Building Contractors, Inc.

Plain-English summary

Building Contractors dry-cut masonry brick at a shopping-mall construction site, generating dust that a bulk sample showed contained 50 percent silica quartz. OSHA cited the company for lacking a respiratory protection program, and the judge held that the general-industry respiratory standard applied to its construction work. However, OSHA did not perform personal air monitoring and did not prove respirators were necessary to protect employees under the cited paragraph. Later testing showed dry-cutting exposure at, but not above, the applicable limit and did not establish the conditions during OSHA's inspection. The judge vacated the respiratory-program item; a separate scaffold item was not contested and had already become final.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.134(a)(2); 29 C.F.R. § 1926.451(f)(3)
• Outcome: The respiratory-program citation was vacated; the separate uncontested scaffold item remained final.
• Key point: Proof that a material contains silica does not by itself establish that respirators were necessary under the cited provision.

Full text (OSHRC public release)

                                           United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 05-1476
Building Contractors, Inc.,
Respondent.

Appearances:

      Paul Spanos, Esq., U. S. Dep artment of Labor, Office of the Solicitor, Clev eland , Ohio
      For Com plainant

      Ms. Anna Peric, Safety Director, Building Contractors, Inc.,W illoughb y, Ohio
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                       DECISION AND ORDER
      Building Contractors, Inc., is a small masonry contractor located in Willoughby, Ohio. It

specializes in masonry construction for commercial projects. In May 2005 Building Contractors
erected exterior block and brick columns and walls at a new outdoor shopping mall in Avon, Ohio.
The project required cutting some of the masonry brick. In response to a complaint from a
subcontractor about excessive airborne dust generated when Building Contractors cut brick, the
Toledo office of the Occupational Safety and Health Administration (OSHA) assigned industrial
hygienist (IH) Chad Positano to investigate the complaint (Tr. 25-26). As a result of the May 19,
2005, inspection, OSHA issued to Building Contractors two one-item citations on July 28, 2005.
Citation no. 1 asserts a violation of the respirator protection standard at § 1910.134(a)(2). Building
Contractors did not contest Citation no. 2. The case was placed into simplified proceedings. The
undersigned heard the case on December 22, 2005, in Cleveland, Ohio. The parties presented
evidence and filed written arguments in support their positions.
The parties dispute whether Building Contractors violated § 1910.134(a)(2). The Secretary
asserts Building Contractors’s failure to have a respirator protection program violated the standard.
According to Building Contractors, if the Secretary cannot show its employee was over-exposed to
respirable silica, she cannot establish the violation, regardless of other proof. Although Building
Contractors’s premise is wrong, in this case the Secretary failed to establish the violation.
Factual Background
In May 2005 Building Contractors laid cementitious “masonry brick” or “stone” (hereafter,
“brick”) at the multi-employer construction worksite for the new Avon shopping mall. To construct
the walls and columns, some of the standard-sized brick had to be cut into smaller pieces. For
several days before the inspection, foreman Curtis Reno sawed and stockpiled stacks of the cut
bricks he would need for the upcoming work (Tr. 27).
Like most masonry contractors, Building Contractors cuts brick using either a “dry” or a
“wet” method. The dry method (simply cutting through the brick with a mechanized saw) can be
expected to generate significant airborne dust. In the wet method, water flows onto the cutting blade
to cool the blade and to flush over the cutting surface and the cut particles. The wet method
substantially reduces airborne dust and, if silica is present in the product, the respirable silica. The
wet method is considered a feasible control for excessive silica exposure and is the preferred cutting
method (Tr. 28, 39-40).
Reno dry cut the brick that week. Reno explained to OSHA’s Positano that he used the dry
method because he feared the wet method would discolor the brick (Tr. 30). While he cut,
downstream employees of other contractors, such as the ironworkers, were exposed to the brick dust
he generated. Eventually, those workers and Reno engaged in a heated dispute about the dust,
apparently including a physical confrontation. The general contractor became involved, and an
employee complaint was filed with OSHA alleging that the masons were exposing other trades to
silica (Tr. 24).
Positano arrived at the site on May 19, 2005, to conduct the complaint inspection. He met
with Reno and, later, with owner Tony Peric. Positano observed stacks of cut-brick waiting to be
installed. Reno notified Positano he would not cut brick that day, but agreed to cut one brick to
demonstrate how he cut the brick earlier in the week. Reno’s demonstration of dry cutting generated
a plume of dust (Exh. C-1; Tr. 28, 30).

