Bianchi Trison Corp v. Secretary Labor ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-1-2005
Bianchi Trison Corp v. Secretary Labor
Precedential or Non-Precedential: Precedential
Docket No. 04-2093
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2093
BIANCHI TRISON CORPORATION,
Petitioner
v.
ELAINE L. CHAO, SECRETARY OF LABOR,
Respondent
On Petition for Review of a Final Order of the
Occupational Safety and Health Review Commission
(OSHRC Docket Nos. 01-1367 and 01-1368)
Argued April 7, 2005
BEFORE: BARRY, AMBRO, and GREENBERG, Circuit Judges
(Filed June 1, 2005)
Robert G. Walsh (argued)
3819 Southpark Avenue
P.O. Box 1909
Blasdell, NY 14219-0109
Attorney for Petitioner
Howard M. Radzely
Solicitor of Labor
Joseph M. Woodward
Associate Solicitor for
Occupational Safety and Health
Ronald J. Gottlieb (argued)
Susan Hutton
Ann Rosenthal
United States Department of Labor
Office of the Solicitor
Room S-4004
200 Constitution Avenue, N.W.
Washington, DC 20210
Attorneys for Respondent
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
This matter is before this court on a petition for review in
which the petitioner, Bianchi Trison Corporation (hereinafter “BTC”),
challenges the disposition of administrative proceedings instituted by
the Secretary of Labor arising from safety and health problems that
arose in the demolition, implosion, and clean-up of the Three Rivers
Stadium in Pittsburgh, Pennsylvania.1 In response to a complaint
alleging unsafe conditions at the site, the Occupational Safety and
Health Administration (hereinafter “OSHA”) made several
inspections of the stadium which uncovered conditions that caused the
Secretary to bring an enforcement action against BTC under the
Occupational Safety and Health Act (hereinafter the “OSH Act”)
setting forth three citations alleging 45 violations of its standards and
proposing substantial penalties. After a hearing, an administrative law
judge (hereinafter “ALJ”) upheld 35 of the charges. BTC then filed a
petition for discretionary review with the Occupational Safety and
Health Review Commission, but the Commission did not direct the
case for review and thus the decision of the ALJ became the final
order of the Commission on February 27, 2004. BTC next filed a
timely petition for review of the February 27, 2004 order with this
court, which has led to the proceedings culminating in this opinion.
1
BTC is a New York State Corporation with its headquarters in
Syracuse, New York.
2
A. The Demolition of Three Rivers Stadium
We set forth the factual history of the matter as developed at
the hearing before the ALJ. The City of Pittsburgh, through its Sports
and Exhibition Authority (hereinafter the “SEA”), owned the stadium.
The SEA, in August 2000, issued a request for bids for a contract to
demolish the stadium. BTC was the successful bidder, and,
accordingly, the SEA awarded it the contract. The demolition project
was broken into three distinct phases: pre-implosion demolition,
implosion, and cleanup. In addition to engaging BTC, the SEA
utilized AMEC Construction Management (hereinafter “AMEC”) as
project manager for the demolition and Makin Engineering to oversee
contract compliance. AMEC, in turn, hired Allegheny Asbestos
Analysis d/b/a Global Environmental Management to inspect the
stadium for asbestos and hazardous materials, other than lead. BTC,
however, retained the responsibility for lead abatement. Finally, as
material in these proceedings, BTC contracted with O’Rourke, Inc. to
provide full-time, on-site oversight of all safety and health aspects of
the project, including OSHA compliance.
BTC started its work at the stadium on January 2, 2001. The
pre-implosion aspect of the contract required it to remove
environmental hazards and prepare the stadium for implosion. The
SEA and AMEC planned a public auction of the stadium’s seats,
freezers, and other stadium memorabilia during the pre-implosion
demolition period. The demand for stadium seats was greater than
expected, and in order to make seats available more quickly than it
had thought would be necessary, BTC directed laborers to torch the
bolts off the seats.2 On January 15, 2001, the memorabilia sale was
conducted with the items sold to be picked up by January 19, 2001.
2
BTC vice-president David Bianchi testified that he told
O’Rourke president Timothy O’Rourke that BTC did not intend to do
any torch cutting before the implosion, although it was possible that
employees unexpectedly would run into a pipe or structural steel that
needed to be torch cut. Relying at least in part on this information,
O’Rourke advised Bianchi that BTC could use the exposure
determination from an earlier demolition project at a National Starch and
Chemical Company property as its initial exposure assessment for the
stadium. O’Rourke testified that he did not consider a potential lead
hazard prior to the implosion because BTC told him it did not plan to
torch cut before then.
3
During the pre-implosion phase of the demolition project,
workers complained to Robert Stanizzo, a representative of the
Pittsburgh Building and Construction Trades Council, about safety
issues. In response to these complaints, Stanizzo asked Robert
McCall, the Director of Safety for the Construction Industry
Advancement Program of Western Pennsylvania Fund, to assess the
safety situation at the stadium. McCall went to the stadium on
January 29, 2001, and met with two local union representatives and
examined the safety protections, concluding that they were
insufficient. After a meeting at which McCall received an
unsatisfactory response from BTC’s project manager, he and the
union representatives filed a complaint with OSHA’s Pittsburgh Area
Director, Robert Symanski.
In response to the complaint, OSHA, on January 29, 2001,
conducted a safety inspection of the premises. This inspection
revealed many safety lapses and led to the issuance of citations
alleging numerous violations of the OSH Act. These citations have
been referred to as the “Safety Case” in these proceedings.3
The issuance of the safety citations, however, did not stop the
project and by early February, BTC had demolished most of the
interior of the stadium. BTC through a subcontractor imploded the
stadium on February 11, 2001, following which for a two-month
period BTC processed and removed the remaining concrete and steel
debris. BTC assigned teams of employees to torch cut the steel into
smaller sizes in order to load them onto the trucks to be hauled away.
