“________________________________ :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 RespondentBEFORE: 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 HealthAdministration (\”OSHA\”), Fortune Interior Dismantling (\”Fortune\” or\”Respondent\”) was issued one serious citation containing 19 items andone other-than-serious citation containing 3 items.[1] Civil penaltiestotaling $ 66,400.00 were proposed. Respondent timely contested.Following the filing of a complaint and answer and pursuant to a noticeof hearing, the case came on to be heard on June 22, 23, 24, 25, 28 and29, 1999 in New York, New York. No affected employees sought to assertparty status. Both parties have filed post-hearing briefs.\/Jurisdiction\/Respondent is an employer engaged in dismantling and demolition. At thetime of this inspection Respondent had employees engaged in a hospitalimprovement project. I find that Respondent is engaged in a businessaffecting interstate commerce.Based on the above finding, I conclude that Respondent is an employerwithin the meaning of ? 3(5) of the Act.[2] Accordingly, the Commissionhas jurisdiction over the subject matter and the parties.\/Facts\/During the fall of 1997 the Clara Maass Medical Center in Bellville, NewJersey (\”Clara Maass\”) was undergoing renovation. The general contractorand construction manager, Turner Construction Company (\”Turner\”), hadengaged several subcontractors to perform various parts of the job. Partof the remodeling project included the renovation of the heating,ventilation and air conditioning system which, in turn, called for thedemolition, dismantling and replacement of an air conditioning\”chiller.\” The chiller was approximately 17 feet long by 6 or 7 feetwide and 10 or 12 feet high. (Tr. 662) The dismantling undertaken byRespondent required that the chiller be cut into pieces with a cuttingtorch after which the individual pieces were removed.The following essential facts are undisputed. As a result of a complaintreceived by the Parsippany, New Jersey office of OSHA from an employeeof Clara Maass, Industrial Hygienist (\”IH\”) Dionne Williams went to thework site on November 21, 1997, to conduct an inspection. The complainthad stated that fumes, apparently generated by cutting operations at thework 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 ofthe work operations of Respondent. She held an opening conference withMr. Rimolo, who identified himself as an employee of Respondent. (Tr.53). The IH undertook air sampling of the breathing zones of the threemen involved in the cutting and removal processes. The final results ofthe sampling revealed that the air within the breathing zone of theperson doing the actual cutting contained cadmium, copper and lead inamounts greater than that allowed pursuant to each element’s permissibleexposure limit (\”PEL\”). Interviews with Respondent’s employees workingat 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 beliefthat Respondent was in violation of numerous other standards. (SeeAppendix A).\/Discussion\/\/Alleged Violations\/Following the hearing, the Administrative Law Judge directed that theparties file serial rather than simultaneous briefs in order to have theparties more narrowly focus the issues. Both parties set forth theirview of the facts of the case. The Secretary’s brief identified twospecific arguments, the first being that Respondent knew or withreasonable diligence could have known of the presence of cadmium, copperand lead in the chiller. (Sec. Brief, p. 8) The Secretary’s secondargument is that the hearing record established the violations as citedand supported the classifications and amounts of penalties as proposed.(Sec. Brief, p. 12.) Respondent was afforded a significant amount oftime to study the Secretary’s brief. In response, it chose to make onlyone legal argument; that Complainant failed to meet her burden of proofof demonstrating, by a preponderance of the evidence, that Respondentknew or could have known, with reasonable diligence, of the presence oflead, copper or cadmium. (Resp. Brief, p. 10).Thus, because Respondent seeks to rebut only one of the elements of theSecretary’s case, the central issue here is whether Respondent knew orreasonably could have known of the hazardous condition, \/i.e.\/, of thepresence of cadmium, copper and lead in the atmosphere of the employeecutting the chiller apart with a cutting torch.