Cumbie Concrete Company, Inc.

Plain-English summary

Cumbie Concrete employees cut holes in a library floor with a propane-powered saw inside a room sealed with plastic sheeting. Three employees developed carbon-monoxide poisoning and received hospital treatment. Judge Ken S. Welsch affirmed violations for lacking a propane safety data sheet and training, maintaining an inadequate respiratory-protection program, failing to use adequate controls for carbon monoxide, and selecting improper eye protection. He reduced the carbon-monoxide item from willful to serious because Cumbie mistakenly but in good faith believed propane and the negative-air machine were suitable for indoor work. One general training item was vacated, and the affirmed items resulted in $7,800 in penalties.

Decision snapshot

• Cited standard(s): Hazard communication, employee instruction, air-contaminant controls, respiratory protection, and eye-protection standards.
• Outcome: Most items affirmed, one vacated, and the willful carbon-monoxide item reclassified as serious; total penalty: $7,800.
• Key point: Using a combustion engine in an enclosed work area requires hazard information, effective ventilation or other controls, atmospheric awareness, and respiratory protection suited to the contaminant.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 96-1627
*
Cumbie Concrete Company, Inc., *
Respondent. *
)))))))))))))))))))))))))))))))))))))))))))))-

APPEARANCES:

                                      Curtis L. Gaye, Esq.                      Harold F. X. Purnell, Esq.
                                      Kelly R. Rixner, Esq.                     Rutledge, Ecenia, Underwood,
                                      Office of the Solicitor                    Purnell & Hoffman, P.A.
                                       U. S. Department of Labor                Tallahassee, Florida
                                      Atlanta, Georgia                                   For Respondent
                                               For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                                            DECISION AND ORDER
                 Cumbie Concrete Co., Inc., (Cumbie) is engaged in concrete work in Tallahassee, Florida.

After employees cut holes in a concrete floor with a propane powered saw on May 31, 1996, at
the Florida State University library, the hospital’s blood tests found that three of Cumbie’s
employees were exposed to carbon monoxide. An inspection was conducted by the Occupational
Safety and Health Administration (OSHA), which resulted in Cumbie receiving three citations.
Cumbie timely contested the citations.
Serious citation no. 1 alleges that Cumbie failed to have available material safety data
sheets (MSDS), in violation of § 1926.59(g)(8) (item 1a); failed to provide training on chemicals
used in the work area, in violation of § 1926.59(h) (item 1b); failed to inform employees on
hazards associated with their job, in violation of § 1926.21(b)(2) (item 1c); failed to have a
written respirator program, in violation of § 1926.103(e)(1) (item 2a); failed to provide the
correct respirator for the job, in violation of § 1926.103(g)(2) (item 2b); failed to ensure proper
selection of a respirator, in violation of § 1926.103(g)(4) (item 2c); and failed to train employees

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on the selection of a respirator in violation of § 1926.103(g)(5) (item 2d). The serious citation
proposed penalties totaling $5,000.
Willful citation no. 2 alleges that Cumbie failed to implement feasible administrative or
engineering controls, in violation of § 1926.55(b), to reduce employees’exposure to carbon
monoxide, which was generated by operating a propane powered saw. The willful citation
proposed a penalty of $35,000.
The “other” than serious citation no. 3 alleges that Cumbie failed to provide employees
with face and eye protection adequate for the hazards of cutting concrete.
The hearing was held on May 20, 1997, in Tallahassee, Florida. Jurisdiction and coverage
was admitted (Tr. 6). Both parties submitted briefs supporting their positions. Cumbie’s
argument that it was unaware of the carbon monoxide exposure is rejected. The violations,
except for § 1926.21(b)(2) which is considered duplicative, are affirmed as non-willful.
The Accident
Cumbie’s principal place of business is in Tallahassee, Florida. Cumbie performs concrete
work, including concrete demolition work. Cumbie employs approximately 40 employees.
In May 1996 Anaco Electric contracted Cumbie to cut openings for electrical boxes in the
concrete floor in the computer room of the Galvin Strozier Library at Florida State University
(Tr. 14-15). Anaco Electric was the electrical subcontractor for the general contractor Biltmore
Construction Company. Biltmore was hired to renovate the library.
The library’s computer room, located in the annex on the first floor, is 39 feet by 24 feet
with an 11-foot ceiling (Tr. 118). There are two doorways to the library along one wall, one
doorway on another wall and no windows in the room (Tr. 118). When Cumbie began its work,
newly installed carpeting was in the rooms outside the computer room (Tr. 16, 118). Beneath the
computer room, there was a room with shelves of old books (Tr. 16).
Because of a concern for dust escaping from the computer room where Cumbie was
working, the doorways were encased in visqueen, a plastic sheeting material. The visqueen was
secured to the door openings with duct tape to confine the dust to the room (Tr. 16-17, 26, 35-
37). Also, because there were old books in the room below the computer room, it was decided
that water, except in small spray mist bottles, could not be used to control the dust levels (Tr. 16,