On February 13, 2001, several OSHA employees viewed a
Pittsburgh television evening news program which aired footage of a
worker torch cutting on a painted steel beam. The footage revealed
visible smoke fumes, and showed that the workers were not wearing
respirators. Their viewing of the program led several OSHA
employees to express concern over the potential for lead exposure to
the workers.
On February 14, the OSHA assistant area director, Edward
Selker, assigned two industrial hygienists to inspect the project for
health hazards. But the next day when the two hygienists went to the
3
The violations now at issue stemming from the Safety Case
arose from BTC’s failure to protect employees from hazards related to
floor openings and falling debris.
4
stadium to begin their inspection, BTC denied them entry. The
hygienists were able to gain entry to inspect the premises only after
contacting the SEA, which granted them permission to inspect the
premises. BTC, however, informed the hygienists that all burning
work had been suspended that day and thus they were only able to
interview the union steward, who indicated that employees had
performed pre-implosion torch burning and cutting.4 This revelation
led to OSHA serving both an administrative subpoena on BTC to
secure records related to the pre-implosion activities and an inspection
warrant to conduct a full inspection.5 Between February 15 and
February 21, BTC implemented a lead protection program at the
stadium, its first formal lead program at the site.6
OSHA made its full inspection on February 21, during which
its inspectors took bulk samples, did air monitoring, and conducted
interviews. BTC concurrently performed sampling. The results of
both OSHA’s and BTC’s sampling revealed that the level of exposure
to lead at the site was much greater than allowed under the OSH Act.
Consequently, the Secretary issued a citation against BTC alleging
that there were 29 willful violations of the Lead-in-Construction
Industry Standard (hereinafter “the Standard”) at the stadium
(hereinafter the “Health Case”).
B. The Safety Case
Though the Safety Case involved two citations and numerous
infractions, the only issues material to the Safety Case in these
4
OSHA and BTC concurrently took bulk paint samples at various
locations in the stadium on February 15.
5
On February 16, 2001, after OSHA obtained the inspection
warrant, the two hygienists returned to the site. But due to rain, BTC’s
safety consultant advised OSHA that BTC had shut down the burning
work until further notice. OSHA and BTC then reached an agreement
providing for BTC to notify OSHA when it was resuming burning. On
February 21, BTC’s project manager notified OSHA that it was ready to
return to torch burning operations.
6
O’Rourke conceded that BTC did not have a written lead
compliance plan before February 16, 2001.
5
proceedings relate to fall hazards and hazards relating to falling
debris. In this regard, there were allegations stemming from falling
debris from BTC’s demolition and removal of the stadium’s
escalators, which BTC removed by burning each escalator’s top loose
from its supports. Sometimes, when the workers cut an escalator
loose, it would not fall, and in that circumstance workers would use a
machine to lower it the floor below. After one of the first escalators
fell, the work crew, in conjunction with the union stewards, enclosed
the areas below the escalators with tape, as a warning not to enter.7
BTC contends that when an escalator did fall, it fell onto the
concrete level from which it had come and did not cause a risk danger
to its employees. Three BTC employees, however, testified about the
risk from the failing debris, and documented incidents in which
different escalators fell two and four levels.
The BTC workers faced an additional risk during the pre-
implosion period when they were exposed to floor holes created by
uncovered drain-pipes and expansion joints.8 BTC employees
7
The citations at issue relating to the removal of the escalators
are:
Citation Number 2, Item 2a, instance (b):
an escalator had been dropped from level
5 to level 4, with only caution tape used
as a warning of the drop.
Citation Number 2, Item 2a, instance (d):
the failure to provide barricade and
warning signs when an elevator shaft was
“cut.”
8
The citations at issue relating to fall hazards are:
Citation Number 2, Item 2b, instance (a):
failure to cover properly expansion joint
openings in the floor on the second and
third level.
Citation Number 2, Item 2b, instance (b):
floor hole into which an employee,
Charles Wallace, fell without being
6
testified that despite injuries and repeated notifications to their
supervisors about these dangers, BTC did not rectify the violations.
C. The Health Case: Lead Exposure Activities
The Health Case allegations are divided into pre-implosion
exposure and post-implosion exposure violations. Ultimately, the
ALJ concluded that the Secretary had established that there were
many OSH Act health violations, and concluded that BTC engaged in
“willful violations includ[ing] failure to make an appropriate initial
determination of lead exposure and to provide interim and other
protections from excessive lead exposure.” App. at 17. The ALJ,
however, did not uphold all of the charges.9
1. Pre-Implosion Exposure
The pre-implosion exposure to unacceptable lead levels
stemmed from two activities. The first was the torch cutting of bolts
from the steel legs of the stadium seats coated with lead based paint.
Approximately four employees spent two to four eight-to-ten hour
days engaged in this type of work.
seriously injured. The hole was about 3
feet by 3 feet and was 15 to 20 feet above
the ground below and was covered by a
tin cover.
Citation Number 2, Item 2b, instance (c):
floor hole into which an employee, David
Roberts, fell, and was injured seriously
with torn tendons and deep bruises
followed by surgery. At the time of the
hearing Roberts still used a cane. The
hole was 30 to 40 feet above the floor
below, covered by a pile of concrete
blocks.
9
Certain of the charges not upheld were duplicative or involved
conduct that was not willful.
7
There was a second pre-implosion exposure when BTC
employees torch cut “notch-cuts” on lead-based painted structural
steel beams. These cuts were necessary to ensure that there was a
complete cave-in at the time of the implosion. Approximately four
employees performed this task in ten-hour shifts for varying degrees
of duration.
These activities caused several employees to complain to their
supervisors about the lack of respirators; however, BTC did not
supply safety equipment. Consequently, some employees resorted to
wearing their own half-mask respirators, though these devices did not
comport with the requirements of the OSH Act.
