Federal Construction Group

Plain-English summary

Federal Construction Group faced hazard-communication and lead-compliance citations arising from renovation work at Fort Bragg. An administrative law judge affirmed the items and assessed $6,000 in penalties. In its review petition, the company alleged that the judge had a private lunch conversation with the OSHA compliance officer who inspected the site and testified at the hearing. The Commission treated the allegation as a motion to disqualify the judge, even though the company had not followed the usual procedure before the decision issued. It remanded for the company to submit an affidavit, for the Secretary to respond, and for the judge to develop the record and rule on disqualification. A granted motion would require withdrawal of the decision, recusal, and reassignment; a denied motion would require a reasoned order and reissuance of the decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(e)(2); 29 C.F.R. § 1926.62(e)(2)(i)
• Outcome: Case remanded for development and resolution of the employer's judicial-disqualification motion.
• Key point: An allegation of prohibited ex parte contact must be developed on an affidavit-based record and initially addressed by the judge whose disqualification is sought.

Full text (OSHRC public release)

Federal Construction Group, Docket No. 12-0097

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 12-0097

FEDERAL CONSTRUCTION GROUP,

Respondent.

APPEARANCES:

Melanie L. Paul, Attorney; Stanley E. Keen, Regional Solicitor; Christopher D. Helms,
Counsel; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Atlanta, GA

For the Complainant

David J. Garrett, Nexsen Pruet, PLLC, Raleigh, NC; Glenn Boone, Federal Construction
Group, Spring Lake, NC

For the Respondent

REMAND AND ORDER

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

On August 27, 2012, Administrative Law Judge Keith E. Bell issued a Decision and
Order affirming a citation issued by the Occupational Safety and Health Administration
(“OSHA”) to Federal Construction Group (“FCG”). FCG filed a Petition for Discretionary
Review challenging that decision on several grounds, including that the judge allegedly engaged
in a “private conversation” over lunch on the first day of the hearing with the OSHA compliance
officer who conducted the inspection on which the citation was based and also testified at the
hearing. FCG claims that this conversation constitutes an ex parte communication in violation of
Commission Rule 105(a), 29 C.F.R. § 2200.105(a).

See 5 U.S.C. § 551(14) (definition of ex
parte communication under Administrative Procedure Act); § 557(d)(1) (identifying prohibited
ex parte communications). For the following reasons, we remand the case to the judge for
further proceedings.

The Commission has a procedure under Commission Rule 68(b), 29 C.F.R. §2200.68(b),
for raising claims of this nature, and that procedure—which FCG did not follow here—requires a
party seeking the disqualification of a judge to promptly file an affidavit detailing the grounds
for its request with the judge before a decision is filed.

See 5 U.S.C. §556(b) (filing of timely
and sufficient affidavit for disqualification); Nova Group/Tutor-Saliba , 23 BNA OSHC 1933,
1935 n.3, 2012 CCH OSHD ¶ 33,225, p. 55,998 n.3 (No. 10-0264, 2012). Because FCG’s
petition asserting its claim was filed after the judge’s decision was docketed with the
Commission, the judge had no opportunity to address the company’s allegation while the case
was still before him and determine what relief, if any, may be appropriate.

Here, we construe the ex parte communication allegation in FCG’s petition as a motion
for disqualification under Rule 68 and remand this case to the judge for a ruling on the motion.
See In re Certain Underwriter , 294 F.3d 297, 302 (2d Cir. 2002) (“The discretion to consider
disqualification rests with the district judge in the first instance. The reasons for this are plain.
The judge presiding over a case is in the best position to appreciate the implications of those
matters alleged in a recusal motion. A judge considering recusal must balance the need for
public confidence in the judiciary against the possibility that those questioning [her] impartiality
might be seeking to avoid the adverse consequences of [her] presiding over their case.”) (internal
quotations and citations omitted). We also order FCG to submit an affidavit to the judge in
accordance with the requirements of Rule 68(b) within 14 days of the date of this order. After
receipt of the affidavit, the judge should provide the Secretary with an opportunity to respond.
He may also obtain additional affidavits, as necessary, to fully develop a record upon which he
can base his ruling.

