Gipson-Ricketts, LLC

Read the official release (oshrc.gov)

Plain-English summary

Gipson-Ricketts recovered lead shot from a shooting range by screening dry, dusty topsoil. The judge treated the work as general industry rather than construction because the company's primary activity was collecting lead and returning the soil, not permanently changing the site. Employees used half-mask respirators without a respiratory protection program, medical clearance, fit testing, or lead-hazard training, and the company had not made the required initial lead-exposure determination. Those three items were affirmed, with penalties totaling $5,400. The first-aid item was vacated because an experienced foreman was adequately trained and an on-site certified manager was also available.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.151(b); 29 C.F.R. § 1910.1025(f)(2)(i); 29 C.F.R. § 1910.1025(l)(1)(i); 29 C.F.R. § 1910.1025(d)(2)
• Outcome: Three lead-related items were affirmed for $5,400 total, and the first-aid item was vacated.
• Key point: When employees use provided respirators for lead work, the employer must implement the required protection program even if it calls respirator use voluntary.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
OSHRC DOCKET NO. 11-2401
v.
GIPSON-RICKETTS LLC
and its successors,
Respondent.
Appearances:

     Josh Bernstein, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
             For Complainant

     John Renick, Esq., McMahon Berger, P.C., St. Louis, Missouri
             For Respondent

Before: Administrative Law Judge John H. Schumacher

                                   DECISION AND ORDER

I. Procedural history

     This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of a Gipson-Ricketts LLC (“Respondent”) worksite in San Antonio,

Texas on April 14–19, 2011.1 As a result of the inspection, OSHA issued a Citation and

Notification of Penalty (“Citation”) to Respondent alleging four (4) violations of the Act and

proposed a total penalty of $5,400.00.2 Respondent filed a timely notice of contest, bringing this

1. The original inspection was to begin on April 14, 2011; however, a fatality—unrelated to the present case—at the
   same worksite was reported the day prior to the scheduled inspection. Compliance Safety and Health Officer
   (“CSHO”) Arlene Lamont-Cubitt’s physical inspection of Respondent began on April 18, 2011. (Tr. 276).
2. This total is based upon the numbers provided in the Citation. According to Complainant, Citation 1, Item 1 was
   not initially assessed a penalty due to “the mistaken belief that an appropriations rider precluded the issuance of a
   penalty for this safety violation to a small employer such as G-R (Respondent).” Complainant states that it
   supplemented its discovery responses in August of 2012 to expressly state that a penalty should have been assessed
   matter before the Court. A hearing was held on November 14–15, 2012, in San Antonio, Texas.

Both parties have filed post-trial briefs.

II. Jurisdiction

     Respondent provides lead recovery services to gun clubs and shooting ranges across the

country. (Tr. 124, Ex. C-4). Based upon the record, the Court finds that Respondent was

engaged in a business affecting commerce and was an employer within the meaning of sections

3(3) and 3(5) of the Act. The Court also finds that the Occupational Safety and Health Review

Commission has jurisdiction over the parties and subject matter in this case pursuant to Section

10(c) of the Act.

III. Findings of Fact3

     Respondent was hired by the National Shooting Complex (“NSC”) to perform lead

reclamation services at NSC’s shooting range in San Antonio, Texas. (Tr. 23). This project

lasted approximately three months. (Tr. 26). During that period of time, Respondent’s

employees occasionally worked at night in order to avoid impacting NSC events. (Tr. 52–53).

     Respondent’s primary business is the recovery of lead shot from various shooting ranges

and gun clubs throughout the country. (Ex. C-4). This process involves what Respondent refers

to as the “dry method” of lead reclamation. (Ex. C-4). The dry method consists of removing the

vegetation from the area where the lead shot lands (“shot fall area”) and scraping approximately

four inches of topsoil. (Tr. 62, Ex. C-4). Respondent then uses a series of high frequency

screens and high velocity fans to remove the lead shot from the scraped material. (Tr. 63–65,

Ex. C-4). Once the lead shot is removed and collected, the topsoil is returned to the shot fall

area. (Ex. C-4). Respondent contracts with the shooting range to divide the proceeds of the sale

for Citation 1, Item 1 in light of the Act’s mandate that all serious violations have an assessed penalty. Complainant
did not file an amended Complaint. Nevertheless, the Court shall address this issue in Section V of this Decision.

3. These findings of fact relate generally to all of the Citation items and do not represent all of the Court’s findings
   of fact. To the extent that additional facts are necessary to resolve a particular citation item, such facts will be
   included in the discussion regarding that citation item.