2. Post-Implosion Exposure
The post-implosion exposure stemmed from the process of
cutting the remaining steel beams into smaller pieces in order to fit the
debris into trucks. Although mechanical shears could be used to cut
most of the steel, a number of the beams were too large for the shears
and therefore needed to be cut with torches. This torch cutting began
without protection from lead exposure on February 13, 2001, and
extended into the night shift of February 14, 2001.
On February 21 and 22, OSHA and BTC concurrently engaged
in air monitoring to assess the lead danger. Three employees were
monitored over the course of two days, and, for the first time, were
supplied with air respirators with face shields. The results of both
OSHA’s and BTC’s testing revealed lead exposure significantly above
the permissible levels. The “permissible exposure limit” is 50:g/m3
(calculated as an 8-hour time average), though the lead standard
defines the “action level” of exposure at 30 :g/m3 (calculated as an 8-
hour time weighted average). See 29 C.F.R. §§ 1926.62(b) and (c).
The concurrent sampling revealed the following exposure levels:
Date Employee OSHA Time BTC Time
Weighted Weighted
Average (Time Average
Sampled) (Time
Sampled)
8
2/21/2001 Shawn Cramer 36:g/m3 (321 36:g/m3 (234
min.) min.)
2/21/2001 Kevin Opfar 259:g/m3 (323 209:g/m3
min.) (230 min.)
2/21/2001 Eric Yockey 318.6:g/m3 975 :g/m3
(317 min.)
2/22/2001 Shawn Cramer 37:g/m3 (458 40 :g/m3
min.)
2/22/2001 Kevin Opfar 954.4:g/m3 2158 :g/m3
(318 min.)
2/22/2001 Eric Yockey 615.1:g/m3 1453 :g/m3
(464 min.)
See app. at 69.10 It was thus evident that BTC had been operating
with insufficient safety precautions given the significant lead exposure
risk.
3. BTC’s Efforts To Comply With The Lead Standard
The citations in the Health Case stem from BTC’s failure to
comply with the Standard, see 29 C.F.R. § 1926.62, which “applies to
all construction work where an employee may be occupationally
exposed to lead.” Id. Where employees may be exposed to lead, the
employer is required to perform an “exposure assessment” to
determine if any employee is exposed to lead “at or above the action
level.” Section 1926.62(d)(1)(i). The action level is defined as
“employee exposure, without regard to the use of respirators, to an
airborne concentration of lead of 30 micrograms per cubic meter of air
(30 :g/m3) calculated as an 8-hour time-weighted average.” Section
1926.62(b).
10
Shawn Cramer was a working foreman who served as fire
watch for the employees engaged in burning tasks. Though he was not
overexposed on either day of the monitoring, he did not engage in
burning work; however, his sampling results did indicate that he was
exposed at more than the action level and half of the permissible
exposure limit.
9
The employer calculates an “exposure assessment” through an
“initial determination” in which covered employers “initially
determine if any employee may be exposed at or above the initial
action level.” Section 1926.62(d)(1).11 Section 1926.62(d)(3) sets
forth the various methods by which an employer can perform an
“initial determination.” Section 1926.62(d)(3)(i) notes, with two
exceptions, that “the employer shall monitor employee exposures and
shall base initial determinations on the employee exposure monitoring
results. . . .”
BTC, however, did not monitor the potential exposure to lead
at the stadium to perform its “initial determination.” Rather, BTC,
aided by O’Rourke, relied on section 1926.62(d)(3)(iii), commonly
referred to as the “historical data” method, which allows an employer
to rely on monitoring results from a recent project involving
“workplace conditions closely resembling the processes, type of
material, control methods, work practices, and environmental
conditions used and prevailing in the employer’s current operations.”
BTC utilized a lead assessment from its earlier National Starch
and Chemical Company demolition project (hereinafter called the
“National Starch report”)12 as the “historical data” for the stadium
project, reasoning that the National Starch project “closely resembled”
the stadium project. The National Starch project required BTC to
demolish an old power house and drying facility inside a corn starch
factory complex in Indianapolis, Indiana. The National Starch report
showed exposures below the action level for workers torch cutting in
that project. BTC concluded that it was not required to perform initial
monitoring (or to take interim steps in lieu of monitoring) at the
stadium because that project “closely resembled” that at National
Starch. Accordingly, BTC deemed it necessary only to provide hand-
washing facilities as protection against lead exposure. BTC does not
claim that it provided any protection against lead exposure for
11
The Standard also establishes a rebuttable presumption that
certain tasks, including torch cutting materials with lead-based paint or
coatings, result in exposures above the permissible action level. See 29
C.F.R. § 1926.62(d)(2)(i)(A).
12
The report also was labeled the “Act report” because BTC hired
ACT Environmental Services, Inc. to perform the exposure assessment
of the National Starch demolition project. We call it the “National
Starch report” for clarity purposes.
10
employees who were torch cutting lead based paint between January 4
and, at least, February 14. See petitioner’s br. at 23; respondent’s br.
at 31.
BTC’s management first expressed concern over lead
exposure on February 13, and on February 14, 2001, BTC provided
half-mask respirators but not air-supplied respirators to affected
employees. It was not until February 16, a day after BTC attempted to
deny entry to the OSHA hygienists, that the first site specific lead
compliance program was drafted. The “plan” stated that BTC used
the National Starch report to determine that employees would not be
exposed to lead, and that there would be air monitoring.13
As we already have noted, the results from monitoring by both
OSHA and BTC revealed that there were lead exposure levels
substantially greater than the action level allowed. On February 20,
2001, O’Rourke, in response to the sampling results, modified the
compliance program to require additional measures. The ALJ noted
that, “[e]ven the final revised plan did not provide sufficient detail
concerning the engineering controls to be used, technology to be used,
air monitoring, or a schedule for compliance.” App. at 96.
