____________________________________
                                    :
Secretary of Labor,                 :
                                    :
          Complainant,              :
                                    :
          v.                        :   OSHRC Docket No. 97-630
                                    :
Atlas Central Corporation,          :
                                    :
          Respondent.               :
____________________________________:


APPEARANCES

  Mary Anne Garvey, Esq.         F. Benjamin Riek, III, Esq.
  Office of the Solicitor        Riek & Associates Co., L.P.A.
  U. S. Department of Labor      Cleveland, Ohio
  Cleveland, Ohio                  For Respondent
    For Complainant

Before:  Administrative Law Judge Ken S. Welsch

*_DECISION AND ORDER_*

Atlas Central Corporation (ACC) is engaged in the business of industrial
painting and sheeting. On October 22, 1996, ACC was removing paint by
abrasive blasting from underneath the Denison Avenue bridge in
Cleveland, Ohio, when the project was inspected by the Occupational
Safety and Health Administration (OSHA). As a result of OSHA's
inspection, ACC received three citations on April 14, 1997, alleging
employees' exposure to lead, total dust, and cadmium. ACC timely
contested the citations.

Citation No. 1 alleges serious violations of § 1925.55(a) (item 1a) for
exposing employees to concentrations of total dust above the threshold
limit value; § 1926.55(b) (item 1b) for failing to implement feasible
engineering or administrative controls to reduce employees' exposure to
total dust; § 1926.62(h)(5) (item 2a) for not using compressed air for
removing lead from surfaces in conjunction with a ventilation system
designed to capture airborne dust; § 1926.1127(k)(6) (item 2b) for also
not using compressed air to remove cadmium from surfaces in conjunction
with a ventilation system designed to capture the cadmium; §
1926.62(j)(2)(i)(A) (item 3) for failing to repeat biological monitoring
on employees at least every six months; § 1926.1127(d)(1)(i) (item 4a)
for failing to determine whether employees would be exposed to airborne
cadmium; and § 1926.1127(d)(1)(i) (item 4b) for failing to designate a
competent person capable of identifying cadmium hazards. The serious
citation proposes a total penalty of $2,375.

Citation No. 2 alleges repeat violations of § 1926.62(c)(1) (item 1a)
for exposing employees to concentrations of airborne lead above the
permissible exposure limit (PEL); § 1926.62(e)(1) (item 1b) for failing
to implement feasible engineering or administrative controls to reduce
employees' exposure to lead; § 1926.62(e)(2)(ii) (item 1c) for failing
to have a complete written lead compliance program; § 1926.62(i)(4)(ii)
(item 2) for failing to maintain eating areas free as practicable from
lead contamination; and § 1926.62(l)(1)(iv) (item 3) for failing to
provide annual lead training to each employee. The repeat citation
proposes a total penalty of $8,000.

Citation No. 3 alleges an "other" than serious violation of §
1926.1127(m)(4)(iii)(A) for not ensuring that its training program
contained the health hazards associated with cadmium exposure. The
citation proposes no penalty.

The hearing was held in Cleveland, Ohio, on March 9 - 14, 1998. The
parties were represented by counsel and post-hearing briefs were filed.
ACC argues that its containment to perform abrasive blasting implemented
all feasible engineering and administrative controls to reduce
employees' exposure to lead and total dust. The alleged violations
involving engineering controls are vacated for the Secretary's failure
to show that the recommended controls would substantially reduce
employee exposure.

/_The Inspection_/

ACC repaints bridges for the Ohio Department of Transportation. The
bridge painting season is April 15 through approximately October 30th of
each year (Tr. 336). On October 12, 1996, ACC began its repainting work
on the Denison Avenue Bridge, which spans over eight lanes of Interstate
71 in Cleveland, Ohio (Exh. R-3; Tr. 354, 360). Ruhlin Company, general
contractor, contracted ACC to remove the existing paint and repaint the
bridge (Exh. R-16; Tr. 37, 169-170). The project was completed by the
end of November, 1996 (Tr. 360).

The existing paint is removed by abrasive blasting, which is the use of
highly pressurized air to direct abrasive materials through a blasting
nozzle to the painted surface. The abrasive material is steel grit or a
combination of steel grit and steel shot. During abrasive blasting, the
air pressure through the nozzle is 100 to 120 pounds per square inch
(psi) and the abrasive material is propelled at a velocity in excess of
400 miles per hour. The abrasive blasting removes the paint and creates
a profile of one to three mills[1] on the surface, which allows new
paint to adhere (Tr. 42-43, 466-467). As the paint is removed, small
particles of paint and other debris become airborne in clouds of dust.
The employees are expected to clean 1,000 to 1,500 square feet per day
(Tr. 352-353).

Prior to the abrasive blasting, a containment is constructed around the
portion of the bridge to be cleaned. The containment is to protect the
environment (Tr. 332-333). At the time of OSHA's inspection, ACC's
employees were removing paint from underneath the south abutment area of
the bridge. The containment constructed by ACC was tent-like, consisting
of tarpaulins (tarps) hung from the bridge (Exhs. C-1, C-2, C-3; Tr. 43,
177, 299-300, 473). The containment enclosed the area from the
southbound lanes of Interstate 71 to the top of the sloped concrete
abutment. As shown by ACC, the containment was designed to be 27 feet
from interstate to abutment, 70 feet long and 10 feet high for 17,500
cubic feet (Exhs. C-24, R-12). However, OSHA measured the area after the
containment was removed as 89 feet wide, 78 feet from the columns to the
concrete abutment and 16 feet high for 71,600 cubic feet (Exh. R-18,
C-33, pp. 2, 4; Tr. 321). The engineering plans, on the other hand, show
the width of the bridge is 62 feet, the distance from the column to the
abutment is 75 feet, and the height from the ground to the bottom of the
5-foot steel girders is 14 feet, 9 inches (Exh. R-3). While abrasive
blasting, the employees worked from scaffolding hung from the girders.
They were tied-off and wore air-supplied respirators (Exhs. C-3, R-40,
p. 25; Tr. 1079).

Because of the concentrations of dust generated by the abrasive blasting
inside the containment, ACC used a dust collector to exhaust and filter
the dusty air (Tr. 485-486). Three ducts to the dust collector were
located along one wall of the containment (Exh. C-2). While the dust
collector removed the dusty air from inside the containment, fresh air
was drawn into the containment from the holes and gaps in the tarps
(Exh. C-35; Tr. 486). Also, along the wall opposite the dust collector,
two louvers (2 feet by 2 feet) were placed in the tarp at a height of 5
feet to also allow in fresh air (Tr. 1214, 1223). The containment was
kept under negative pressure.

On October 22, 1996, OSHA compliance safety and health officer Sharon
Danann inspected the Denison Avenue bridge project (Tr. 25, 35). Working
at the project were Costas Kozani, ACC's job superintendent, three
abrasive blasters, three painters and a groundsman (Tr. 300-301). As
part of her inspection, Danann performed air monitoring inside the
containment while three employees (John Manis, Nick Kofinas, and Nasos
Tataridis) were abrasive blasting.[2] The air samples were collected by
attaching pumps to the employees' belts which drew air into sample
cassettes affixed to the shoulders of the employees, outside the
employees' blasting helmets and air-supplied respirators. Danann also
collected wipe samples from the surface of a table and the spigot of a
water jug inside the employees' lunch trailer (Exh. C-8; Tr. 41-42, 44, 80).

The air samples and wipe samples were submitted to OSHA's Salt Lake City
Technical Center for analysis (Tr. 52-53). The analysis found that the
three employees doing the abrasive blasting were exposed above the PEL
of 50 micrograms per cubic meter (ug/m3) for lead (Exhs. C-4, C-6, C-7;
Tr. 68, 74, 78). Based on their exposure to iron oxide, two of the
employees (Manis, Kofinas) were also exposed to total dust above the PEL
of 15 milligrams per cubic meter (mg/m3) (Tr. 71, 79). Also, two of the
employees (Manis, Tataridis) were exposed to cadmium above the action
level of 2.5 ug/m3 (Exhs. C-4, C-6; Tr. 76).

/_Discussion_/

_Alleged Violations_

_Lead and Total Dust Exposure_

_Citation No. 1, Item 1a and Citation No. 2, Item 1a - Alleged
Violations of §§ 1926.55(a) and 1926.62(c)(1)_

Citation No. 1 alleges that two employees performing abrasive blasting
were exposed to total dust at an 8-hour, time-weighted average (TWA) of
345 and 76 milligrams per cubic meter. Section 1926.55(a) provides that:

    Exposure of employees to inhalation, ingestion, skin absorption, or
    contact with any material or substance at a concentration above
    those specified in the "Threshold Limit Values of Airborne
    Contaminants for 1970" of the American Conference of Governmental
    Industrial Hygienists, shall be avoided.

