________________________________ : SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket No. 98-0950 : Fortune Interior Dismantling : Corp., : : Respondent. : ________________________________: APPEARANCES: Nancee Adams-Taylor, Esq., Office of the Solicitor of Labor, New York, NY For Complainant Charles F. Waskevich, Jr., Esq. Riker, Danzig, Scherer, Hyland & Parretti,LLP Morristown, NJ For Respondent BEFORE: MICHAEL H. SCHOENFELD, Administrative Law Judge *DECISION AND ORDER* /Background and Procedural History/ This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651--678 (1970) ("the Act"). Having had its worksite inspected by the Occupational Safety and Health Administration ("OSHA"), Fortune Interior Dismantling ("Fortune" or "Respondent") was issued one serious citation containing 19 items and one other-than-serious citation containing 3 items.[1] Civil penalties totaling $ 66,400.00 were proposed. Respondent timely contested. Following the filing of a complaint and answer and pursuant to a notice of hearing, the case came on to be heard on June 22, 23, 24, 25, 28 and 29, 1999 in New York, New York. No affected employees sought to assert party status. Both parties have filed post-hearing briefs. /Jurisdiction/ Respondent is an employer engaged in dismantling and demolition. At the time of this inspection Respondent had employees engaged in a hospital improvement project. I find that Respondent is engaged in a business affecting interstate commerce. Based on the above finding, I conclude that Respondent is an employer within the meaning of § 3(5) of the Act.[2] Accordingly, the Commission has jurisdiction over the subject matter and the parties. /Facts/ During the fall of 1997 the Clara Maass Medical Center in Bellville, New Jersey ("Clara Maass") was undergoing renovation. The general contractor and construction manager, Turner Construction Company ("Turner"), had engaged several subcontractors to perform various parts of the job. Part of the remodeling project included the renovation of the heating, ventilation and air conditioning system which, in turn, called for the demolition, dismantling and replacement of an air conditioning "chiller." The chiller was approximately 17 feet long by 6 or 7 feet wide and 10 or 12 feet high. (Tr. 662) The dismantling undertaken by Respondent required that the chiller be cut into pieces with a cutting torch after which the individual pieces were removed. The following essential facts are undisputed. As a result of a complaint received by the Parsippany, New Jersey office of OSHA from an employee of Clara Maass, Industrial Hygienist ("IH") Dionne Williams went to the work site on November 21, 1997, to conduct an inspection. The complaint had stated that fumes, apparently generated by cutting operations at the work site, were present in a medical laboratory at the hospital. (Tr. 323-25). Inasmuch as no cutting work was being conducted on November 21, 1997, the IH returned on November 24, 1997, to conduct her inspection of the work operations of Respondent. She held an opening conference with Mr. Rimolo, who identified himself as an employee of Respondent. (Tr. 53). The IH undertook air sampling of the breathing zones of the three men involved in the cutting and removal processes. The final results of the sampling revealed that the air within the breathing zone of the person doing the actual cutting contained cadmium, copper and lead in amounts greater than that allowed pursuant to each element's permissible exposure limit ("PEL"). Interviews with Respondent's employees working at the site, as well as with company officials Mr. O'Rourke and Mr. Rinaldi, provided the IH with the bases upon which she formed her belief that Respondent was in violation of numerous other standards. (See Appendix A). /Discussion/ /Alleged Violations/ Following the hearing, the Administrative Law Judge directed that the parties file serial rather than simultaneous briefs in order to have the parties more narrowly focus the issues. Both parties set forth their view of the facts of the case. The Secretary's brief identified two specific arguments, the first being that Respondent knew or with reasonable diligence could have known of the presence of cadmium, copper and lead in the chiller. (Sec. Brief, p. 8) The Secretary's second argument is that the hearing record established the violations as cited and supported the classifications and amounts of penalties as proposed. (Sec. Brief, p. 12.) Respondent was afforded a significant amount of time to study the Secretary's brief. In response, it chose to make only one legal argument; that Complainant failed to meet her burden of proof of demonstrating, by a preponderance of the evidence, that Respondent knew or could have known, with reasonable diligence, of the presence of lead, copper or cadmium. (Resp. Brief, p. 10). Thus, because Respondent seeks to rebut only one of the elements of the Secretary's case, the central issue here is whether Respondent knew or reasonably could have known of the hazardous condition, /i.e./, of the presence of cadmium, copper and lead in the atmosphere of the employee cutting the chiller apart with a cutting torch.