[3]In general, to prove a violation of a standard, the Secretary mustdemonstrate by a preponderance of the evidence (1) that the citedstandard 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 reasonablediligence could have known, of the condition. \/Astra PharmaceuticalProducts, Inc., \/9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); \/Dun-ParEngineered Form Co., \/12 BNA OSHC 1949 (No. 79-2553), rev’d & remandedon other grounds, 843 F.2d 1135 (8th Cir. 1988), decision on remand 13BNA 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 and88-1547, 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 theapplicability of the cited standard and the existence of thenon-complying condition has been shown as to each of the allegedviolations. The other two elements, employee exposure and knowledge,warrant further discussion.The question of employee exposure usually arises as a factual one \”to bedetermined by considering the zones of danger created by the hazard,employee work activities, their means of ingress-egress, and theircomfort activities.\” The question most often is whether Respondent’semployees, within reasonable predictability, were within the zone ofdanger created by the violative condition. \/See, Brennan v. Gilles &Cotting, Inc., \/504 F. 2d 1255, 1263 (4th Cir. 1974), Dic- Underhill, aJoint-Venture, 4 BNA OSHC 1489, 1490 (No. 3042, 1976). In this case,however, Respondent makes an almost off-handed assertion that whomeverwas exposed to occupational hazards at Clara Maas was not an employee ofRespondent. In essence, Respondent maintains that it cannot be citedbecause it had no employees at Clara Maass.Respondent’s claim that it bears no safety and health responsibility forthe persons identified as its employees because Fortune performed nowork at Clara Maass (Resp. Brief, p.6) is rejected as a patentfalsehood. The identities of several companies, their interrelationshipsand their connection to the Clara Maass work site have been subject tointentional obfuscation by Respondent.The history of Fortune and its connection with other companies can onlybe gleaned from reviewing the testimony of several witnesses. I note atthe outset that William Palmadessa identified himself solely as thepresident and sole owner of Fortune, which he said he \”formed.\” He didnot mention any interest in any other related companies, and, in givinghis own employment history, he stated merely that he had been anestimator for ten years for \”another company.\” (Tr.823-24, 828). Asother testimony shows, Mr. Palmadessa was far less than forthcoming.Anthony Rinaldi, called as a witness by Respondent, identified himselfas a Vice President of Crain Construction and former projectmanager\/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 helater identified William Palmadessa as the owner of the other 50%. (Tr.966). Mr. Rinaldi described Fortune as a \”regeneration\” of a companyowned by Daniel Palmadessa, William Palmadessa’s father. The company\”was previously Red Ball [Demolition]\” and had been in business for 30to 35 years. (Tr. 909). This description is basically in agreement withthe 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 heunderstood was going to be used by Crain Construction, Fortune and RedBall. (Tr. 933). Other than to explain that it was a rush job, andapparently a \”paste up,\” Mr. Rinaldi had no cogent explanation why hisname, title as Vice-President [for] Operations, and his office, home,mobile and beeper numbers all appeared in what was presented to the IHas Fortune’s safety program. ( Tr. 69, 932-39; C-19). Nonetheless, heconceded that the document was \”essentially\” the one which he hadprepared. (Tr. 890). He avoided a direct answer when asked if he hadheld 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 safetyprogram. (Tr. 960).Another witness, Frank O’Rourke, stated that during the Clara Maass jobhe was an account executive for Triangle Industries and that the workersidentified as exposed employees were, at the time, employees ofTriangle, whose role in the project was simply to \”supply labor\” toTurner. (Tr. 857-59, 871). He also stated that the Clara Maass job wasbeing done pursuant to a Fortune bid proposal that had been prepared byan estimator for Fortune. (Tr. 863; C-9). He was \”not sure\” with whomTriangle had an agreement or contract to perform the Clara Maass job. Healso conceded that his \”boss\” at Triangle was none other than WilliamPalmadessa, although he claimed not to know if Mr. Palmadessa had anownership interest in Triangle. (Tr. 890-91). When Mr. O’Rourke wasquestioned more closely about his statement that Triangle had suppliedsome exhaust fans for Clara Maass at Turner’s request he said \”it wasn’treally Triangle, I guess it was Fortune. . . .