The threshold limit values of airborne contaminants are contained in
Appendix A to § 1926.55. When the Secretary incorporated the threshold
limit values into the occupational health standards, she transformed the
values into PEL. /Bunge Corp./, 12 BNA OSHC 1785, 1788, n. 10 (Nos.
77-1622, 78-838 and 78-2213, 1986). The PEL for "inert or nuisance
dust," which includes "all mineral, inorganic and organic dusts," is 15
mg/m3. The air monitoring of John Manis and Nick Kofinas was conducted
on October 29, 1996, while the employees were abrasive blasting. Manis'
sample result found 345 mg/m3 of iron oxide and Kofinas' result was 76
mg/m3 of iron oxide (Exhs. C-4, C-7; Tr. 68, 79).

Although iron oxide is not a specifically regulated particulate, it was
the major constituent (largest single ingredient) of mineral dust
generated during abrasive blasting (Tr. 53, 71). The amount of iron
oxide in the samples was used as the basis of showing employees'
exposure to total dust (Tr. 54).

Citation No. 2 alleges that three employees performing abrasive blasting
were also exposed to airborne lead concentrations at TWA levels of 2,789
ug/m3 (Manis), 783 ug/m3 (Tataridis), and 1,963 ug/m3 (Kofinas). These
levels are 56, 16 and 39 times the PEL of 50 ug/m3 for lead. Section
1926.62(c)(1) provides that:

    The employer shall assure that no employee is exposed to lead at
    concentrations greater that fifty micrograms per cubic meter of air
    (50 ug/m3) averaged over an 8-hour period.

ACC does not dispute the accuracy of OSHA's air monitoring results (Exh.
C-11; ACC Brief, p. 2). ACC argues that since it implemented all
engineering controls which could not reduce the lead and dust exposures
to within the PEL, employees wore appropriate personal protective
equipment, such as blasting helmets and air supplied respirators (Exh.
C-3; Tr. 43-44).

Sections 1926.55(b) and 1926.62(e) require an employer to implement
feasible engineering or administrative controls to reduce employees'
exposure to total dust and lead. If such controls fail to achieve full
compliance, only then can the employer use other protective measures to
keep the employee's exposure within permissible limits.

The Secretary does not dispute that the employees were provided
appropriate personal protective equipment and that such equipment was
necessary to reduce the employees' exposure. However, the Secretary does
not accept that ACC implemented all feasible engineering controls to
reduce the exposure to total dust and lead. Unless the Secretary
establishes that there were feasible engineering or administrative
controls not implemented by ACC, violations of §§ 1926.55(a) and
1926.62(c)(1) are not found.

_Engineering and Administrative Controls_

_Citation No. 1, Item 1b and Citation No. 2, Item 1b - Alleged
Violations of §§ 1926.55(b) and 1926.62(e)(1)_

Citation No. 1 alleges that ACC did not implement engineering or
administrative controls, including the placement of inlets to the
exhaust ventilation, the use of make-up air and the creation of
mini-enclosures to reduce employees' exposure to total dust. Section
1926.55(b) provides in part that:

    To achieve compliance with paragraph (a) of this section,
    administrative or engineering controls must first be implemented
    whenever feasible. When such controls are not feasible to achieve
    full compliance, protective equipment or other protective measures
    shall be used to keep the exposure of employees to air contaminants
    within the limits prescribed in this section.

Citation No. 2 alleges that ACC did not implement engineering or
administrative controls, including the placement of inlets to the
exhaust ventilation, the use of make-up air, the creation of
mini-enclosures and the rotation of employees to reduce employees'
exposure to lead. Section 1926.62(e)(1) provides that:

    The employer shall implement engineering and work practice controls,
    including administrative controls, to reduce and maintain employee
    exposure to lead to or below the permissible exposure limit to the
    extent that such controls are feasible. Wherever all feasible
    engineering and work practices controls that can be instituted are
    not sufficient to reduce employee exposure to or below the
    permissible exposure limit prescribed in paragraph (c) of this
    section, the employer shall nonetheless use them to reduce employee
    exposure to the lowest feasible level and shall supplement them by
    the use of respiratory protection that complies with the
    requirements of paragraph (f) of this section.

Both the total dust and lead standards reference two types of controls
which may be utilized to reduce employee exposure. Administrative or
work practice controls typically include changes in the employee's
method of work and rotating the employee's job duties. Engineering
controls involve various mechanical devices and equipment, such as
exhaust systems, fans, inlets and enclosures (Tr. 485). An employer is
expected to implement the administrative or engineering control where
feasible even though such control does not necessarily reduce the
employee's exposure below the PEL. "The test of whether administrative
and/or engineering controls are technologically feasible is whether the
controls are achievable and capable of producing a significant reduction
in exposure to air contaminants." /G & C Foundry Company/, 17 BNA OSHC
2137 (No. 95-869, 1997), citing /Harmony Blue Granite Co./, 11 BNA OSHC
1277 (No. 14189, 1983). A control can be feasible even if it does not
achieve full compliance. Id.

/_Estoppel From Asserting Additional Engineering Controls_/

ACC initially argues that OSHA is estopped from requiring other
enclosure configurations, given OSHA's admission in early 1997 that
general dilution ventilation was the appropriate engineering control for
abrasive blasting operations (ACC Brief, p. 20).

The facts are not in dispute. On May 8, 1996, ACC was inspected by OSHA
while performing abrasive blasting on a bridge in Van Wert, Ohio (Tr.
433-434). As a result of the inspection, ACC received a serious citation
for failing to implement feasible engineering controls when employees'
exposure to lead exceeded the PEL (Exh. R-20; Tr. 444). After filing its
notice of contest, an OSHA assistant area director stated in response to
interrogatories that general dilution ventilation with local exhausts
constituted feasible engineering controls (Exh. R-21, p. 7; Tr. 446-448).

ACC asserts that during settlement OSHA agreed to delete the engineering
control violation because ACC agreed to re-position the exhaust
ventilation (Tr. 449). However, based on the statement by OSHA that
general dilution ventilation was an adequate engineering control, ACC
argues that OSHA is now prevented from pursuing other engineering
controls. ACC cites Secretary v Miami Industries, Inc., 983 F.2d 1067
(6th Cir., 1992) (employer did not have fair notice that additional
guards were needed for a machine because during a prior inspection the
inspector indicated that the guards in place were adequate) and
/Hamilton Die Cast, Inc./,11 BNA OSHC 2169 (No. 79-1686, 1984)
(Commission dismissed citation where an employer relied upon previous
OSHA inspection findings that a guard was not necessary on the equipment).

ACC's estoppel argument is rejected. Equitable estoppel is an
affirmative defense. The Secretary is not estopped from enforcing a
standard except where she has engaged in affirmative misconduct, active
misrepresentation and a resulting injustice to the employer. /Erie Coke
Corp./, 15 BNA OSHC 1561, 1568-1570 (No. 88-611, 1992). As noted in the
Erie case, previous settlements may reflect the results of the
bargaining process as to those particular citations and can not be
construed as "misrepresentations." Also, the statement by the assistant
area director in responding to interrogatories was not shown to restrict
engineering controls to dilution ventilation or that general dilution
ventilation was recommended for other than the Van Wert bridge project.
The standards cited anticipate a continuing obligation by the employer
through the use of engineering or administrative controls to reduce
employees' exposure until it is at or below the PEL.

/_Application of § 1926.57_/

ACC argues that § 1926.57(f)(3) establishes the specific requirements
for the design of a ventilation system in an enclosure used for abrasive
blasting. Section 1926.57(f)(3) provides:

    Blast cleaning enclosures shall be exhaust ventilated in such a way
    that a continuous inward flow of air will be maintained at all
    openings in the enclosure during the blasting operations.

The provisions of § 1926.57(f)(3) asserts ACC takes precedence over the
engineering controls proposed by the Secretary (ACC Brief, p. 12). ACC
argues that by operation of § 1910.5(c)(1) the particular standard at §
1926.57(f)(3) is applicable to its bridge containment and prevails over
the general engineering control standards at § 1926.55(b), which might
otherwise be applicable to the same condition, practice, or method.
/Lowe Construction Co./, 13 BNA OSHC 2182, 2183-2184 (No. 85-1388,
1989). The Secretary argues that § 1926.57(f) does not apply to
temporary enclosures such as ACC's containment at the Denison Avenue bridge.

Section 1926.57 establishes standards for ventilation "whenever
hazardous substances such as dusts . . . are produced in the course of
construction work" which exceed the limits specified in § 1926.55(a).
Section 1926.57(a) further provides that "[W]hen ventilation is used as
an engineering control method, the system shall be installed and
operated according to the requirement of this section." Section
1926.57(f) involves abrasive blasting and its scope at § 1926.57(f)(8)
applies "to all operations where an abrasive is forcibly applied to a
surface by pneumatic or hydraulic pressure." By the Secretary's terms,
standards at § 1926.57(f) are not restricted to permanent containments
or enclosures.