[3] In general, to prove a violation of a standard, the Secretary must demonstrate by a preponderance of the evidence (1) that the cited standard applies, (2) noncompliance with the terms of the standard, (3) employee exposure or access to the hazard created by the noncompliance, and (4) that the employer knew, or with the exercise of reasonable diligence could have known, of the condition. /Astra Pharmaceutical Products, Inc., /9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); /Dun-Par Engineered Form Co., /12 BNA OSHC 1949 (No. 79-2553), rev'd & remanded on other grounds, 843 F.2d 1135 (8th Cir. 1988), decision on remand 13 BNA OSHC 2147 (1989). It has long been held that as to each alleged violation, [t]he Secretary has the burden of proving each element of her case by a preponderance of the evidence. /All Purpose Crane, Inc., /13 BNA OSHC 1236, 1238 (No. 82-0284, 1987). Only after the Secretary has established a prima facie violation does the burden shift to the employer to rebut the Secretary's showing. /Trinity Indus., Inc., /15 BNA OSHC 1579, n.2 at 1588 (Nos. 88-1545 and 88-1547, 1992), /reversed on other grounds, /16 F.3d 1149 (11th Cir. 1994). Where there is little or no rebuttal, the quantum of evidence to prove a fact 'is surely less in a case . . . where it stands entirely unrequited in the record by a party having full possession of all of the facts, than in a case where there is contrary evidence to detract from its weight.' /Well Solutions, Inc., /17 BNA OSHC 1211, 1215 (No. 91-0340, 1995), citing /CFT Available Concrete Pumping, /15 BNA OSHC 2195, 2198 (No. 90-0329, 1993)(additional citations omitted.) Based upon a review of the entire record, I conclude that the applicability of the cited standard and the existence of the non-complying condition has been shown as to each of the alleged violations. The other two elements, employee exposure and knowledge, warrant further discussion. The question of employee exposure usually arises as a factual one "to be determined by considering the zones of danger created by the hazard, employee work activities, their means of ingress-egress, and their comfort activities." The question most often is whether Respondent's employees, within reasonable predictability, were within the zone of danger created by the violative condition. /See, Brennan v. Gilles & Cotting, Inc., /504 F. 2d 1255, 1263 (4th Cir. 1974), Dic- Underhill, a Joint-Venture, 4 BNA OSHC 1489, 1490 (No. 3042, 1976). In this case, however, Respondent makes an almost off-handed assertion that whomever was exposed to occupational hazards at Clara Maas was not an employee of Respondent. In essence, Respondent maintains that it cannot be cited because it had no employees at Clara Maass. Respondent's claim that it bears no safety and health responsibility for the persons identified as its employees because Fortune performed no work at Clara Maass (Resp. Brief, p.6) is rejected as a patent falsehood. The identities of several companies, their interrelationships and their connection to the Clara Maass work site have been subject to intentional obfuscation by Respondent. The history of Fortune and its connection with other companies can only be gleaned from reviewing the testimony of several witnesses. I note at the outset that William Palmadessa identified himself solely as the president and sole owner of Fortune, which he said he "formed." He did not mention any interest in any other related companies, and, in giving his own employment history, he stated merely that he had been an estimator for ten years for "another company." (Tr.823-24, 828). As other testimony shows, Mr. Palmadessa was far less than forthcoming. Anthony Rinaldi, called as a witness by Respondent, identified himself as a Vice President of Crain Construction and former project manager/superintendent of IFD Construction. He testified that he worked "as a freelance estimator for Fortune" for approximately four months. (Tr 987-99). He stated that he owned 50% of Crain Construction, and he later identified William Palmadessa as the owner of the other 50%. (Tr. 