If, upon consideration of this record, the judge determines that FCG’s motion for
disqualification should be granted, he should issue an order withdrawing his August 27, 2012
opinion, recusing himself from the case, and transferring the matter to the Chief Judge for
reassignment. See Commission Rule 68(c), 29 C.F.R. § 2200.68(c). If the judge determines that
FCG’s motion for disqualification should be denied, he should set forth the reasons for his ruling
in an order that also states he is reissuing his opinion and submitting it to the Executive Secretary
for redocketing. See Commission Rule 68(d), 29 C.F.R. § 2200.68(d). At that time, FCG may
file a petition for discretionary review in which it may seek review of the judge’s ruling on its
disqualification motion, as well as renew its request for review of the reissued Decision and
Order.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman

__/s/_______

Cynthia L. Attwood

Dated: October 11, 2012                                             Commissioner

SECRETARY OF LABOR,

Complainant,

v.  

OSHRC DOCKET No. 12-0097

FEDERAL CONSTRUCTION GROUP,

Respondent.

Appearances:

Melanie Paul, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia

For the Complainant.

David J. Garret, Esquire, Nexsen, Pruet, Raleigh, North Carolina

For the Respondent.

Before: Keith E. Bell, Administrative Law Judge

DECISION AND ORDER

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. § 451 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of a worksite located on the Fort Bragg military base in Fayetteville,
North Carolina, on October 14, 2011 and October 19, 2011. As a result, OSHA issued a Citation
and Notification of Penalty (“Citation”) to Federal Construction Group (“Respondent” or
“FCG”), alleging violations of the Act. The Citation alleges that Respondent violated provisions
of the hazard communication (“HazCom”) standard and the lead standard. Specifically, Citation
1, Items 1a and 1b, allege that Respondent violated 29 C.F.R. §§ 1910.1200(e)(1) and (e)(2),
respectively; a single penalty of $ 3,000.00 is proposed for these grouped items. Citation 1, Item
2, alleges a violation of 29 C.F.R. § 1926.62(e)(2)(i) and proposes a penalty of $ 3,000.00.
Respondent timely contested the Citation. The hearing in this matter was held on June 6, 2012,
in Raleigh, North Carolina, and on June 20, 2012, in Durham, North Carolina. For the reasons
discussed below, the Citation is AFFIRMED and the proposed penalties are assessed.

Jurisdiction

The parties have stipulated to the Commission’s jurisdiction over this proceeding and
coverage under the Act. (Tr. 12-13). Further, I find that the Act applies and the Commission has
jurisdiction over this proceeding pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c). The
record establishes that at all times relevant to this case, Respondent was an “employer” engaged
in a “business affecting commerce” within the meaning of section 3(5) of the Act, 29 U.S.C. §
652(5).

Background

OSHA initiated an inspection of FCG’s worksite after receiving a complaint from a tenant of
Building 2-1105 Stack B (“Stack B”) regarding renovation work being performed.in the
basement of the building; the complaint alleged that subcontractors were removing asbestos.

FCG was a subcontractor to B&H Contracting Company (“B&H”) for the renovation project in
the basement of Stack B, but it acted in the capacity of the “general contractor” for the work at
the site. The project at issue was project number FA-11023-9P/contract number W91247-11-0034 (hereafter the “Statement of Work”); the project called for the repair and upgrade of Stacks
B and C in Building 2-1105, located in Ft. Bragg at the corner of Riley Road and McComb
Street. The Statement of Work indicated that there was lead-based paint that required removal
on the basement walls, ceiling and floor. It also indicated that the removal of the lead-based
paint in the basement would require sandblasting. (Tr. 14).