II. JURISDICTION
13
The ALJ noted the deficiencies of the plan:
Specifically, it lacked: (1) a description of
each activity in which lead was emitted;
(2) a specific means to achieve
compliance; (3) a report of the technology
considered in meeting the [permissible
exposure limit]; (4) air monitoring data;
(5) a d e t a i l e d s c h e d u l e f or
implementation of the program; (6) an
administrative control schedule; and (7) a
description of arraignments made among
contractors to inform affected employees
of potential exposure to lead.
App. at 96.
11
As we have indicated, the parties tried the case before an ALJ
who upheld most of the citations. BTC then filed a petition for
discretionary review with the Occupation Safety and Health Review
Commission, which, on February 27, 2004, denied review and entered
a final order. BTC then filed a petition for review with this court on
April 20, 2004.
The Commission had jurisdiction to adjudicate this matter
pursuant to section 10(c) of the OSH Act, 29 U.S.C. § 659(c). We
exercise jurisdiction over this matter pursuant to section 11(a) of the
OSH Act, 29 U.S.C. § 660(a), which gives the court of appeals of the
circuit in which the violation occurred jurisdiction to hear an appeal
from a final order of the Commission with respect to the violation.
See E & R Erectors, Inc. v. Sec’y of Labor, 107 F.3d 157, 160 (3d Cir.
1997).
III. DISCUSSION
A. Standard of Review
We will affirm the Secretary’s interpretation of OSHA
standards if it is reasonable. See Martin v. Occupational Safety &
Health Review Comm’n, 499 U.S. 144, 150-52, 111 S.Ct. 1171, 1176
(1991). We must uphold the Commission’s factual findings if they
are supported by substantial evidence in the record as a whole. See 29
U.S.C. § 660(a); D. Harris Masonry Contracting, Inc. v. Dole, 876
F.2d 343, 344 (3d Cir. 1989). We may set aside legal conclusions
only if they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see
Atlantic & Gulf Stevedores v. Occupational Safety & Health Review
Comm’n, 534 F.2d 541, 547 (3d Cir. 1976). In addition, we must
defer to an agency's reasonable interpretation of an ambiguous
administrative statute. See Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-46, 104 S.Ct. 2778, 2781-84 (1984).
B. The Health Case
1. BTC’s Use of “Historical Data” To Make an “Initial
Determination”
12
The first issue we address is “whether it was appropriate for
BTC to use ‘historical data’ to make an ‘initial determination’ that
potential employee exposure to lead was below the ‘action level’
when torch burning operations occurred during the pre-implosion and
post-implosion phases of the demolition of the stadium.” Petitioner’s
br. at 10. The ALJ determined that BTC’s use of the National Starch
report’s “historical data” was not appropriate for making an initial
determination with respect to employee exposure to lead during the
stadium demolition.
The Standard defining the appropriate procedures for
performing an “initial determination” reads, in relevant part:
(i) Except as provided under paragraphs
(d)(3)(iii) and (d)(3)(iv) of this section
the employer shall monitor employee
exposures and shall base initial
determinations on the employee
exposure monitoring results. . . .
....
(iii) Where the employer has previously
monitored for lead exposures, and the
data were obtained within the past 12
months during work operations
conducted under workplace conditions
closely resembling the processes, type
of material, control methods, work
practices, and environmental conditions
used and prevailing in the employer's
current operations, the employer may
rely on such earlier monitoring results
to satisfy the requirements of
paragraphs (d)(3)(i) and (d)(6) of this
section if the sampling and analytical
methods meet the accuracy and
confidence levels of paragraph (d)(10)
of this section.
29 C.F.R. § 1926.62(d)(3) (emphasis added).
The ALJ first addressed the issue of whether the “historical
13
data” method represents an exception to monitoring, which is treated
as the preferred means of making an initial assessment, or, as BTC
contends, whether the “historical data” method is another valid, and
equally accepted, method that an employer can use to make the initial
determination with respect to lead exposure. The ALJ rejected
BTC’s contention and concluded that the “historical data” method of
making an initial assessment was an exception to the monitoring
method. Because she deemed the use of “historical data” to be an
“exception” to the preferred means to make an initial assessment, the
ALJ placed the burden on BTC to prove that its use of the “historical
data” was appropriate. In reaching her conclusion, the ALJ noted that,
“[i]n general, exceptions in remedial legislation, such as the OSH Act,
must be narrowly construed.” App. at 71.
The ALJ continued by noting that the phrase “closely
resembling,” contained within the “historical data” exception, was not
defined in the Standard. BTC offered a broad interpretation of the
phrase which relied on comparing “the processes,”14 “the type of
material,”15 “the control methods,”16 “the work practices,”17 and “the
environmental conditions”18 involved in the two projects. Id. at 74.
In addition, BTC denied that a comparison of materials between the
two projects required a gathering and testing of bulk paint samples.
The Secretary disagreed with BTC’s broad interpretation of
the phrase “closely resembling.” She noted that the “similarities
suggested by BTC [were] too superficial to meet an exception to a
standard intended to protect employees generating airborne lead.” Id.14
Both projects required burning on structural steel in the open
air.
15
Both projects involved cutting or burning lead painted
structural steel.
16
Neither project required any control methods, other than
“normal [personal protective equipment], including [a] 3 foot Torch.”
App. at 74.
17
Both projects required notch cuts to be made on the steel during
10 hour shifts.
18
Both projects required performing the work in the open air
during cold weather.
14
The Secretary also asserted that BTC simply did not have enough
information to compare the two projects. In particular, she observed
that BTC had not taken bulk samples of the paint, nor made any other
attempts to secure data to make comparisons between the two sites.