966). Mr. Rinaldi described Fortune as a "regeneration" of a company owned by Daniel Palmadessa, William Palmadessa's father. The company "was previously Red Ball [Demolition]" and had been in business for 30 to 35 years. (Tr. 909). This description is basically in agreement with the IH's notes of her investigation. (Tr. 488-89). At one point in time, after the inspection and during the ongoing investigation by the IH, Mr. Rinaldi was called upon to draft a single safety program, that he understood was going to be used by Crain Construction, Fortune and Red Ball. (Tr. 933). Other than to explain that it was a rush job, and apparently a "paste up," Mr. Rinaldi had no cogent explanation why his name, title as Vice-President [for] Operations, and his office, home, mobile and beeper numbers all appeared in what was presented to the IH as Fortune's safety program. ( Tr. 69, 932-39; C-19). Nonetheless, he conceded that the document was "essentially" the one which he had prepared. (Tr. 890). He avoided a direct answer when asked if he had held himself out to be an employee of Fortune during the investigation, conceding only that he did, in fact, represent himself as "Vice-President of Operations" as shown on Fortune's purported safety program. (Tr. 960). Another witness, Frank O'Rourke, stated that during the Clara Maass job he was an account executive for Triangle Industries and that the workers identified as exposed employees were, at the time, employees of Triangle, whose role in the project was simply to "supply labor" to Turner. (Tr. 857-59, 871). He also stated that the Clara Maass job was being done pursuant to a Fortune bid proposal that had been prepared by an estimator for Fortune. (Tr. 863; C-9). He was "not sure" with whom Triangle had an agreement or contract to perform the Clara Maass job. He also conceded that his "boss" at Triangle was none other than William Palmadessa, although he claimed not to know if Mr. Palmadessa had an ownership interest in Triangle. (Tr. 890-91). When Mr. O'Rourke was questioned more closely about his statement that Triangle had supplied some exhaust fans for Clara Maass at Turner's request he said "it wasn't really Triangle, I guess it was Fortune. . . ." (Tr. 891). Interestingly enough, Mr. Rinaldi had no knowledge of Triangle Industries until the hearing. (Tr. 966). Finally, it appears that Fortune, Red Ball and Crain all have offices at the same location and that men seeking work appear at a "shape-up" at that location daily at 6:00 a.m., and might be hired by whichever of the companies need men that day. (Tr. 960-61, 967-69, 894). Thus, even if the personnel at Clara Maass who were identified as employees of Fortune were found to actually have been on the payroll of Triangle Industries (or Red Ball or Crain or any other company owned and/or controlled by Mr. Palmadessa), I would find that for the purposes of the Act, Fortune and Triangle are one and the same employer. Accordingly, I find that the cited Respondent was the employer of the employees at Clara Maass whose working conditions formed the bases of the cited violations. Resolving the issue of knowledge is somewhat more complex. Basically, the test for knowledge is whether an employer knew, or with the exercise of reasonable diligence could have known, of the presence of the violative condition. /Pride Oil Well Serv., /15 BNA OSHC 1809 (No. 87-692, 1992). "Reasonable diligence" includes more than the actual knowledge possessed by the employer; it also encompasses "the obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence." /Frank Swidzinski Co., /9 BNA OSHC 1230, 1233 (No. 76-4627, 1981). For example, the Commission, in /Texas A.C.A., Inc., /17 BNA OSHC 1048, 1050 (No. 93-3467, 1995), held that; an employer [also] has a duty to inspect its work area for hazards, and an employer who lacks actual knowledge can nevertheless be charged with constructive knowledge of conditions that could be detected through an inspection or examination of the worksite. As the Commission stated in /Automatic Sprinkler Corp. of America, /8 BNA OSHC 1384, 1387, 1980 CCH OSHD ¶ 24,495, p. 29,926 (No. 76-5089, 1980), an employer ``must make a reasonable effort to anticipate the particular hazards to which its employees may be exposed in the course of their scheduled work.'' /See Pace Constr. Corp., /14 BNA OSHC 2216, 2221, 1991-93 CCH OSHD ¶ 29,333, p. 39,431 (No. 86-758, 1991). The Commission has held that the obligation to "inspect" the work area includes not only visually observing the working conditions, but also testing for hazards which, even if not visible to the naked eye, are nonetheless reasonable