However, § 1926.57(f) does not preempt all engineering controls
contemplated by § 1926.55(b). The standard applies to the nature and
operation of exhaust ventilation when ventilation is used as an
engineering control to reduce dust exposures identified in § 1926.55(a).
It requires that the enclosure be ventilated to maintain an inward flow
of air and an exhaust rate sufficient to provide prompt clearance of
dust within the enclosure. Section 1926.57(f)(4) requires that the
construction, installation, inspection and maintenance of exhaust
systems conform to requirements set forth in American National Standards
Institute (ANSI) Z9.2-1960 and Z33.1-1961. Therefore, to the extent
ventilation is contemplated by the Secretary's recommended engineering
controls, the principals in § 1926.57(f) do apply.

/_Controls Used by ACC_/

For the Denison Avenue bridge project, ACC used canvas tarps hung from
the top of the bridge to the ground to form a tent-like containment area
between the bridge concrete abutment and the south-bound lanes of
Interstate 71. The containment area was designed by Costas Kozanis,
ACC's job superintendent and competent person. Although not specifically
measured, based on OSHA's measurements and the engineering plans, the
containment was approximately 70 feet wide along the interstate, 78 feet
from the interstate to the abutment, and approximately 19 feet high from
the ground to underneath the bridge (Exhs. C-18, C-24, R-3, R-12). At
the end of the sloped concrete abutment, the height was approximately 6
feet.

A dust collector with a rated capacity of 40,000 cubic feet per minute
(cfm) was located outside one side of the containment. Three ducts for
the dust collector were placed in an opening to the containment (Exhs.
C-2, R-15). Fresh air was allowed into the containment through holes and
gaps in the tarps as well as two lourvers installed on the side opposite
the dust collector. The movement of air was measured with an anemometer
once a week in the middle of the containment in the range of 100 to 110
feet per minute (Exh. R-12; Tr. 351-352, 1171). The containment was
designed to provide general dilution ventilation to remove dust
accumulation from inside the containment (Exh. C-15).

ACC argues that in its larger containment with general dilution
ventilation, there are lower concentrations to iron oxide and lead
because of the possible vertical downward air movement generated by the
blasting nozzles which pushes the air into the larger area below the
girders. There is no blanket of air forced past the bottom of the
girders which keeps the particles between the girders (Tr. 929-930).
Under general dilution ventilation as explained by Dan Adley, the larger
particles created during the blasting process fall to the ground once
they lose their kinetic energy. This reduces the concentration of dust
near the blasting operations (Tr. 989-992).

While in the containment, employees wore appropriate personal protective
equipment during blasting operations. The equipment included a blasting
helmet with a shoulder cape and a Bullard respirator with a positive air
flow. Employees also wore heavy cotton coveralls and gloves (Exh.
C-3;Tr. 43-44, 196). Outside the containment, employees changed their
contaminated coveralls in a down draft booth (Exh. R-7, Tr. 193). Also,
a trailer was provided for employees to use for meals and breaks (Tr.
144, 350).

/_Secretary's Criticism of ACC's Containment_/

Although ACC's general dilution ventilation reduces employee exposure to
dust contaminants at least to some extent, the Secretary argues that
ACC's containment provided no means of systematically introducing clean
air into the containment and maximizing the airflow where the employees
were abrasive blasting. The Secretary argues that additional controls
were feasible. Compliance officer Danann describes general dilution
ventilation as the mixing of contaminants with air and a general
lessening of quantities relative to a containment without an exhaust
(Tr. 101, 478-479). The American Conference of Governmental Industrial
Hygienists (ACGIH) considers dilution ventilation inappropriate for work
environments where contaminants are of a toxic nature, such as lead and
cadmium (Tr. 104). Section 2.3 "Dilution Ventilation for Health", the
ACGIH states:

    The use of dilution ventilation for health has four limiting factors:

    (1) The quantity of contaminant generated must not be too great or
    the airflow rate necessary for dilution ventilation will be impractical;

    (2) Workers must be far enough away from the contaminant source or
    evolution of contaminant must be in sufficiently low concentrations
    so that workers will not have an exposure in excess of the
    established TLV;

    (3) The toxicity of the contaminants must be low; and

    (4) The evolution of the contaminants must be reasonably uniform.

(Tr. 112-113).

Dan Adley, ACC's expert, considers the ACGIH publication as the "bible"
within the industrial hygiene community. Adley concedes that dilution
ventilation is not the preferred method of ventilation. The preferred
method is to capture the containment at the source and remove it so the
employee has no opportunity of exposure. Dilution ventilation is most
often used to control vapors (Tr. 1111-1112).

John Cignatta,[3] Secretary's expert and licensed professional engineer,
describes the containment used by ACC as a "circus tent" enclosure with
general dilution ventilation (Tr. 521-522). According to Cignatta, clean
air was only introduced in a haphazard manner through holes and gaps in
the tarps. Therefore, dust from abrasive blasting continued to
accumulate and be dispersed throughout the large containment area (Tr.
551-552). Cignatta opined that contaminated air accumulated in
stagnation points and was recirculated throughout the containment (Tr.
517). He generated illustrations based on a computer model depicting the
interior of the containment during abrasive blasting to show the airflow
under general dilution ventilation (Exh. C-33, pp. 7, 9). The computer
model shows the air flow moving in no discernable pattern. Since the
employees performing abrasive blasting are at the point of generation,
the three employees appear to be inside a dense cloud of dust
accumulation. The computer model is consistent with the compliance
officer's observations inside the containment. According to Danann,
"[I]t was hard to discern the employees due to the dust clouds in their
immediate vicinity" (Tr. 90).

ACC asserts that Cignatta's computer model is unreliable and does not
depict the containment at the Denison Street bridge project. First, ACC
notes that the sloped concrete abutment is not accurately shown. Instead
of a slope, the abutment is shown as three large steps (Tr. 686,
844-845). Cignatta agrees that 50 smaller steps probably would be a
closer approximation of the slope's angle. Cignatta concedes that the
use of three steps does have some impact on the air flow depicted in the
computer model. He was, however, unable to estimate the extent of the
impact (Tr. 686-687).

Secondly, ACC argues that the orientation of the blast nozzle shown in
the computer model as compared to actual useage is biased towards
employee exposure (Tr. 846, 850-851). The nozzle is shown pointing in a
parallel direction with the girders. In reality, the nozzle for the most
part is pointed in an upward direction to clean the underside of the
bridge and upper portions of the girders (Tr. 692-693). Also, the model
assumed that the nozzle is 3 cm x 3 cm (Tr. 681). The nozzle used by ACC
is a half-inch smaller in diameter (Tr. 682).

Finally, ACC argues that the holes and gaps in the tarps are incorrectly
depicted in the computer model. The number and location of the gaps and
holes which provide the source of fresh air are based on photographs
taken by compliance officer Danann (Exhs. C-1, C-2; Tr. 851-852). The
computer model shows two exhaust ports (dust collectors) and five holes
and gaps along one side of the containment. However, Danann's
photographs only show a portion of the containment, and she did not
identify or measure all holes and gaps in the tarps. Similiarly, the
exhaust ducts are not shown on the sloped portion of the abutment (Tr.
858). According to ACC, changes in the position of the exhaust ducts and
holes for fresh air affects the ventilation in the containment (Tr.
856-857). For example, the record indicates that two 2 x 2-foot wooden
louvers, not shown in the computer model, were installed across from the
dust collector. The louvers permitted some cross-ventilation of fresh air.

ACC's arguments regarding the computer model's depiction of its
containment at the Denison Avenue bridge have merit. However, since the
abrasive blasting was done above the cross- ventilation, there was
little impact at the point of dust generation (Tr. 689). Cignatta's
model showing the dust generation is supported by the air sampling
results taken by compliance officer Danann and her observations. It is
undisputed that the employees were exposed to excessive concentrations
of airborne dust accummulations containing lead and iron oxide. Manis'
exposure was 56 times the PEL for lead and 23 times the PEL for total
dust, and Kofinas' exposure was 39 times the PEL for lead and 5 times
the PEL for total dust. The computer model is used as representative of
airflow patterns within a containment with similarities to the Denison
Avenue bridge containment under general dilution ventilation. It is not
considered as an accurate depiction but is used to show how
modifications in containment design may affect the concentrations of
airborne contaminants on employees performing abrasive blasting.

/_Secretary's Recommended Engineering and Administrative Controls_/

The Secretary's recommended engineering controls include (1) placement
of the dust collection unit closer to the abrasive blasting, (2) use of
make-up air to reduce the high levels of dust around the blasters, and
(3) the creation of mini-enclosures.[4] The Secretary also recommends
reducing the amount of time an employee spends abrasive blasting (Tr.
104-107).

The recommended controls identified by the Secretary are claimed to
reduce both the lead and total dust exposures. According to Cignatta's
research, as the PEL for lead is approached through the use of
engineering controls, employee exposure to other contaminants, such as
total dust, is also reduced (Exh. C-29, p. 5). The Secretary's
recommended engineering controls involve the attempted movement of
airborne contaminants away from the employee's breathing zone. If the
controls are shown feasible, equivalent reductions in employee's
exposure levels to total dust and lead are therefore reasonably expected.

