Brand Energy Solutions LLC

Plain-English summary

Brand Energy Solutions installed insulation at a Texas refinery after Hurricane Ike damaged existing insulation across a large area. The Commission held that the project was construction work because it was large, complex, nonroutine, and included installation of new insulation. OSHA cited Brand under the general construction housekeeping standard for debris on a scaffold landing. The Commission vacated the $3,500 item because the scaffold-specific provision addressing debris on scaffold platforms applied to the same condition and therefore preempted the general housekeeping standard.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.25(a); 29 C.F.R. § 1926.451(f)(13).
• Outcome: Serious housekeeping item vacated and its $3,500 proposed penalty eliminated.
• Key point: A specifically applicable scaffold standard preempts a general housekeeping standard when both address debris on the scaffold landing.

Full text (OSHRC public release)

Brand Energy Solutions LLC, Docket No. 09-1048

Walter, J. David
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Walter, J. David
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2018-08-03T16:30:00Z
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EN-US
X-NONE
X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 09-1048

BRAND ENERGY SOLUTIONS LLC,

Respondent.

ON BRIEFS:

Robin
Ackerman, Attorney; Heather Phillips, Counsel for Appellate Litigation; Joseph
M. Woodward, Associate Solicitor for Occupational Safety and Health; M.
Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the
Complainant

J.
Albert Kroemer, Esq., James T. Phillips, Esq.; Cantey Hanger LLP, Dallas, TX

For the Respondent

DECISION

Before: ROGERS, Chairman;
ATTWOOD and M ac DOUGALL,
Commissioners.

BY THE COMMISSION:

Brand Energy
Solutions LLC was erecting a scaffold at a Shell Oil Company refinery in Deer
Park, Texas, when a Brand employee was fatally injured in a 100-foot fall from
an unfinished level of the scaffold. During an OSHA investigation that commenced
the same day, the compliance officer observed various scaffold components
scattered across a landing in a stair tower that was being erected to provide
access to each level of the scaffold. As a result, the Secretary issued Brand a
citation that alleged a serious violation of a construction standard
housekeeping provision, 29 C.F.R. § 1926.25(a), and proposed a
penalty of $3,500.

After a
hearing, former Administrative Law Judge Stephen J. Simko, Jr. affirmed the housekeeping
violation, rejecting Brand’s contention that the cited construction
standard does not apply. On review, Brand contends that the judge erred in
concluding that the cited provision applies. For the reasons that follow, we vacate Citation 1, Item 1.

DISCUSSION

I.         Applicability
of the Construction Standards         

Brand first
argues that its work on the project was maintenance, not construction, and
therefore the construction standards do not apply here. An employer must comply
with the construction standards if its employees are “engaged in
construction work,” an activity defined as “work for construction,
alteration, and/or repair . . . .” 29 C.F.R.
§ 1910.12. The construction standards also apply to an activity that
is an “integral and necessary part of construction.” Snyder Well
Serv., Inc. , 10 BNA OSHC 1371, 1373, 1982 CCH OSHD
¶ 25,943, p. 32,509 (No. 77-1334, 1982); B.J. Hughes, Inc ., 10
BNA OSHC 1545, 1546-47, 1982 CCH OSHD ¶ 25,977, pp. 32,578-79 (No.
76-2165, 1982) (same); Access Equip. Sys., Inc ., 18 BNA OSHC 1718, 1721
n.7, 1999 CCH OSHD ¶ 31,821, p. 46,776, n.7 (No. 95-1449, 1999) (employer
engaged in “construction work” by having “employees erect,
configure, dismantle, and repair the scaffolds” used for construction
work).

The judge
found that Brand was in the process of erecting a scaffold, which, in his view,
necessarily constituted “construction work.” On review, both
parties depart from the judge’s rationale. We find that the judge’s
reasoning was erroneous but, for the reasons discussed below, we conclude that
he reached the correct result on this issue. Scaffold erection is not
inherently construction; it can also be a general industry activity, as
evidenced by various provisions of the general industry scaffold standard that
address certain aspects of scaffold erection. See, e.g., 29 C.F.R.
§§ 1910.28(v) (specifying that the general industry scaffold
standard includes the “construction . . . of scaffolds used in
the maintenance of buildings and structures”); 1910.28(a)(1)
(“[s]caffolds shall be furnished and erected in accordance with this standard
. . .”); 1910.28(c)(6), (d)(12) (requiring certain scaffolds to be
“erected by” competent and experienced personnel); 1910.28(f)(17),
(h)(10) (addressing the installation and relocation of certain multi-point
suspension scaffolds). See also Pub. Utils. Maint., Inc. v.
Sec’y of Labor , 417 F. App’x 58, 61 (2d Cir. 2011)
(unpublished) (noting that same activity could be construction or maintenance).
Thus, the question before us is whether the project for which Brand was
erecting this scaffold was a construction activity.

Shell hired
Brand to erect a scaffold around its crude oil distillation column, which is a
very large cylindrical tower. Shell’s plan was to use the scaffold to
facilitate the removal and replacement of the column’s
asbestos-containing insulation. When complete, the scaffold was to have a
single stair tower, sixteen levels of work platforms surrounding the
distillation column, and a decontamination bay. However, before the project
began, a hurricane damaged the column. Shell then reduced the scope of the
project to the repair and replacement of insulation damaged by the storm and
the decontamination bay was eliminated from the scaffold’s design.

Brand
concedes on review that the work Shell initially expected to conduct from the
scaffold—a complete asbestos abatement project—would have been
construction, but argues that when Shell changed the project to address only
the hurricane damage, it became maintenance because the work was not expected
to alter the structure. Rather than directly challenge Brand’s position
that the work would not alter the distillation column’s structure, the
Secretary points out that whether a structure is altered during a work project
is not necessarily determinative. Specifically, the Secretary notes that OSHA
stated in several interpretation letters that evaluating whether an activity is
construction or maintenance also involves consideration of the project’s
scale, complexity, and whether it was a routine activity. See
Memorandum from James W. Stanley, Deputy Assistant Secretary of Labor, to
Regional Administrators (Aug. 11, 1994) (“Stanley Memo”); Letter
from Russell B. Swanson, Director, OSHA Directorate of Construction, to Charles
E. Hill (Aug. 14, 2000) (“Hill Letter”); Letter from Russell B.
Swanson, Director, OSHA Directorate of Construction, to Raymond V. Knobbs (Nov.
18, 2003) (“Knobbs Letter”). According to the Secretary,
consideration of all these factors supports finding that the project at issue
here was construction.