to believe are present. When employees are exposed to a condition that is regulated by the Secretary's health standards, such as noise, reasonable diligence requires the employer to use those test procedures or measurements that are available to determine whether the exposure exceeds the limits set forth in the standard. /Halmar Corp., /18 BNA OSHC 1014, 1016 (92-2043, 1997). If an employer knows that a regulated air contaminant is present in its facility, reasonable diligence requires that it measure the amount of the contaminant to determine whether it is present in an excessive amount. /Seaboard Foundry, Inc., /11 BNA OSHC 1398,1402 (No. 77-3964); /General Elec. Co., /9 BNA OSHC 1722, 1728 (No. 13732, 1981). Thus, it follows, and I hold, that the Act requires that where there is the reasonably anticipated presence of air contaminants in a work area, the employer is under an obligation to make an "inspection" of the work area, which includes taking appropriate steps to determine the possible presence, nature and amount of contaminants in the air. Complainant unnecessarily goes further and maintains that Respondent, as an experienced demolition contractor, knew or should have known that its demolition work on the chiller with a cutting torch would result specifically in cadmium, copper and lead being introduced into the atmosphere.[4] In support of this proposition, Complainant relies primarily on the testimony of her expert witness Keith Motley and Respondent's expert witness William Horgan (Tr. 758-59, 988) and on various exhibits. (Sec. Brief, pp. 8-9 and n.15 at p.8). I note first that, for the reasons set out below, there is no need to show that Respondent knew the composition of the fumes given off by its cutting operation in order to trigger the requirement that it make an appropriate inquiry as to their nature and content. On this record, there is no doubt that Respondent was aware that, in general, torch cutting produces fumes and smoke, some of which are hazardous. There is ample evidence on this record that dismantling by cutting torch large equipment, such as the chiller in this case, could be expected to produce noxious, if not toxic, fumes. Mr. Motley, even though demonstrating no specific knowledge or awareness of the particular industries in which Respondent is engaged, is nonetheless a highly qualified industrial hygienist. More importantly, Mr. Motley made references to a number of publications and other sources of information, some of which are available to the general public and others which are specific to the demolition/wrecking industry. While some of these materials were denied admittance into the record as evidence of the factual statements contained therein, their importance lies in the fact that they demonstrate that an employer engaged in the business of demolition and/or dismantling equipment by torch cutting should have been aware of concerns that were well-known. [5] In an attempt to distinguish his business from that of general demolition or wrecking, Mr. Palmadessa described his company's activity as "interior dismantling." He maintained that Fortune did not use any heavy equipment or do any actual construction and that Fortune likewise did no "exterior demolition or wrecking." (Tr. 825). In addition to implying that none of the personnel at Clara Maass identified by the IH as Respondent's employees worked for Fortune at the relevant time, (Tr. 833-40), he insisted that Fortune was not engaged in the dismantling of any "structures." Further, when shown a National Association of Demolition Contractors manual he said that the contents of the manual could not pertain to him because "*_I_* couldn't even apply for this. *_I_* couldn't even get into this association, I'm not a wrecker." (Tr. 825, 833-40, 846)(Emphasis added.) In sum, Mr. Palmadessa tried to give the impression that Fortune had nothing to do with the project. In response to questioning by his own counsel, Mr. Palmadessa carefully limited his responses to the single, named corporate Respondent, Fortune Interior Dismantling, Inc. Under the pressure of cross-examination, however, Mr. Palmadessa reverted to identifying the employer in the first person as "I." I find Mr. Palmadessa's testimony to be lacking in credibility. It warrants virtually no weight due to his self-interest and lack of candor as well as the unreasonableness of his testimony, the inconsistency of his statements with other evidence of record, and my observations of his demeanor and manner on the witness stand. Moreover, the less interested and more reliable testimony of Mr. Rinaldi leads to the conclusion