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31). A negative air machine, provided by Biltmore, was used to draw the dust out of the room
(Tr. 16, 18).
Unlike other rooms in the library, the thickness of the concrete floor in the computer room
was in excess of 5 inches. It was decided that a pneumatic saw could not be used (Tr. 194, 202).
Instead, Cumbie used a propane powered concrete saw on wheels with a specially ordered 15-
inch diamond-impregnated blade (Tr. 257). Cumbie considered that unlike a gasoline saw,
propane was cleaner burning and more suitable for indoor work (Tr. 213).
On Wednesday night, May 29, 1996,1 Cumbie employees Travis Asbell, saw operator,
Willie Atkinson, laborer, and Kingsley Monteque, laborer, performed the concrete cutting in the
computer room. The work started at approximately 10:00 p.m. with setting up the visqueen over
the doorways (Tr. 43, 73, 198). Cumbie could not work during the day because the library was
open to students until midnight. The employees were provided dust masks, safety glasses and
gloves. After showing them the job and watching them get started, Ralph Gemmill,
superintendent, went home to sleep.
During the night, Asbell testified that while operating the saw, he felt dizzy, light-headed
and he had a real bad headache. It was dusty and he could smell “the heat and exhaust coming
from the saw” (Tr. 40-41). Asbell described working in the computer room as working in a “flour
bag” (Tr. 40). After cutting for an hour, Asbell testified that the saw started acting like it was
running out of gas; revving up and then back down. Also, the blade got hot and bent in the
concrete (Tr. 44-45). Gemmill was called at home and he returned to the library at
approximately 2:00 a.m. Gemmill operated the saw for a while and found no problem. He
instructed the employees to continue cutting. Gemmill testified that the employees did not tell
him that they were feeling sick nor did he smell any fumes or exhaust (Tr. 200). IH Joseph
Roesler testified that Atkinson stated that he told Gemmill the employees were not feeling well
(Tr. 162). Regardless, Gemmill returned home without making any changes (Tr. 46-47). The
employees worked until approximately 5:00 a.m., cleaned up and left the site.

1
The citation incorrectly considered Wednesday as May 30, 1996. A review of a 1996 calender shows that
Wednesday was May 29, Thursday was May 30 and Friday was May 31, 1996.