The ALJ concluded that the term “closely resembling” was
ambiguous. Thus, she looked to the Standard’s preamble to glean the
Secretary’s intent for including the “historical data” exception. The
ALJ found that the stated purpose of the exception was for those
situations where:
an employer on a construction site
conducted exposure monitoring for
previous job(s) and the current job was
‘substantially similar’ to the old one(s),
the previous ‘historical data’ could
substitute for new monitoring. So that
the old data could be ‘reasonably
assumed’ to be representative for lead
exposures on the new site, the historical
measurements had to be obtained ‘under
conditions which in all relevant and
significant respects are essentially the
same as the current project.’
Id. at 75 (quoting Lead Exposure in Construction, 58 Fed. Reg. 26599(1993) (emphasis added by ALJ)).
The ALJ held that, while the exception may not require an
“absolute identity” between projects, a case-by-case factual analysis
was necessary. The ALJ concluded that, “informed by the synonyms
for ‘closely resembling’ in the preamble and the stated purpose of the
exception, it is determined that BTC’s reliance on the historical data
was incorrect.” Id. The ALJ relied heavily on the fact that BTC had
not attempted to determine the lead content of the stadium, and thus
never bothered to discover “one component of what is necessarily a
two-part comparison.” Id. She therefore concluded that, “BTC could
not know whether the lead-containing material at the two projects was
‘substantially similar’ or ‘essentially the same.’”19 Id. While bulk
sampling would not always be necessary, the ALJ determined that it
19
The ALJ noted that the characteristics of lead paint could not
be assumed to be the same.
15
was in this case.20 The ALJ concluded that BTC’s reliance on the
historical data exception, therefore, was not reasonable.
BTC urges that the ALJ erroneously concluded that the use of
historical data to make an initial lead assessment constitutes an
exception to monitoring, and thereby incorrectly elevated monitoring
to the preferred method of performing an initial determination. BTC
contends that the use of historical data is not an “exception,” but is
another acceptable, and equally viable method by which the employer
may make the initial determination. BTC continues by contending
that this “erroneous legal determination had significant negative
consequences for BTC because it permitted the ALJ to erroneously
shift the burden of proof on that issue from the Secretary to BTC.”
Petitioner’s br. at 24. BTC also asserts that because the ALJ deemed
the use of “historical data” an exception to the monitoring
requirement, she erroneously narrowed the scope of what could be
deemed a permissible comparison site.
We reject BTC’s contentions. The Commission and this court
must accept the Secretary’s interpretation of the Standard if it is
reasonable. See Martin, 499 U.S. at 150-52, 111 S.Ct. at 1175-76(1991). The Secretary’s interpretation of the Standard, deeming the
historical data exception as just that, i.e. an exception to the
monitoring mandate, clearly is reasonable. First, the plain language of
the Standard identifies the “historical data method” as an exception:
“Except as provided under paragraphs (d)(3)(iii) . . . .” 29 C.F.R. §
1926.62(d)(3) (emphasis added); see also 29 C.F.R. § 1926.62,
Appendix B, II (explaining that the “initial determination requires
[the] employer to monitor workers’ exposure unless he or she has
objective data which can demonstrate conclusively that no employee
will be exposed to lead in excess of the action level”) (emphasis
added). Second, Congress intended in the OSH Act to protect
employees from the disastrous effects of lead exposure. The statute
and regulations repeatedly demonstrate a preference for the protection
of employees. See, e.g., 29 C.F.R. § 1926.62(d)(2) (establishing
presumption that certain tasks, including torch cutting materials with
lead based paint or coating, results in exposures above the action
level). It was clearly reasonable for the Secretary to apply the statute
and regulations in a manner so that the acquisition of actual data on
the potential exposure to lead through monitoring on the current
20
The ALJ also noted that the methods, work practices, and
environmental factors differed to varying degrees as well.
16
project, rather than reliance on data from an entirely separate project,
constitutes the preferred method of performing an initial assessment.
Because the use of historical data represents an exception to
the monitoring requirement, and BTC relied on this exception, the
ALJ correctly placed the burden on BTC to demonstrate that it
properly utilized the National Starch report for making an initial
determination with respect to the stadium. Clearly, the ALJ also was
correct in her holding that BTC could not meet this burden and prove
the appropriateness of its reliance on the historical data. The
workplace conditions at the National Starch structure and the stadium
were so dissimilar that they could not be deemed to “closely
resemble” one another under any meaningful construction of that
phrase. The ALJ, at length, documented the differences between the
two sites with respect to environmental conditions and work practices.
While these differences are important factors that show
dissimilarities, the major focus must rest on a comparison of potential
lead exposure. As the results of the sampling revealed, there were
wide inconsistencies between the conditions at the National Starch
project and those at the stadium predicated on the differences between
the actual level of lead exposure at the sites. To highlight one glaring
example, two bulk samples taken from the painted steel beams at the
National Starch site revealed 0.095 and 0.484 percent lead content.
At the stadium, the bulk samples of the seats ranged from 3.0 to 8.0
percent lead content, and the steel beams ranged from 2.2 to 43
percent lead content. It is clear that conditions involving such
divergent amounts of lead cannot be deemed to “closely resemble”
one another under any coherent definition of that phrase.
The ALJ therefore correctly held that BTC’s use of the
National Starch report as “historical data” to make the “initial
determination” that potential employee exposure to lead at the
stadium was below the “action level” was inappropriate.
2. The ALJ’s Determination That BTC Willfully
Violated the Standard
The next issue raised is whether there was substantial evidence
in the record supporting the ALJ’s determination that BTC willfully
17
violated the Standard. The ALJ concluded that BTC’s violations were
“willful” because “[t]he record establishe[d] that BTC had a
heightened awareness of the cited requirements of the lead standard
yet chose to disregard them.” App. at 108. She found that BTC had
heightened awareness of the presence of lead based on its experience
with comparable projects in which it dealt with lead and its having
held itself out to the public as an expert on lead and applicable OSHA
standards. Moreover, the ALJ indicated that “it is well known that
torch burning and cutting steel can generate high levels of airborne
lead.” Id. at 109-10.