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   of the collected lead shot based upon the total weight collected. (Ex. C-4).

   The specific process by which the lead is collected involves a series of screens, conveyor

belts, and fans. Once the topsoil is removed, piles are placed next to the screening plant. (Tr.

63). A front-end loader than feeds buckets of topsoil into a feeder that contains a circling drum,

which separates out rocks, sticks, and anything larger than about three-quarters of an inch. (Tr.

64). The larger debris is dumped, and the remainder of the dirt, including the shot, falls onto a

conveyor belt, which leads to another feeder and a set of two screens. (Tr. 64). These screens

separate the lead shot from the fine dirt/dust onto two separate belts. (Tr. 65). At the end of the

lead shot belt, Respondent’s plant is equipped with two industrial fans that blow away any

remaining dirt from the lead shot, which is deposited into barrels. (Tr. 65). The top soil and

debris that is separated from the shot is then returned, untreated, to the area from which it was

removed. (Tr. 65).

   According to Lloyd Tucker, Respondent’s foreman, working around the screen plant was

particularly dusty. (Tr. 67). This was due, in part, to the dry method of reclamation, the high

velocity fans, and the fact that the area was in the middle of a drought. (Tr. 67). In light of the

dust, Respondent provided half-mask respirators and dust masks. (Tr. 67–68). Although

respirators were provided by Respondent, both Tucker and Respondent’s co-owner, Lynn

Gipson, stated that the use of the respirators was optional. (Tr. 69, 151). Conversely, CSHO

Lamont-Cubitt testified that, during the inspection, Tucker and other employees had told her that

respirators were required when working around the screen plant, which CSHO Lamont-Cubitt

observed during her inspection. (Tr. 232–33, 289). The Court finds that the use of respirators

was at the option of the employees. Though CSHO Lamont-Cubitt’s testimony was generally

credible, the Court finds that the testimony of Gipson and Tucker is entitled to greater weight.

First, Respondent provided both respirators and dust masks to its employees, which likely meant

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they had the option of choosing either one. (Tr. 66). Second, CSHO Lamont-Cubitt’s

conclusion regarding the requirement was based, in part, on unsworn, hearsay statements

provided by Respondent’s employees. (Tr. 289). Finally, Tucker was able to recall the events

and inspection—including whether the CSHO was wearing a respirator during her inspection—

much better than CSHO Lamont-Cubitt, who repeatedly referred to her notes or could not recall

specific events. (Tr. 84, 282–83).

     Regardless of whether Respondent required the use of respirators or whether their use

was voluntary, it is undisputed that Respondent did not have a respiratory protection program in

place, nor did it provide training or education with respect to the hazards of lead exposure. This

was confirmed by both Tucker and Gipson. (Tr. 32–33, 36, 113). The only training provided by

Respondent was when Tucker showed Respondent’s employees how to don the respirators and

ensure that no air leakage was occurring. (Tr. 43, 152).

     During her inspection, CSHO Lamont-Cubitt conducted air sampling at the worksite.

(Tr. 218, 234). Four of Respondent’s employees were fitted with air monitors, which tested for

the presence of lead particulates over an eight-hour period. (Tr. 235). The samples were sent to

Complainant’s lab in Salt Lake City, and the sampling results revealed lead particulates in three

out of the four employees tested. (Tr. 236–37, C-14). Although lead was detected in these

samples, none of the samples revealed that the employees were exposed at or above the

Permissible Exposure Limit (PEL) or the Action Level. 4 Following Complainant’s inspection,

Respondent provided lead blood level readings, which indicated some level of lead in the

employees’ blood, including one employee who had a reading of 38 micrograms per deciliter, or

just 2 micrograms below the action level. See 29 C.F.R. § 1910.1025(j).

4. According to 29 C.F.R. § 1910.1025(b), the “Action Level” is defined as “employee exposure, without regard to
   the use of respirators, to an airborne concentration of lead of 30 micrograms per cubic meter of air averaged over an
   8-hour period.” According to 29 C.F.R. § 1910.1025(c)(1), the PEL is defined as 50 micrograms per cubic meter of
   air averaged over an 8-hour period.

