5 was amended to
comprise two instances, a and b, for conditions observed on July 7,
2004, and September 21, 2004, respectively.

[3] <#_ftnref3> In its remand order, the Commission declined to address
“any of the other arguments raised by the parties[,]” which included six
particular citation items encompassed by the Commission’s direction for
review.  /L & L Painting Co./, 22 BNA OSHC//at 1355 n.4.  These six
items remain at issue and are addressed below.

 

[4] <#_ftnref4>Along with its brief to the judge on remand, L&L
submitted:  (1) the New Jersey air monitoring results; (2) the cover
page of L&L’s contract for the Bridge lead-removal project; and (3) the
affidavits of William LePage, a consultant with C&E Ventures and L&L’s
safety supervisor, and Declan Farrington, L&L’s site supervisor.  The
Secretary submitted a letter, which outlined the judge’s prior
credibility determinations, and the November 16, 2007 brief she filed
with the Commission following the direction for review of the judge’s
first decision. 

[5] <#_ftnref5>Because L&L does not address Item 12 in any of the briefs
it has filed before the Commission, we treat this item as abandoned. 
/See Midwest Masonry Inc./, 19 BNA OSHC 1540, 1543 n.5,  2001 CCH OSHD ¶
32,428, p. 49,994 n.5 (No. 00-0322, 2001) (arguments not raised in
briefs before Commission are generally deemed abandoned);/S&S Diving
Co./, 8 BNA OSHC 2041, 2042, 1980 CCH OSHD ¶ 24,742, p. 30,464 (No.
77-4234, 1980) (same).

In addition, as the Secretary conceded in her 2006 briefs to the
Commission that Items 1d and 15a are duplicative of other citation
items, we vacate both of these items without discussion.  Finally, we do
not disturb the judge’s affirmance of Items 6, 7, 9, 13, 14, and 15c,
which L&L has not challenged at any point on review. 

[6] <#_ftnref6>There is no dispute on review that each side of the
Bridge was a separate worksite such that the requirement to perform an
initial determination was triggered anew when L&L shifted its work
operations to the New York side of the Bridge.

[7] <#_ftnref7>Section 1926.62(d)(3)(iii) states: 

Where the employer has previously monitored for lead exposures, 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 paragraphs (d)(3)(i) and (d)(6) of this section if the
sampling and analytical methods meet the accuracy and confidence levels
of paragraph (d)([9]) of this section. 

29 C.F.R. § 1926.62(d)(3)(iii). 

[8] <#_ftnref8>Although § 1926.62(d)(2) prescribes that coveralls are
required as an interim protection pending an exposure assessment for
employees engaged in particular work activities, the Secretary’s brief
only referenced this provision in very general terms, and she made no
effort to apply it to the specific circumstances at issue here. 
Accordingly, we do not address it.

[9] <#_ftnref9>Keeping an eating area free from lead contamination is an
obligation that arises under 29 C.F.R. § 1926.62(i)(4)(ii).  That
standard requires an employer to “assure that lunchroom facilities or
eating areas are as free as practicable from lead contamination and are
readily accessible to employees.”

[10] <#_ftnref10>Commission Rule 34(b)(3) states that “[t]he answer
shall include all affirmative defenses being asserted.  Such affirmative
defenses include, but are not limited to, ‘infeasibility,’
‘unpreventable employee misconduct,’ and ‘greater hazard.’ ”  29 C.F.R.
§ 2200.34(b)(3).

[11] <#_ftnref11>Although LePage testified that L&L required employees
to be clean shaven, kept a shaving kit at the jobsite, and took workers
off the job for refusing to shave, the judge specifically discredited
this testimony.  Thus, even if properly alleged, L&L failed to provide
credible evidence establishing any aspect of the defense.  /See Star
Brite Constr. Co./, 19 BNA OSHC 1687, 1695, 2001 CCH OSHD ¶ 32,511, p.
50,437 (No. 95-0343, 2001) (requiring an employer to show “that it
adequately communicated work rules to prevent the behavior and
effectively enforced the rules when violations were discovered” to
establish the unpreventable employee misconduct defense).

[12] <#_ftnref12> We find the judge’s conclusion that the OSHA
Instruction only pertains to the cleanliness of floors, and the
Secretary’s assertion that the Instruction is not applicable to the
cited housekeeping provision, inconsistent with guidance provided in a
January 13, 2003 OSHA standard interpretation letter.  In that letter,
Richard E. Fairfax, Director of OSHA’s Directorate of Compliance
Programs, specifically applied the HUD-recommended level addressed in
the 1993 OSHA Instruction to lead accumulations on floors and other
working surfaces under the hygiene and housekeeping provisions of the
standard.  The letter explains that “[i]n situations where employees are
in direct contact with lead-contaminated surfaces, such as working
surfaces or floors in change rooms, storage facilities and, of course,
lunchroom and eating facilities, OSHA has stated that the Agency would
not expect surfaces to be any cleaner than the 200 mg/ft^2 HUD level.” 