\” (Tr. 891). Interestinglyenough, Mr. Rinaldi had no knowledge of Triangle Industries until thehearing. (Tr. 966).Finally, it appears that Fortune, Red Ball and Crain all have offices atthe same location and that men seeking work appear at a \”shape-up\” atthat location daily at 6:00 a.m., and might be hired by whichever of thecompanies need men that day. (Tr. 960-61, 967-69, 894). Thus, even ifthe personnel at Clara Maass who were identified as employees of Fortunewere found to actually have been on the payroll of Triangle Industries(or Red Ball or Crain or any other company owned and\/or controlled byMr. Palmadessa), I would find that for the purposes of the Act, Fortuneand Triangle are one and the same employer. Accordingly, I find that thecited Respondent was the employer of the employees at Clara Maass whoseworking 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 exerciseof reasonable diligence could have known, of the presence of theviolative condition. \/Pride Oil Well Serv., \/15 BNA OSHC 1809 (No.87-692, 1992). \”Reasonable diligence\” includes more than the actualknowledge possessed by the employer; it also encompasses \”the obligationto inspect the work area, to anticipate hazards to which employees maybe exposed, and to take measures to prevent the occurrence.\” \/FrankSwidzinski 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 areaincludes not only visually observing the working conditions, but alsotesting for hazards which, even if not visible to the naked eye, arenonetheless reasonable to believe are present. When employees areexposed to a condition that is regulated by the Secretary’s healthstandards, such as noise, reasonable diligence requires the employer touse those test procedures or measurements that are available todetermine whether the exposure exceeds the limits set forth in thestandard. \/Halmar Corp., \/18 BNA OSHC 1014, 1016 (92-2043, 1997). If anemployer knows that a regulated air contaminant is present in itsfacility, reasonable diligence requires that it measure the amount ofthe contaminant to determine whether it is present in an excessiveamount. \/Seaboard Foundry, Inc., \/11 BNA OSHC 1398,1402 (No. 77-3964);\/General Elec. Co., \/9 BNA OSHC 1722, 1728 (No. 13732, 1981). Thus, itfollows, and I hold, that the Act requires that where there is thereasonably anticipated presence of air contaminants in a work area, theemployer is under an obligation to make an \”inspection\” of the workarea, which includes taking appropriate steps to determine the possiblepresence, nature and amount of contaminants in the air.Complainant unnecessarily goes further and maintains that Respondent, asan experienced demolition contractor, knew or should have known that itsdemolition work on the chiller with a cutting torch would resultspecifically in cadmium, copper and lead being introduced into theatmosphere.[4] In support of this proposition, Complainant reliesprimarily on the testimony of her expert witness Keith Motley andRespondent’s expert witness William Horgan (Tr. 758-59, 988) and onvarious 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 toshow that Respondent knew the composition of the fumes given off by itscutting operation in order to trigger the requirement that it make anappropriate inquiry as to their nature and content. On this record,there is no doubt that Respondent was aware that, in general, torchcutting produces fumes and smoke, some of which are hazardous.There is ample evidence on this record that dismantling by cutting torchlarge equipment, such as the chiller in this case, could be expected toproduce noxious, if not toxic, fumes. Mr. Motley, even thoughdemonstrating no specific knowledge or awareness of the particularindustries in which Respondent is engaged, is nonetheless a highlyqualified industrial hygienist. More importantly, Mr. Motley madereferences to a number of publications and other sources of information,some of which are available to the general public and others which arespecific to the demolition\/wrecking industry. While some of thesematerials were denied admittance into the record as evidence of thefactual statements contained therein, their importance lies in the factthat they demonstrate that an employer engaged in the business ofdemolition and\/or dismantling equipment by torch cutting should havebeen aware of concerns that were well-known. [5]In an attempt to distinguish his business from that of generaldemolition or wrecking, Mr. Palmadessa described his company’s activityas \”interior dismantling.\” He maintained that Fortune did not use anyheavy equipment or do any actual construction and that Fortune likewisedid no \”exterior demolition or wrecking.