B&H had no representatives on the site who were involved with the sandblasting of the lead-based paint. FCG had done work at Fort Bragg for at least 15 years, as both a contractor and a
subcontractor. Army regulation 385-10, Chapter 4, Contracting Safety Policy 4-2, requires that
contractors comply with OSHA regulations and states that they are responsible for the safety and
health of their employees. On September 16, 2011, FCG sent paint chips from Stack B to
SMSL Analytical, Inc. (“SMSL”) to test for the presence of lead. Those test results were sent to
Glenn Boone, FCG’s vice-president and owner. The test results indicated that there were lead
concentrations from seven samples that ranged from .010 percent to 7.9 percent. (Tr. 14-15).

OSHA Industrial Hygienist (“IH”) David McLemore field tested the paint or paint dust from
three locations within Stack B. All tested positive for lead. He also took a bulk sample from the
lead dust on October 20, 2011. That sample was sent to OSHA’s Salt Lake City Technical
Center for testing. The results showed the presence of lead at .2418 percent.

(Tr. 15-16).

Discussion

To prove a violation of an OSHA standard, the Secretary must show by a preponderance of
the evidence that (1) the cited standard applies, (2) there was noncompliance with its terms, (3)
employees had access to the violative conditions, and (4) the cited employer had actual or

constructive knowledge of those conditions. E.g., George Campbell Painting Corp. , 18 BNA
OSHC 1929, 1932 (No. 94-3121, 1999).

Witness Credibility

As a preliminary matter, I make the following findings concerning the credibility of the key
witnesses in this case.

Robert Aumock

Mr. Aumock is Fort Bragg’s construction control representative. His duties included
responsibility for quality control and safety throughout the course of this project. (Tr. 252-55). I
observed Mr. Aumock’s demeanor as he testified, including his facial expressions and his body
language.

My observations lead me to conclude that Mr. Aumock was less than candid. For
example, he made little, if any, direct eye contact with the undersigned during his testimony.
Further, his responses to direct questions indicated an uncertainty about facts that should have
been within the scope of his knowledge about this project. For example:

Q. And who is the appointed project manager or superintendent for [FCG] on this project?

A. That was Bob Probstfield. Bob was a superintendent. I think Mr. Boone was listed as
the project manager. (Tr. 279). [emphasis supplied].

Q. Okay, but you yourself have not seen any hazard analysis form completed in this case?

A. I don’t think so, no. (Tr. 280). [emphasis supplied].

Mr. Aumock conceded that Fort Bragg was cited for FCG’s non-compliance with the
standards at issue in this case and that Fort Bragg accepted those citations. Nevertheless, he
maintained that he provided the OSHA representatives with copies of FCG’s lead compliance
and HazCom plans and that they were impressed with the speed with which he and Mr. Boone
provided these documents. (Tr. 283-286). Based on the foregoing, I find that Mr. Aumock’s
testimony lacks credibility and that his assertions of FCG’s compliance are undermined by the
reliable evidence of record in this case.

Jerry Peterson

Mr. Peterson is an employee of FCG whose duties included estimating the cost of this project.
He testified that he witnessed Mr. Aumock providing copies of the quality control and safety
plans for this project to OSHA Compliance Officer (“CO”) Clarence Moore. However, he stated
that he did not actually see more than the cover pages of those documents. (Tr. 316). He also
stated that Mr. Boone was the one who provided the OSHA representatives with copies of FCG’s
HazCom plan, lead protection plan, respiratory protection plan and safety plan. (Tr. 288, 297,
316, 319). On cross-examination, Mr. Peterson conceded that he only observed the cover pages
of the documents he claims Mr. Boone provided to OSHA. (Tr. 320). I find that Mr. Peterson’s
testimony asserting that OSHA was provided copies of FCG’s HazCom and lead compliance
plans is less than credible due to the tentative nature of his answers about what he observed.
Further, I find that his testimony was biased, in light of his employment relationship with
Respondent, and that his testimony is simply not supported by the credible evidence in this case.