A discussion of each of the Secretary's recommended controls follows:

1. _Local Exhaust Ventilation_

The placement of dust collection by local exhaust involves the capture
of airborne contaminants nearer the source of dust generation; abrasive
blasting. The contaminants are captured by suspending exhaust inlets
with flexible hoses in close proximity to the employees performing
abrasive blasting. The Secretary recommends that the local exhaust be
applied to the blasting nozzle to vacuum the generated dust (Tr. 105).
The local exhaust draws the contaminated air away from the employees and
into the dust collector (Tr. 104-105, 549). In ACC's general dilution
ventilation, the employees were abrasive blasting far from where the
dust collector was exhausting the dusty air from the containment (Tr. 512).

The feasiblity of local exhaust ventilation for abrasive blasting is not
established by the record. It is not shown that such local exhaust
equipment exists for abrasive blasting, has been used at other abrasive
blasting jobs, or can be adapted to ACC's abrasive blasting process.
Abrasive blasting is not a process which permits a stationary local
exhaust system. Employees need to freely move along the steel girders.
They are expected to clean in excess of 1,000 square feet of steel per
day (Tr. 352-353). Also, the blasting nozzle delivers the abrasive
material at a velocity of 400 miles per hour which reduces the
effectiveness of an exhaust attached to the blasting nozzle (Tr. 466).
Even if a local exhaust system is available, the Secretary fails to
identify any anticipated reduction in employees' exposure to
contaminated dust.

2. _Use of Make-up Air_

The Secretary recommends the use of make-up air to reduce the levels of
dust around employees performing abrasive blasting and to move the dust
towards the dust collector (Tr. 105-106). Contaminated air is more
efficiently moved out of the containment if fresh air is systematically
introduced into the containment. The introduction of fresh air, when
coupled with the use of an exhaust system, creates a "push/pull" pattern
of air movement across the containment. Fresh air introduced at one end
of the containment pushes through the containment while contaminated air
is pulled out at the other end by the dust collector. John Cignatta, the
Secretary's expert, opined that if proper push/pull ventilationl[5] is
implemented, the dust generated by abrasive blasting is quickly "washed"
through the containment, reducing the amount of time that contaminated
air remains in the employees' breathing zone (Exh. C-33, p. 11; Tr.
548-549). Cignatta stated that the installation of louvers along one
side of the containment allows for the systematic introduction of
make-up air (Tr. 549). Cross-ventilation airflow avoids large air
stagnation points.

The record shows that two louvers to permit the entry of fresh air were
installed across from the dust collector in ACC's containment, thus
creating to some extent the cross ventilation recommended by the
Secretary (Tr. 1214, 1223). Using an anemometer once a week, ACC
measured the airflow in the middle of the containment in excess of 100
feet per minute (Exh. R-12; Tr. 351-352). The Secretary fails to show
that ACC did not use make-up air as part of its general dilution
ventilation system.

3. _Reducing Employee Time of Exposure_

The Secretary also recommends altering the employees' work schedules and
job duties as an administrative control to reduce employees' exposure.
By reducing an employee's time abrasive blasting, the amount of time an
employee spends in the containment is reduced (Tr. 256-257). For
example, the Secretary suggests that employees can be rotated between
abrasive blasting and painting. She argues that if administrative
controls are used in combination with engineering controls, employees'
exposure may be substantially reduced.

The record in not clear whether ACC, to some extent, already rotates
employees. Compliance officer Danann agrees that ACC possibly already
interchanged between the blasting crew and paint crew (Tr. 256). She
knew that some employees who had earlier been designated as painters
were also performing abrasive blasting. Based upon the concentration
levels she detected, Danann was unable to identify the amount of time
that an employee could perform abrasive blasting before rotation (Tr.
256-257). As a result of working from pic scaffolding, employees
regularly had to stop blasting, relocate the scaffolding and clean the
area (Tr. 1079). The record does not establish the feasibility of
regularly rotating employees to achieve significant reductions in
exposure levels. ACC employs less than 15 employees.

4. _Dance Floor or Mini-Enclosure_

The primary control recommended by the Secretary is the use of a dance
floor, or mini-enclosure, which reduces the size of the containment (Tr.
105-106). In principal, the dance floor elevates the floor level of the
containment from the ground to approximately two feet below the steel
girders needed to be cleaned. With the mini-enclosure, the walls of the
dance floor are also moved in to form an even smaller containment. For
example, Cignatta calculates that the working space for a dance floor
enclosure is reduced to approximately 13,300 cubic feet, as opposed to
approximately 72,000 cubic feet in ACC's circus-tent containment (Tr.
547). For a mini-enclosure 12 feet wide, he expects that the working
space is further reduced to approximately 2,000 cubic feet. Thus, there
is a reduction in excess of 90% in overall volume needed to be
ventilated (Exh. C-33; Tr. 563-565). Cignatta states that a dance floor
or mini-enclosure can be hung from rails or suspended below the bridge.
Also, the enclosure can be mounted on a semi-tractor trailer and lifted
into position underneath the bridge by hydraulic jacks (Exh. C-33, pp.
23-24; Tr. 546, 578).

By also establishing cross-flow (push/pull) ventilation in conjunction
with the dance floor or mini-enclosure, Cignatta opines that a more
directed airflow can be created from the source of incoming fresh air to
the dust collector. The ventilation system for the dance floor or
mini-enclosure approaches "plug flow," which is a condition where
contaminated air is washed away almost as fast as it is generated (Tr.
563-564).

Also, Cignatta recommends installing a grated floor or V-trough in the
mini-enclosure to allow spent abrasives and large paint chips to collect
for easier retrieval (Tr. 561, 565-567). The grating or V-trough removes
the abrasives and paint chips from the work area and prevents them from
being re-disturbed into the employee's breathing zone. Also, a retrieval
system eliminates the need for employees to vacuum the floor to recover
the spent abrasives.

With a mini-enclosure and a directed airflow system, John Cignatta
testified that an overall reduction in employee exposure to total dust
and lead is expected to be from 1% to 5% of the exposure levels recorded
by OSHA's air sampling (Tr. 617, 619-620). Using 5% as an example,
Kofinas recorded total dust level of 76 mg/m3 would be reduced to 3.8
mg/m3--not above the PEL. Although Manis' total dust exposure of 345
mg/m3 is above the PEL at 17.25 mg/m3, his exposure level is
substantially reduced. Similiarly, although the three employees remain
overexposed to lead, Cignatta would anticipate substantial reductions
from the use of a mini-enclosure and directed airflow. Manis's exposure
to lead of 2789 ug/m3 would be reduced to 139.45 ug/m3; Tataridis'
exposure of 783 ug/m3 would be reduced to 39.15 ug/m3; and Kofinas'
exposure of 1963 ug/m3 would be reduced to 98.15 ug/m3.

/_Record Fails to Establish Feasible Controls_/

In addition to the other controls previously discussed, the dance floor
or mini-enclosure are also not shown by a proponderance of the evidence
as feasible controls at the Denison Avenue bridge which would
significantly reduce employee exposure to total dust and lead. The
record shows that because of the smaller enclosed area and the
obstruction caused by the steel girders to the airflow pattern, there
may not be sufficient fresh air circulated into the area between the
girders to reduce the contaminated dust generated by the abrasive blasting.

In the preamble to the interim lead standard (58 FR 26590, May 4, 1993),
the Secretary anticipated that with mechanical ventilation and an
enclosure or containment as engineering controls, employees performing
abrasive blasting would be exposed to lead levels in the range of 18,650
ug/m3 (Exh. R-35). The monitoring results at the Denison Avenue bridge
were in this range. Thus, ACC's general dilution ventilation appears to
meet the Secretary's anticipated levels of lead exposure utilizing
engineering controls.

The airflow through a dance floor or mini-enclosure was not shown to
necessarily remove the dust concentrations between the girders. There
were approximately six girders to disrupt any cross airflow ventilation
in the dance floor or mini-enclosure. With the dance floor or
mini-enclosure, Cignatta testified that there was only an approximate
two feet below the girders with an unobstructed path between the fresh
air intake (louvers) to the exhaust (dust collector). The airflow was to
move under the girders from the louvers to the dust collector (Tr.
863-864). However, the concentration of dust was generated between the
girders at the employee's breathing zone. There was no designed air flow
directed to this area. The only source of air between the girders was
from the blasting nozzle which directs the abrasives to the steel. Based
on the movement of the blast nozzle, it was not shown that air from the
nozzle provided a downward draft which captured the dust in the air flow
at the employee's feet. The air flow pattern described by Cignatta may
preclude the effective removal of the dust created during the blasting
operations.