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    Positano took a bulk sample of the dust deposited on the bricks. Since Reno did not intend

to continue cutting brick, Positano did not monitor for airborne contaminates. The bulk sample,
which was analyzed by OSHA’s Technical Support laboratory in Salt Lake City, showed the dust
contained 50 percent silica quartz (Exh. C-2; Tr. 31-33, 76). It is widely known that masons are
subject to a potential silica exposure when respirable particles of silica become airborne. Building
Contractors had not evaluated silica exposure for its employees “cutting brick of motor,” although
it told them to wear dust masks at those times. It had no respiratory protection program (Exh. C-3,
C-4; Tr. 34, 36-37).
Discussion
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was
noncompliance with its terms, (3) employees had access to the violative conditions,
and (4) the cited employer had actual or constructive knowledge of those conditions.

Southwest Bell Telephone Co., 19 BNA OSHC 1097, 1098 (No. 98-1748, 2000).

                                  Item 1: § 1910.134(a)(2)

    Applicability of the cited standard
    The Secretary asserts a violation of § 1910.134(a)(2), a so-called “general industry” standard.

Building Contractors was engaged in construction. Although the standards at Part1926 generally
cover construction activities, OSHA correctly cited Building Contractors under the Part 1910
standards. Both the language of the introduction to § 1910.134 (“[t]his section applies to . . .
Construction (part 1926 ”)) and of § 1926.103 ([t]he requirements applicable to construction work
under this section are identical to those set forth at 29 CFR 1910.134 . . .”) establish the cited
standard applies.
Noncompliance with the standard
The Secretary contends Building Contractors violated § 1910.134(a)(2) because it failed to
have a respiratory protection program to protect employees dry-cutting brick from respirable silica.
Building Contractors argues it did not violate the specific terms of the standard.
Section 1910.134(a)(2) provides:

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     (a) Permissible practice. *** (2) Respirators shall be provided by the employer when
     such equipment is necessary to protect the health of the employee. The employer
     shall provide the respirators which are applicable and suitable for the purpose
     intended. The employer shall be responsible for the establishment and maintenance
     of a respiratory protection program which shall include the requirement outlined in
     paragraph (c) of this section. (Emphasis added)

The Secretary’s citation sets out the specific allegation:
29 CRF 1910.134(a)(2): The employer did not establish and maintain a respiratory protection
program which included the requirements outlined in 29 CRF 1910.134(c):

       (a) Building Contractors, Inc. – 389900 Chester Road, Avon, Ohio: On or about May 19,
     2005 the employer failed to ensure that a respiratory protection program was established for
     employees performing dry-cutting of exterior masonry brick at the jobsite. The employer
     failed to provide appropriate respiratory protection, conduct an evaluation of respiratory
     hazards, conduct a medical evaluation for employees using respiratory protection, conduct
     fit-testing, or conduct employee training. (Emphasis added).

     The emphasized language paraphrases requirements “outline in paragraph (c).”