                                                     4
   

   As noted above, Respondent performed some of its work at night. (Tr. 52, 122–24, 362–

63). In light of this fact, CSHO Lamont-Cubitt inquired as to whether a medically trained person

was available at the worksite to respond in the event of an emergency. The executive director of

the NSC, Michael Hampton, represented that someone trained in first aid would be available

during working hours as well as during events. (Ex. C-1). Based on her research, CSHO

Lamont-Cubitt determined that the closest hospital or clinic was located about 5 miles from the

worksite and that it would take approximately 11–14 minutes to travel that distance. (Tr. 227–

28). This was more or less confirmed by Respondent’s safety and health consultant, Robert

Lockett, who independently researched emergency response times. (Tr. 416). In addition to the

foregoing, CSHO Lamont-Cubitt also inquired as to whether any of Respondent’s employees had

received training in first aid. Tucker testified that he had received first aid training for many

years in his previous job as a construction superintendent; however, he was not certified as of the

date of the inspection. (Tr. 60, 88). Further, one of Respondent’s employees, Craig Fisher,

indicated to CSHO Lamont-Cubitt that he also had first aid training; however, he could not

locate his certification and no certification was produced during discovery. 5 (Tr. 67). The NSC

has an on-site operations manager, Pete Masch, who not only works at the NSC, but also lives on

the grounds. (Tr. 361, 363). According to Masch, he represented to Tucker that he was first aid

certified and that he was available to Respondent 24-hours a day via cell phone. (Tr. 365–66).

Masch testified that he showed Tucker where the primary first aid station was, as well as where

first aid kits could be found throughout the facility. (Tr. 365).

    As a result of the inspection, Complainant issued a Citation indicating four violations of

the Act: (1) Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1910.151(b);6 (2)

5. Respondent indicated that it did not produce first aid certifications during discovery because it claims that
   Complainant’s request was unclear as to whether it was requesting first aid training certificates provided by the
   company or by an independent provider. Respondent did not provide any first aid certificates at trial.
6. As noted above, there was no penalty proposed in the Citation and Complaint; however, at trial, CSHO Lamont-

                                                  5
   

   Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1910.1025(f)(2) with a proposed

penalty of $2,400; (3) Citation 1, Item 3 alleges a serious violation of 29 C.F.R. §

1910.146(l)(1)(i) with a proposed penalty of $3000; and (4) Citation 2, Item 1 alleges an other-

than-serious violation of 29 C.F.R. § 1910.1025(d)(2). Each of these items is addressed below.

IV. Applicable Law

     To establish a prima facie violation of Section 5(a)(2) of the Act, Complainant must

prove by a preponderance of the evidence that: (1) the standard applies to the cited condition;

(2) the terms of the standard were violated; (3) one or more of the employees had access to the

cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could

have known, of the violative condition. Ormet Corporation, 14 BNA OSHC 2134 (No. 85-0531,

1991).

     A violation is “serious” if there was a substantial probability that death or serious

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k).

Complainant need not show that there was a substantial probability that an accident would

actually occur; he need only show that if an accident occurred, serious physical harm could

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15

BNA OSHC 2072 (No. 88-0523, 1993).

V. Conclusions of Law

     A. General Industry versus Construction

     Respondent’s primary defense is that the cited standards do not apply because it is

engaged in construction work, which is governed by the 29 C.F.R. Part 1926 standards.

Cubitt testified that the gravity-based penalty for this citation item is $2,400.

                                                         6

Specifically, Respondent contends that: (1) it uses heavy equipment, such as a front-end loader,

which is typically associated with construction; and (2) its primary activities are properly

referenced in the NAICS code for non-building construction and site preparation activities.

Complainant contends that Respondent did nothing more than process dirt and reclaim lead from

the ground. These, Complainant argues, are not construction activities, regardless of

Respondent’s use of heavy equipment. Further, Complainant disputes that the NAICS code for

land reclamation, heavy construction, or site preparation are not applicable to Respondent’s

work.

      Construction work is defined as “work for construction, alteration, and/or repair,

including painting or decorating.” 29 C.F.R. 1910.12(b). However, it should be noted that

construction work is limited to “actual construction work. Activities that could be regarded as

construction work should not be so regarded when they are performed solely as part of a

nonconstruction operation.” B.J. Hughes, 10 BNA OSHC 1545, 1547 (No. 76-2615, 1982)

(citing Royal Logging Co., 7 BNA OSHC 1744 (No. 15169, 1979) aff’d 645 F.2d 822 (9th Cir.

1981)).