that, whether under the name of Fortune or Red Ball or Trinity, Mr. Palmadessa and the persons he employed him did indeed perform heavy wrecking and had done so for many years. (Tr. 969). He was therefore under a duty to perform the work at the site as would be expected of a reasonable demolition/wrecking contractor, and Respondent's claims to the contrary are rejected. I also reject Respondent's claim that it cannot be held responsible because it was not aware of the possible presence of lead, copper or cadmium because Respondent clearly had a duty to inquire further in the face of the knowledge imputable to Mr Palmadessa, and thus to Fortune, that the process it was performing at Clara Maass resulted in the release of smoke and fumes that could include toxic materials. Mr. Palmadessa begrudgingly conceded that he was aware of cadmium hazards associated with heat cutting, the very process used at Clara Maass. (Tr. 847). The existence of numerous publications warning the public and the demolition industry of the possibility that dismantling with cutting torches could produce dangerous by-products provided Respondent with at least enough information to warrant a further investigation at the worksite. As William Horgan, Respondent's own expert witness, stated, "....demolition jobs, especially mechanical demolition jobs, are always very messy jobs. Whenever there's torch cutting, a lot of that particulate matter will settle out." (Tr. 1006). Despite the foregoing, I reject Complainant's suggestion to the effect that "...the OSHA standards and PELs put respondent on notice about the hazards of exposure to cadmium copper, and lead." (Sec. Brief, n.16 at p.9). This argument is a non sequitur. The standards are regulations setting forth requirements that must be met in order to remain in compliance with the Act. The mere existence of a standard regulating a particular hazard does not put an employer on notice that the hazard is present in its workplace. In addition, the Commission has held that the Secretary, having shown a failure to comply with a standard, need not separately prove that the failure to comply resulted in the creation of a hazard, because the existence of a hazard is generally presumed where there is a failure to meet the requirements of a standard.[6] /Austin Bridge Co., /7 BNA OSHC 1763 (No. 76-0093, 1979). Moreover, accepting the Secretary's argument would essentially eliminate the requirement that the Secretary prove the knowledge element of a prima facie case because, once a violative condition was shown to have occurred, the mere existence of the standard would be deemed to have put the employer on notice about the hazard. Respondent seeks to rebut the evidence that it knew or should have known that the torch cutting of the chiller could produce hazardous fumes, claiming that it relied on information from Turner that there would be no such hazard. Respondent asserts as fact that: [i]nasmuch as Turner controlled the Clara Maass multi-employer work site, and, indeed, had made affirmative efforts to determine the safety of the chiller and, more importantly approved the chiller for dismantling, respondent was entitled to rely upon _Turner's representations that the chiller was free of hazards._ (Resp. Brief, p. 17)(Emphasis added.) (Citations omitted.). There is, however, no support in the record for this assertion, particularly upon consideration of the portions of the transcript cited by Respondent. (Tr. 991, 988 and 993) All the cited portions are statements made by William Horgan, an expert industrial hygienist called by Respondent, who testified that Turner did "some" or an "initial" investigation regarding the chiller and that Turner did not "present to Fortune" (Tr. 991) or "indicate to Fortune" (Tr. 993) any hazards, other than those involving the draining of coolant fluid prior to the dismantling of the chiller. (Tr. 991, 993.) This witness, however, points to no evidence as to the scope, nature or timing of Turner's "investigation." Further, it appears that Turner's action as a result of its investigation which was to take precautions when the coolant liquid was drained from the chiller, was completed before Respondent's employees arrived at the site. Finally, even if Turner advised Respondent that removal of the coolant fluid was or might be hazardous and informed Respondent of no other hazard regarding dismantling of the chiller, such lack of additional warnings does not amount to Turner affirmatively advising Respondent that the dismantling work would be free of other hazards. Respondent points to no evidence in this record as to what information or warnings