William Fields

Mr. Fields is the owner of Contractor Services Group (“CSG”), whose company worked on
the renovation project at issue in this case. (Tr. 322, 325). When asked about his personal
knowledge concerning FCG providing documents to OSHA, Mr. Fields testified as follows:

Q. Do you happen to know what those documents were?

A. I think it was also the HazCom plan, the MSDS sheets. I think Glenn had been given a
listing of what to provide, as well as us, and whatever documents. I’m not sure of the complete
list of the documents he was asked to provide. (Tr. 341-342). [emphasis supplied].

I find Mr. Field’s testimony concerning the issue of whether OSHA was provided copies of
FCG’s HazCom plan to be less than credible based on his tentative answers suggesting that he
was less than certain.

Raymond Glenn Boone

Mr. Boone is FCG’s vice-president of operations. (Tr. 360). He testified that “all of [the]
documents were in the company truck when Clarence Moore and I were on site on October 14 th
and he never asked us for them.” (Tr. 367). He further testified that he saw Mr. Aumock give a
copy of the documents at issue to OSHA CO Moore on October 14 th . (Tr. 407). Mr. Boone went
on to testify that he received an email on October 18 th indicating that OSHA was returning to the
site on October 19 th and wanted him to bring copies of the HazCom and lead protection plans.
According to Mr. Boone, he brought copies of those plans on October 19 th and gave them to CO
Moore, who looked at them and handed them back. (Tr. 368). On cross-examination, Mr.
Boone testified that “OSHA did not ask me for those documents. All they had to do was ask and
I would have emailed them to them.” (Tr. 439).

I find that Mr. Boone’s testimony in regard to whether OSHA was provided copies of FCG’s
HazCom and lead compliance plans was inconsistent. On the one hand, he asserted that CO
Moore requested the documents and received them and then handed them back. He then asserted
that OSHA did not ask for the documents. I further find that Mr. Boone’s answers during his
testimony were often evasive and not responsive to the questions asked. Moreover, Mr. Boone’s
credibility is undermined by his admission that he recorded the meeting with OSHA on October
19 th despite being told that recording would not be permitted. (Tr. 143, 417).

Clarence Moore

Mr. Moore is the OSHA CO who was assigned to investigate the complaint in this case.
Although he has only been with OSHA since 2010, CO Moore has a degree in occupational
safety and health. He testified that during his initial visit to the site on October 14, 2011, he was
only given a copy of FCG’s quality management and quality control plan. Moreover, he testified
that he was only provided two pages of that document and then later received a complete copy
from Mr. Aumock. (Tr. 56-59, 66-67, 138; GX-4).

During his testimony, CO Moore’s
demeanor was calm and confident. He frequently made eye contact with the undersigned while
testifying. His acknowledgement of receipt of some documents, i.e. , FCG’s quality control plan
and sampling results, made his testimony more credible. (Tr. 66-67, 138).

David McLemore

Mr. McLemore is an OSHA IH with 17 years of experience. He received a referral in this
case from CO Moore, and he performed the above-noted testing for lead at the site. (Tr. 141-142). IH McLemore’s demeanor while testifying was calm and confident. Like CO Moore, he
often made eye contact with the undersigned while testifying. He also helped the undersigned to
understand some of the more technical aspects of this case, making his testimony highly
probative and very credible.