      Respondent contends that the type of work it performs is properly coded under NAICS

Code 238910, entitled “Site Preparation Contractors”, which includes “excavating and grading,

demolition of buildings, and other structures, and septic system installation” and “[e]arth moving

and land clearing for all types of sites (e.g., building, nonbuilding, mining).” (Ex. C-9). In

support of this, Respondent received a letter from the U.S. Census Bureau, which indicated that

the Census Bureau classified Respondent under 238910. The letter noted, however, that “[e]ach

agency assigns codes to establishments for their own purposes, using their own methods.” (Ex.

C-11). Complainant, on the other hand, contends that Respondent’s work should be coded under

NAICS code 562910, entitled “Remediation Services”, which includes remediation and cleanup

                                            7

of contaminated buildings, mine sites, soil, or ground water, integrated mine reclamation

activities, and asbestos, lead paint, and other toxic material abatement. 7 (Ex. C-8).

     It is interesting to note that the NAICS codes proffered by both parties include cross-

references to one another. (Ex. C-8, C-9). These cross-references indicate that it is the primary

activity, not individual activities viewed in isolation, that determines the proper NAICS Code.

(Ex. C-8, C-9). Both parties provided testimony in support of this concept in that both Robert

Ranck, OSHA Safety and Health Manager, and Robert Lockett, Respondent’s Safety and Health

Consultant, suggested that Respondent’s activities could not be categorized merely on the basis

of heavy equipment use or the fact that Respondent was not building or constructing something.

(Tr. 196–98, 426–28). The key to this dispute, therefore, is the characterization of Respondent’s

primary work activity rather than any particular aspect of it.

     In B.J. Hughes, the Secretary cited a cement contractor, who was working at an oil well

drilling site, under the construction standards because (1) the contractor used equipment typically

used in construction, and (2) cement work is typically regarded as construction. B.J. Hughes, 10

BNA OSHC 1545. The Commission disagreed and found that the primary activity of oil drilling

defines whether the contractor’s activities should be governed under the construction standards.

Id. With respect to (2), the Commission found that oil drilling and related activities, viewed in

isolation, are not governed by any specific construction standards. With respect to (1), the

Commission found that “for many of the Part 1926 standards that regulate equipment used in

construction work, there are corresponding general industry standards in Part 1910 regulating the

same type of equipment.” Id. Likewise, in Royal Logging, the Commission found that a tree

cutting company that constructed roads and used heavy equipment associated with construction

7. The on-duty officer that received the complaint that lead to the inspection at issue originally coded Respondent’s
   business under NAICS Code 541990 (other scientific and technical services); however, Complainant later
   determined that this code was inaccurate.

                                                    8
   

   was still engaged in general industry because “such . . . activities, rather than being the purpose

of Respondent’s work, are ancillary and in aid of its primary nonconstruction function to cut and

deliver logs.” Royal Logging, 7 BNA OSHC 1744.

    Viewed in isolation, there are aspects of Respondent’s operation that are construction-

related; however, as in the cases referenced above, the Court finds that Respondent’s primary

activity of lead shot reclamation is not construction. The use of heavy equipment to scrape the

topsoil is merely ancillary to gathering lead shot. The process implemented by Respondent

belies any argument to the contrary—Respondent scraped the land, separated out the lead shot,

and returned the soil back to the shooting range. Respondent did not prepare or clear the site for

any purpose other than gathering the shot and returning the site to its original condition. It did

not use chemicals to remove lead from the soil nor did it treat the soil that it removed and

replaced. Characterized in this way, gathering lead shot from a shooting range and then selling

the reclaimed lead is more similar to remediation and clean-up than to excavation, earth moving,

or land clearing, which implies a permanent change to the landscape. 8 Further, Respondent’s

stated goal is to return to the NSC in the future to harvest lead in the same manner and in the

same area. (Tr. 125). Based on the foregoing, the Court finds that Respondent’s primary work

activity is properly characterized as general industry rather than construction.

    B. Citation 1, Item 1

    Complainant alleges in Citation 1, Item 1 that:

             There was neither an infirmary, clinic, or hospital used for the treatment of
             all injured employees in near proximity to the workplace nor a person or
             persons adequately trained to render first aid:

8. In that regard, Respondent’s primary activity is more akin to reclamation and remediation activities listed under
   NAICS Code 562910 than site clearing and land moving listed under NAICS Code 238910. Although this fact is
   not determinative of the dispute, the Court finds that Complainant’s interpretation of the standard defining
   construction such that Respondent’s activities are not included is reasonable and therefore entitled to deference.
   Martin v. OSHRC, 499 U.S. 144, 157 (1991) (“[W]hen embodied in a citation, the Secretary’s interpretation
   assumes a form expressly provided for by Congress.”).