We agree. The insulation repair work required access to the entire
220-foot tall structure, thus necessitating a sixteen-level scaffold encircling
the vessel. Even after eleven Brand employees had been erecting the scaffold
for about three weeks, the scaffold was only about halfway completed at the
time of the inspection. See Ryder Transp. Servs , 24 BNA OSHC 2061, 2062,
2014 CCH OSHD ¶ 33,412, p. 57,383, n.3 (No. 10-0551, 2014) (electrical
project’s scale and complexity supported conclusion that work was
construction); Knobbs Letter at 2. Moreover, the work to be done from the
scaffold was not merely preventive—it involved repairing damage and
installing new insulation to the exterior of the structure. See Jimerson
Under-Ground, Inc ., 21 BNA OSHC 1459, 1461, 2004-09 CCH OSHD ¶ 30,800,
p. 52,465 (No. 04-0970, 2006) (laying new pipe was an alteration governed by
the construction standard); Foster-Wheeler Constructors, Inc ., 16 BNA
OSHC 1344, 1346-48, 1993-95 CCH OSHD ¶ 30,183, pp. 41,523-25
(No. 89-287, 1993) (renovating a boiler constituted construction); Pac. Gas
& Elec. Co ., 2 BNA OSHC 1692, 1693, 1974-75 CCH OSHD
¶ 19,431, p. 23,191 (No. 2821, 1975) (replacing power lines and
transformers was construction); Knobbs Letter at 2. Compare Consumers Power
Co ., 5 BNA 1423, 1425, 1977-78 CCH OSHD ¶ 21,786, p. 26,190 (No.
11107, 1977) (tree trimming to prevent interference with power lines was
maintenance work). Nor was the work to be conducted from the scaffold routine,
scheduled, or anticipated. See Stanley Memo at 2; Knobbs Letter at 3;
Hill Letter at 3. Compare Gulf States Utils., Co ., 12 BNA OSHC 1544,
1546, 1984-85 CCH OSHD ¶ 27,422, p. 35,524 (No. 82-867, 1985)
(routine replacement of damaged parts not construction activity). Shell did not
engage Brand in anticipation of a need for routine upkeep—rather, the
hurricane forced Shell to change its plans and repair the hurricane damage . Accordingly, we find the Secretary has established that the
construction standards apply.

II.       Applicability
of 29 C.F.R. § 1926.25(a)       

Brand next
raises two arguments challenging the judge’s conclusion that the
Secretary established the applicability of the cited housekeeping standard,
which is in Subpart C—General Safety and Health Provisions, and applies
to “work areas, passageways, and stairs . . . .” 29 C.F.R.
§ 1926.25(a) (emphasis added). First, Brand argues that the judge erroneously considered the landing
in the stair tower where the scaffold components at issue were located to be
“stairs” as that term is used in the cited provision. Second, Brand
argues that even if the cited housekeeping standard covers landings, the judge
erred in rejecting its affirmative defense that a provision in Subpart L, the
construction scaffold standard—29 C.F.R. § 1926.451(f)(13) —is more specifically applicable and thus preempts the cited
standard. See 29 C.F.R. § 1926.20(d)(1) (“[i]f a
particular standard is specifically applicable to a condition, practice, means,
method, operation, or process, it shall prevail over any different general
standard which might otherwise be applicable to the same condition, practice,
means, method, operation, or process”); Vicon Corp ., 10 BNA OSHC
1153, 1157, 1981 CCH OSHD ¶ 25,749, p. 32,159 (No. 78-2923,
1981) (claim that a general standard is preempted by a more specific standard
is an affirmative defense), aff’d, 691 F.2d 503 (8th Cir. 1982)
(Table). We conclude that Brand has established preemption and vacate this
item.

With regard
to the cited provision, the Secretary states on review that he interprets the
term “stairs” to cover not only the steps but also the
“landings” connecting the flights of stairs. Indeed, stairs are
“such steps collectively, esp. as forming a flight or a series of
flights ,” which necessarily includes the landings between the
flights. Random House Dictionary Of The
English Language 1383 (1971) (emphasis added). In addition, as the
Secretary points out, the purpose of the cited standard is to prevent trips and
falls. Certainly, a trip or fall hazard is not limited to circumstances in
which an employee encounters debris on a step; it also exists when an employee
encounters debris on a landing while ascending the first step or leaving the
last step. Cf. Elliot Constr. Corp., 23 BNA OSHC 2110, 2113,
2009-12 CCH OSHD ¶ 33,231, p. 56,065 (No. 07-1578, 2013)
(construing inspection standard in light of its purpose). We therefore find
that the Secretary’s reading of the cited provision’s scope
“sensibly conforms to the purpose and wording of the regulation . . .
.” Superior Masonry Builders Inc ., 20 BNA OSHC 1182, 1184 n.2,
2002-04 CCH OSHD ¶ 32,667, p. 51,417, n.2 (No. 96-1043, 2003)
(citing Martin v. Occupational Safety & Health Review Comm’n ( CF&I
Steel Corp. ), 499 U.S. 144, 157-158 (1991)).

Nonetheless,
we find that § 1926.451(f)(13) of the construction scaffold standard,
which provides that “[d]ebris shall not be allowed to accumulate on
platforms,” is more specifically applicable than the cited provision of
the construction housekeeping standard. The citation identifies the location of
the cited condition as “Level 8 at the bottom of the stairs on the stair
tower scaffold”—an area the Secretary describes in his brief as a
“landing.” The Secretary’s reference fits squarely within
Subpart L’s definition of the same word—“[ l ] anding means
a platform at the end of a flight of stairs.” 29 C.F.R.
§ 1926.450(b) (emphasis added). Accordingly, as
§ 1926.451(f)(13) expressly addresses debris on platforms , on
its face this provision applies specifically to the cited condition. While, as
discussed above, we agree with the Secretary that the term “stairs”
includes landings, the scaffold provision addresses the specific part of
the stairs where the alleged hazard was located, and thus is more specifically
applicable. See 29 C.F.R. § 1926.20(d)(1); Cincinnati Gas
& Elec. Co ., 21 BNA OSHC 1057, 1058, 2005-09 CCH OSHD
¶ 32,836, p. 52,771 (No. 01-0711, 2005) (where cited condition was
coal dust explosion hazard, coal-handling combustible atmosphere provision in
electrical standard preempted general housekeeping standard); Manganas
Painting Co ., 21 BNA OSHC 2043, 2059-61, 2005-09 CCH OSHD
¶ 32,945, pp. 53,812-15 (No. 95-0103, 2007) (consolidated) (finding
fall protection standard more specifically applicable than general personal
protective equipment standard), rev’d in part on other grounds ,
540 F.3d 519 (6th Cir. 2008).