§ 1910.134(a)(2).
Other sections of 1910.134 and Secretary’s Motion to Amend in the Alternative
Inclusion of specific requirements from § 1910.134(c) in the citation appears to have confused
Building Contractors. Adding to the confusion, the language of § 1910.134(a)(2) contains similar
requirements to those found in other sections of the § 1910.134, although the circumstances which
trigger the requirements differ. Building Contractors candidly admits it may have violated other
sections of the § 1910.134 respiratory protection standard, but not § .1134(a)(2).2 Building
Contractors argues the cited conduct is addressed by other standards.
At the beginning of the hearing, counsel for the Secretary moved to amend to assert, in the
alternative, a violation of either § 1910.134(c) or the originally cited § .134(a)(2) (Tr. 10-12). Even

1

2
For exam ple, b oth § §19 10.1 34( a)(2 ) and .134 (c)(1 ) man date a written re spirato ry pro tection pro gram .
Subparagraph (c) mand ates the protection program if the employer requires employees to use respirators. Building
Contractors requires its employees to wear dust mask respirators when “in the process of cutting brick or mortar”
(Ex h C-4 ). Likew ise, bo th §§ 191 0.13 4(a) (2) an d .13 4(d )(1)(i) requ ire that res pirato rs be a ppr opr iate to the haza rd.
Building Contractors requires its employees to use non-NIOSH ap proved dust masks. Even the packaging of the
respir ators w arns: “D o no t use this m ask for pro tection against . . . silica . . .” (E xh R -4; T r. 30-3 1, 58 ).

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though recognizing amendments are to be “freely given” (Foman v. Davis, 371 U.S. 178 (1962);
Paschen Contrs., Inc., 14 BNA OSHC 1755 (No. 84-1285, 1990)) and despite the fact that
§ 1910.134(a)(2) and the Secretary’s citation reference § .134(c), the undersigned denied the motion
(Tr. 12). The pro se representative appeared diligent but struggled to understand many aspects of the
Secretary allegations, even after the pre-hearing conference and subsequent discussions with the
Secretary’s counsel.3 Discussions about the issues, the fact the case was under simplified
proceedings, and the confusion of the pro se employer convinced the undersigned it would not be
possible to cure the prejudice to Building Contractors of such a late amendment.
No Violation of Section 1910.134(a)(2)
The Secretary’s citation thus stands or falls on the requirements of § 1910.134(a)(2). Building
Contractors mistakenly relies on OSHA’s Instruction CPL 2-0.120 (1998, Reviewed July 14, 2004)
(Exh. R-2) to establish OSHA should have cited it for violations other than § 1910.134(a)(2). OSHA
issues instructions, such as CPLs, only as a guide to OSHA personnel to promote efficiency and
uniformity in the field. It is not binding on OSHA, and it accords no rights or defenses to employers.
E.g., Caterpillar, 15 BNA OSHC 2153, 2173 n.24 (Docket No. 87-092, 1993); Consolidated
Freightways, 15 BNA 1317, 1323 n. 10 (Docket No. 86-351, 1991). Positano explains his
recommendation to cite § 1910.134(a)(2) (Tr. 73-74):
Our Compliance Directive, Exhibit R-2, gives us guidance on how to cite under
different circumstances. The circumstance in this case, I observed employees performing dry
cutting of brick which has a potential for a silica hazard. I took a bulk sample to confirm that
silica was present in the brick and dust was being generated.
In further evaluation during the inspection, we noted that there was no respiratory
protection program in place at all with the exception of wearing a nonNIOSH-approved dust
mask.
The evaluation that I made and the way that I addressed the situation was to consider
the fact that since the dust mask was nonNIOSH approved, that it did not conform to OSHA
regulations and, therefore, absolutely no component of a respiratory protection program was
in place, which given that scenario, the Compliance Directive R-2 says that you issue a
citation under 1910.134(a)(2).
Had a NIOSH-approved respirator been in place, then, I guess the opposite argument
could be made that they had some component of a respiratory protection program, and if that

3
The representative continued to believe the Secretary claimed Reno was overexposed to respirable silica,
something which the Secretary repeatedly stated she was not alleging. At the pre-hearing conference and during
other conversations, that erroneous belief was apparently not dispelled.