Dr. Stanley Penkala, ACC's expert in air science and a PhD, opined that
in the mini-enclosure configuration, lead dust accumulates between the
beams (Exh. R-28). He testified that Cignatta's model does not show the
rebound effects of air flow when hitting solid objects such as the steel
girders. Penkala stated that the air flow drawn past the employee's feet
at an efficient rate could result in higher concentrations of dust
between the girders at the employee's breathing zone (Tr. 877-878).
Penkala testified that Cignatta's air flow recommendations for the
mini-enclosure do not adequately remove dust concentrations from the
area between the girders where the abrasive blasting operations occur
(Tr. 863-864). The air flow moves in a blanket at a steady rate
underneath the beams. It fails to capture the dust cloud between the
girders (Exh. R-30; Tr. 865). Penkala opines that the dust generated by
the blasting process is not captured by the air flow under the girders
but instead is recirculated in the area between the beams. According to
Penkala, the dust is not removed because there is no make-up air
introduced into the area (Tr. 866-867).

Daniel Adley, ACC's expert and certified industrial hygienist and safety
professional, testified that when the abrasive material from the
blasting nozzle hits the girder, the pulverized grit and paint chips
deflect in all directions depending on the orientation of the nozzle to
the girder. Adley opined that the level of employee exposure in ACC's
containment was well within the range of expected lead exposure during
abrasive blasting (Tr. 984). Adley had gathered the exposure data in
abrasive blasting for the Secretary's interim lead in construction
standards (Tr. 976-977). Also, Adley stated that Cignatta's computer
model was ineffective in predicting lead exposure levels because the
concentrations of lead in the paint and its thickness were not
determined (Tr. 1085-1086).

To support their expert opinion, ACC produced two air monitoring
studies. In air monitoring performed in 1994 during abrasive blasting of
the lead levels in a containment of 200,000 cubic feet and one of 3,000
cubic feet, the authors concluded that neither containment was of value
in reducing an employee's lead exposure. In fact, the smaller
containment showed lead levels three times higher on a geometric mean
than the larger containment. Although the monitoring was conducted on a
small sample, the report tends to support ACC (Exh. R-26).

In another study performed by the Federal Highway Administration in
1995, the authors also concluded that higher levels of lead exposure
were found in the smaller containment. The authors also stated that
ventilation systems do not appear to be effective on reducing employee
exposure (Exh. R-37).

On the other hand, Cignatta did not perform any air monitoring at the
Denison Avenue bridge. He did not observe ACC's abrasive blasting
operation or the containment at the Denison Avenue bridge. His computer
model is flawed in its depiction of ACC's containment. Also, Cignatta
failed to provide quantitative data to establish the nature of any
reductions that were anticipated in any bridge painting project where
mini-enclosure or dance floor designs were used when compared with the
general dilution ventilation used by ACC. He was unable to identify any
contractors who used a mini-enclosure or dance floor similar to his
designs for ACC (Tr. 747).

Cignatta's report "Computer Aided Engineering For Design of Ventilation
System at Industrial Painting Projects" is of limited value to this case
(Exh. C-30). The primary example discussed involved the abrasive
blasting of a water tank where a vertical containment was designed. The
containment had the fresh air intake at the top and the dust collector
at the bottom, creating a downward air flow pattern past the employees
working from pickboards. The greatest reduction in exposure resulted,
however, from replacing the solid pickboard with a grated pickboard.
Thus, there was no obstruction to the air flow pushing the dust cloud
down and away from the employee's breathing zone.

As a result of testifying as an expert in /E. Smalis Painting Co.,
Inc./, 1995-1997 CCH OSHD ¶ 31,113 (No. 94-1979, 1996; directed for
review), Cignatta prepared a report (Exh. C-31). The report and the
judge's decision show that Cignatta anticipated reductions in lead
levels from an average of 23,000 ug/m3 (three abrasive blaster sampled
by OSHA) to less than 500 ug/m3 with the use of the mini-enclosure and
ventilation. However, the record does not show the design of the
enclosure or describe the air flow pattern for comparison in this case.
Also, as noted by the judge, the respondent did not present any evidence
of infeasibility in the E. Smalis case.

Although the court is not convinced that employee exposure cannot be
improved, the record in this case fails to establish that the controls
recommended by the Secretary provide significant reductions in the
employee's exposure to total dust and lead. Even with engineering
controls, an employee's exposure would still significantly exceed the
PEL and the employee would still need to wear a Bullard CE type
respirator (Tr. 765). Also, the Secretary does not discuss the costs of
the proposed dance floor or mini-enclosure. The Secretary argues that
ACC can include the cost of engineering controls when estimating the
cost of the project (Secretary's Brief, p. 27). Contractors who do not
include regulatory costs in their bids obtain an unfair advantage over
more responsible contractors. However, the Secretary must identify
generally the cost of recommended controls. In discussing proof of
economic feasibility, the Review Commission in /Smith Steel Casting
Co./, 15 BNA OSHC 1001, 1010 (No. 80-2322, 1991), stated that the "
Secretary did not have the burden to establish an employer's cost of
compliance to a definitive degree of certainty; rather, absent rebuttal
evidence, the Secretary was only obligated to adduce enough evidence to
support a prima facia case." In Smith Steel Casting Co.,the Secretary's
expert used his experience in estimating costs for proposed controls. In
this case, there should have been at least some general cost
information. The alleged violations of §§ 1926.55(b) and 1926.62(e)(1)
are vacated.

_Remaining Violations Alleged in Citation No. 1_

_Item 2a and 2b - Alleged violations of §§ 1926.62(h)(5) and
1926.1127(k)(6)_

The citation alleges that employees performing abrasive blasting were
exposed to lead and cadmium when they used compressed air to blow paint
chips, dust, and used abrasive from the top to the bottom of the
abutment. Section 1926.62(h)(5) provides:

    Compressed air shall not be used to remove lead from any surface
    unless the compressed air is used in conjunction with a ventilation
    system designed to capture the airborne dust created by the
    compressed air.

Similarly, under the cadmium standard, § 1926.1127(k)(6) provides:

    Compressed air shall not be used to remove cadmium from any surface
    unless the compressed air is used in conjunction with a ventilation
    system designed to capture the dust cloud created by the compressed air.

The standards regulate employee exposure to lead and cadmium when using
compressed air to clean surfaces after abrasive blasting activities. The
use of compressed air is permitted to clean surfaces if used in
conjunction with a ventilation system capable of capturing the resulting
airborne dust. The purpose is to prevent employee exposure (Tr. 111).

It is undisputed that ACC used hoses with compressed air to clean the
steel after completing the abrasive blasting (Exh. C-3; Tr. 108-109).
ACC referred to the operation as "blowing down." After the abrasive
blasting, the steel needs to be cleaned of dust particles and debris
prior to painting. The same employees who did the blasting also
performed the cleaning. There is no dispute that the dust and paint
chips contained lead and cadmium. While preforming the blowing down
operation, employees wear negative pressure respirators (Exh. R-4; Tr.
181). The cleaning was done inside the containment with the tarps in
place and the dust collector on and pulling air through the structure
(Tr. 110).

The Secretary argues that the dust collector used by ACC did not capture
the airborne dust created during cleaning. The Secretary claims that
ACC's dust collector was an inadequate ventilation system to capture the
dust (Secretary's Brief, p. 30). The Secretary recommends using
vacuuming to collect the dust as opposed to using an air hose (Tr. 112).

The record, however, does not support a finding that ACC's dust
collection system was inadequate. The Secretary performed no air flow
monitoring during the blowing down operation. The Secretary's air
monitoring of employees was done during abrasive blasting, not during
the cleaning process with compressed air. Employees's exposure levels to
lead and cadmium were not monitored. There is no showing that the dust
collector did not capture the airborne dust created during the blowing
down operations. The dust collector has 45,000 cfm rated capacity. Dan
Adley, ACC's expert, testified that the general dilution system used by
ACC was capable of capturing particles of dust generated during ACC's
cleaning through the dust collector (Tr. 989-990). The violations are
vacated.

_Item 3 - Alleged Violation of § 1926.62(j)(2)(i)(A)_

The citation alleges that ACC failed to perform biological monitoring
for employees exposed to lead concentrations greater than 50 ug/m3 PEL.
Section 1926.62(j)(2)(i)(A) requires that biological monitoring be
performed:

    For each employee covered under paragraph (j)(1)(ii) of this
    section, at least every 2 months for the first 6 months and every 6
    months thereafter;

Section 1926.62(j) contains the medical surveillance provisions for
exposure to lead in construction. Section 1926.62(j)(1)(ii) applies to
employees "who are or may be exposed by the employer at or above the
action level for more than 30 days in any consecutive 12 months." If
determined, an employer is required to perform regular biological
monitoring in the form of blood sampling and analysis for lead and zinc
protoporphyrin.