                                                    9
   

   National Shooting Complex, on or about 4/18/2011, and at times prior
   thereto, the employees were exposed to inadequate medical attention
   during evening and night work performing lead removal.

   The cited standard provides:
   
           In the absence of an infirmary, clinic, or hospital in near proximity to the
           workplace which is used for the treatment of all injured employees, a
           person or persons shall be adequately trained to render first aid. Adequate
           first aid supplies shall be readily available.
   

29 C.F.R. § 1910.151(b).

    As noted above, the Court finds that the general industry standards are applicable to

Respondent. The cited standard is generally applicable to all general industry worksites and

therefore applies to Respondent. The Court does not find, however, that the terms of the

standard were violated.

    The cited standard requires one of two things—an infirmary, clinic, or hospital in near

proximity to the workplace, or a person adequately trained to render first aid with first aid

supplies readily available. Complainant and the Commission have interpreted the “near

proximity” requirement to mean that first aid must be administered within three minutes of a

serious injury. See, e.g., Love Box Co., 4 BNA OSHC 1138 (No. 6286, 1976). There is no

dispute that there was not a hospital, clinic, or infirmary that could be reached in that period of

time, nor was it clear that emergency responders could get to NSC within that timeframe on a

consistent basis.9 Thus, the question remains as to whether a person at the worksite was

adequately trained to render first aid.

    Complainant contends that Respondent violated the standard because it was unable to

produce any evidence that any of its employees had first aid certification. According to

Commission precedent, however, a person can be adequately trained to render first aid even if

his certification has expired. See Savina Home Industries, Inc., 4 BNA OSHC 1956 (No. 12298,

9. Evidence was introduced that an Acadian Ambulance was sometimes parked on a corner nearby; however, there
   was no testimony or evidence to suggest that this was always the case. (Tr. 415).

                                               10
   

   1977) (“[T]he standard requires only that an individual ‘be adequately trained to render first aid’

and not that he hold first aid training certification.”). This construction is supported by a

comparison between the cited standard and its equivalent in Part 1926. See 29 C.F.R. §

1926.50(c). Section 1926.50(c) states, “In the absence of an infirmary, clinic, hospital, or

physician that is reasonably accessible in terms of time and distance to the worksite, which is

available for the treatment of injured employees, a person who has a valid certificate in first-aid

training . . . , shall be available at the worksite to render first aid.” 29 C.F.R. § 1926.50(c)

(emphasis added). The two standards are virtually identical with the exception that the

construction standard explicitly requires certification, whereas the general industry standard does

not. See Snyder Well Servicing, Inc., 10 BNA OSHC 1371 (No. 77-1334, 1982) (affirming

ALJ’s decision that “the evidence showed that no Snyder employee had the certificate required

by the standard in Part 1926, but that did not necessarily prove that no employee was ‘adequately

trained to render first aid,’ which is all section 1910.151(b) requires”).

     Lloyd Tucker testified that “for a period of ten to twelve years . . . I was certified in first

aid, CPR, and emergency breathing.” (Tr. 60). Tucker also testified that, during that period of

ten to twelve years, very little had changed and that he had not forgotten the training that he had

received. (Tr. 86–87). Although Complainant established that Tucker did not have a current

certification, Complainant did not introduce any evidence or testimony to suggest that Tucker’s

training was inadequate for the purposes of rendering first aid. 10 Tucker also showed CSHO

Lamont-Cubitt the location of their first aid supplies, which were immediately available. (Tr.

88).

     Furthermore, NSC’s operations manager, Pete Masch, testified that he was first aid

10. Respondent also introduced evidence that another of its employees, Craig Fisher, received first aid training and
    certification. (Tr. 118). Fisher did not testify at hearing, nor did Respondent introduce his first aid certification into
    evidence. Accordingly, the Court accords this evidence little weight.

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    trained and certified, and that he apprised Tucker of this fact. (Tr. 366). Masch also testified

that he was onsite and available to Respondent by cell phone 24 hours a day. (Tr. 363, 367).

Even though he stated that he was onsite working for 10–14 hours a day, he also indicated that

he lived on the NSC grounds and that he did not leave the complex until the reclamation project

was done. (Tr. 367). Masch also showed Tucker the main NSC infirmary, as well as various

buildings around the complex, all of which were supplied with first aid kits. (Tr. 365). As noted

above in Section III, the NSC complex also had an emergency responder available during normal

business hours and during shooting events.