\” (Tr. 825). In addition toimplying that none of the personnel at Clara Maass identified by the IHas Respondent’s employees worked for Fortune at the relevant time, (Tr.833-40), he insisted that Fortune was not engaged in the dismantling ofany \”structures.\” Further, when shown a National Association ofDemolition Contractors manual he said that the contents of the manualcould 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 givethe impression that Fortune had nothing to do with the project. Inresponse to questioning by his own counsel, Mr. Palmadessa carefullylimited his responses to the single, named corporate Respondent, FortuneInterior Dismantling, Inc. Under the pressure of cross-examination,however, Mr. Palmadessa reverted to identifying the employer in thefirst person as \”I.\” I find Mr. Palmadessa’s testimony to be lacking incredibility. It warrants virtually no weight due to his self-interestand lack of candor as well as the unreasonableness of his testimony, theinconsistency of his statements with other evidence of record, and myobservations of his demeanor and manner on the witness stand. Moreover,the less interested and more reliable testimony of Mr. Rinaldi leads tothe conclusion that, whether under the name of Fortune or Red Ball orTrinity, Mr. Palmadessa and the persons he employed him did indeedperform heavy wrecking and had done so for many years. (Tr. 969). He wastherefore under a duty to perform the work at the site as would beexpected of a reasonable demolition\/wrecking contractor, andRespondent’s claims to the contrary are rejected.I also reject Respondent’s claim that it cannot be held responsiblebecause it was not aware of the possible presence of lead, copper orcadmium because Respondent clearly had a duty to inquire further in theface of the knowledge imputable to Mr Palmadessa, and thus to Fortune,that the process it was performing at Clara Maass resulted in therelease of smoke and fumes that could include toxic materials. Mr.Palmadessa begrudgingly conceded that he was aware of cadmium hazardsassociated with heat cutting, the very process used at Clara Maass. (Tr.847). The existence of numerous publications warning the public and thedemolition industry of the possibility that dismantling with cuttingtorches could produce dangerous by-products provided Respondent with atleast enough information to warrant a further investigation at theworksite. As William Horgan, Respondent’s own expert witness, stated,\”….demolition jobs, especially mechanical demolition jobs, are alwaysvery messy jobs. Whenever there’s torch cutting, a lot of thatparticulate matter will settle out.\” (Tr. 1006).Despite the foregoing, I reject Complainant’s suggestion to the effectthat \”…the OSHA standards and PELs put respondent on notice about thehazards of exposure to cadmium copper, and lead.\” (Sec. Brief, n.16 atp.9). This argument is a non sequitur. The standards are regulationssetting forth requirements that must be met in order to remain incompliance with the Act. The mere existence of a standard regulating aparticular hazard does not put an employer on notice that the hazard ispresent in its workplace. In addition, the Commission has held that theSecretary, having shown a failure to comply with a standard, need notseparately prove that the failure to comply resulted in the creation ofa hazard, because the existence of a hazard is generally presumed wherethere is a failure to meet the requirements of a standard.[6] \/AustinBridge Co., \/7 BNA OSHC 1763 (No. 76-0093, 1979). Moreover, acceptingthe Secretary’s argument would essentially eliminate the requirementthat the Secretary prove the knowledge element of a prima facie casebecause, once a violative condition was shown to have occurred, the mereexistence of the standard would be deemed to have put the employer onnotice about the hazard.Respondent seeks to rebut the evidence that it knew or should have knownthat the torch cutting of the chiller could produce hazardous fumes,claiming that it relied on information from Turner that there would beno 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 uponconsideration of the portions of the transcript cited by Respondent.(Tr. 991, 988 and 993) All the cited portions are statements made byWilliam Horgan, an expert industrial hygienist called by Respondent, whotestified that Turner did \”some\” or an \”initial\” investigation regardingthe chiller and that Turner did not \”present to Fortune\” (Tr. 991) or\”indicate to Fortune\” (Tr. 993) any hazards, other than those involvingthe draining of coolant fluid prior to the dismantling of the chiller.