                                                  3

On Thursday evening, Gemmill, Asbell, Atkinson and J.D. Carper2 returned to the
computer room at approximately 11:00 a.m. replaced the visqueen and started cutting with the
propane saw (Tr. 50). Gemmill remained in the computer room for a while to get things started.
He then checked the other rooms to see if any dust had escaped and went outside to check the
tube from the negative air machine to see if it was functioning. Afterwards, Gemmill went to his
truck to sleep (Tr. 266). Asbell began feeling sick. The employees took a break. Asbell laid
down outside and blacked out. Atkinson found Gemmill and told him that Asbell and Carper
were ill (Tr. 55-56). Gemmill saw the employees outside and returned to the computer room with
Carper and Atkinson. He started operating the saw and within 15 minutes, he stopped and shut
down the job. Gemmill testified that he became light-headed and related the feeling to a previous
experience when he thought he had been exposed to carbon monoxide (Tr. 59, 245, 256). At the
time Gemmill shut the job down, Atkinson had a bad headache, Asbell was sick and Carper was
laying down (Tr. 244). It was approximately 5:00 a.m. The employees returned to their homes.
Asbell was still feeling ill Friday morning and was taken by his wife to the hospital (Tr.
61). He was given oxygen and his blood was tested for carbon monoxide (Tr. 63). His
carboxyhemoglobin level was 20.2 percent (Exh. C-2). The hospital telephoned Cumbie. Carper
and Atkinson were taken to the hospital for treatment. Their carboxyhemoglobin levels were 12.5
percent for Atkinson and either 13.2 or 10.2 percent3 for Carper (Exh. C-2). According to Dr.
Steven A. Dawkins, doctor of occupational medicine and the Secretary’s expert witness, a
carboxyhemoglobin level of 5 percent or higher indicates an exposure to carbon monoxide above
the threshold limit value of 50 parts per million (Tr. 95). Cumbie stipulates to Dr. Dawkins’
expertise (Tr. 85).
On June 5, 1996, Cumbie rented a pneumatic saw and used a hammer to finish cutting out
the remaining holes in the computer room (Tr. 253, 260). On June 5, 1996, compliance/industrial
hygienist (IH) Joseph Roesler of OSHA initiated a complaint inspection of the accident (Tr. 112).
He reviewed Cumbie’s hazardous communication program, interviewed the employees and the

2
Carper (also referred to as J.D. Harper, and J.D. Carter in the transcript) replaced Monteque (Tr. 50, 236).
3
The percent number is not clear in the medical report.

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general contractor, Biltmore Construction, and viewed the computer room. Cumbie was no
longer working in the computer room during OSHA’s inspection.
At the hearing, the parties stipulated the following facts (Tr. 6-9):
1. At all material times, Travis Asbell, Willie Atkinson, and J.D. Carper were
employed by Cumbie.
2. The carboxyhemoglobin levels contained in the medical records from Tallahassee
Community Hospital are accurate reflections of the results of the tests performed.
3. Cumbie did not possess and maintain an MSDS for propane on June 5, 1996.
4. Cumbie’s employees at the library work site were not trained in the hazards
associated with silica dust or the hazards associated with exhaust fumes generated by a propane
powered saw.
5. Cumbie did not have a written respirator program, had not performed random
inspections of its respirators by a qualified person within the six months preceding May 30, 1996,
and had not provided its employees who were cutting concrete with training by a competent
person in respirator selection, use and maintenance. Cumbie stipulates that it did not comply with
the § 1926.103 written respirator program. Cumbie, however, does not agree that a written
respirator program was required.
Discussion
To establish a violation of a safety standard, the Secretary must show by a preponderance
of the evidence that: (1) the cited standard applies to the alleged condition; (2) the terms of the
standard were not complied with; (3) employees were exposed to or had access to the violative
condition; and (4) the employer knew or could have known of the violative condition with the
exercise of reasonable diligence. Seibel Modern Manufacturing & Welding, Corp., 15 BNA
OSHC 1218, 1221-1222 (No. 88-821, 1991).
There is no argument that Cumbie’s work in the computer room constitutes construction
activities within the meaning of Part 1926. Cumbie, also, does not dispute that the environmental
control of fumes standard and the hazard communication standard at §§ 1926.55 and 1926.59
applied to its work in the computer room. Further, Cumbie does not dispute that employees were
exposed to carbon monoxide and dust.

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Cumbie disputes whether the standards cited were violated and whether Cumbie knew or
should have known of the exposure to carbon monoxide. Also, Cumbie argues that respiratory
protection standards were not required at the computer room.

SERIOUS CITATION NO. 1
Item 1a - Violation of § 1926.59(g)(8)
The citation alleges that “on or about 6/5/96, the employer had not ensured that all of the
material safety data sheets (MSDS) were made available at the worksite for such hazardous
materials as, but not limited to propane.” Section 1926.59(g)(8) provides that:
The employer shall maintain in the workplace copies of the required
material safety data sheets for each hazardous chemical, and shall
ensure that they are readily accessible during each work shift to
employees when they are in their work area(s).