Finally, the
Secretary argues that § 1926.451(f)(13) is entirely inapplicable here
because it addresses debris on a “platform”—defined under the
scaffold standard as a “work surface elevated above lower
levels”—and points out that Brand claims no work was done from the
landing. 29 C.F.R. §§ 1926.451(f)(13); 1926.450(b). Whatever
Brand’s understanding may be regarding the scope of the term
“work” in this context, we find that it is too narrow. The record
shows that Brand’s employees: (1) brought scaffold materials to the
landing for later use; (2) were expected to go to the landing to retrieve those
components later in the day; and (3) used that portion of the stair tower for
access to other parts of the scaffold. Thus, the area where the alleged hazard
was observed was indeed used for work. See N. Berry Concrete Corp .,
13 BNA OSHC 2055, 2055-56, 1987-90 CCH ¶ 28,444, p. 37,643 (No.
86-163, 1989) (finding that concrete standard, which prohibits
“work” above unprotected rebar, applies to employees in transit); Salah
& Pecci Constr. Co., Inc. , 6 BNA OSHC 1688, 1688-89, 1978 CCH
¶ 22,807, p. 27,554 (No. 15769, 1978) (employee being lowered in
an aerial lift is “working” within meaning of standard requiring
fall protection “when working from an aerial lift”); Capeway
Roofing Sys., Inc ., 20 BNA OSHC 1331, 1344, 2002-04 CCH OSHD
¶ 32,695, p. 51,626 (No. 00-1986, 2003) (employees traversing area in
question were engaged in “work” under fall protection standard for
“roofing work”), aff’d , 391 F.3d 56 (5th Cir.
2004). Because the landing meets the scaffold standard’s definition of a
platform, § 1926.451(f)(13) clearly covers the cited condition.

We therefore
find that on the facts of this case, § 1926.451(f)(13) is a more
specifically applicable standard that preempts the application of
§ 1926.25(a). Accordingly, we vacate Serious Citation 1, Item 1.

/s/

Thomasina V. Rogers

Chairman

/s/ 

Cynthia
L. Attwood 

Dated: April
27,
2015                                    Commissioner

M ac DOUGALL, Commissioner, concurring:

I concur
with my colleagues in vacating the judge’s decision and in declining to
amend the citation sua sponte at this late stage. I agree with their conclusion
that the construction standards preempt the general industry standards as I
find that the work in which Brand was engaged is construction work. I also
agree that even if the cited standard is applicable, it is pre-empted by a more
specifically applicable standard, 29 C.F.R. § 1926.451(f)(13). However, I write separately to express my opinion on these issues and
also because I find an additional basis to vacate—the Secretary has not
shown that the cited standard was violated because he failed to show that the
scaffold components in question were “debris” within the meaning of
this standard.

DISCUSSION

I.         The
Cited Construction Housekeeping Standard Is
Inapplicable           

We evaluate
whether the Secretary has met his burden of proving that a standard applies by
first looking to the language of the standard. See Arcadian Corp ., 17
BNA OSHC 1345, 1347 (No. 93-3270, 1995) (“[i]n a statutory construction
case, the beginning point must be the language of the statute”)
(citations omitted), aff’d , 110 F.3d 1192 (5th Cir. 1997). An
agency's interpretation of its standards is entitled to deference when it is
reasonable and consistent with the language of the standard. See CF & I Steel , 499 U.S. at 147. Yet, it is fundamental
that: “[i]f a particular standard is specifically applicable to a
condition, practice, means, method, operation, or process, it shall prevail
over any different general standard which might otherwise be applicable to the
same condition, practice, means, method, operation, or process.” 29
C.F.R. § 1910.5(c)(1); 29 C.F.R. § 1926.20(d).

The
Secretary appears to interpret the term “platform” in the
construction scaffold standard to exclude scaffold stair landings; thus,
according to the Secretary, the construction scaffold’s debris provision
is inapplicable to the scaffold’s stair tower at issue here. I find, for
the reasons discussed below, that the Secretary’s interpretation is
unreasonable and not consistent with the language of the cited standard. Thus,
I reject it and find that a provision in the construction scaffold
standard—§ 1926.451(f)(13)—is more specifically applicable and
therefore preempts the cited construction housekeeping standard.

A.        The
Secretary’s Interpretation of the Term “Platform” Is
Unreasonable

The
construction standards contain a scaffold standard, § 1926.451, and
paragraph (f)(13) of this standard provides that “[d]ebris shall not be
allowed to accumulate on platforms.” The Secretary asserts that the
construction scaffold standard’s debris provision is inapplicable here
because the violative conditions occurred on the scaffold’s stair
tower , which the Secretary states is not covered by the construction scaffold
standard’s debris provision that addresses scaffold platforms
only. Thus, according to the Secretary, the debris provision of the
construction scaffold standard does not preempt the general housekeeping
construction standard. I conclude that such an interpretation is unreasonable
for several reasons.

“Platform”
is a term defined as “a work surface elevated above lower levels.”
29 C.F.R. § 1926.450(b). The Secretary contends that the construction
scaffold standard’s debris provision does not apply to the landings
between flights of stairs, where the alleged debris was located. The Secretary
apparently reasons that the landing of a stair tower is not a work surface
because a stair tower is used for accessing dedicated construction
levels, rather than the direct performance of construction work—in other
words, a stair tower is not used for work. Thus, the Secretary
essentially contends, the terms “platform” and “stair
tower” are mutually exclusive, and the construction scaffold
standard’s debris provision does not apply to stair towers. However, in
interpreting the construction scaffold standard, I do not believe the
definition of “platform” supports this conclusion, as I see no
analytical basis to construe the terms “platform” and “stair
tower” as mutually exclusive.

On any given
job site, it is possible for a single surface in a stair tower to serve two purposes:
for accessing successive lengths of stairs and as a stage for performing
construction work. The fact that a surface is used for access does not, as the
Secretary presumes, preclude the possibility of other simultaneous uses.
Indeed, the possibility of dual use is recognized in the preamble to the
construction scaffold standard, which contemplates that the landing platform of
a stair tower may be used as a work surface: “OSHA believes that
employees on landing platforms must be adequately protected from fall hazards
while on a landing whether they are working from the landing or not .”
See 61 Fed. Reg. 46,026, 46,056 (Aug. 30, 1996) (emphasis added). I
conclude that surfaces in a stair tower can certainly be used for the
performance of construction work; hence, a stair tower can contain platforms.
This is particularly true where Brand’s work was the erection of the
scaffold (as opposed to once it is erected and work is conducted from the
scaffold). While the scaffold is being erected, work is conducted primarily on
the platforms as it is erected level by level.