   Based on the foregoing, the Court finds that Complainant failed to prove a violation of 29

C.F.R. § 1910.151(b). Accordingly, Citation 1, Item 1 shall be VACATED.

   C. Citation 1, Item 2

   Complainant alleges in Citation 1, Item 1 that:

           The employer did not implement a respiratory protection program in
           accordance with 29 C.F.R. 1910.134(c) through (m) which covers each
           employer required by this section to use a respirator:

           National Shooting Complex, on or about 4/18/2011, the employer required
           employees to wear half face tight fitting respirators without medical
           clearance, training, or fit testing potentially placing physiological burden
           on the respiratory system of employees.

   The cited standard provides:

           The employer must implement a respiratory protection program in
           accordance with § 1910.134(b) through (d) (except (d)(1)(iii)), and (f)
           through (m), which covers each employee required by this section to use a
           respirator.

29 C.F.R. § 1910.1025(f)(2)(i).

   The scope and application paragraph of 29 C.F.R. § 1910.1025 states that “[t]his section

applies to all occupational exposure to lead, except as provided in paragraph (a)(2).” 29 C.F.R. §

1910.1025(a)(1). Paragraph (a)(2) exempts the construction and agricultural industries from

                                            12

coverage under this section; however, the Court has already found that Respondent was not

engaged in construction. Respondent’s primary business is harvesting lead shot from shooting

ranges. Thus, the Court finds that the standard applies.

   The Court also finds that the standard was violated. Both parties spent a significant

amount of time arguing whether Respondent required the use of respirators at its worksite. As

noted above, the Court found that the use of respirators was voluntary. That said, the standard

does not say “each employee required by his employer to wear a respirator”; rather, it states

“required by this section.” 29 C.F.R. § 1910.1025(f)(2)(i) (emphasis added). Thus, in order to

determine whether Respondent violated the terms of the standard, the Court must determine

whether the standard required the use of a respirator. It is undisputed that Respondent failed to

implement a respiratory protection program.

   According to 29 C.F.R. § 1910.1025(f)(1), there are three instances when respirator use is

required: (1) when necessary to install or implement engineering or work-practice controls; (2)

operations for which engineering or work-practice controls are not sufficient to reduce employee

exposure to or below the PEL; and (3) when an employee requests a respirator. See also

Occupational Exposure to Lead, 43 Fed. Reg. 52,952, 52,992 (Nov. 14, 1978). Each of these

instances immediately triggers an employer’s responsibility to provide medical clearance,

training, and fit testing. Respondent provided respirators for use, and, as is clear from the

testimony and photographic evidence, its employees opted to use them. (Tr. 66–67, Ex. C-2).

Although there was no direct testimony to suggest that Respondent’s employees specifically

requested the respirators, the Court does not see a meaningful distinction between making a

specific request and opting to use what has been provided. In either case, Respondent had an

obligation to implement a respiratory protection program to ensure that the respirators were

being properly used, that they fit, and that employees would not be adversely affected by

                                            13

wearing a respirator. See generally 29 C.F.R. § 1910.134(c). Respondent’s failure to implement

a respiratory protection program in this instance constitutes a violation of the standard.

    Respondent’s employees were also exposed to the hazard. There was ample testimony

and photographic evidence to show the Respondent’s employees were wearing respirators while

working at NSC. Further, it is undisputed that, other than Tucker showing the employees how to

don the respirator, the employees did not receive training, fit testing, or medical clearance to use

the respirators.

    Respondent also knew, or could have known, about the violative condition. Although

Respondent claims it was ignorant of the law governing lead exposure and the respiratory

protection program requirement, it is well settled that ignorance of the law is not a valid defense.

See Froedtert Mem. Lutheran Hosp., Inc., 20 BNA OSHC 1500, 1509 (No. 97-1839, 2004)

(rejecting employer defense of ignorance that standards applied). It is not necessary to prove that

the employer knew the requirements of the standard; rather, “knowledge” refers to the

employer’s awareness of the existence of the conditions that are not in compliance with a

standard. See N&N Contractors, Inc., 18 BNA OSHC 2121 (No. 96-0606, 2000). Respondent,

through its worksite foreman, Tucker, was aware that its employees wore respirators. See Revoli

Const. Co., 19 OSHC 1682 (No. 00-0315, 2001) (holding that actions and knowledge of

supervisory personnel is generally imputed to their employers). Further, as testified to by

Respondent’s president, Lynn Gipson, Respondent was also aware that it did not have a

respiratory protection program in place. (Tr. 152).