   There is no dispute that Cumbie did not maintain an MSDS for propane at the library

project during May 30-31, 1996. Ralph Gemmill, Cumbie’s former overall job superintendent,
acknowledged that no MSDS for propane was at the library (Tr. 246). Propane was used to
power the saw to cut the concrete floor. Also, no MSDS for propane was maintained at
Cumbie’s office on June 5, 1996 (Cumbie Stipulation).
An MSDS for propane is required. The standard requires an employer to have an MSDS
for each “hazardous chemical” which it uses. A hazardous chemical is defined at § 1926.59(c) as
“any chemical which is a physical hazard or a health hazard.” The MSDS for propane identifies it
as a health hazard that may be harmful to the central nervous system and the affects include
headache, dizziness, convulsion, loss of consciousness, coma, respiratory arrest and death (Exh.
C-3). Propane is a hazardous chemical.
Cumbie argues that on June 5, 1996, the work at the library had been completed and the
propane powered saw was not used after May 31, 1996. Also, on June 5, 1996, Cumbie argues
that the propane was impounded at its office by OSHA (Cumbie Brief, p. 13).
IH Joseph Roesler testified that on June 5, 1996, propane for the saw was stored at
Cumbie’s office in Tallahassee, Florida. Employees working at the office had access to the stored

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propane (Tr. 124). Cumbie’s argument that the propane was impounded misconstrues the
testimony of Roesler. IH Roesler stated that the saw was impounded; not the propane (Tr. 181).
The standard requires the MSDS to be maintained in the “workplace.” A “workplace” is
“an establishment, job site, or project, at one geographical location containing one or more work
areas.” See § 1926.59(c) definitions. Cumbie stored and made accessible to employees the
propane at its office on June 5, 1996. The office was a workplace. Therefore, an MSDS was
required on June 5, 1996.
Further, the citation is amended sua sponte to reflect more clearly the use of propane on
May 30 to June 1. Cumbie used the propane to power its slab saw at the library. See A. L.
Baumgartner Construction, Inc., 16 BNA OSHC 1995, 1997 (92-1022, 1994). Cumbie is not
prejudiced by the amendment. The citation refers to “on or about” June 5, 1996. Also, the
hearing related to conditions on May 30-31 and the affects of the propane powered saw in the
computer room. Cumbie failed to maintain an MSDS for propane in violation of § 1926.59(g)(8).

                           Item 1b - Violation of § 1926.59(h)
   The citation alleges that “[o]n or about 5/30/96, and 5/31/96, the employees engaged in,

but not limited to cutting concrete using a propane powered saw, were not provided training for
chemicals such as concrete dust containing silica and exhaust gases generated by a propane
powered saw.” Section 1926.59(h) provides that:
Employers shall provide employees with effective information and
training on hazardous chemicals in their work area at the time of
their initial assignment, and whenever a new physical or health
hazard the employees have not previously been trained about is
introduced into their work area. Information and training may be
designed to cover categories of hazards (e.g., flammability,
carcinogenicity) or specific chemicals. Chemical-specific
information must always be available through labels and material
safety data sheets.

   The standard requires an employer to train employees in the hazard associated with the

use of hazardous chemicals in their work place. As stated, propane is a hazardous chemical. The
record is uncontradicted that employees working at the library were not trained as to the hazard
associated with the use of propane to power the slab saw (Tr. 66, 133, 246). Superintendent