(Tr. 991, 993.) This witness, however, points to no evidence as to thescope, nature or timing of Turner’s \”investigation.\” Further, it appearsthat Turner’s action as a result of its investigation which was to takeprecautions when the coolant liquid was drained from the chiller, wascompleted before Respondent’s employees arrived at the site. Finally,even if Turner advised Respondent that removal of the coolant fluid wasor might be hazardous and informed Respondent of no other hazardregarding dismantling of the chiller, such lack of additional warningsdoes not amount to Turner affirmatively advising Respondent that thedismantling work would be free of other hazards. Respondent points to noevidence in this record as to what information or warnings regarding thechiller Turner gave to Respondent. Perhaps this is because Trane’sService Manager testified that he might have met with a representativeof Turner at Clara Maass in response to Turner’s request for help in\”properly disposing of the bromide [cooling fluid]\”. The Trane ServiceManager understood that he was there to inform Turner \”of the solutions\”in the cooler (Tr. 676-77), and his agreement that he would have \”mostlikely\” 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 Tranethat there would be no hazards attendant to dismantling the chiller witha cutting torch. Thus, the suggested finding that Turner maderepresentations to Respondent that the dismantling of the chiller wouldbe hazard free is rejected. In this regard, Respondent’s reliance onseveral cases it cites is rejected because this is not a case in whichan employer relied on what subsequently turned out to be misinformationprovided by others.[7] Moreover, even if Trane did give a generalclearance to Respondent, the pivotal fact is that Respondent made noattempt to gather information as to the specifics at the site despiteits knowledge that the process of dismantling by torch cutting couldproduce toxic fumes.Respondent’s repeated claim that it had no responsibility for the safetyand health of its employees because they were working on a job that wasoverseen by Turner, a general contractor, is rejected. An employercannot contract away its duties to its own employees or its ultimatelegal 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 employeesto work at a site controlled by another, the employer \”must instructthem about the hazards that might be encountered\” at that site. \/BakerTank 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 beleft to employers who, intentionally or unintentionally, fail to actupon their own knowledge, however gleaned, as to potential hazardsgenerated by their work processes. The Act imposes on employers,regardless of the particular industry in which they operate, anaffirmative duty to inquire further where there are warning signs. It isthis failure to make any reasonable inquiry that triggers the imputationof constructive knowledge to Respondent and, accordingly, I find thatknowledge of the hazardous condition is imputable to Respondent.Based on the above findings and the reasonable inferences arising fromthe evidence of record, I conclude that the Secretary has carried herburden of proving by a preponderance of the evidence that each of thecited standards applied to Respondent and that Respondent failed tocomply with those standards. I further conclude that Respondent’semployees were exposed to the hazards generated by each of the violativeconditions and that Respondent knew or reasonably could have known ofeach of the violative conditions. Each and every cited violation isconsequently AFFIRMED.\/Penalties\/Regardless of the penalties proposed by the Secretary, the assessment ofappropriate penalties in a contested matter is within the solediscretion of the Commission. The Commission has often held that indetermining appropriate penalties for violations, \”due consideration\”must be given to the four criteria under section 17(j) of the Act, 29U.S.C. ? 666(j). Those factors include the size of the employer’sbusiness, the gravity of the violation, the good faith of the employerand its prior history. \/Nacirema Operating Co., \/1 BNA OSHC 1001 (No. 4,1972). The Commission has noted that the gravity of the violation isgenerally the primary element in the penalty assessment. Gravity is saidto encompass: \”(1) the number of employees exposed, (2) the duration ofexposure, (3) the precautions taken against injury, and (4) the degreeof probability that any injury would occur.