Adverse Inferences

“When it would be natural under the circumstances for a party to call a particular witness ,
or to take the stand as a witness in a civil case, or to produce documents or other objects in
his or her possession as evidence and the party fails to do so, this failure may serve as the basis
for invoking an adverse inference.” 2 McCormick on Evidence § 264 (Kenneth S. Broun, ed.,
2006 ) (emphasis added). The Commission has recognized the existence and application of the
common law principle of “adverse inference.” See Capeway Roofing Sys., Inc., 20 BNA OSHC
1331 (No. 00-1968, 2003). In the instant case, I find FCG’s failure to provide OSHA with copies
of its HazCom and lead compliance plans to be indicia of the fact that it had no such plans in
place for this project at the time of the inspection. These documents would have been in FCG’s
possession and under its control. Therefore, it is reasonable to conclude that if such documents
had existed at the time of the inspection, Respondent would have averted the issuance of the
Citation, and these proceedings, by simply providing OSHA with copies of the documents
requested. I further find Respondent’s failure to call Robert Probstfield to be an indication that,
if called, his testimony would support the government’s allegations of violations of the cited
standards. Although the record is unclear about what his exact position with FCG was, it is clear
that he held a position of authority over this project and was on site frequently. (Tr. 279, 300,
312, 429). Given Mr. Probstfield’s responsibility with respect to the worksite and project, it
seems that his testimony could have easily established FCG’s contention that it was in
compliance with the cited standards. Finally, Respondent provided no explanation for its failure
to call Mr. Probstfield to testify. (Tr. 282).

Multi-employer Worksite Doctrine

The Commission's test of employer liability, holds an employer “ responsible for the
violations of other employers ‘where it could reasonably be expected to prevent or detect and
abate the violations due to its supervisory authority and control over the worksite.”’ McDevitt
St. Bovis, Inc. , 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000) (internal citation omitted);
Grossman Steel & Aluminum Corp. , 4 BNA OSHC 1185, 1188 (No. 12775, 1975) (noting that
general contractors are “well situated to obtain abatement of hazards,” and thus it is “reasonable
to expect the general contractor to assure compliance with the standards insofar as all employees
on the site are affected”). In holding non-exposing employers responsible for noncompliance
with the Act at multi- employer sites, the Commission's test also reflects the Act's remedial
purpose: “to assure so far as possible every working man and woman in the Nation safe and
healthful working conditions.” Section 2(b) of the Act, 29 U.S.C. § 651(b); see also Access
Equip Sys. , 18 BNA OSHC 1718, 1723 (No. 95-1449, 1999) (noting that courts of appeals “have
found support for the doctrine in the broad, remedial purpose of the Act”). The worksite at issue
here involved multiple companies contracted to perform various parts of the renovation.

Upon OSHA’s initial entry onto the worksite on October 14, 2011, Respondent FCG was
identified as the “controlling” entity or “prime.” (Tr. 37, 62). FCG, through its vice-president
for operations, Mr. Boone, conceded that in its capacity as “general contractor” for the project,
“we [sic] manage the work.” FCG hired the subcontractor, CSG, to manage the sandblasting
operation. (Tr. 434-435). CSG then contracted with Gainey Sandblasting (“Gainey”) to do the
actual sandblasting. (Tr. 326). FCG also conceded that it “coordinated” the work involving the
sandblasting of the lead-based paint. (Tr. 436). Despite Respondent’s insistence on “splitting
hairs” over the nature of its relationship to the subcontractors, I find that, at all times relevant to
this case, it acted in a manner consistent with its title of “general contractor.” Therefore, I find
that Respondent was the “controlling employer” and, as such, it was in the best position to
control conditions at the worksite, including assuring compliance with OSHA standards.

Alleged Violations of 29 C.F.R. § 1910.1200

Citation 1, Item 1a alleges a violation of 29 C.F.R. § 1910.1200(e)(1) which requires that:

Employers shall develop, implement, and maintain at each workplace, a written
hazard communication program which at least describes how the criteria specified
in paragraphs (f), (g), and (h) of this section for labels, and other forms of
warning, material safety data sheets, and employee information and training will
be met….

Specifically, Item 1a alleged that Respondent did not have a written HazCom program to
address hazards associated with employee exposure to lead and silica dust. (GX-1).

