Sierra Resources Inc v. OSHA

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2492
SIERRA RESOURCES, INCORPORATED,
Petitioner,
v.
ALEXIS M. HERMAN,
Respondent.
On Petition for Review of an Order
of the Occupational Safety and Health Review
Commission.
OSHRC No. 98-0758--Irving Sommer, Chief Judge.
ARGUED FEBRUARY 10, 2000--DECIDED MAY 30,
2000
Before COFFEY, FLAUM and DIANE P. WOOD,
Circuit Judges.
COFFEY, Circuit Judge. After
Occupational Safety and Health
Administration (OSHA) inspector, Tim
Gainer, visited the Blue Island,
Illinois, work site of Sierra Resources,
Incorporated, Sierra was issued a nine-
item "serious citation"/1 alleging
violations of the OSHA standards dealing
with lead exposure in construction
work./2 In a thorough analysis, the
Chief Judge for the Occupational Safety
and Health Review Commission
(Commission), relying primarily on
credibility determinations, upheld the
nine-item citation. In this borderline
frivolous appeal, Sierra seeks review of
the Commission’s order, arguing that: 1)
the OSHA inspector violated its due
process rights; and 2) the order is not
supported by substantial evidence. We
deny Sierra’s petition for review.
I. BACKGROUND
Sierra is a small construction company
located in Batavia, Illinois, and is in
the business of installing and repairing
structural steel. From February 3, 1998,
to March 26, 1998, Sierra was a
subcontractor on a project to renovate
the Western Avenue Bridge in Blue Island,
Illinois.
On February 5, 1998, OSHA received an
anonymous telephone complaint that
Sierra’s employees working on the Western
Avenue bridge were being overexposed to
lead (in the paint on the bridge) and,
furthermore, that they were not being
supplied with adequate protective
equipment. The following day, OSHA sent
one of its compliance officers, Tim
Gainer, to inspect Sierra’s work site.
Upon Gainer’s arrival at the work site,
he met with Sierra’s vice president,
Robert Sutphen, and advised him of the
complaint that OSHA received and that he
was on the site to conduct an inspection.
Although no employees were doing bridge
work that day, Sutphen informed Gainer
that Ed Hawkinson and Gary Orszulak had
been descaling rust from bolts on the
bearing assemblies and cutting the bolts
with a torch in order that the assemblies
could be removed and replaced. Gainer
then asked Sutphen whether there was any
lead on the bridge, and Sutphen responded
that there was a "minimal" amount. The
OSHA inspector next inquired if any air
monitoring of the employees’ work area
had been performed, and Sutphen replied
that he had not done any at this site but
that he had seen testing at a similar
site and what he was doing was "okay."
Unpersuaded by Sutphen’s assurances that
everything was "okay," Gainer asked if
there would be any more torch cutting
performed that day because he was
interested in monitoring the air quality
within the employees’ breathing area
while they were cutting the rusted bolts;
Sutphen responded in the negative but
promised to advise OSHA the next time
such work was about to be performed.
Before leaving, Gainer took a sample of
paint from where the bridge work had been
previously completed./3
Despite Sutphen’s assurances that he
would contact OSHA the next time Sierra
employees were engaging in torch cutting,
Gainer did not hear from him. After being
unable to reach Sutphen on February 10,
1998 (four days after Gainer first
arrived at the site), Gainer went back to
the site unannounced on Friday, February
13, and observed Hawkinson and Orszulak
working on the bridge without
respirators. He told Sutphen that he
wanted to do some "sampling" but was
informed that it would not be a good day
to do so because for the remainder of the
day the employees would only be doing
"prep work" and no more torch cutting.
The OSHA inspector informed Sierra that
he would be back the next day and did so,
this time fitting sampling pumps on
Hawkinson and Orszulak./4
Gainer spent the remaining part of the
day observing the two men, as well as
reviewing Sierra’s lead program Sutphen
had given him. The inspector noted that
only Orszulak wore a respirator (both
should have been), that both employees
wore street clothes (while they should
have been wearing protective overalls),
and that the necessary clothes-changing
and hand-washing facilities were no place
to be found. When Gainer questioned
Sutphen about these problems, Sutphen
repeated that the work was being done
safely and that he had the test results
to prove it; however, even though Gainer
requested the test results on each of the
five visits he made to the site, Sutphen
never provided them.
On March 17, 1998, Gainer received the
test results from the air sampling pumps
which revealed that Orszulak had been
exposed to lead in excess of the
permissible limit and also that
Hawkinson’s exposure exceeded the action
level./5 The OSHA inspector telephoned
Orszulak on March 19, 1998, to give him
the results and ask him if he had ever
had any training in lead safety; Orszulak
responded in the negative. On March 20,
Gainer returned to Sierra’s job site and
observed Orszulak torch cutting and
another employee, Frank Mulcrone,
descaling; both employees were wearing
respirators and overalls, but the
overalls had rips and tears in them and
the feet in the overalls were cut off.