    The Court also finds that the violation was serious. A violation is “serious” if there was a

substantial probability that death or serious physical harm could have resulted from the violative

condition. CSHO Lamont-Cubitt testified that if an employee is not medically cleared to wear a

respirator, serious physical harm could result if the employee had an underlying health condition

                                             14

such as high blood pressure or breathing problems. (Tr. 252). These problems could be

exacerbated by a tight-fitting respirator, which increases the effort required to breathe in oxygen.

See 43 Fed. Reg. at 52,992. As noted above, Complainant need not show that there is a

substantial probability that an accident would occur; rather, he need only show that if an accident

occurred, serious physical harm could result. Viewed in that light, the Court finds that, if an

accident were to occur as a result of an improperly fitted respirator or as a result of an individual

not being medically cleared to wear a respirator, such an accident would cause serious physical

harm requiring medical treatment.

   Based on the foregoing, the Court finds that Complainant established a violation of the

standard and that it was serious. Accordingly, Citation 1, Item 2 shall be AFFIRMED. Because

the Court affirms on this basis, it need not address Complainant’s post-hearing amendment.

   D. Citation 1, Item 3

   Complainant alleges in Citation 1, Item 1 that:

           Employee(s) working in an area where there is potential exposure to
           airborne lead at any level were not informed of the content of Appendices
           A and B of this regulation.

           a) National Shooting Complex: On or about 4/18/2011, an employee was
              exposed to lead at an 8-hour TWA of 25.3 µg/m3, approximately 0.506
              of the PEL. The exposure was derived from one sample collected over
              a 434 minute period. An 8-hour sample period was measured. Zero
              exposure was assumed for the unsampled period of 46 minutes. The
              employees were removing expended lead shot without any training on
              the health hazards of lead.

           b) National Shooting Complex: On or about 4/18/2011, an employee was
              exposed to lead at an 8-hour TWA of 12.4 µg/m3, approximately 0.248
              of the PEL. The exposure was derived from one sample collected over
              a 430 minute period. An 8-hour sample period was measured. Zero
              exposure was assumed for the unsampled period of 50 minutes. The
              employees were removing expended lead shot without any training on
              the health hazards of lead.

           c) National Shooting Complex: On or about 4/18/2011, an employee was
              exposed to lead at an 8-hour TWA of 6.9 µg/m3, approximately 0.138


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of the PEL. The exposure was derived from one sample collected over
a 438 minute period. An 8-hour sample period was measured. Zero
exposure was assumed for the unsampled period of 42 minutes. The
employees were removing expended lead shot without any training on
the health hazards of lead.

     The cited standard provides:

              Each employer who has a workplace in which there is a potential exposure to
              airborne lead at any level shall inform employees of the content of Appendices A
              and B of this regulation.

29 C.F.R. § 1910.1025(l)(1)(i).

     Respondent’s business involves harvesting lead shot from shooting ranges under dry and

dusty conditions. Thus, for the same reasons mentioned with respect to Citation 1, Item 2, the

Court finds that the standard applies. The Court also finds that the terms of the standard were

violated. The potential for lead exposure was readily apparent—and recognized by

Respondent—given the volume of lead expected to be harvested and based upon the method of

extraction.11 (Tr. 67, 158 Ex. C-4). Further, Respondent admitted that it had not provided its

employees the information contained in Appendices A and B of 1910.1025. (Tr. 155–56).

     Respondent’s employees were also exposed to the hazardous condition. As noted above,

three of Respondent’s employees had some level of exposure to airborne lead, and yet none of

them had received training or education other than how to don a respirator. Respondent was also

aware of the hazardous condition. Respondent was aware that the harvesting of lead shot from a

dry and dusty shooting range had the potential for exposing employees to airborne lead at some

level. (Tr. 158). Further, Respondent was aware that, other than the rudimentary fit-test

provided by Tucker, no other training regarding the use of respirators or the hazards of lead

exposure was provided.

     The Court finds that the violation was serious. The standard requires that, whenever

11. In addition, the monitoring results confirm the presence of airborne lead “at any level.”

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    there is a potential for exposure to airborne lead, an employer must provide its employees with

the information contained in Appendices A and B of 1910.1025. These appendices provide

important information regarding the proper way to fit-test a respirator, the harmful effects of lead

exposure, symptomology, and employee rights to exposure monitoring and medical surveillance.