[13] <#_ftnref13>These six sample results are:  from July 7, 2004, 130
mgon a cooler used for drinking water, 150 mgon a rag bag holding rags
employees used to wipe their hands after washing, 1700 mg in a locker;
and from September 21, 2004, 24 mgon a locker door handle, 233 mgon a
clean-side bench, and 680 mgon the inside of a locker.

[14] <#_ftnref14>OSHA issued a separate citation to L&L for its
paint-removal work from the towers on the New Jersey side of the bridge.
My decision in that case, Docket No. 05-0050, was issued on May 4, 2006.
The Commission also issued a remand order in that case, on September 29,
2008. That case has since settled.

[15] <#_ftnref15>The Secretary=s brief is the same one filed with the
Commission on November 16, 2007.

[16] <#_ftnref16>The IH said that only Mr. Lawson was with her on
September 21. She also said that she conducted her sampling by attaching
sampling pumps to four different employees; she then sent the sampling
filters to OSHA=s Salt Lake City Technical Center for analysis. (Tr.
28-32, 131).

[17] <#_ftnref17>The IH initially testified that the vacuums in use were
not to be used for lead. She later testified that it was possible they
could have been used as HEPA vacuums, but she was adamant the filter she
saw being used for the vacuuming outside the active containment was not
a HEPA filter. She said that that filter and the vacuum were shown in
C-12. (Tr. 75-80, 179-90, 194).

[18] <#_ftnref18>C-3, page 2, is the IH=s sketch of the platform where
she observed the vacuuming and cleanup work. The sketch shows the north
and south tower areas as well as the areas where the employees were
emptying the vacuum contents into piles; it also shows a hand-washing
station, a Ashanty,@ and, in the center, the area where employees stored
and ate their lunch. (Tr. 17-20).

[19] <#_ftnref19>The IH noted that this employee was shown in C-12 and
that he did vacuuming work for almost 4.5 hours; the sampling results
for this employee, shown in C-4, state that he wore a half-face
respirator for his work. The IH also noted that the employees doing the
same work in the south tower area were of concern due to the nature of
the work, the fact that not all of them wore respirators, and the fact
that some of them had facial hair, which interferes with the
face-to-respirator seal and negates the respirator=s protection. The
employees working in the south tower area were also of concern as two of
them had been medically removed for having elevated blood lead levels;
these two employees were supposed to be doing work that would not expose
them to additional lead. (Tr. 29, 33-34, 49-59, 75-79, 95, 98, 190-92).

[20] <#_ftnref20>The analysis results for these employees are shown in
C-5, C-6 and C-7; these workers  wore blasting hoods and other
protective equipment for their work. (Tr. 29-33; C-5-7).

[21] <#_ftnref21>The affidavit of Mr. LePage states at various points
that he (Mr. LePage) agrees with specific paragraphs of Mr. Farrington=s
affidavit. /See/ LePage Affidavit, pages 7-12.

[22] <#_ftnref22>Mr. Farrington=s affidavit states that he Awould not
expect a member of this crew to vacuum in the aggregate for more than
one hour.@ /See/ Farrington Affidavit, p. 10, & 49.

[23] <#_ftnref23>The affiants believe the paint removed at the two sites
was the original paint due to the presence of Amill scale@ on the
towers= surfaces; they also believe the original paint on all four
towers was most likely the same paint. Farrington Affidavit, pp. 6-7;
LePage Affidavit, pp. 8-9.

[24] <#_ftnref24>All of L&L=s test results from the New Jersey side,
except one, are contained in Exhibit A to L&L=s brief; the additional
test result is Exhibit A to Mr. LePage=s affidavit.

[25] <#_ftnref25>L&L asserts that no credibility findings were made as
to Mr. Farrington. L&L is correct.

[26] <#_ftnref26>The IH described her education, training and experience
at the hearing. (Tr. 8-13). In addition, Exhibit C-1 documents the IH=s
training and credentials in industrial hygiene matters.

[27] <#_ftnref27>In this regard, I do not credit the affiants=
statements indicating that the IH=s photos in C-12 were taken inside the
active containment and that the work she saw was more like that of a
vacuumer than a cleanup crew member. Farrington Affidavit, p. 15; LePage
Affidavit, p. 12.

[28] <#_ftnref28>Footnote 6, /supra/, sets out the IH=s other reasons
for finding those employees to be of concern. It also sets out the fact
that J.G. did vacuuming work for almost 4.5 hours.

[29] <#_ftnref29>The action level is 30 _g/m;. The PEL, or permissible
exposure limit, is 50 _g/m;.

[30] <#_ftnref30>Affected employees are those who airborne exposure to
lead is above the PEL. /See/ 29 C.F.R. 1926.62(i)(3)(i).

[31] <#_ftnref31>The IH identified all four employees she sampled, as
set out on pages 6 and 7 of my initial decision, and where they were
working; all four were exposed to lead above the PEL.