Even
assuming arguendo that the surface here would be used strictly for
access, I still conclude that such a surface would be a “work
surface”; hence, it would still be a platform within the scope of the
debris provision of the construction scaffold standard. Indeed, employee access
to the construction area is a critical and integral part of the overall project.
I see no reason to find that access areas are distinguishable from those
surfaces used exclusively for construction work when the use of access areas
contributes to the final work being performed. Are Brand’s
employees not working during the times when they are traversing the stair
tower? See N. Berry Concrete Corp ., 13 BNA OSHC 2055, 2055-56,
1987-90 CCH ¶ 28,444, p. 37,643 (No. 86-163, 1989) (finding that concrete
standard, which prohibits “work” above unprotected rebar, applies
to employees in transit); Salah & Pecci Constr. Co., Inc. , 6 BNA
OSHC 1688, 1688-89, 1978 CCH ¶ 22,807, p. 27,554 (No. 15769, 1978)
(employee being lowered in an aerial lift is “working” within
meaning of standard requiring fall protection “when working from an
aerial lift”); Capeway Roofing Sys., Inc ., 20 BNA OSHC 1331, 1344,
2002-04 CCH OSHD ¶ 32,695, p. 51,626 (No. 00-1986, 2003) (employees
traversing area in question constituted “work” under fall
protection standard for “roofing work”), aff’d , 391
F.3d 56 (5th Cir. 2004).

The
Secretary has tacitly endorsed the same conclusion that I reach here, albeit in
the general industry context. There, the Secretary has construed the term
“platform” to include “[a]ny elevated surface designed or
used primarily as a walking or working surface , and any other
elevated surfaces upon which employees are required or allowed to walk
or work . . . .” See OSHA Instruction STD 1-1.13 (emphasis
added); Unarco Commercial Prod. , 16 BNA OSHC 1499, 1501, 1993-95 CCH
OSHD ¶ 30,294, p. 41,731 (No. 89-1555, 1993) (Secretary contended that
“various surfaces employees were forced to stand on” should be
considered platforms). Indeed, the Secretary has adopted this broad
interpretation notwithstanding the fact that the strict general industry
definition of “platform” is limited to work areas. See
29 C.F.R. § 1910.21(a)(4) (defining the term “platform”
in pertinent part as “[a] working space for persons, elevated above the
surrounding floor or ground . . . .”). I do not see any basis to adopt a
more narrow definition with regard to the construction scaffold standard. Thus,
I find that the Secretary’s interpretation of the term
“platform” is unreasonable, and it should not be used to limit the
application of the construction scaffold standard in these circumstances. See
CF & I Steel , 499 U.S. at 147.

B.        The
Construction Scaffold Standard, As a Whole, Further Undermines the
Reasonableness of the Secretary’s Interpretation

The broader
application of the construction scaffold standard as a whole further undermines
the Secretary’s narrow interpretation of the term “platform.”
See Bunge Corp. , 12 BNA OSHC 1785, 1790, 1986-87 CCH OSHD ¶
27,565, p. 35,804 (No. 77-1622 1986) (consolidated) (“[T]he provisions of
a standard should be interpreted in the context of the entire
standard.”). Indeed, “[i]t is a generally accepted precept of
interpretation that . . . regulations are to be read as a whole, with each part
or section . . . construed in connection with every other part or
section.” Am. Fed. of Gov’t Emps. v. FLRA , 803 F.2d 737, 740
(D.C. Cir. 1986) (internal quotations omitted). Two specific provisions in the
construction scaffold standard are particularly instructive.

First, as
previously stated, the construction scaffold standard expressly recognizes that
stair towers can and must contain platforms, requiring that “[a]
landing platform . . . shall be provided at each level [of a stair
tower].” 29 C.F.R. § 1926.451(e)(4)(viii). Such a requirement
explicitly undermines an attempt to distinguish stair towers and platforms as
mutually exclusive. Second, the construction scaffold standard defines
“walkway” as “a portion of a scaffold platform used only for
access and not as a work level.” 29 C.F.R. § 1926.450(b). That is to
say that the definition of “walkway” acknowledges the existence of platforms
used for access. Id. In so doing, the term “walkway” recognizes
that a surface does not lose its identity as a platform merely because
it is used to access dedicated construction areas. Id.

Both
provisions, and the construction scaffold standard as a whole, undermine the
Secretary’s narrow interpretation of the term “platform” and
dictate that the construction scaffold standard applies here. See S.G.
Loewendeck & Sons, Inc. v. Reich , 70 F.3d 1291, 1294 (D.C. Cir. 1995)
(Secretary’s interpretation necessarily unreasonable “where an
alternative reading is compelled by the regulation’s plain language or by
other indications of the [agency’s] intent at the time of the
regulation’s promulgation”) (internal quotations omitted).

C.        The
Secretary’s Narrow Interpretation Would Lead to Absurd Results

The
Secretary’s interpretation, if correct, would also lead to absurd
results, and “[i]t is well established that a statute or . . . a standard
must be construed so as to avoid an absurd result.” Unarco, 16 BNA
OSHC at 1502, 1993-95 CCH OSHD at p. 41,732. For instance, while the
construction scaffold standard applies specifically to scaffolds (and is even
titled “Subpart L – Scaffolds”), the term
“scaffold” is defined as a “temporary elevated platform .”
If the restrictive definition of the term “platform” advocated by
the Secretary is correct, the definition of “scaffold” would mean
that scaffolds and stair towers should be viewed as separate and distinct
structures. Such a conclusion—that a stair tower should be viewed as
separate and distinct from a scaffold —is unreasonable. Indeed, the
diagram of a System Scaffold, which is contained in Appendix E of the
construction scaffold standard, illustrates that the stair tower should be
viewed as a part of a scaffold , rather than a separate and distinct
structure.

Similarly,
29 C.F.R. § 1926.451(e)(6) creates minimum safe distances between
scaffolds and overhead power lines. But again, the definition of
“scaffold” plainly incorporates the term “platform,”
which the Secretary argues does not include those surfaces located within a
stair tower. See 29 C.F.R. § 1926.450(b). Would the Secretary
really suggest that stair towers are not subject to the minimum safe distances?
Would the Secretary suggest that a stair tower erected adjacent to an overhead
power line would not violate the construction scaffold standard as long as
dedicated construction areas are kept further away? Such results seem absurd,
illustrating the undeniable fact that the Secretary’s narrow
interpretation of the term “platform” is unreasonable.

I also note
that the Secretary’s interpretation is contrary to the goal of promoting
employee safety and effectuating the intent of the OSH Act. CF & I Steel ,
499 U.S. at 147 (concluding that the OSH Act “establishes a comprehensive
regulatory scheme designed to assure so far as possible . . . safe and
healthful working conditions for every working man and woman in the
Nation”) (internal quotations omitted). Indeed, the construction scaffold
standard would be woefully insufficient to address the risk of accumulated
debris if it were read to exclude all surfaces not used as dedicated
construction areas. If the debris provision of the construction scaffold standard was
intended to apply only to work surfaces , the standard could have read:
“[d]ebris shall not be allowed to accumulate on work surfaces.”
Such language was not employed.