In addition, the ALJ found that the Secretary independently
also could have established a willful violation by demonstrating “plain
indifference” to employee safety. The ALJ documented at length the
instances in which BTC ignored or deflected questions by its
employees related to inquiries about lead, and noted several occasions
in which BTC denied its employees’ requests for safety equipment.
App. at 111 (citing Fluor Daniel, Nos. 96-1729 and 96-1730, 19
O.S.H. Cas. (BNA) 1529 (2001), 2001 WL 1117965 (O.S.H.R.C.),
aff’d sub nom., Fluor Daniel v. Occupational Safety & Health
Comm’n, 295 F.3d 1232 (11th Cir. 2002) (employer who consciously
chose to deprive employees of emergency respirators committed
willful violation)).
The ALJ additionally rejected BTC’s argument that it had a
“reasonable reliance” defense to the allegations of “willfulness.” BTC
asserted that it could not have acted “willfully” because it merely was
relying on and following the advice that O’Rourke, its safety
consultant, gave it. The ALJ concluded that “[t]he fact that BTC
hired the small safety and health consultant company does not relieve
it of responsibility for conditions it knew were unsafe. BTC’s attempt
to distance itself from the lead expertise it claimed in other contexts
was unconvincing.” App. at 110.
“Although the [OSH] Act does not define the term ‘willful,’
courts have unanimously held that a willful violation of the [OSH]
Act constitutes ‘an act done voluntarily with either an intentional
disregard of, or plain indifference to, the [OSH] Act's requirements.’”
Ensign-Bickford Co. v. Occupational Safety & Health Review
Comm'n, 717 F.2d 1419, 1422 (D.C. Cir. 1983) (quoting Cedar
Constr. Co. v. Occupational Safety & Health Review Comm'n, 587
F.2d 1303, 1305 (D.C. Cir.1978)); see also Ensign-Bickford, 717 F.2d
at 1422 (citing nine cases from courts of appeals embracing the
18
“intentional disregard or plain indifference” standard); Universal Auto
Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir. 1980).
Multiple violations of the lead standard can be deemed willful where
the employer manifested both intentional disregard for the Standard
and plain indifference to employee safety. See Interstate Lead Co.,
Nos. 89-2088P and 89-3296, 15 O.S.H. Cas. (BNA) 1989 (1992),
1992 WL 277025, at *29-32 (O.S.H.R.C.A.L.J.). We will uphold the
Commission’s factual findings if they are supported by substantial
evidence in the record as a whole; whether a violation was willful is a
question of fact. See Universal Auto, 631 F.3d at 23.
BTC asserts that there is not substantial evidence in the record
to support the findings that its violations were “willful.” BTC raises
three arguments to lend credence to its purported lack of willfulness:
(1) it did not engage in willful conduct because it reasonably relied on
O’Rourke’s expert advice pertaining to lead hazard; (2) the ALJ did
not amply factor into her analysis the confusion rendered by the
Standard’s ambiguity and incompleteness, resulting in a violation that
was more a misunderstanding than a willful violation; and (3) after it
discovered that it erroneously had relied on the National Starch report
it took steps to remedy the problem.
BTC’s attempt to claim that its violations were not willful are
unconvincing. First, the ALJ correctly denied BTC’s attempt to shift
responsibility for the violations to O’Rourke. The Commission
previously had held that a company cannot evade its safety and health
responsibilities to its workers simply by contracting away the
responsibilities mandated under the OSH Act. See Well Solutions,
Inc., No. 91-340, 17 O.S.H. Cas. (BNA) 1211, 1214 (1995), 1995 WL
242595, at *3 (O.S.H.R.C.) (“[T]he [OSH] Act places ultimate
responsibility for compliance with its requirements on the employer,
who cannot contract away those duties to another party.”)21 As the
21
BTC relies heavily on Sasser Electric & Manufacturing Co.,
No. 82-178, 11 O.S.H. Cas. (BNA) 2113 (1984), 1984 WL 34886(O.S.H.R.C.). In Sasser, a crane operator accidentally swung the boom
of the crane into nearby power lines. The Commission held that the
general contractor reasonably had relied on the safety efforts of the crane
company with which it subcontracted, because: (1) the cited hazard dealt
with the operation of a crane and fell within the expertise of the
subcontractor; (2) the subcontractor had exclusive control over the
hazard; (3) the general contractor had warned the subcontractor of the
closeness of the power lines; and (4) considering that the subcontractor
19
ALJ noted, BTC has experience in the undertaking of demolition
projects involving lead hazards. In the circumstances, its claims of
naivete as to the dangers of its course of conduct, based on the
suggestions of a small consulting firm, are dubious at best. App. at
110. Considering that OSHA employees ascertained BTC’s safety
failures by watching the local nightly news, its claims of ignorance are
unconvincing.
Furthermore, BTC committed pre-implosion violations before
it ever “relied” on O’Rourke’s advice. Though BTC could not
pinpoint the exact date of its decision to rely on the National Starch
report, Timothy O’Rourke testified that the date was around January
20, 2001. The ALJ noted that “[t]hat date would have been after
employees burned painted structural steel for about 10 days . . . .” Id.
at 110 (emphasis in original). Additionally, BTC informed O’Rourke
that it would not be doing pre-implosion cutting. O’Rourke
concluded, partially on the basis of this information, that the National
Starch report would be a valid basis for use of the “historical data”
exception. In the circumstances, we are satisfied that BTC cannot
find a safe harbor in an erroneous assessment of the lead dangers
when its own incomplete information and false diagnosis led to the
misuse of the historical data.