Gainer interviewed Mulcrone who informed
him that he had never received any
training in the use of respirators nor
had he participated in any lead safety
programs./6 The OSHA inspector met with
Sutphen and noted the poor and tattered
condition of the employees’ overalls and,
once again, inquired about a change area
and a hand-washing facility. Sutphen
responded that a change area was neither
feasible nor needed, and that employees
could use a bucket to clean up; Gainer
looked into the bucket Sutphen had
pointed to and discovered it was empty.
While at the site, Gainer also met with
Craig Satalic, the business agent for the
employees’ union. Satalic informed the
inspector that he had visited the Sierra
job site on numerous occasions and asked
for respirators, overalls, blood tests,
and change and wash facilities; however,
on each occasion the request was denied
by Sutphen.
On March 23, 1998, Gainer held a
"closing conference"/7 with Sutphen to
discuss the nine violations of 29 C.F.R.
sec. 1926.62. Ten days later, on April 2,
1998, pursuant to its authority under 29
U.S.C. sec. 658(a), OHSA charged Sierra
with the nine violations that Gainer had
observed.
Sierra appealed this nine-item citation
to the Commission, but the Administrative
Law Judge (ALJ), relying primarily on
credibility determinations, affirmed the
citation and assessed a penalty of $2100
for item one (the failure to ensure that
its employees were not over exposed to
lead) and a penalty of $750 for each of
items two through nine, for a total of
$8100. Sierra petitions for review.
II. ANALYSIS
In a review of enforcement actions by
OSHA, we will affirm the agency’s legal
determinations as long as these are not
arbitrary or capricious and are in
accordance with law. Caterpillar, Inc. v.
Occupational Safety and Health Review
Comm’n, 122 F.3d 437, 439-40 (7th Cir.
1997); 5 U.S.C. sec. 706. We defer to the
agency’s reasonable interpretations of
its own regulations. In re Establishment
Inspection of Caterpillar, Inc., 55 F.3d
334, 336 (7th Cir. 1995). We affirm
findings of fact if supported by
substantial evidence. Caterpillar, 122
F.3d at 440 . . . . The ALJ’s credibility
determinations must be honored by a
reviewing court unless these
determinations are contradicted by
"uncontrovertible [documentary or
physical] evidence." Faultless Division,
Bliss & Laughlin Industries, Inc. v.
Secretary of Labor, 674 F.2d 1177, 1182
(7th Cir. 1982) . . . .
Union Tank Car Co. v. Occupational Safety
& Health, 192 F.3d 701, 705 (7th Cir.
1999); see also Martin v. Pav-Saver
Manufacturing Co., 933 F.2d 528, 530-32
(7th Cir. 1991).
A. Sierra’s Due Process Claims
Sierra contends that its due process
rights were violated because Sutphen: 1)
was not given a copy of the complaint
which was the basis for Gainer’s
inspection; 2) did not have the
opportunity to accompany Gainer as he
performed the walk-around portion of the
inspection; and 3) was excluded from
Gainer’s interviews with employees
Hawkinson and Orszulak.
However, Sierra’s argument seems to
assume that for every statutory or
regulatory violation of a procedural
nature there must necessarily be a due
process violation at a Constitutional
level, a contention that is without any
basis in the law. See Paul v. Davis, 424
U.S. 693, 700-01 (1976); United States v.
Knottnerus, 139 F.3d 558, 561 n.5 (7th
Cir. 1998) (citing United States v.
Caceres, 440 U.S. 741, 749-52 (1979);
Bridges v. Wixon, 326 U.S. 135, 152-53
(1945); Yang v. INS, 109 F.3d 1185, 1195
(7th Cir. 1997)). Despite Sierra’s
allegations that the OSHA inspector
failed to follow the statutory and
regulatory requirements concerning
notice, it is clear that when Gainer
first arrived on the site he informed
Sutphen that he was an OSHA inspector and
that he was on the premises to conduct an
investigation. It is also clear that
Sierra had an opportunity to defend
itself against the subsequent nine-item
citation OSHA issued. The fact that
Sierra does not agree with the ALJ’s
decision and argues that statutory and
regulatory requirements regarding notice
were technically violated falls short of
giving rise to a due process violation.