Citation 1, Item 1b alleges a violation of 29 C.F.R. § 1910.1200(e)(2) which requires that:

Multi-employer workplaces. Employers who produce, use, or store hazardous
chemicals at a workplace in such a way that the employees of other employer(s)
may be exposed … shall additionally ensure that the hazard communication
programs developed and implemented under this paragraph (e) include the
following:

(i) The methods the employer will use to provide the other employer(s) on-site
access to material safety data sheets for each hazardous chemical the other
employer(s)’ employees may be exposed to while working;

(ii) The methods the employer will use to inform the other employer(s) of any
precautionary measures that need to be taken to protect employees during the
workplace’s normal operating conditions and in foreseeable emergencies; and

(iii) The methods the employer will use to inform the other employer(s) of the
labeling system used in the workplace.

Item 1b alleged that Respondent failed to ensure that “employees engaged in project
oversight and employees of other employers were made aware of the silica and lead paint dust
hazards being generated throughout the building as a result of the sandblasting operations in the
basement” of Stack B in the subject building.

The HazCom standard requires “employers to provide information to their employees about
the hazardous chemicals to which they are exposed, by means of a [HazCom] program….” 29
C.F.R. § 1910.1200(b)(1). The Statement of Work for this project called for the removal of
“lead based paint” by way of “sandblasting operations.” (GX-9). Respondent’s own testing of
the paint revealed the presence of lead. (Tr. 146; RX-7). Gainey was using sand or “crystalline
silica” to remove the paint. (Tr. 83; GX-6e/f). I credit the testimony of IH McLemore, who
testified that “lead is toxic to the system [and] to the bloodstream. It can damage your kidneys,
have [sic] memory loss, brain damage.” (Tr. 159). He further testified that silica “is a
respiratory hazard that [sic] inhalation could lead to silicosis which is a cancer.” Id. When
asked where silica comes from, he testified that it is “[t]he crystal form of sand.” (Tr. 160). I
find, accordingly, that the cited standards apply.

The thrust of the Secretary’s argument concerning this item is not the sufficiency of FCG’s
written HazCom program, but, rather, that FCG did not have one in place at the time of the
inspection. This position was outlined by IH McLemore, who testified as follows:

A. Well, if there was a program in place, we never got it, and if there was training being
conducted, we didn’t receive any proof of that, and so since I didn’t have any other
documentation that said otherwise, I recommended that the Citation be issued, just in
light of the lead and silica hazard present on site. (Tr. 167).

The evidence concerning whether FCG had a written HazCom program for this project is in
dispute. The resolution of this dispute rests on the credibility of the witnesses. For the reasons
stated supra , I credit the testimony of IH McLemore over that of Respondent’s witnesses and
find that FCG did not have a HazCom program in place for this project at the time of the
inspection.

I further find that the absence of a HazCom program is explained by the testimony
that this project had been “fast tracked,” thereby allowing Mr. Boone only a few days to pull
everything together. (Tr. 94, 274, 448). Moreover, as indicated above, it is reasonable to infer
that, if a HazCom program had existed at the time of the inspection, Respondent would have
provided it to OSHA to avoid being cited. As also indicated above, the testimony that a copy of
the program was provided to CO Moore, who looked at it and then returned it, was not
believable. (Tr. 368). Based on the credible evidence of record, the Secretary has established
that FCG was in violation of the terms of both of the cited standards.

FCG asserts that none of its employees entered the containment area where the sandblasting
occurred. Regardless, the record shows that employees of Gainey were exposed to lead and
silica in that Gainey performed the paint removal. (Tr. 326; GX-6e, 6f). The record further
shows that employees of CSG were also exposed to lead and silica. (Tr. 325-326, 333, 435-436).
In particular, CSG employees were exposed to “flicks of paint” and “layers of dust” resulting
from the sandblasting operation. (Tr. 72). Applying the multi-employer worksite doctrine, I
find that FCG is responsible as the “controlling employer” for not adequately protecting
employees of CSG and Gainey from the hazards associated with exposure to lead and silica.
That Respondent had the ability to direct and control the project is demonstrated by the fact that
all of the subcontractors operated under FCG’s quality control plan. (Tr. 431-33). When asked
about its ability to control the subcontractors on the project, Mr. Boone stated: “If we see that
they’re doing something unsafe, we would [sic] stop it.” (Tr. 433). Respondent’s ability to stop
an unsafe practice is a further indication of its ability to control the worksite. The evidence of
record demonstrates that employees were exposed to the hazards of the lead and silica present at
the site.