I conclude
that the construction scaffold standard as a whole is clear that its debris
provision is not rendered inapplicable merely because debris accumulates on a
stair tower rather than a dedicated construction area. Brand was a scaffolding
contractor charged with the task of constructing a scaffold. I do not find that
the stair tower—a critical and integral part of the scaffold in this
case—should be viewed in isolation from the remainder of the structure
and reject the notion that the stair tower was outside the scope of the
construction scaffold standard. See Diamond Roofing Co., Inc. v.
Occupational Safety & Health Review Comm’n , 528 F.2d 645, 650
(5th Cir. 1976) (“[t]o strain the plain and natural meaning of words for
the purpose of alleviating a perceived safety hazard is to delay the day when
the occupational safety and health regulations will be written in clear and
concise language so that employers will be better able to understand and
observe them”). The text, purpose, and application of the construction
scaffold standard dictate that § 1926.451(f)(13) is the applicable
standard; for the reasons stated, I conclude that the Secretary erred by
asserting a violation of the cited housekeeping standard.

In sum, I
have little difficulty concluding that Brand’s work should be covered by
the construction scaffold standard and agree with Brand’s contention that
any citation addressing accumulated debris on the scaffold at issue is
controlled by the debris provision in the construction scaffold standard,
§ 1926.451(f)(13). Additionally, I join with my colleagues and would not
permit the Secretary to amend the citation to assert a violation of the
construction scaffold standard at this time, as any amendment at this stage
would be prejudicial to Brand. Hence, in concurring with my colleagues, I also would vacate Item 1
based on a lack of applicability.

II.       The
Secretary Failed to Show That the Scaffold Components at Issue Were
“Debris” and That Brand Violated the Cited Housekeeping
Standard   

Even
if the cited housekeeping standard was applicable, the Secretary failed to show
that it was violated here. That standard provides, in pertinent part: “[d]uring the course
of construction, alteration, or repairs, form and scrap lumber with protruding
nails, and all other debris, shall be kept cleared from work areas,
passageways, and stairs, in and around buildings or other structures.” 29
C.F.R. § 1926.25(a). The Secretary asserts that Brand violated the
construction housekeeping standard because the unused scaffold components lying
on the stair tower were “debris” that should have been “kept
clear from work areas, passageways, and
stairs . . . .” I disagree. I find that the items
asserted to be in violation of the standard do not meet the definition of
“debris” under either a dictionary definition or under Commission
precedent.

The
Commission, in declining to accept a dictionary definition of the term, has
previously addressed the question of what constitutes “debris” in Gallo
Mech. Contractors, Inc ., 9 BNA OSHC 1178, 1981 CCH OSHD ¶ 25,008
(No. 76-4371, 1980) and Capform, Inc ., 16 BNA OSHC 2040, 1993-95 CCH
OSHD ¶ 30,589 (No. 91-1613, 1994). Although Gallo and Capform
are not models of clarity in this context, I conclude that these cases compel
the conclusion here that the unused scaffold components are not debris.

I agree with Brand that these
unused scaffold components were a necessary part of its erection work, and it
was necessary for them to be kept at the location where they were in order for
the work to proceed. Indeed, unlike the pieces of structural steel, small
pieces of channel, one-by-fours, two-by-fours, and pipe in Gallo that
were deemed “debris,” the scaffold components at issue here were
necessary for the continued construction of the scaffold tower. See 9
BNA OSHC at 1179, 1981 CCH OSHD at p. 30,899. As a consequence, I conclude that
the unused scaffold components are akin to equipment as discussed in Gallo .
9 BNA OSHC at 1180, n. 3, 1981 CCH OSHD at p. 30,899, n. 3 (“[a prior
Commission case] can also be read as including certain types of equipment
within the items which must be kept clear of work areas and passageways under
the standard. To the extent that [it] can be so read, we disapprove such an
interpretation”) (emphasis added).

Moreover, while Gallo
acknowledges that objects may become debris when they are not kept in a proper
organizational state, such as when they are unnecessarily scattered about on a
work surface and create a trip and fall hazard, here the Secretary failed to
present sufficient evidence that the state of organization was so deficient
that the scaffold components were “debris.” See, e.g., Marinas
of the Future, Inc. , 6 BNA OSHC 1120, 1121-22, 1977-78 CCH
¶ 22,466, p. 27,011 (No. 13507, 1977) (interpreting 29 C.F.R. §
1910.22(a)(1) requirement that workplace be kept “clean and
orderly” and finding no violation because “there is no evidence
indicating that the work materials on the floor were in excess of those
required to accomplish repairs” and thus “no convincing evidence
that the work area was unreasonably filled with work materials”). As
noted in Gallo , the state of organization is only pertinent when dealing
with construction materials like structural steel, small pieces of channel,
one-by-fours, two-by-fours, and pipe; it has no application when dealing with
essential construction equipment or other items which are critical and integral
to the performance of the task being conducted. 9 BNA OSHC at 1179, 1981 CCH
OSHD at ¶ 30,899-900. Again, the various scaffold
components—including mud sills, vertical legs, ladders, horizontal
ledgers, ladder brackets, toe boards, and scaffold planks—were
specifically for Brand’s use that day in the scaffold erection. Thus,
they are more akin to equipment than to the structural steel, small pieces of
channel, one-by-fours, two-by-fours and pipe in Gallo . Id. Indeed, Brand’s Safety Manager testified that the
scaffold components were staged at the beginning of each shift for use that
same day in the construction. At the end of the shift, any unused components
were returned to the staging area. In addition, as the levels of the scaffold were uniform, the
components necessary for its erection did not change. Each lift of components
by a crane and the use of a skid pan were designed to provide the shift’s
crew with exactly what was needed, with no leftover or excessive material.

The Secretary’s proposed
application of the term “debris” would put construction employers,
particularly those erecting a scaffold, in a perpetual state of organizing or
bringing components up the scaffold in crippling piecemeal fashion, something Gallo
recognized is neither what the housekeeping standard requires nor practical at
a construction site. 9 BNA OSHC at 1180, 1981 CCH OSHD at p. 30,899 (“the
nature of construction work would generally preclude keeping work areas and
passageways entirely clear of equipment”) (citations and footnotes
omitted). The significant question in this case is: were the scaffold
components critical and integral to the construction of the very next scaffold
level and was it necessary to keep those components stored in the location
where the violative conditions were cited? I conclude that the scaffold
components meet this test as they were staged in the area in preparation for
installation on the scaffold and, thus, were not “debris” within
the meaning of the standard; at the very least, the Secretary failed to prove
otherwise. Thus, even if the Secretary had cited the appropriate standard, I
would vacate the citation.