The Due Process Clause of the United
States Constitution requires that Sierra
be given notice and an opportunity to
respond. Contrary to Sierra’s arguments,
these requirements were clearly met in
this case. Because Sierra has failed to
point us to any support for its
Constitutional claim, nor have we found
any upon review, we decline to address
this issue any further. See Knottnerus,
139 F.3d at 561 n.5 ("An agency’s failure
to follow its own regulations does not
rise to the level of a constitutional
violation unless the regulations
themselves are compelled by the
Constitution.").
B. The Nine Violations in the Citation
Sierra next baldly contends that it did
not violate any of the lead safety
standards with which it was charged in
OSHA’s nine-item citation. However, after
briefing and a hearing in which testimony
was received from numerous individuals,
the ALJ based his conclusions on
credibility determinations; the ALJ
credited the testimony of Gainer,
Sierra’s employees, and their union
business agent, and discredited Sutphen’s
testimony./8 In contending that it did
not violate OSHA regulations, Sierra is
asking this court to substitute our own
credibility determinations for that of
the ALJ, something we decline to do. See
Jet Star, Inc. v. NLRB, 209 F.3d 671, 676
(7th Cir. 2000) ("We must affirm
credibility determinations made by the
ALJ, and adopted by the Board, in the
absence of extraordinary circumstances. .
. . Such extraordinary circumstances
include a clear showing of bias by the
ALJ, an utter disregard for
uncontroverted sworn testimony or the
acceptance of testimony which on its face
is incredible." (internal quotations
omitted)); see also United States v.
Mancillas, 183 F.3d 682, 710 n.22 (7th
Cir. 1999) ("We do not second-guess the
[ALJ]’s credibility determinations
because he or she has had the best
opportunity to observe the verbal and
nonverbal behavior of the witnesses
focusing on the subject’s reactions and
responses to the interrogatories, their
facial expressions, attitudes, tone of
voice, eye contact, posture and body
movements, as well as confused or nervous
speech patterns in contrast with merely
looking at the cold pages of an appellate
record.").
Sierra’s petition for review is
DENIED.
/1 OHSA issues "serious violations" for those
conditions which create "a substantial
probability of death or serious physical harm."
29 U.S.C. sec. 666(k).
/2 Specifically, the citation charged Sierra with:
1) failing to assure that its employees were not
overexposed to lead; 2) failing to determine its
employees’ lead exposure level at the start of
the project; 3) failing to provide its employees
with appropriate respiratory protection; 4)
failing to provide its employees with appropriate
protective work clothing; 5) failing to provide
its employees with a clean change area; 6)
failing to provide its employees with adequate
hand-washing facilities; 7) failing to provide
its employees with blood sampling for lead
levels; 8) failing to provide its employees with
safety training; and 9) failing to establish and
implement a written lead safety/compliance
program.
/3 Tests revealed that the lead content in the paint
was 50%.
/4 According to Gainer’s testimony, the sampling
pump is a small device that is affixed to an
employee’s waist and a filter runs up into the
employee’s breathing area. The device then
measures the air contaminants to which the
employee is exposed.
/5 The lead standard’s permissible exposure level
and action level are 50 and 30 micrograms per
cubic meter of air (ug/m3), respectively. See 29
C.F.R. 1926.62(b). The parties stipulated that
the air monitoring results showed Orszulak’s
exposure to be 119.7 ug/m3 and Hawkinson’s
exposure level to be 43.4 ug/m3.
/6 Gainer obtained authorization from Mulcrone,
Orszulak, and Hawkinson (who had, for reasons
unexplained in the record, been fired from
Sierra) to review their most recent blood tests
for lead. According to the blood tests,
Hawkinson’s, Orszulak’s, and Mulcrone’s blood
lead levels were 50.5, 23.9, and 7.5 micrograms
per deciliter of blood (ug/dl), respectively.
According to 29 C.F.R. sec.sec. 1926.62(c)(1) and
(k), Hawkinson should have been removed from the
work site for medical reasons once his blood lead
level reached 50 ug/dl.
/7 Cf. 29 C.F.R. sec. 1903.7(e) ("At the conclusion
of an inspection, the Compliance Safety and
Health Officer shall confer with the employer or
his representative and informally advise him of
any apparent safety or health violations
disclosed by the inspection.").
/8 For example, when the ALJ discussed his reasons
for finding that Sierra failed to ensure that its
employees were not overexposed to lead, he
stated, "I observed the demeanors of the
witnesses and found the testimony of [Gainer],
Orszulak and Satalic convincing and credible. The
testimony of Sutphen on the other hand, in
addition to being contrary to that of the other
witnesses, was simply unpersuasive."
Additionally, when discussing Sutphen’s failure
to provide OSHA with test results, the ALJ
stated, "Sierra failed to offer the results in
support of its position, and Sutphen’s testimony
about his misplacing the results and his
inability to secure another copy from the company
that had them was unconvincing."