BTC next argues that its failings were not “willful,” but rather
stemmed from the ambiguity and incompleteness in the regulations.
In an attempt to demonstrate this point, BTC cites 29 C.F.R. §
1926.62(d)(3)(iii) (emphasis added):
had performed the same work previously without incident, there was no
reason for the general contractor to have foreseen that the crane operator
would have swung the boom into the power lines. Sasser, 1984 WL
34886, at *3.
This case is plainly distinguishable from Sasser. BTC is claiming
that it contracted away its responsibility with respect to OSHA
requirements by hiring an environmental and safety consulting firm.
But, unlike the situation in Sasser, BTC’s employees still were
performing the labor, and BTC as a company operated the equipment
significant in the context of this case. This situation also is different
from that in Sasser because in that case the general contractor, by reason
of its lack of expertise, contracted out a particular task to an independent
contractor who was expected to perform that discrete function fully.
20
(iii) Where the employer has previously
monitored for lead exposures, and the
data were obtained within the past 12
months during work operations
conducted under workplace conditions
closely resembling the processes, type
of material, control methods, work
practices, and environmental conditions
used and prevailing in the employer's
current operations, the employer may
rely on such earlier monitoring results
to satisfy the requirements of
paragraphs (d)(3)(i) and (d)(6) of this
section if the sampling and analytical
methods meet the accuracy and
confidence levels of paragraph (d)(10)
of this section.
BTC contends that section 1926.62(d)(3)(iii) is ambiguous because
subparagraph (d)(10), to which the section refers, does not exist. The
ALJ noted this drafting peccadillo, and stated, “[t]he intended
reference is to subparagraph (d)(9).” App. at 72 n.14. Subparagraph
(d)(9) reads:
(9) Accuracy of measurement. The
employer shall use a method of
monitoring and analysis which has an
accuracy (to a confidence level of 95%)
of not less than plus or minus 25
percent for airborne concentrations of
lead equal to or greater than
30MUg/m3.
BTC argues that the ALJ’s finding of willfulness was
erroneous because, “nowhere in her decision does she take into
account the potential for mistake the ambiguity and incompleteness of
the standard would create for a layperson.” Petitioner’s br. at 33.
BTC continues by arguing that “willfulness should not be found
where the standard is complex and not perfectly clear and a violation
resulted in negligence and misunderstanding rather than intentional
disregard or plain indifference.” Id. at 34.
We reject BTC’s contention because it should have been
21
obvious to it that subparagraph (d)(10) could not relate to “accuracy
and confidence levels,” or indeed anything else, as the subparagraph
did not even exist. Thus, it should have been evident that section
1926.62(d)(3)(iii) was referring to the sequentially numbered
subparagraph (d)(9) as it is labeled “Accuracy of Measurement.”
BTC’s argument is essentially that, upon reaching this drafting error,
such “confusion” befell on it that its decision not to provide
substantive safety precautions to protect against lead exposure could
not be deemed willful. But BTC is an experienced company, and we
reject its contention that its confusion over a misplaced, tangentially
relevant guideline can excuse it from performing its safety
obligations. Thus, the ALJ correctly rejected this contention.
Additionally, we reject BTC’s attempt to hold itself out as a
“layperson” faced with a complex statute it could not understand. Its
own management, including foremen, had extensive experience
navigating OSHA regulations and handling demolition involving lead
based paint. BTC’s decision to ignore the regulations because of a
sense of “confusion” is simply not believable.
Finally, BTC claims that its violations were not willful, as
witnessed by the steps it undertook to alleviate exposure after the
level of lead was discovered. The ALJ correctly rejected this claim as
well. BTC, in fact, did not take steps to alleviate the valid concerns of
its employees during the pre-implosion phase of the demolition.
Moreover, the steps it took in response to the OSHA inspection were
inadequate, and continued to violate unambiguous standards of the
applicable OSH Act provisions and regulations. For example, rather
than suspend burning or prospectively comply with the OSH Act’s
mandates, BTC gave its employees half-mask respirators, not the
required mandated air-supplied respirators. Additionally, BTC did
not (1) advise its employees in writing of its “negative determination”;
(2) failed to advise employees of their blood test results; (3) failed to
use known engineering controls to reduce exposures; and (4) failed
even to post a warning sign. There clearly was substantial evidence in
the record supporting the ALJ’s determination that BTC willfully
violated OSHA’s lead standards.
C. The Safety Case
1. The “Cutting” of Escalators
22
BTC next asserts that the ALJ erred in holding that “dropping”
the escalators without proper safety measures violated 29 C.F.R. §
1926.850(h). The violation at issue arose when BTC “cut” escalators,
i.e., “when the top of the escalator was released, on some occasions it
would fall to the floor unexpectedly.” Petitioner’s br. at 47. The
regulations at issue provide:
(h) When debris is dropped through
holes in the floor without the use of
chutes, the area onto which the material
is dropped shall be completely enclosed
with barricades not less than 42 inches
high and not less than 6 feet back from
the projected edge of the opening above.
Signs, warning of the hazard of falling
materials, shall be posted at each level.
Removal shall not be permitted in this
lower area until debris handling ceases
above.
(i) All floor openings, not used as
material drops, shall be covered over
with material substantial enough to
support the weight of any load which
may be imposed. Such material shall be
properly secured to prevent its
accidental movement.
29 C.F.R. § 1926.850 (h), (i).
BTC asserts that the ALJ erred in determining that
subparagraph (h) was applicable to the escalator drops, because the
escalators were not “debris . . . dropped through holes in the floor
without the use of chutes.” See petitioner’s br. at 47. BTC’s
argument is simply that there were no “holes,” because despite the
potential crashing of escalators to the surfaces below, it was the
removal of the escalators that “created” the holes.22
22
BTC contends that “[t]here was no ‘shaft’ where heavy
machinery fell into. To the contrary, the escalator top, once unhinged,
merely dropped to the level where the foot of the escalator rested.”