29 C.F.R. § 1910.1025, App. A, B. Taking into consideration that Respondent’s employees were

exposed to airborne lead; Respondent failed to have a respiratory protection program, which

includes monitoring requirements; and that Respondent’s employees were not equipped with the

knowledge to properly prevent lead exposure or identify the harmful effects stemming therefrom,

the Court finds that Respondent’s employees were exposed to the potential for serious injury.

Although Respondent argues that none of the monitoring samples showed exposure at or above

the PEL, this only speaks to the level of airborne exposure on a single day. Respondent’s

employees perform the same type of activities for months at a time in locations throughout the

nation and are exposed to both the potential for breathing airborne lead as well as ingesting lead

that has settled on their clothes and hands. (Tr. 377–78). Subsequent blood tests showed that

one employee had a blood level count of 38 micrograms per deciliter, or just 2 micrograms

below the action level. The failure to inform employees on how to prevent and identify the

symptoms of lead exposure, coupled with the failure to have a respiratory protection program in

place, could result in Respondent’s employees being exposed to the harmful effects of lead

poisoning.

   Based on the foregoing, the Court finds that Complainant has established a violation of

29 C.F.R. § 1910.1025(l)(1)(i). Accordingly, Citation 1, Item 3 shall be AFFIRMED.

   E. Citation 2, Item 1

   Complainant alleges in Citation 1, Item 1 that:

           An initial determination was not made to determine if any employee may
           be exposed to lead at or above the action level:


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The cited standard provides:

           Initial determination. Each employer who has a workplace or work
           operation covered by this standard shall determine if any employee may
           be exposed to lead at or above the action level.

29 C.F.R. § 1910.1025(d)(2)

   For the same reasons discussed with respect to Citation 1, Item 2, the Court finds that the

standard applies and was violated. Due to the potential for lead exposure referenced in the

Court’s discussion in Citation 1, Item 3, Respondent had an obligation to make an initial

determination as to the respiratory and lead hazards to which its employees were potentially

exposed. Respondent’s president, Lynn Gipson, admitted that Respondent failed to perform an

initial determination pursuant to the standard. (Tr. 115). Further, as discussed in Citation 1,

Items 2 and 3, the Court finds that Respondent’s employees were exposed to the condition and

that Respondent had knowledge of the condition.

   Based on the foregoing, the Court finds that Complainant proved a violation of 29 C.F.R.

§ 1910.1025(d)(2). Accordingly, Citation 2, Item 1 shall be AFFIRMED.

VI. Penalty

   In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission give due consideration to four criteria: (1) the size of the employer’s

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the

employer’s prior history of violations. Gravity is the primary consideration and is determined by

the number of employees exposed, the duration of the exposure, the precautions taken against

injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201

(No. 87-2059, 1993). It is well established that the Commission and its judges conduct de novo

penalty determinations and have full discretion to assess penalties based on the facts of each case

and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995);

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Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

    Respondent is a small company that has no prior history of violations because it has

never been inspected before. (Tr. 251). With respect to Citation 1, Item 2, Complainant

assessed a gravity-based penalty of $2,400. The Court finds that the penalty is proper—all of

Respondent’s employees wore respirators without proper fit-testing or medical clearance and the

respirators were worn throughout the shift. Although none of Respondent’s employees were

exposed at or above the PEL, which reduces the probability of injury stemming from exposure to

lead, the Court finds that Respondent’s failure to perform any monitoring or provide any training

to its employees regarding respirator use increased the likelihood that is employees could be

seriously injured. With respect to Citation 1, Item 3, Complainant assessed a gravity-based

penalty of $3,000. Again, Respondent failed to provide the proper training and information to

each of its employees, which exposed them to the potential for serious injuries stemming from

exposure to lead. Accordingly, the Court finds that Complainant’s proposed penalty is proper.

                                        ORDER

    Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

    1. Citation 1, Item 1 is VACATED.

    2. Citation 1, Item 2 is AFFIRMED and a penalty of $2,400 is ASSESSED.

    3. Citation 1, Item 3 is AFFIRMED and a penalty of $3,000 is ASSESSED.

    4. Citation 2, Item 1 is AFFIRMED.


                                                /s/ John H. Schumacher
                                                John H. Schumacher
                                                Judge, OSHRC

Date: May 13, 2013
Denver, Colorado

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