\” \/National Realty andConstr. Co., \/1 BNA OSHC 1049, 1051 (No. 85, 1972), rev’d on othergrounds, 489 F.2d 1257 (D.C.Cir. 1973)While the Secretary’s post-hearing brief sets out a statement of thegeneral law and the Secretary’s methodology for calculating proposedpenalties, it fails to point to any evidence or testimony as to how theproposed penalties were ascertained in this case. A review of therecord, however, shows that the IH testified she adjusted her proposedpenalty based on her understanding that Respondent \”controlled\” 200employees nationwide. (Tr. 110). She gave no reduction in penalty forgood faith because Respondent had only a \”piecemeal\” and apparentlydisorganized safety program. No credit was given for history because\”the company had had an OSHA inspection [resulting in at least onecitation] within the last three years .\” (\/Id.\/) \”[T]he failure of theSecretary to elicit testimony on every single subpart or each section17(j) criterion\” does not require the imposition of only a nominalpenalty but, where such evidence is lacking, \”an employer will be giventhe benefit of the doubt on statutory factors for which little relevantevidence was adduced.\” \/Quality Stamping Product, Inc., \/16 BNA OSHC1927, 1928 (No. 91-0414, 1994) citing, \/J. A. Jones Const. Co., \/15 BNAOSHC 2201, 2214 (No. 87-2059, 1993).Exposure to toxic substances such as lead, cadmium and copper canproduce severe injury and, in some cases, death. The violations are thussevere within the meaning of the Act. Applying the gravity factors inthis case, I find that employee exposure was minimal. Respondent, hadonly three employees at the site, and only one employee was exposed tothe air contaminants exceeding the PELs; therefore, only one employeewas affected by the administrative and engineering controls violations,the respirator violations, and the lead and cadmium clothing, shower andchanging area violations. Although the exposure of the one employee toair contaminants was limited the one day on which he was tested, it isreasonable to infer that as long as that employee continued the torchcutting of the chiller his exposure would be the same. Neither party hasidentified any other evidence as to this question, and, accordingly, Iaccord Respondent \”the benefit of the doubt\” as to the duration ofexposure. Respondent did not supply the one employee doing the cuttingwith a respirator, a changing area, shower or work clothes. Respondentthus did nothing to protect its employee, but, in the absence of anyrelevant evidence pointed to by the Secretary, the likelihood of injurymust also be regarded as low. In sum, the gravity of the violations inthis case was minimal to very low. Respondent’s size is perhaps betterindicated by the fact that it does 1,000 to 1,500 dismantling jobs peryear and would have about 30 to 60 employees working for it on any givenday. (Tr. 827, 840). Considering Respondent’s small size and the lowgravity of the violations, as well as the company’s prior history andrelative 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 totalcivil penalty of $ 28,500.00 is assessed.\/FINDINGS OF FACT\/All findings of fact necessary for a determination of all relevantissues have been made above. Fed. R. Civ. P. 52(a). All proposedfindings of fact and conclusions of law urged by the parties which areinconsistent with this decision are hereby denied.\/CONCLUSIONS OF LAW\/1. Respondent was, at all times pertinent hereto, an employer within themeaning of section 3(5) of the Occupational Safety and Health Act of1970, 29 U. S. C. ? ? 651–678 (1970).2. The Occupational Safety and Health Review Commission has jurisdictionover the parties and the subject matter.3. Respondent was in violation of ? 5(a)(2) of the Act in that it failedto comply with the standards cited in Citation 1, Items 1 through andincluding 19, as amended by the Complaint.4. Each and every one of the violations of the Act found above is aserious violation.5. A total civil penalty of $ 28,500.00 is appropriate.*ORDER*1. Items 1 through and including 19, of the citation issued toRespondent 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. SchoenfeldJudge, OSHRCWashington, 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 ASERIOUS CITATION ITEMS[8]*Item* \t*Standard(s)29 C.F.R. ?