regarding the chiller Turner gave to Respondent. Perhaps this is because Trane's Service Manager testified that he might have met with a representative of Turner at Clara Maass in response to Turner's request for help in "properly disposing of the bromide [cooling fluid]". The Trane Service Manager understood that he was there to inform Turner "of the solutions" in the cooler (Tr. 676-77), and his agreement that he would have "most likely" informed Trane if there were any hazards of which he was aware (Tr. 679) is a far cry from concluding that Turner was informed by Trane that there would be no hazards attendant to dismantling the chiller with a cutting torch. Thus, the suggested finding that Turner made representations to Respondent that the dismantling of the chiller would be hazard free is rejected. In this regard, Respondent's reliance on several cases it cites is rejected because this is not a case in which an employer relied on what subsequently turned out to be misinformation provided by others.[7] Moreover, even if Trane did give a general clearance to Respondent, the pivotal fact is that Respondent made no attempt to gather information as to the specifics at the site despite its knowledge that the process of dismantling by torch cutting could produce toxic fumes. Respondent's repeated claim that it had no responsibility for the safety and health of its employees because they were working on a job that was overseen by Turner, a general contractor, is rejected. An employer cannot contract away its duties to its own employees or its ultimate legal responsibility to them under the Act. /Tri-State Steel Constr., Inc., /15 BNA OSHC 1903, 1916 n.23 (No. 89-2611, 1992)(consolidated), /aff'd on other grounds, /26 F.3d 173 (D.C. Cir. 1994), cert. denied, 115 S.Ct. 1355 (1995). Where, as here, an employer sends its employees to work at a site controlled by another, the employer "must instruct them about the hazards that might be encountered" at that site. /Baker Tank Co./Altech, A Div. Of Justiss Oil Co., /17 BNA OSHC 1177, 1179-80 (No. 90-1786-S, 1995). The goals of the Act and the safety and health of employees cannot be left to employers who, intentionally or unintentionally, fail to act upon their own knowledge, however gleaned, as to potential hazards generated by their work processes. The Act imposes on employers, regardless of the particular industry in which they operate, an affirmative duty to inquire further where there are warning signs. It is this failure to make any reasonable inquiry that triggers the imputation of constructive knowledge to Respondent and, accordingly, I find that knowledge of the hazardous condition is imputable to Respondent. Based on the above findings and the reasonable inferences arising from the evidence of record, I conclude that the Secretary has carried her burden of proving by a preponderance of the evidence that each of the cited standards applied to Respondent and that Respondent failed to comply with those standards. I further conclude that Respondent's employees were exposed to the hazards generated by each of the violative conditions and that Respondent knew or reasonably could have known of each of the violative conditions. Each and every cited violation is consequently AFFIRMED. /Penalties/ Regardless of the penalties proposed by the Secretary, the assessment of appropriate penalties in a contested matter is within the sole discretion of the Commission. The Commission has often held that in determining appropriate penalties for violations, "due consideration" must be given to the four criteria under section 17(j) of the Act, 29 U.S.C. § 666(j). Those factors include the size of the employer's business, the gravity of the violation, the good faith of the employer and its prior history. /Nacirema Operating Co., /1 BNA OSHC 1001 (No. 4, 1972). The Commission has noted that the gravity of the violation is generally the primary element in the penalty assessment. Gravity is said to encompass: "(1) the number of employees exposed, (2) the duration of exposure, (3) the precautions taken against injury, and (4) the degree of probability that any injury would occur." /National Realty and Constr. Co., /1 BNA OSHC 1049, 1051 (No. 85, 1972), rev'd on other grounds, 489 F.2d 1257 (D.C.Cir. 1973) While the Secretary's post-hearing brief sets out a statement of the general law and the Secretary's methodology for calculating proposed penalties, it fails to point to any evidence or testimony as to how the proposed penalties were ascertained in this case. A review of the record, however, shows that the IH testified she adjusted her proposed penalty