III.      Brand
Was Not Provided with Adequate Notice of the Secretary’s
Interpretation            

Nonetheless, if I were to
conclude that the Secretary’s interpretation of the cited standard was
reasonable and that the Secretary established noncompliance, I conclude there
is an additional basis to vacate the citation—Brand was not provided with
adequate notice of the Secretary’s interpretation that scaffold
components intended to be used in construction that day may constitute
“debris” within the meaning of the cited standard. An employer
lacking fair notice of a standard cannot be found in violation of the OSH Act
for failure to comply with that standard. E.g., S.G. Loewendick & Sons
Inc. v. Sec’y of Labor , 70 F.3d 1291, 1297 (D.C. Cir. 1995)
(“Congress and the courts require that agency action reflect clear,
rational decision making that gives regulated members of the public adequate
notice of their obligations”); Diebold, Inc. v. Marshall , 585 F.2d
1327, 1335-39 (6th Cir. 1978); Cardinal Indus. , 14 BNA OSHC 1008, 1011,
1987-89 CCH OSHD ¶ 28,510, p. 37,801 (No. 82-427, 1989). To the extent
that the Secretary’s choice of language does not effectuate what the
Secretary may have intended, the remedy lies in further rulemaking by the
Secretary rather than the adoption by this Commission of an interpretation that
is not supported by the standard as promulgated. See Diamond Roofing ,
528 F.2d at 650 (regulations cannot be construed to mean what an agency
intended but did not adequately express).

CONCLUSION

For the reasons stated herein my
separate opinion, I join in my colleagues’ decision to vacate the item on
review.

/s/ 

Heather L. MacDougall

Dated: April 27,
2015                                                Commissioner

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. 09-1048

Brand Energy Solutions LLC,

Respondent.

Appearances:

Jennifer J. Johnson Esquire & Madeline Le, Esquire, Dallas,
Texas

For
Complainant

J. Albert Kroemer, Esquire
& James T. Phillips, Esquire, Dallas, Texas

For
Respondent

Before: Administrative
Law Judge Stephen J. Simko, Jr.

DECISION
AND ORDER

Brand
Energy Solutions LLC d/b/a Brand Scaffold Building, Inc., erects, dismantles,
rents, and supplies scaffolds for commercial and industrial businesses. On
December 18, 2008, Brand employee Cynthia Chavira fell to her death from a
scaffold Brand was erecting at the Shell Deer Park Refinery in Deer Park,
Texas. Occupational Safety and Health Administration (OSHA) compliance officer
David Waters arrived at the worksite later that day and began an inspection.
Based upon Waters’s inspection, the Secretary issued a Citation to Brand
on June 9, 2009.

The
Citation consisted of six items alleging serious violations of the Occupational
Safety and Health Act of 1970 (Act). Item 1 alleges the serious violation of 29
C. F. R. § 1926.25(a), for failing to keep debris clear from work areas,
passageways, and stairs, in and around buildings or other structures. The
Secretary proposed a penalty of $ 3,500.00 for Item 1. Items 2 through 6
alleged violations of various subsections of 29 C. F. R. § 1926.451, the
standard that provides general requirements for scaffolds. The Secretary
proposed penalties totaling$ 18,500.00 for Items 2 through 6. Brand timely
contested the Citation.

The
court held a hearing in this matter on January 20 and 21, 2010, in Houston,
Texas. Brand admitted jurisdiction and coverage. Prior to the hearing, the
Secretary withdrew Item 5 of the Citation. The hearing proceeded on the
remaining five items. On April 2, 2010, the parties filed a joint notice of
withdrawal of Items 2, 3, 4, 5, and 6 of the Citation. The court issued an
order approving this partial settlement on April 21, 2010.

Only
Item 1 remains at issue. The parties have filed post-hearing briefs addressing
Item 1. Brand contends the Secretary cited the company under an inapplicable
standard, and thus Item 1 should be dismissed. If the cited standard is
applicable, Brand argues it did not violate the terms of the standard. Brand also
contends that, if the court affirms Item 1, the court should reclassify the
violation from serious to de minimis.

For
the reasons discussed below, the court rejects Brand’s arguments. The
court affirms Item 1 as a serious violation, and assesses a penalty of $
3,500.00.

Background

In
2008, Shell Oil Company hired Brand to erect a systems scaffold around a crude
distillation column (a large circular tower) at its refinery in Deer Park,
Texas. The original purpose of the scaffold was to provide a platform for
employees to remove and replace asbestos-containing insulation. The original
design of the scaffold included an area for an asbestos decontamination
enclosure.

On
September 13, 2008, Hurricane Ike made landfall near Galveston, Texas.
Hurricane Ike is currently the third most destructive hurricane to make
landfall in the United States, after Hurricanes Katrina and Andrew, and it
wreaked substantial damage to the Deer Park Refinery. Following the storm,
Shell downsized the scope of the project, eliminating the insulation
replacement part of it. The scaffold was redesigned to eliminate the area that
was to be used for asbestos decontamination. The scaffold would no longer need
a Visqueen plastic covering to contain the asbestos. Brand reconfigured the
scaffold’s design, size, weight-bearing capacity, and wind-bearing
capacity.

At
completion, the scaffold was to be approximately 220 feet high. Brand built the
scaffold in two parts. One part was built around the crude distillation column.
The other part was a stair tower, located on the east side of the column. The
stair tower was the only means of access to the tower.

On
November 26, 2008, Brand began erecting a cup-lock systems scaffold around the
column. Brand transported materials, scaffold components, and equipment to the
worksite and placed these items in designated staging areas.

Brand
assigned eleven employees to erect the scaffold. On December 18, 2008, the
scaffold was halfway completed, and stood approximately 110 feet high. Brand
employee Cynthia Chavira was working on an unfinished level of the platform,
approximately 100 feet above the ground. She was wearing a full body harness
with a double lanyard, but she was not tied off. At approximately 11:00 a.m.,
Chavira fell from the platform to her death.

OSHA
assigned compliance officer David Waters to inspect the worksite. He arrived
the day of Chavira’s death and held an opening conference with Brand. He
took photographs and interviewed Brand employees, as well as employees of other
companies on the site. Waters returned twice to the site to take more
photographs and measurements, and to conduct a closing conference. Brand shut
down the scaffold site the day Chavira fell, and it remained closed throughout
Waters’s inspection.

Discussion

The
Secretary has the burden of proving the violation by a preponderance of the
evidence.