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   was the case, then each individual paragraph under 1910.134 from paragraph (c) through the
   end of the standard would be cited individually. So my assessment was basically favorable
   for the Company . . . .

   The Secretary agrees she could have cited other § 1910.134 violations as well. She views the

sections of the standard as providing alternate vehicles to cite for similar, although distinguishable,
conduct. However, complying with OSHA’s field instructions and citing an appropriate standard
does not mean the Secretary presented sufficient proof to prove the violation.
Respirators not shown “necessary to protect the health of the employee” – Totality of
Circumstances

   As stated, § 1910.134(a)(2) requires an employer to institute a respiratory protection program

when respirators are “necessary to protect the health of the employee.” The Commission looks to the
totality of the circumstances in assessing when respirators are “necessary” under that standard.
Snyder Well Servicing, Inc., 10 BNA OSHC 1371, 1375-76 (No. 77-1334, 1982). Clearly, respirators
will be “necessary” when a chemical exposure is over the PEL. In addition, they may be necessary
when an exposure has a realistic potential to be over the PEL or when immediate harm may result
from a potential exposure.
The Secretary suggests two bases to find respirators (and a respiratory protection program)
“necessary.” She points to the fact silica is listed as a hazardous airborne contaminant in the Table
of Threshold Limit Values for Airborne Contaminants for Construction – Mineral Dusts, Appendix
A of § 1926.55 and in Table Z-3 of § 1910.1000. She explains that inhaling crystalline silica dust
leads to development of silicosis and other serious lung diseases. Still, not all degrees of exposure
to silica result in serious disease. The evidence of silica exposure, here, is limited to proof the brick
dust contained 50 percent silica. The bulk sample was not shown to correlate to a known exposure
to respirable silica (Tr. 75). Nor does the failure to have a medical evaluation before using a
respirator relate to whether respirators are “necessary” under § 1910.134(a)(2).
The most relevant evidence of a realistic potential for overexposure to silica comes from
Building Contractors itself. Approximately six months after the OSHA inspection, the company hired
EA Group, an accredited environmental contractor, to conduct personal air monitoring for employees
who were dry and wet cutting. The resulting report first explains, “[i]f the Severity of Exposure

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exceeds 1.0, then overexposure to silica has occurred” under OSHA’s standards (Exh. R-9, p. 1). The
monitoring results for employees dry cutting was at 1.0, although not over it. The EA Group report
suggests (Exh R-9, page 1-2):
However, it is noted that the Severity of Exposure for the worker performing dry cutting was
at 1.0 . . . . Although overexposure to silica did not occur during this sampling event, the
Severity of Exposure for the worker performing dry cutting was at the limit of 1.0.
Consequently, it is recommended that wet cutting be the preferred method. Consideration for
additional dust control measures is recommended for any dry cutting operations to further
reduce potential exposures.

   Nothing is known about the conditions which the EA Group tested, and they could be

substantially different from what existed at the time of the inspection.
Before the inspection, Building Contractors made a decision not to evaluate its employees’
exposure to silica while they cut brick and mortar. It believed the wet method usually did not result
in over-exposure (Tr. 82). Now, however, Building Contractors might be well advised to consider
a potential for silica overexposure while dry cutting. The fact the Secretary failed to prove Building
Contractors violated § 1910.134(a)(2) does not mean the company has no future responsibility to
implement a respiratory protection program in accordance with the standard.
Because the Secretary failed to show respirators were “necessary” to protect the health of
employees on or about May 19, 2005, the alleged violation of § 1910.134(a)(2) is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a), Fed. R. Civ.P.
ORDER
Based on the foregoing decision, it is ORDERED that Citation no. 1, item 1
(§ 1910.134(a)(2)) is vacated. Citation No. 2, item 1 (§ 1926.451(f)(3)) was not contested and
became a final order by operation of law.

                                                         /s/ Nancy J. Spies
                                                   NANCY J. SPIES
                                                   Judge

Date: February 6, 2006

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