FCG contends that it never actually entered the containment area until the day of the
inspection. (Tr. 435). Nevertheless, Respondent should have known it was required to have
HazCom and lead programs in view of the terms of the Statement of Work and its own testing
for lead. In any case, even if Respondent itself never entered the containment area, it was
required to exercise reasonable diligence to determine if CSG and Gainey employees were
exposed to any hazardous substances and to develop any necessary programs in that regard. As
the Commission stated in Automatic Sprinkler Corp. of America , 8 BNA OSHC 1384, 1387 (No.
76-5089, 1980), an employer “must make a reasonable effort to anticipate the particular hazards
to which its employees may be exposed in the course of their scheduled work.”

Based on the foregoing, I find that the Secretary has met her burden of proving that FCG
was in violation of 29 C.F.R. §§ 1910.1200(e)(1) and (e)(2).

Alleged Violation of 29 C.F.R. § 1926.62(e)(2)(i)

Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.62(e)(2)(i), which requires that:

Prior to commencement of the job each employer shall establish and implement a written
compliance program to achieve compliance with paragraph(c) of this section.

Specifically, the Citation alleged deficiencies under paragraph (c) of the lead standard, which
addresses the “permissible exposure limit” for lead. The Citation alleged as follows:

Where employees were exposed to lead dust, the employer did not ensure a
written compliance lead plan was developed prior to the start of sandblasting
operations. In addition to ensuring a competent person makes frequent and
regular inspections of the job site, materials and equipment, a written compliance
plan must include at least the following provisions:

A.    A description of each activity in which lead is emitted; e.g. equipment used,
material involved, controls in place, crew size, employee job responsibilities,
operating procedures and maintenance practices;

B.    A description of the specific means that will be employed to achieve
compliance and, where engineering controls are required engineering plans
and studies used to determine methods selected for controlling exposure to
lead;

C.    A report of the technology considered in meeting the PEL;

D.    Air monitoring data which documents the source of lead emissions;

E.    A detailed schedule for implementation of the program, including
documentation such as copies of purchase orders for equipment, construction
contracts, etc.;

F.    A work practice program which includes items required under paragraphs (g),
(h) and (i) of this section and incorporates other relevant work practices such
as those specified in paragraph (e)(5) of this section;

G.    An administrative control schedule required by paragraph (e)(4) of this
section, if applicable;

H.    A description of arrangements made among contractors on multi-contractor
sites with respect to informing affected employees of potential exposure to
lead and with respect to responsibility for compliance with this section as set
forth in 1926.16.

I.     Other relevant information.

The cited standard required Respondent to develop and implement a written lead compliance
program prior to the commencement of the job. The parties stipulated to the presence of lead at
the worksite. Moreover, FCG’s own testing revealed the presence of lead. (RX-7). For the
reasons already stated, I credit the testimony of CO Moore and IH McLemore over the testimony
of Respondent’s witnesses and find that no lead compliance program was in place at the time of
the inspection.

Further, for the reasons articulated in the discussion as to Items 1a and 1b, I
find that employees of CSG and Gainey were exposed to lead during the paint removal work. I
also find that Respondent knew or should have known that it was required to develop and
implement a written lead compliance program; this is particularly so in view of the Statement of
Work and the test results from its own testing for lead. Finally, despite its contention that none
of its employees entered the containment area, Respondent, with reasonable diligence, could
have determined the conditions in the containment area and learned that employees were
exposed to lead.