* \t*Description* \t*ProposedPenalty(Dollars)*1a \t1910.134(b)(1) \tLack of standard operating procedures for theselection and use of respirators. \t40001b \t1910.134(b)(3)1926.103(e)(3) \tUsers not properly instructed and trained in respiratoruse. \t—-2 \t1926.21(b)(2) \tEach employee not instructed in hazards andregulations. \t40003a \t1926.55(a) \tOverexposure to airborne copper. \t12003b \t1926.55(b) \tFeasible administrative or engineering controls not usedto reduce copper exposure. \t—-4a \t1926.62(c) \tOverexposure to airborne lead. \t40004b \t1926.62(e) \tFeasible administrative or engineering controls not usedto reduce lead exposure. \t—-5 \t1926.62(d)(1) \tFailure to make initial determination of lead exposurelevel. \t40006 \t1926.62(e)(2)(i) \tNo written plan for controlling lead exposure. \t40007 \t1926.62(f)(3)(ii)1926.1127(g)(4)(ii)1926.103(g)(5) \tFailure to perform respirator face fit tests for lead orcadmium protection on respirators being used while chiller cutting.. \t40008 \t1926.62(g)(1)(i) \tFailure to provide appropriate work clothing forlead work. \t40008b \t1926.1127(i)(1)(i) \tFailure to provide appropriate work clothing forcadmium work. \t—-9a \t1926.62(i)(2)(i) \tLead exposed employee not provided with clothingchange area. \t40009b \t1926.1127(j)(1) \tNo showers or change areas for cadmium exposedemployee. \t—-10 \t1926.62(j)(1)(ii) \tNo medical surveillance program for lead exposedemployee. \t400011 \t1926.62(l)(1)(ii)1926.62(l)(1)(i) \tNo lead prevention training for lead exposedemployee. \t400012 \t1926.62(m)(2)(i) \tNo warning signs where lead level above PEL. \t200013a \t1926.1127(c) \tEmployee exposed to cadmium above PEL. \t400013b \t1926.1127(d)(1)(i) \tNo initial assessment of possible cadmiumexposure. \t—-13c \t1926.1127(f)(1)(i) \tNo engineering controls to reduce cadmiumexposure \t—-14 \t1926.1127(f)(5)(i) \tNo written compliance program regarding cadmiumexposure exceeding PEL. \t400015 \t1926.1127(i)(2)(ii) \tFailure to prevent employees from taking homecadmium exposed work clothing. \t400016 \t1926.1127(l)(1)(i)(a) \tNo medical surveillance program for employeedoing demolition where cadmium was present. \t400017 \t1926.1127(m)(2)(ii) \tNo warning signs where airborne cadmiumpresent. \t200018 \t1926.1127(m)(4)(i) \tNo training program for employee exposed tocadmium above PEL. \t400019a \t1910.2000(e)(1) \tHazard Communication Program (HAZCOM) did notdescribe training for copper exposure. \t120019b \t1910.1200(h) \tEmployees not given information and training indealing with copper. \t—————————————————————————-[1] Citation 2, alleging other-than-serious violations, was withdrawn bythe Secretary.[2] Title 29 U.S.C. ? 652(5).[3] In its post-hearing brief Respondent also abandoned any and allaffirmative defenses raised by its answer.[4] To what degree, if any, the chiller was in fact painted, and whetherit actually contained brazing including lead, and whether it consistedof copper pipes, have been evidentiary whirlwinds of minor proportion.Respondent’s breach of duty was that it failed to make any inquiries asto the presence of concentrations of toxic fumes where the process itwas using in dismantling the chiller (cutting torch) was known toproduce a variety of fumes. Moreover, there is no dispute on this recordthat air contaminants exceeding the PELs were present within theemployee’s breathing zone.[5] Complainant, (Sec. Brief, fn 15 at p. 8) relies on exhibits whichwere admitted for a specific and limited purpose. (Tr. 781, 788). Seealso, Ex. C 36-39, admitted with a caveat. (Tr. 708-10).[6] There are some standards which, by their own terms, raise apresumption of the existence of a hazard. For example, under theconstruction asbestos standard, 29 C.F.R. ? 1926.1101(b), any \”thermalsystem insulation and surfacing material\” in buildings built before 1980is \”presumed [to be] asbestos containing material.\” Where such acondition exists, employees are presumed to have been exposed toasbestos in amounts exceeding the PELs until the employer demonstratesotherwise. 29 C.F.R. ? 1926.1101(f)(2)(ii). It is interesting to notethat the asbestos construction standard in effect, imposes a duty toinvestigate where a condition exists which is a clear warning sign. Inaddition to creating the duty to investigate, that standard specificallypresumes the existence of an asbestos hazard where warning signs arepresent unless the employer shows otherwise. Thus, by regulation, theSecretary has created the trigger to investigate. Compare the wording ofthe asbestos standard, cited above, with that of the scope provisions ofthe lead in construction standard, which makes the standard applicableto \”all construction work where an employee may be occupationallyexposed to lead.\” 29 C.F.R. ? 1926.62(a). The same standard goes on tospecifically include \”[d]emolition or salvage of structures where leador 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 “