based on her understanding that Respondent "controlled" 200 employees nationwide. (Tr. 110). She gave no reduction in penalty for good faith because Respondent had only a "piecemeal" and apparently disorganized safety program. No credit was given for history because "the company had had an OSHA inspection [resulting in at least one citation] within the last three years ." (/Id./) "[T]he failure of the Secretary to elicit testimony on every single subpart or each section 17(j) criterion" does not require the imposition of only a nominal penalty but, where such evidence is lacking, "an employer will be given the benefit of the doubt on statutory factors for which little relevant evidence was adduced." /Quality Stamping Product, Inc., /16 BNA OSHC 1927, 1928 (No. 91-0414, 1994) citing, /J. A. Jones Const. Co., /15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). Exposure to toxic substances such as lead, cadmium and copper can produce severe injury and, in some cases, death. The violations are thus severe within the meaning of the Act. Applying the gravity factors in this case, I find that employee exposure was minimal. Respondent, had only three employees at the site, and only one employee was exposed to the air contaminants exceeding the PELs; therefore, only one employee was affected by the administrative and engineering controls violations, the respirator violations, and the lead and cadmium clothing, shower and changing area violations. Although the exposure of the one employee to air contaminants was limited the one day on which he was tested, it is reasonable to infer that as long as that employee continued the torch cutting of the chiller his exposure would be the same. Neither party has identified any other evidence as to this question, and, accordingly, I accord Respondent "the benefit of the doubt" as to the duration of exposure. Respondent did not supply the one employee doing the cutting with a respirator, a changing area, shower or work clothes. Respondent thus did nothing to protect its employee, but, in the absence of any relevant evidence pointed to by the Secretary, the likelihood of injury must also be regarded as low. In sum, the gravity of the violations in this case was minimal to very low. Respondent's size is perhaps better indicated by the fact that it does 1,000 to 1,500 dismantling jobs per year and would have about 30 to 60 employees working for it on any given day. (Tr. 827, 840). Considering Respondent's small size and the low gravity of the violations, as well as the company's prior history and relative lack of good faith, I am of the opinion that a penalty of $ 1500 is appropriate for each of the 19 violations found. Thus, a total civil penalty of $ 28,500.00 is assessed. /FINDINGS OF FACT/ All findings of fact necessary for a determination of all relevant issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law urged by the parties which are inconsistent with this decision are hereby denied. /CONCLUSIONS OF LAW/ 1. Respondent was, at all times pertinent hereto, an employer within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. § § 651--678 (1970). 2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter. 3. Respondent was in violation of § 5(a)(2) of the Act in that it failed to comply with the standards cited in Citation 1, Items 1 through and including 19, as amended by the Complaint. 4. Each and every one of the violations of the Act found above is a serious violation. 5. A total civil penalty of $ 28,500.00 is appropriate. *ORDER* 1. Items 1 through and including 19, of the citation issued to Respondent on or about June 5, 1998 as amended by the complaint filed, are AFFIRMED. 2. Respondent shall pay a total civil penalty of $ 28,500.00 ________________________ Michael H. Schoenfeld Judge, OSHRC Washington, D.C. Date: March 20, 2000 ------------------------------------------------------------------------ ________________________________ : SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket No. 98-0950 : Fortune Interior Dismantling : Corp., : : Respondent. : ________________________________: *DECISION AND ORDER* APPENDIX A SERIOUS CITATION ITEMS[8] *Item* *Standard(s) 29 C.F.R. §* *Description* *Proposed Penalty (Dollars)* 1a 1910.134(b)(1) Lack of standard operating procedures for the selection and use of respirators. 4000 1b 1910.134(b)(3) 1926.103(e)(3) Users not properly instructed and trained in respirator use. ---- 2 1926.21(b)(2) Each employee not instructed in hazards and regulations. 4000 3a 1926.55(a) Overexposure to airborne copper. 