For all of the foregoing reasons, I find that the Secretary has shown that the standard applies,
that its terms were not met, that employees were exposed to the cited condition, and that
Respondent had knowledge of the condition. The Secretary has therefore met her burden of
establishing that FCG was in violation of 29 C.F.R. § 1926(e)(2)(i).

Serious Classification

To prove a violation was “serious” under section 17(d) of the Act, 29 U.S.C. § 666(d) , the
Secretary must show there was a substantial probability that death or serious physical harm
could have resulted from the cited condition and that the employer knew or should have known
of the condition; the likelihood of an accident occurring is not required. Spancrete Northeast,
Inc. , 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).

IH McLemore credibly testified about the health effects of exposure to lead and silica and
that such exposure creates a “substantial probability that death or serious physical harm could
result.” (Tr. 159). The IH also credibly testified that with appropriate HazCom and lead
programs, FCG could have communicated to the employees at the worksite the nature of the
hazardous materials present through the use of signs and labels. (Tr. 169). Additionally, with
the proper programs in place, FCG would have known it was required to conduct air monitoring
to determine: (1) the exposure of the employees to lead and silica, and (2) the appropriate
personal protective equipment to be used. (Tr. 175).

Respondent was on notice, through the Statement of Work, that the project involved lead-based paint removal. Its own testing revealed the presence of lead. (Tr. 146). Further, as the
general contractor, Respondent knew or should have known that silica would also be present at
the worksite; in particular, the Statement of Work specified that sandblasting would be used for
the paint removal. (GX-9). And, as the general contractor, and in view of FCG’s contract with
Fort Bragg, Respondent was charged with the overall responsibility for compliance with OSHA
regulations. Here, the specific OSHA standards required FCG to have HazCom and lead
compliance programs for the project once it became aware that the work involved removing
lead-based paint by means of sandblasting. I conclude that the cited standards are properly
classified as serious. The cited standards are therefore affirmed as serious violations.

Penalty Determination

The Commission, as the final arbiter of penalties, must give due consideration to the gravity
of the violation and to the employer's size, history and good faith. J.A. Jones Constr. Co. , 15
BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not necessarily accorded
equal weight, and gravity is generally the most important factor. Trinity Indus., Inc. , 15 BNA
OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a violation depends upon such matters
as the number of employees exposed, duration of exposure, precautions taken against injury, and
the likelihood that an injury would result. J.A. Jones , 15 BNA OSHC at 2213-14.

In this case, I find that OSHA appropriately evaluated the severity of each violation as high,
given the likelihood of blood poisoning or silicosis resulting from exposure to lead and/or silica.
(Tr. 174). Additionally, I find that OSHA correctly determined the probability of each violation
to be lower or lesser because the project had only been ongoing for a short period of time and
some personal protective equipment was being worn. (Tr. 174-75). The gravity-based penalty
for the items was determined to be $5,000.00. Because FCG had less than 25 employees, it was
given a 40 percent reduction for size, resulting in a proposed penalty of $3,000.00 each for Items
1b and 1b and Item 2. (Tr. 176). I find the proposed penalties appropriate. A penalty of
$3,000.00 is assessed for grouped Items 1a and 1b, and a penalty of $3,000.00 is assessed for
Item 1.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing constitutes the findings of fact and conclusions of law in accordance with Rule
52(a) of the Federal Rules of Civil Procedure.

ORDER

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

1. Items 1a and 1b of Serious Citation 1, alleging violations 29 C.F.R. §§ 1910.1200(e)(1)
   and 1910.1200(e)(2), are AFFIRMED, and a total penalty of $3,000.00 is assessed.

2. Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.62(e)(2)(i), is
   AFFIRMED, and total penalty of $3,000.00 is assessed.

/s/

Keith E. Bell

Judge, OSHRC

Dated: August 27, 2012

Washington, D.C.