Nickolas Kofinas, John Manis and Nasos Tataridis, the employees
performing abrasive blasting, were employed by ACC for more than 30 days
in 1996 (Exh. C-23, responses 5, 8, and 11). ACC does not dispute that
the three employees were exposed to lead at or above the action level
(30 ug/m3) for more than 30 days (Exh. C-23, responses 6, 9, and 12).
Kofinas , Manis, and Tataridis received blood tests in March, 1996
,which is the start of the construction season (Exhs. C-13, R-10; Tr.
38, 116-117). Manis was retested on October 14, 1996 (Exh. R-10), and
Tatridis was retested on October 16, 1996 (Exh. C-13). However, there is
no showing that Kofinas was retested.

Because the employees were employed by ACC for several years[6], ACC is
required to retest their blood every six months for lead and zinc
protoporphyrin. The employees should have been retested in September,
1996. ACC does not dispute the violation but seeks to have it
reclassified as other than serious (ACC Brief, p. 24). ACC argues that
the employees wore C. E. Bullard positive-air supplied respirators
during abrasive blasting and negative pressure respirators during
non-blasting operations (Exh. R-4; Tr. 181, 200). ACC argues that its
failure by two weeks to have employees' blood tested for lead did not
directly cause any employee exposure to serious physical harm or injury.

The standard requires retesting every six months for permanant employees
to determine whether an employee's lead levels are increasing. If an
employee's lead level exceeds 50 micrograms, the employee is medically
removed from the job. By retesting employees, an employer has an
opportunity to assess its overall lead program and the employee's work
practices. By failing to regularly retest, an employee's lead levels may
unexpectedly increase and cause lead poisoning. When another employee
(Koppos) was retested in October, 1996, his blood level exceeded 50
micrograms and he needed to be medically reassigned (Exh. C-13, Tr.
118). The violation is affirmed as serious.

_Item 4a and 4b - Alleged Violation of § 1926.1127(d)(1)(i)_

The citation alleges that ACC did not test employees for possible
exposure to airborne cadmium (Item 4a). The citation also alleges that
the designated competent person was not capable of identifying hazards
associated with cadmium exposure (Item 4b). Section 1926.1127(d)(1)(i)
provides in part that:

    Prior to the performance of any construction work where employees
    may be potentially exposed to cadmium, the employer shall establish
    the applicability of this standard by determining whether cadmium is
    present in the workplace and whether there is the possibility that
    employee exposures will be at or above the action level. The
    employer shall designate a competent person who shall make this
    determination.

The Secretary argues that ACC failed to determine the potential for
cadmium exposure at or above the action level of 2.5 ug/m3. A "competent
person" is defined at § 1926.1127(b) as a "person designated by the
employer to act on the employer's behalf who is capable of identifying
existing and potential cadmium hazards in the workplace." Section
1926.1127(d) requires that in determining the potential exposure to
cadmium, an "investigation shall include a review of relevant plans,
past reports, material safety data sheets, and other available records,
and consultations with the property owner and discussions with
appropriate individuals and agencies." The Secretary argues that ACC
failed to undertake any initial investigation (Secretary's Brief, p. 34).

_Item 4a_

Prior to abrasive blasting, ACC performed a TCLP extraction and air
monitoring for lead on October 13 at the bridge site (Tr. 125). The TCLP
extraction determines whether the residue dust that is separated from
the reuseable shot can be placed in a regular landfill or whether it
must be disposed of in a hazardous waste landfill. The test does not
determine whether cadmium in a surfacing coating will become airborne in
the dust generated during abrasive blasting (Tr. 126). There was no air
monitoring for cadmium.

ACC does not dispute that cadmium was present in the dust generated
during abrasive blasting on the Denison Street bridge. The Secretary's
air monitoring found three employees (Manis, Kofinas, Tataridis) exposed
to cadmium. John Manis'monitoring result was 2.747 mg/m3 and Nasos
Tataridis' monitoring result was 2.984 mg/m3--above the action level of
2.5 ug/m3. Nick Kofinas' monitoring result was 2.035 mg/m3 (Exhs. C-4,
C-6, C-7).

Prior to starting the Denison Avenue bridge project, ACC retained
Project Teach to perform initial air monitoring at the Denision bridge
(Tr. 357-358, 1218). Job superintendent Kozanis acknowledges that the
samples were not analyzed for cadmium (Tr. 370-371). He concedes that it
was a mistake (Tr. 341). Also, Harry Koumoundouros, ACC quality control
supervisor, testified that air monitoring results at other ACC bridge
projects in 1996 found the presence of lead and cadmium (Tr. 1219, 1228).

ACC states that it did test for the presence of cadmium in a bulk sample
by a TCLP extraction. However, an extraction test performed in May,
1995, at another project found cadmium levels of 1.2 to 2.8 ug/m3 (Exh.
C-14, Tr. 127). ACC argues that the violation for failing to test should
be vacated or reduced to other than serious because employees wore
appropriate personal protective equipment (ACC Brief, p. 25).

The record supports a finding that ACC did not make a determination
regarding the potential exposure to cadmium. ACC performed no air
monitoring or did not show that it performed other investigations into
the potential for cadmium exposure. The TCLP extraction is a bulk sample
and was not shown to provide information about the airborne exposure to
cadmium. The standard requires a determination of the possibility that
employee exposure may exceed the action level. Also, ACC was aware from
monitoring results at other bridge projects of the potential for cadmium
exposure during abrasive blasting. During a 1995 OSHA inspection, air
monitoring results found cadmium levels above the action level (Tr. 34).

_Item 4b_

With regard to the competent person violation, there is no dispute that
superintendent Kostas Kozanis was ACC's designated competent person for
the Denison Avenue bridge project (Tr. 128). To receive his competent
person certification, Kozanis attended a specialized course at the Steel
Structure's Painting Council (Exh. R-40, p. 26). The Secretary alleges
that Kozanis did not understand the difference between TCLP extraction
results and testing for cadmium which could become airborne (Tr. 128).

Kozanis testified that he receives 40 hours of safety refresher training
each year (Tr. 332). The training includes annual cadmium training (Tr.
341). He learned during training the PEL for cadmium and the minimum air
flow rate needed inside the containment was 105 (Tr. 341, 355).

The cadmium standard contains specific definitions and assigns certain
responsibilities to the designated competent person. Most importantly,
the competent person must be capable of identifying the potential for
cadmium in the work place. Kozanis' reliance on the TCLP extraction
results and monitoring done by Project Teach did not relieve him from
his responsibilities as a competent person. There was no showing that
Project Teach was instructed to monitor for cadmium or that the TCLP
extraction detected the potential for cadmium as required by the
standard. Kozanis conceded in fact that no monitoring was performed for
cadmium. Kozanis did not know what TCLP was or if a test was to be
performed (Tr. 363). Further, Kozanis had specific knowledge of the
potential for cadmium because he was the superintendent at a previous
bridge project where cadmium exposure was detected (Tr. 34). The
violation is affirmed.

_Remaining Violations in Repeat Citation No. 2_

_Item 1c - Alleged Violation of § 1926.62(e)(2)(ii)_

Section 1926.62(e)(2) requires that prior to the commencement of a job,
an employer is required to establish and implement a written compliance
program to achieve compliance with the PEL requirements for lead
exposure. The citation alleges that ACC's written compliance program for
lead did not contain certain required elements, including Element B -
engineering plans and studies used to determine methods selected for
controlling exposure; Element C - a report of the technology considered
in meeting the PEL; Element E - a detailed schedule for implementation
of the program; and Element H - a description of the arrangements made
among contractors to inform affected employees of their potential
exposure to lead. ACC argues that it prepared specific information for
Denison bridge project that identifies the lead disturbing activities,
describes the nature of the activity and specifies engineering controls
employed on the project. The plan, as described in the Secretary's
preamble, "should be a written strategy and schedule for protecting
workers from occupational hazards and must incorporate all relevant
information that relates to those goals, so that one could determine
whether the employer reasonably analyzed the problems and their
solutions, including alternatives." 58 FR, supra at 26601 (1993).

During OSHA's inspection, superintendent Kozanis produced two documents
from a binder in his pickup truck, which he identified as ACC's written
lead program (Exhs. C-15, C-16; Tr. 132). These documents were entitled
"Lead Hazards in Construction" and ACC's "Worker Lead Protection
Program." The documents provided general information about lead and did
not specifically refer to the Denison Avenue bridge project. However,
none of the attachments to Appendix A of the "Worker Lead Protection
Program" were provided, including "Lead Paint Removal Project Specific
Requirements" (Exh. C-16). Also, the "Engineering Evaluation" form which
was required to be filled out prior to starting the job was not
completed (Exh. C-15). Kozanis explained his attitude for creating
documents, such as the "Lead Paint Removal Project Specific
Requirements," when he stated that "I've got to have something to show
somebody" (Tr. 357). Additionally, Danann was provided a manufacturer's
brochure for the dust collector and a copy of the contractor
notification form (Exh. C-17; Tr. 135).