In order to establish a violation of
an occupational safety or health standard, the Secretary has the burden of
proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee
access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation ( i.e., the employer either knew
or, with the exercise of reasonable diligence could have known, of the
violative conditions).

Atlantic
Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Item 1: Alleged
Serious Violation of 29 C. F. R. § 1926.25(a)

The standard
at 29 C. F. R. § 1926.25(a) provides:

During the course of construction,
alteration, or repairs, form and scrap lumber with protruding nails, and all
other debris, shall be kept cleared from the work areas, passageways, and
stairs, in and around buildings or other structures.

In
Citation No. 1, Item 1, the Secretary alleges:

29 C. F. R. § 1926.25(a):
Debris was not kept cleared: work areas, passageways, stairs and around the
buildings or other structures.

(a) Level 8 at the bottom of the
stairs on the stair tower scaffold where scaffold components were stored.

(a) Applicability
of the Cited Standard

(i)
Construction Standard v. General Industry Standard  

Brand
contends the Secretary failed to establish the first element of proof, that 29
C. F. R. § 1926.25(a) applies to the cited conditions. Brand argues the
Secretary should have cited the company under a general industry standard, not
a construction standard.

The
Secretary has two separate sets of standards addressing scaffolds, depending
upon whether they are used for workers engaged in construction or maintenance.
Scaffolds used for construction activities are governed by standards found in
Subpart L of the construction standards, in Part 1926 of Title 29 of the Code
of Federal Regulations. Scaffolds used for maintenance activities are governed
by standards found in Subpart D of the general industry standards, in Part 1910
of Title 29 of the Code of Federal Regulations.

“Maintenance”
is not defined in the Act. The standards at 29 C. F. R. §§ 1910.12(b)
and 1926.32(g) define “construction work” as “work for construction,
alteration, and/or repair, including painting and decorating.” Brand
concedes the project, as originally conceived, for which it was erecting the
scaffold “would have undoubtedly been classified as
‘construction’ inasmuch as it was proposed that all or
substantially all of the insulating materials on this particular tower which
contain asbestos would be removed, the area decontaminated and the insulation
replaced with non-asbestos containing insulation” (Brand’s brief,
pp. 5-6). Brand argues, however, that once the project was downscaled to merely
repairing certain sections of torn insulation, the work fell under the
classification of maintenance.

In
support of its position, Brand cites a Standard Interpretation letter issued by
OSHA on August 14, 2000, in which OSHA sought to clarify the differences
between construction work and maintenance work. The Standard Interpretation
letter states, in pertinent part:

The following principles and
examples apply in distinguishing between construction and maintenance:

(A) It is the activity to be
performed, not the company’s standard industrial classification (SIC)
code, that determines whether the construction standard applies;

(B) “Maintenance” means
keeping equipment or a structure in proper condition through routine, scheduled
or anticipated measures without having to significantly alter the structure or
equipment in the process. For equipment, this generally means keeping the
equipment working properly by taking steps to prevent its failure or
degradation.

(C ) Whether repairs are maintenance
or construction depends on the extent of the repair and whether the equipment
is upgraded in the process.

Both
Brand and the Secretary mistakenly focus on the classification of the future
activity for which the scaffold was being built. On December 18, 2008, no insulation
replacement or repair was being done. The only activity underway was the
construction of the scaffold. Only employees of Brand, a scaffold constructor,
were allowed access to the scaffold while it was being constructed.

Brand posted
a tag at the bottom of the scaffold stairway:

DANGER

DO NOT

USE

SCAFFOLD

SCAFFOLD

UNDER

CONSTRUCTION

As
Brand acknowledged with its tag, the erecting of a scaffold is construction
work; it is building a completely new component by assembling materials for a
specific project. It is not routine maintenance on a pre-existing structure. It
is undisputed that the scaffold was only halfway completed on December 18,
2008. Brand had not released the scaffold to Shell for use in repairing the
insulation. Brand’s scaffold expert David Glabe testified, “[T]he
fact is until the scaffold company does a final inspection on it . . . the
scaffold is considered to be under construction” (Tr. 268).

The
Secretary correctly cited Brand under the construction standards found in Part
1926.

(ii) The
Housekeeping Debris Standard v. The Scaffold Debris Standard

Brand
also argues that, even if the Secretary correctly cited it under the
construction standards, a more specific construction standard exists and,
therefore, the court should vacate Item 1.

The
standard at 29 C. F. R. § 1910.5(c)(1) provides:

If a particular standard is
specifically applicable to a condition, practice, means, method, operation, or
process, it shall prevail over any different general standard which might
otherwise be applicable to the same condition, practice, means, method,
operation, or process.

Brand
contends that because it was erecting a scaffold, the Secretary should have
cited it using the specific debris provision found in Subpart L
(“Scaffolds”) of Part 1926. The standard Brand believes is more
specific is 29 C. F. R. § 1926.451(f)(13), which provides:

Debris
shall not be allowed to accumulate on platforms.

Unlike
the cited standard, the scaffold standard addressing debris is limited to
platforms. “Platform” is defined at 29 C. F. R. § 1926.450(b)
as “a work surface, elevated above lower levels. Platforms can be
constructed using individual wood planks, fabricated decks, and fabricated
platforms.”

The
Secretary does not allege Brand allowed debris to accumulate on platforms. Item
1 of the Citation expressly addresses a non-platform area of the scaffold as
the site of the violative condition: “Level 8 at the bottom of the stairs
on the stair tower scaffold where scaffold components were stored.” The
cited standard requires debris be “kept cleared from the work areas,
passageways, and stairs , in and around buildings or other
structures.”

The
standard at 29 C. F. R. §1910.5(c)(1), stating that a more specific
standard preempts a general standard, has a corollary at 29 C. F. R. §
1910.5(c)(2):

On the other hand, any standard
shall apply according to its terms to any employment and place of employment in
any industry, even though particular standards are also prescribed for the
industry, as in subpart B or subpart R of this part, to the extent that none of
such particular standards applies.

Although
Subpart L of the construction standards provides particular standards
prescribed for scaffolds, none of those standards address the cited condition
as specifically as the housekeeping standard does. The standard at 29 C. F. R.
§ 1926.25(a) applies according to its terms to the stairs on the stair tower
scaffold constructed by Brand.

The
Secretary has established 29 C. F. R. § 1926.25(a) applies to the
conditions cited in Item 1 of the Citation.

(b)
Compliance with the Terms of the Standard

Waters
testified that when he conducted his inspection of the stair tower scaffold on
December 18, 2008, he observed scaffold material scattered around the stairway,
creating a tripping hazard. Waters took photographs of the area that
corroborate his testimony. Exhibits C-6 and C-7 are copies of photographs of
the area showing various scaffold parts strewn across the area employees used
to access the upper levels of the scaffold. A water cooler and pieces of wood
are also in the area. Mike Sharp, Brand’s director of safety, and Gustavo
Castillo, Brand’s scaffolding expert, agreed Exhibits C-6 and C-7 depict
scaffold parts at the bottom of the scaffold stairway.