1200 3b 1926.55(b) Feasible administrative or engineering controls not used to reduce copper exposure. ---- 4a 1926.62(c) Overexposure to airborne lead. 4000 4b 1926.62(e) Feasible administrative or engineering controls not used to reduce lead exposure. ---- 5 1926.62(d)(1) Failure to make initial determination of lead exposure level. 4000 6 1926.62(e)(2)(i) No written plan for controlling lead exposure. 4000 7 1926.62(f)(3)(ii) 1926.1127(g)(4)(ii) 1926.103(g)(5) Failure to perform respirator face fit tests for lead or cadmium protection on respirators being used while chiller cutting.. 4000 8 1926.62(g)(1)(i) Failure to provide appropriate work clothing for lead work. 4000 8b 1926.1127(i)(1)(i) Failure to provide appropriate work clothing for cadmium work. ---- 9a 1926.62(i)(2)(i) Lead exposed employee not provided with clothing change area. 4000 9b 1926.1127(j)(1) No showers or change areas for cadmium exposed employee. ---- 10 1926.62(j)(1)(ii) No medical surveillance program for lead exposed employee. 4000 11 1926.62(l)(1)(ii) 1926.62(l)(1)(i) No lead prevention training for lead exposed employee. 4000 12 1926.62(m)(2)(i) No warning signs where lead level above PEL. 2000 13a 1926.1127(c) Employee exposed to cadmium above PEL. 4000 13b 1926.1127(d)(1)(i) No initial assessment of possible cadmium exposure. ---- 13c 1926.1127(f)(1)(i) No engineering controls to reduce cadmium exposure ---- 14 1926.1127(f)(5)(i) No written compliance program regarding cadmium exposure exceeding PEL. 4000 15 1926.1127(i)(2)(ii) Failure to prevent employees from taking home cadmium exposed work clothing. 4000 16 1926.1127(l)(1)(i)(a) No medical surveillance program for employee doing demolition where cadmium was present. 4000 17 1926.1127(m)(2)(ii) No warning signs where airborne cadmium present. 2000 18 1926.1127(m)(4)(i) No training program for employee exposed to cadmium above PEL. 4000 19a 1910.2000(e)(1) Hazard Communication Program (HAZCOM) did not describe training for copper exposure. 1200 19b 1910.1200(h) Employees not given information and training in dealing with copper. ---- ------------------------------------------------------------------------ [1] Citation 2, alleging other-than-serious violations, was withdrawn by the Secretary. [2] Title 29 U.S.C. § 652(5). [3] In its post-hearing brief Respondent also abandoned any and all affirmative defenses raised by its answer. [4] To what degree, if any, the chiller was in fact painted, and whether it actually contained brazing including lead, and whether it consisted of copper pipes, have been evidentiary whirlwinds of minor proportion. Respondent's breach of duty was that it failed to make any inquiries as to the presence of concentrations of toxic fumes where the process it was using in dismantling the chiller (cutting torch) was known to produce a variety of fumes. Moreover, there is no dispute on this record that air contaminants exceeding the PELs were present within the employee's breathing zone. [5] Complainant, (Sec. Brief, fn 15 at p. 8) relies on exhibits which were admitted for a specific and limited purpose. (Tr. 781, 788). See also, Ex. C 36-39, admitted with a caveat. (Tr. 708-10). [6] There are some standards which, by their own terms, raise a presumption of the existence of a hazard. For example, under the construction asbestos standard, 29 C.F.R. § 1926.1101(b), any "thermal system insulation and surfacing material" in buildings built before 1980 is "presumed [to be] asbestos containing material." Where such a condition exists, employees are presumed to have been exposed to asbestos in amounts exceeding the PELs until the employer demonstrates otherwise. 29 C.F.R. § 1926.1101(f)(2)(ii). It is interesting to note that the asbestos construction standard in effect, imposes a duty to investigate where a condition exists which is a clear warning sign. In addition to creating the duty to investigate, that standard specifically presumes the existence of an asbestos hazard where warning signs are present unless the employer shows otherwise. Thus, by regulation, the Secretary has created the trigger to investigate. Compare the wording of the asbestos standard, cited above, with that of the scope provisions of the lead in construction standard, which makes the standard applicable to "all construction work where an employee may be occupationally exposed to lead." 29 C.F.R. § 1926.62(a). The same standard goes on to specifically include "[d]emolition or salvage of structures where lead or materials containing lead are present." 29 C.F.R. § 1926.62(a)(1). [7] Resp. Brief, p. 12. [8] Citation items as amended by the Complaint. ------------------------------------------------------------------------ OSHRC Home