Element B requires documentation showing the engineering plans and
studies used to determine methods selected for controlling exposure.
ACC's written program describes the nature of the containment used for
bridge painting projects. It identifies the need for the dust collector
(exhaust) and air flow to maintain negative air pressure inside the
containment (Exh. C-15). The program states that ACC will employ general
dilution ventilation through the use of a dust collector and air
movement at 105 feet per minute (Exh. C-24, p. 2). However, there are no
studies or plans in ACC documentation showing how or why ACC chose
general dilution ventilation as its method to control employee lead
exposure. ACC's plan bears no resemblance to the containment used at the
Denison Avenue bridge or how it intends to achieve the required air
movement (Exh. C-18). The Federal Highway Administration identified the
importance for a plan:

    Good linear air flow is essential for low worker exposures. Linear
    air flow can only be achieved with well thought out input and
    exhaust ducts.

("Lead-Containing Paint Removal, Containment and Disposal," Exh. R-37,
p. 66).

ACC's plan contains no information regarding the method used to
determine which controls would be implemented at Denison Avenue. It does
not contain measurements, diagrams, mathematical formulas and
calculations. This is the type of informationn required by Element B.
Such information was provided by ACC at a prior bridge project (Exh. C-19).

In order to satisfy its obligations under Element C and Element E, an
employer must have a report of the technology used to satisfy the PEL
requirements and a detailed schedule for implementing its program.
Superintendent Kozanis prepared the pre-job hazard analysis identifying
the controls and implementation plan used at the project (Exh. R-13; Tr.
347). His analysis identified where the lead hazard was created and the
use of recycling equipment, dust collectors, containment tarps and
respirators. It also required the containment to maintain negative air
presssure. Also, ACC relies on the manufacturer's brochure of the dust
collector and a report of monitoring (Exhs. R-14, R-15). According to
ACC, the dust collector is the "top of the line" and cost $78,000 (Exh.
R-40, p. 24). Although the Secretary does not believe the engineering
controls used by ACC were adequate, the controls used were documented
sufficiently to satisfy the requirements of Elements C and E. The
Secretary fails to show how such documents were deficient. Element H
requires a description of the arrangements made with other contractors.
The contractor notificaton form given to Danann was blank (Exh. C-17;
Tr. 135). Superintendent Kozanis testified that ACC informed Ruhlin Co.,
the general contractor, of the potential for lead exposure (Exh. R-11;
Tr. 367-368). The document was received by Ruhlin Co. on May 11, 1996.
In addition to Ruhlin, however, there were other trades working on the
Denison Avenue bridge project, including contractors doing carpentry and
concrete removal work (Tr. 37). There is no showing that the
notification was provided to the other contractors. Since it was ACC's
work which generated the potential lead exposure, ACC retained the
responsibility to assure that all affected employees were informed.

The violation is affirmed as serious in that Elements B and H were not
included in ACC's written program. The failure to include completed
Elements B and H is shown to directly relate to employee's health from
lead exposure.

_Item 2 - Alleged Violation of § 1926.62(i)(4)(ii)_

The citation alleges that based on wipe samples from the surface of the
lunch table and the spigot of the water jug, ACC's eating area was not
free as practicable from lead contamination. Section 1926.62(i)(4)(ii)
provides that:

    The employer shall assure that lunchroom facilities or eating areas
    are as free as practicable from lead contamination.

ACC provided employees with a trailer for eating meals, taking smoke
breaks and getting a drink of water. Before entering the trailer,
employees were expected to remove their uniform, vacuum off their
clothes and wash (Tr. 350). According to ACC, the trailer was cleaned by
the quality control person in the morning before the morning break (Tr.
144, 361-362). The quality control person also was responsible for
getting a profile of the steel being blasted, the weather conditions and
temperature, and delivering the material for the blasting operation (Tr.
366-367). The testimony of Harry Koumondouris, quality control person,
is ambiquous and vague as to the frequency of cleaning the trailer.

    Q. Who is responsible for cleaning it?

    A. The Government is responsible for cleaning the lunch trailer and
    the shower trailers, but I made a practice in the past to go there
    myself and clean--no clean; check both trailers. If something is not
    done properly, I'll take care of it myself.

    Q. At this Denison Avenue, did you have an opportunity to clean the
    lunch room or lunch trailer?

    A. I went there a couple times, yes.

(Tr. 1217).

Compliance officer Danann took two wipe samples with dampened filter
paper in the lunch trailer (Tr. 80). The wipe sample from the lunch
table showed 0.78 micorgrams of lead per square centimeter. The spigot
to the water jug showed 1.67 micrograms per square centimeter (Exh.
C-5). Danann testified that the spigot was visibly dirty (Tr. 80, 142).
The sample results exceeded the 200 micrograms per square foot (or 0.22
micrograms per square centimeter) as required by the Housing and Urban
Development Guidelines[7] for decontamination (Tr. 81-85). OSHA CPL
2-2.58 recommends the use of HUD's levels (Tr. 81, 83).

Although "practicable" is not defined in the standard, the dictionary
definition is "capable of being done, effect, or performed; feasible."
Cleaning the meal area at least once a day seems a reasonable frequency.
ACC agrees based on its stated policy (Tr. 361). The use of HUD
guidelines is also a reasonable standard for cleanliness. The Secretary
argues that ACC did not clean its eating areas as often as was feasible
(Secretary's Brief, p. 40).

The violation is affirmed. The ambiquous testimony of the quality
control person fails to show that the trailer was regularly cleaned at
least once a day. Based on repeated employee use for breaks and meals,
cleaning the meal area once a day is a minimum reasonable expectation.
ACC's work on the bridge project was during the days, nights, and on
weekends, depending on the work and need to close traffic lanes on
Interstate 71 (Tr. 354). The wipe samples were taken from the table and
spigot. There is no evidence how long the dust had accumulated or when
ACC last cleaned the meal area prior to the wipe samples. The violation
is serious in that at least five employees were exposed, and consumation
of lead is one means by which employees are exposed to potential serious
short-term and long-term health affects.

_Item 3 - Alleged Violation § 1926.62(l)(1)(iv)_

The citation alleges that employees who were exposed to lead at or above
the action level of 30 ug/m3 were not provided annual re-training.
Section 1926.62(l)(1)(iv) provides that:

    The employer shall also provide the training program at least
    annually for each employee who is subject to lead exposure at or
    above the action level on any day.

The standard requires annual lead training for employees. Section
1926.62(l)(2) identifies eight topics on which employees must be
trained. ACC acknowledges that Nick Kofinas, an employee performing
abrasive blasting, did not receive training in 1996 (Exh. C-21, Para 7).
On October 26, 1996, Kofinas' lead exposure was 1963 ug/m3, 65 times
above the 30 ug/m3 action level.

ACC argues that it maintains a comprehensive lead training program for
employees which is conducted in the spring of each year (Exh. R-40, p.
27; ACC Brief, p. 29). The training program consists of a review of the
lead standard requirements. The employees also receive their initial
physical examinations, blood tests and respirator fit tests (Exhs. C-15,
C-16, R-40, p. 26-27). The training is conducted at the commencement of
the construction season in the spring. If unable to attend the initial
training session, employees are supposed to receive the training when
first reporting to work (Exh. R-40, p. 29). According to ACC, employees
who miss the March training session receive it at the worksite.

The violation is affirmed. There is no dispute that at least one
employee did not receive the annual training in 1996. The failure to
provide Kofinas lead training in 1996 indicates a weakness in ACC's
training program. It shows a deficiency in ACC's monitoring of its
training programs. ACC is a small employer with less than 15 employees
(Tr. 301).

The violation, however, is other than serious because only Kofinas was
not trained in 1996. There is no evidence that Kofinas, who had been
employed by ACC for 25 years, was not trained in the prior years (Tr.
338). The missed 1996 training may have merely reinforced Kofinas's
previous training. Kofinas was not a witness.

_Repeat Consideration for Citation 2_

The violations alleged in Citation No. 2 were classified as repeat
violations. The Secretary's basis for alleging repeat violations is
previous citations issued on January 28, 1994, to Atlas-Scordos
Painting, Inc., a bridge painting company with Nick Pontikos as
president (Exh. C-20). The citations became a final order of the Review
Commission on July 25, 1994.

A violation is a repeated violation if, at the time of the violation,
there was a Commisssion final order against the same employer for a
substantially similar violation. /Potlatch Corp./, 7 BNA OSHC 1061, 1063
(No. 16183, 1979). Unless the violation involves a general standard, the
Secretary establishes substantial similarity by showing that both
violations are of the same standard. /Monitor Constr. Co./, 16 BNA OSHC
1589, 1594 (No. 91- 1807, 1994).

There is no dispute that the same standards were previously violated and
became a final order of the Review Commission. The issue is whether the
citations were issued to the same employer. The Secretary argues that
repeat violations are established because of the commonalities between
Atlas Central Corporation and Atlas-Scordos Painting, Inc.