Brand
does not dispute that various scaffold components were at the bottom of the
stairway on December 18, 2008. Brand argues, however, that the Secretary failed
to prove it was in noncompliance with the cited standard because the scaffold
components are not “debris” within the meaning of the standard.
Brand contends the scaffold components shown in Exhibits C-6 and C-7 were
either to be used that day in the construction of the scaffold, or removed to
the staging area at the end of the day’s shift. Brand cites Webster’s
New Collegiate Dictionary in defining “debris” as “the
remains of something broken down or destroyed; ruins,” or “an
accumulation of rock” (Brand’s brief, p. 12).

If
this were a case of first impression, the court might be inclined to agree with
Brand’s interpretation of “debris.” There is, however, case
law that indicates otherwise. In Gallo Mechanical Contractors, Inc., 9
BNA OSHC 1178 (No. 76-4371, 1980), the Review Commission reviewed the decision
of an administrative law judge (ALJ) who had found a violation of 29 C. F. R.
§ 1926.25(a), but reclassified it from other than serious to de minimis.
The ALJ determined that most of the matter cited as “debris” was
not debris, but equipment and materials to be used by the employees. The small
amount of matter that the ALJ concluded was “debris” amounted to a
bit of trash he did not consider a tripping hazard.

The
Commission found the ALJ had too narrowly defined “debris,” and
analyzed the standard in terms of the hazard it was designed to prevent:

Section 1926.25(a) is concerned with
housekeeping on construction worksites. It directs employers to keep lumber and
debris cleared “from work areas, passageways, and stairs, in and around
buildings and other structures.” Hazards of tripping and falling,
possibly resulting in sprains, fractures, and even concussions, can occur if
matter is scattered about working and walking areas. . . . Accordingly,
“debris” within the meaning of section 1926.25(a) includes material
that is scattered about working or walking areas. Whether the material has been
used in the past or can or will be used in the future is irrelevant.

Id. at 1180
( citations omitted).

The
Commission went on to conclude that equipment, unlike materials (which the
Commission listed in that case as wood, steel pieces, and pipes), cannot be
considered “debris.” The Commission found that materials did
constitute a tripping hazard and modified the classification to other than
serious.

When
asked to reconsider its finding in Gallo , which the employer called
“‘clearly overbroad’ and ‘misguided,’” the
Commission firmly upheld its earlier ruling:

We find no basis for disturbing our
decision in Gallo. There we considered the meaning of
“debris” in light of the purpose of the standard (to prevent
tripping accidents) and in relation to the only items specifically listed in
the standard (form and scrap lumber with protruding nails). Capform’s
proposed meaning does not take into account this purpose, and Capform does not
cite any precedent in support of its view. As for Capform’s argument that
to apply Gallo ’s definition of “debris” would cripple
construction contractors, the definition has been Commission precedent since
1980, and Capform presents no evidence that it has had that effect.

Capform
Inc., 16 BNA OSHC 2040, 2044 (No. 91-1613, 1994).

Commission
precedent on this issue is clear. The scaffold components scattered about the
bottom of the stairway are materials. As such, they fall within the definition
of “debris” as fashioned by the Commission. Exhibits C-6 and C-7
show the materials on the walking surface at the bottom of the stairway,
creating numerous tripping hazards.

The
Secretary has established Brand was in noncompliance with the terms of 29 C. F.
R. § 1926.25(a).

(c)
Employee Exposure

Eleven
Brand employees had access to the scaffold the day of the accident. The stair
tower was the only means of access the employees had to the upper level of the
scaffold. They would have to pass through that level on their way to the
highest level being built. The Secretary has established exposure to the
tripping hazard for eleven employees.

(d)
Employer Knowledge

The
scaffold components at the bottom of the stairs were in plain view of
Brand’s eleven employees on site. Brand had two lead men working with its
employees, as well as Edil Perez. Perez was Brand’s foreman, lead
carpenter, and designated competent person. Perez’s knowledge that the
scaffold components were scattered at the bottom of the stairway is imputed to
Brand. Dover Elevator Co., Inc ., 16 BNA OSHC 1281, 1286 (No. 91-862,
1993) ("[W]here a supervisory employee has actual or constructive
knowledge of the violative conditions, that knowledge is imputed to the
employer, and the Secretary satisfies [her] burden of proof without having to
demonstrate any inadequacy or defect in the employer's safety program").

The
Secretary has established Brand knew of the violative condition. She has proven
Brand violated 29 C. F. R. § 1926.25(a).

Classification of
the Violation

The
Secretary classified Item 1 as a serious violation. Under §17(k) of the
Act, a violation is serious if it creates a substantial probability of death or
serious physical harm. Brand argues that if the court finds it violated the
cited standard, the court should reclassify the violation as de minimis. A
violation is de minimis when there is technical noncompliance with a standard,
but the departure bears such a negligible relationship to employee safety or
health as to render inappropriate the assessment of a penalty or the entry of
an abatement order. Cleveland Consolidated, Inc., 13 BNA OSHC 1114 (No.
84-696, 1987).

Waters
testified that employees tripping or falling over the scattered scaffold
components could sustain injuries ranging from cuts and bruises to broken bones
or death. An employee tripping over the components would likely suffer serious
physical harm. In this instance, the tripping hazard does not bear a
“negligible relationship to employee safety.” The Secretary
properly classified the violation as serious.

Penalty Determination

The
Commission is the final arbiter of penalties in all contested cases. In
determining an appropriate penalty, the Commission is required to consider the
size of the employer’s business, history of previous violations, the
employer’s good faith, and the gravity of the violation. Gravity,
generally, is the principal factor to be considered.

Brand
is a large international organization, and employed at least 10,000 employees
at the time of the inspection. The company had a history of OSHA citations. No
evidence of bad faith was adduced.

The
gravity of the violation is high. Employees were required to navigate through
the scattered components, often while carrying materials or equipment. They
were exposed to several tripping hazards each time they walked through the
area. A penalty of $ 3,500.00 is appropriate.

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) of the Federal Rules of Civil Procedure.

ORDER

The
court previously issued an order approving settlement of Items 2 through 6 of
the Citation on April 21, 2010. Based upon the foregoing decision, it is
ORDERED that:

Item
1 of the Citation, alleging a serious violation of 29 C. F. R. §
1926.25(a), is affirmed, and a penalty of $ 3,500.00 is assessed.

JUDGE
STEPHEN J. SIMKO, JR.

Date:   August
23, 2010