Petitioner’s br. at 49 (emphasis added).
23
BTC’s contention that the ALJ inappropriately applied the
regulation to the falling escalators is simply erroneous. The ALJ was
correct in her assessment that “whether or not BTC specifically
created the escalator and elevator holes for removal of debris is
irrelevant. BTC specifically used the holes for removal of debris.”
App. at 56 (emphasis in original).23 It clearly is reasonable to interpret
the regulation so as to recognize that an escalator falling only one
floor, even through the hole in which it originally stood, creates the
precise hazard against which the standard required BTC to protect.
The fact that the hole was not “preexisting” is immaterial. The
Commission’s and Secretary’s interpretation of section 1926.850(h)
“sensibly conforms to the words and purpose of the standard” and
therefore we must uphold it. See Martin, 499 U.S. at 151, 111 S.Ct. at
1176.
2. The ALJ’s Determination That BTC Willfully
Violated OSHA Standards Relating To Fall
Hazards and the Hazards Relating To Falling Debris
BTC also contends that there is not substantial evidence in the
record as a whole to support the ALJ’s determination that certain
violations relating to fall hazards and hazards relating to falling debris
were willful. The ALJ concluded that in light of BTC’s experience
with and knowledge of OSHA requirements, as well as evidence
demonstrating BTC’s knowledge of these hazards (demonstrated by
its own employees’ complaints), BTC acted willfully with respect to
both the fall hazards, as well as the hazards from falling debris. BTC
argues that the ALJ’s determination that these violations were willful
was unfounded.
We will uphold the Commission’s factual findings if they are
supported by substantial evidence in the record as a whole; whether a
violation was willful is a question of fact. See Universal Auto, 631
F.3d at 23. Here there is substantial evidence in the record
demonstrating that BTC was aware of the violations and safety
hazards, but chose not to rectify the problems though the measures
mandated under the OSH Act. Thus, substantial evidence in the
record as a whole supported the ALJ’s conclusion that BTC willfully
23
We do not discuss separately the elevator situation, but we
conclude that the ALJ did not err in her findings with respect to it.
24
violated the OSH Act.
D. Expert Testimony
The final issue BTC raises is that “[t]he ALJ allowed the
Secretary to proffer expert testimony in derogation of Rule 26 of the
Rules of Civil Procedure.” Petitioner’s br. at 25. The OSH Act
provides that the Federal Rules of Civil Procedure apply to actions
before the Commission unless the Commission has adopted an
applicable procedural rule. 29 U.S.C. § 661(g); 29 C.F.R. §
2200.2(b). While the Commission has adopted procedural rules
governing discovery, these rules do not address expert testimony
specifically. See 29 C.F.R. § 2200.51-2200.57.
On January 28, 2002, the ALJ issued an order setting the date
of the hearing for March 20, 2002. Discovery was set to end ten days
prior to the start of that hearing. During a February 5, 2002
teleconference, the ALJ rescheduled the hearing for June 3, 2002. At
that time the ALJ directed the parties to comply with Fed. R. Civ. P.
26.
Fed. R. Civ. P. 26(a)(2) requires parties to identify their
proposed experts, and mandates additional requirements for experts
who are “retained or specially employed to provide expert testimony.”
The rule requires that the party retaining the expert, “in the absence of
other directions from the court or stipulation by the parties,” provide a
report prepared by the expert explaining his proposed testimony and
provide other personal background information. Fed. R. Civ. P.
26(a)(2)(B). The default time for these disclosures is 90 days prior to
the trial date. Fed. R. Civ. P. 26(a)(2)(C).
It is without dispute that the Secretary did not comply with the
90-day requirement.24 See petitioner’s br. at 26; respondent’s br. at
24
The Secretary contends that she was not required to abide by
the 90-day disclosure requirement because the January 28, 2002
scheduling order set the “discovery deadline” for ten days before trial.
See respondent’s br. at 46-47. The Secretary argues that the ten-day
deadline represents “other directions from the court” and therefore the
90-day period was inapplicable. BTC contends that “no such argument
was advanced at trial and, as such, was not preserved for appeal.”
25
47. On these grounds, BTC challenges the ALJ’s decision to allow
the testimony of John Cignatta, Raymond Feldman, Dr. Cortinovis,
Compliance Officer Jan Oleszeweski, and Assistant Area Director
Edward Selker.
BTC’s claims, however, are without merit as it does not
demonstrate that the ALJ’s decision to allow the testimony in question
prejudiced it. Cignatta and Cortinovis, the witnesses with whom that
BTC takes the most umbrage, testified on a number of points, none of
which was in contention. BTC never disputed the fact that
overexposure to lead poses a “serious” hazard, nor was their
testimony essential to establish the violations at issue. Indeed, BTC’s
own testing revealed unacceptably high lead exposure at the stadium
and, accordingly, its erroneous reliance on the National Starch report
as historical data.
The Secretary offered the testimony of the other witnesses
BTC challenged to rebut BTC’s expected challenges to the reliability
of OSHA’s monitoring results. This testimony could not have
prejudiced BTC as it never argued that weather or recalibration
irregularities significantly impacted OSHA’s test results; and again,
BTC’s own testing provided ample evidence of the lead exposure
violations. Given BTC’s inability to demonstrate that either the
procedures permitting the introduction of the testimony in question or
the testimony itself prejudiced it, we reject its contentions relating to
expert testimony.
IV. CONCLUSION
After a complete examination of this matter we are satisfied
that the points BTC has raised lack sufficient merit and thus we will
deny its petition for review of the February 27, 2004 order.
Petitioner’s reply br. at 10. We need not address this point as BTC does
not demonstrate how the procedure permitting the introduction of the
testimony at issue prejudiced it.
26