"Only an employer may be cited for a violation of the Act." /Vergona
Crane Co./, 15 BNA OSHC 1782, 1783 (No. 88-1745, 1992). Section 3(5) of
the Act defines an employer as "a person engaged in a business affecting
commerce who has employees." Section 3(4) defines a person as "one or
more individuals, partnerships, assiciations, corporations, business
trusts, legal representatives, or any organized group of persons."

ACC is a corporation with Nick Pontikos as president and owner (Tr. 30,
133-134, 328). Atlas-Scordos Painting, Inc., is also as a corporation
and apparantly was a joint venture between Nick Pontikos and Mike
Scordos as presidents (Tr. 328). Bill Pontikos is the
secretary-treasurer for both companies (Tr. 30, 328). Both ACC and
Atlas-Scordos Painting, Inc., are in the bridge painting business (Tr.
30). Compliance officer Danann had inspected Atlas-Scordos three times
(two sites in 1993 and one site in 1995). When she inspected
Atlas-Scordos in 1995, superintendent Kozanis was working as the foreman
on the project. Cathy Royle, the health and safety director of ACC, was
directing lead compliance activities. Also, during the inspection,
Atlas-Scordos and ACC shared office space and were located at the same
address (Tr. 30-31).

The Secretary argues that the two business should be treated as a single
employer for the repeat classification because the two entities have
common ownership and officers and were engaged in the same type of
business. /NLRB v. Patterson Menhaden Corp./, 389 F.2d 701 (5th Cir.
1968). The Secretary's argument is misplaced. Unlike the willful
classification, which requires a showing of an employer's knowledge and
intent, the repeat classification by definition is limited to the same
employer. ACC and Atlas-Scordos are different legal entities and can not
be considered as the same employer for the purposes of a repeat
classification.

_Other Than Serious Citation No. 3_

_Item 1 - Alleged Violation of § 1926.1127(m)(4)(iii)(A)_

The citation alleges that ACC's cadmium training did not identify lung
cancer as a potential long-term health effect. Section
1926.1127(m)(4)(iii)(A) provides:

    (iii) The employer shall make the training program understandable to
    the employee and shall assure that each employee is informed of the
    following:

    (A) The health hazards associated with cadmium exposure, with
    special attention to the information incorporated in appendix A to
    this section;

An employer's cadmium training program is required to inform employees
of the health hazards associated with cadmium exposure. Appendix A to
the standard provides the information contained on the safety data
sheet, including the potential health hazards from short-term (acute)
and long-term (chronic) exposures. The long-term exposure warns that
"repeated or long-term exposure to cadmium, even at relatively low
concentrations, may result in kidney damage and an increased risk of
cancer of the lungs and the prostate."

The record shows that three employees (Manis, Kofinas, Tataridis)
performing abrasive blasting were exposed to cadmium; two employees were
exposed above the action level of 2.5 ug/m3 (Exhs. C-4, C-6, C-7). Thus,
the employees should have been informed of the cancer risk associated
with cadmium exposure. A review of ACC's written safety program "Cadmium
Safety In Construction" shows no specific reference to the potential
risk of lung cancer (Exh. C-22; Tr. 150). However, the program does
review in some detail the nature of cadmium, how exposure occurs,
cadmium's action level and the PEL, and certain health hazard
information of short-term and long-term effects. Under long-term
effects, the program describes that the exposure to cadmium has caused
an increase in cancer hazards, including cancer of the prostate (Exh.
C-22, p. 2-3). ACC argues that OSHA's citation is "nit picking" (ACC
Brief, p. 30).

The court disagrees. The standard requires that employees be informed of
the potential health hazards associated with exposure to cadmium. It
directs that special attention be given to the health hazards identified
in Appendix A. ACC's program fails to identify lung cancer as a
potential health hazard. Based on the nature of employee exposure, it is
more important that ACC inform employees of the potential for lung
cancer. ACC's employees regularly work in areas of high dust
concentrations which potentially contain airborne cadmium. Inhalation
and swallowing are the means of exposure. Therefore, the potential for
lung cancer reinforces the employees' need to wear appropriate
respiratory equipment. There is no showing that ACC informed employees
of the potential of lung cancer. The violation is affirmed.

_Penalty Considerations for Citation Nos. 1 and 2_

The Commission is the final arbiter of penalties in all contested cases.
In determining an appropriate penalty, the Commission is required to
consider the size of the employer's business, history of previous
violations, the employer's good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.

ACC is entitled to credit for size and good faith. ACC is a small
employer with less than 15 employees (Tr. 301). Also, ACC maintained
appropriate health and safety programs which were, for the most part,
adequate (Tr. 302). ACC is not entitled to credit for history because
ACC has been previously cited for serious violations (Tr. 152).

_Serious Citation No. 1_

A penalty of $625 is reasonable for failing to perform biological
monitoring as required by § 1926.62(j)(2)(i)(A) (Item 3). The three
employees performing abrasive blasting were exposed to extremely high
levels of airborne concentrations of lead. One employee did not receive
a blood test in 1996 and the other employees did not receive blood tests
within the six-month frequency set by the Secretary. However, the
employees wore appropriate personal protective equipment, including an
air flow respirator.

A penalty of $625 for violation of § 1926.1127(d)(1)(i) (Items 4a and
4b) is reasonable for failing to determine the presence of cadmium in
the workplace. At least two employees were exposed above the action
level for cadmium.

_Repeat Citation No. 2_

A penalty of $625 for serious violation of § 1926.62(e)(2)(ii) (item 1c)
is reasonable. A written control plan is necessary to show compliance
with the PEL requirements for lead exposure.

A penalty of $625 for serious violation of § 1926.62(i)(4)(ii) (item 2)
is reasonable. ACC's cleaning in the meal trailer was not shown to be
regular or adequate. The wipe samples showed excessive amounts of lead
contamination on the table where employees ate and from the spigot used
by employees to obtain water. At least five employees working at the
Denison Avenue bridge project were exposed to accumulations of lead in
the trailer.

*_FINDINGS OF FACT AND CONCLUSIONS OF LAW_*

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Rule 52(a) of the Federal Rules of Civil
Procedure.

*_ORDER_*

Based upon the foregoing decision, it is ORDERED that:

_Serious Citation No. 1:_

1. Item 1a, violation of § 1926.55(a), and item 1b,violation of §
1926.55(b), are vacated.

2. Item 2a, violation of § 1926.62(h)(5), and item 2b, violation of §
1926.1127(k)(6), are vacated.

3. Item 3, violation of §1926.62(j)(2)(i)(A), is affirmed and a penalty
of $625 is assessed.

4. Item 4a, violation of § 1926.1127(d)(1)(i), and item 4b, violation of
§ 1926.1127(d)(1)(i), are affirmed and a grouped penalty of $625 is
assessed.

_Repeat Citation No. 2:_

1. Item 1a, violation of § 1926.62(c)(1), and item 1b, violation of §
1926.62(e)(1), are vacated.

2. Item 1c, violation of § 1926.62(e)(2)(ii), is affirmed as serious and
a penalty of $625 is assessed.

3. Item 2, violation of § 1926.62(i)(4)(ii), is affirmed as serious and
a penalty of $625 is assessed.

3. Item 3, violation of § 1926.62(l)(1)(iv), is affirmed as other than
serious and no penalty is assessed.

_Other Than Serious Citation No. 3_

1. Item 1, violation of § 1926.1127(m)(4)(iii)(A), is affirmed and no
penalty is assessed.

 

________________________
KEN S. WELSCH
Judge

Date: February 15, 1999

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[1] One mill equals one thousandth of an inch (Tr. 467).

[2] The fourth employee sampled was the groundsman who was working on
the bridge deck (Tr. 41).

[3] ACC argues that Cignatta is not qualified as an expert under
principals outlined in /Daubert v. Merrell Dow Pharmaceuticals,
Inc./,113 S. Ct. 2786, 2794 (1993). Mr. Cignatta is accepted as an
expert witness. Cignatta is a licensed engineer and has testified as a
qualified expert in at least two prior cases involving abrasive blasting
on bridges. /See Manganas Painting Co., Inc./, 1995-1997 CCH OSHD ¶
31,183 (No. 94-588, September 17, 1996; directed for review) and /E.
Smalis Painting Co., Inc./, 1995-1997 CCH OSHD ¶ 31,113 (No. 94-1979,
March 26, 1996; directed for review). He is a registered professional
engineer and has authored several publications (Exh. C-32). He has
prepared reports involving computer modeling and ventilation sytems for
abrasive blasting on bridges (Exhs. C-30, C-31).

[4] The Secretary's recommendation for the use of less dusty techniques,
dust suppressant additives or media was withdrawn (Tr. 296-297).

[5] Cignatta referred to push/pull ventilation also cross-flow ventilation.

[6] Kofinas and Tataridis have been employed by ACC in excess of 15
years (Tr. 338).

[7] HUD Guidelines use the unit of square feet (Tr. 81).

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