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Gemmill told IH Roesler that he had some training because he had gone to some toolbox meetings
of the general contractor. However, the employees did not attend the meetings and Gemmill did
not give the information to employees (Tr. 134). Gemmill testified that there was no training for
employees on propane (Tr. 246). Gemmill explained that the employees were experienced, and he
assumed they did not need training (Tr. 220). An employer cannot rely entirely on the prior
training or experience of its employees in lieu of providing specific instruction tailored to the job
at hand. A. P. O’Horo Co., 14 BNA OSHC 2004, 2010 (No. 85-369, 1991). According to
Travis Asbell, saw operator, no one at Cumbie asked about his prior training (Tr. 78). Cumbie
stipulates that it did not train its employees at the library project in the hazards associated with
exhaust fumes generated by a propane powered saw and with silica dust (Tr. 7).
In addition to propane, OSHA alleges that Cumbie failed to train employees on the
hazards associated with silica dust. However, the record fails to establish the presence of silica
dust in the computer room. IH Roesler testified that no air samples were obtained at the library
(Tr. 179). Therefore, the Secretary failed to show the need for training on the hazards associated
with silica dust.
The violation is affirmed with regard to the failure to train employees on the hazards
associated with using propane.

                           Item 1c - Violation of § 1926.21(b)(2)
    The citation alleges that “[o]n or about 6/5/96, the employer had not informed their

employees on the hazards associated with the tasks that they were to perform, such as concrete
demolition including cutting and core drilling, where significant dust exposure was created and the
hazards of exposure to the exhaust emissions from the propane powered saw were present.”
Under an employer’s responsibility, Section 1926.21(b)(2) requires that:
The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other
exposure to illness or injury.

    There is no dispute that Cumbie did not maintain an MSDS for propane and failed to train

its employees in the hazards associated with propane. Other than the conditions already

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addressed by the previous standards cited, the Secretary failed to identify other unsafe conditions
in which Cumbie failed to train its employees. The record failed to show that Cumbie did not
train its employees on the hazards associated with cutting and core drilling concrete. IH Roesler
testified that Cumbie had an adequate written safety program (Tr. 139, 186). Without identifying
other unsafe hazards not covered by §§ 1926.59(g)(8) and 1926.59(h), a violation of §
1926.21(b)(2) is vacated.

                          Item 2a - Violation of § 1926.103(e)(1)
    The citation alleges that “[o]n or about 5/30/96 and 5/31/96, the employer had not

established a written respirator program to aid employees in the use, care and selection of the
respirators for but not limited to carbon monoxide and silica. The written respirator program
shall include elements from 29 C.F.R. §§ 1926.103(e)(2) through (e)(11).” Section
1926.103(e)(1) requires as minimum requirements for an acceptable program that:
Written standard operating procedures governing the selection and
use of respirators shall be established.

    Cumbie stipulates that it did not have a written respirator program and had not performed

random inspections of its respirators by a qualified individual to ensure proper selection.
Employees were not provided with training by a competent person on respirator selection, use
and maintenance (Tr. 7-8). Ralph Gemmill, Cumbie’s former overall demolition superintendent,
testified that he had not seen a written respirator program at Cumbie (Tr. 248).
Cumbie argues, however, that it was not required to comply with the respirator
requirements. It did not and could not, with the exercise of reasonable diligence, know of the
presence of carbon monoxide in the computer room (Cumbie Brief, p. 15).
It is undisputed that employees working in the computer room wore Muldex 21C NIOSH
(National Institute for Occupational Safety and Health) approved respirators for dust, fumes, and
mist (Tr. 187-188). The Muldex respirator is described as a paper face mask, like a doctor uses.
It is cup shaped, fitting over the nose and mouth and held by two straps around the head (Tr. 41,
187).

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IH Roesler testified that a written respirator program was required because the exposure
to carbon monoxide exceeded the permissible exposure level (PEL) of 50 parts per million (Tr.
142, see Subpart Z, § 1910.1000, Table Z-1). He stated that a written respiratory program is
required when an employer elects to use respiratory protection at its work site or when employees
are exposed to concentrations of carbon monoxide in excess of the permissible exposure levels.
Section 1926.103(a) requires a respiratory program “in emergencies, or when controls
(engineering ) . . . either fail or are inadequate to prevent harmful exposure to employees, (then)
appropriate respiratory protective devices shall be provided by the employer and shall be used.”
Therefore, in this case the standard requires a showing that employees were exposed to harmful
levels of carbon monoxide.
Cumbie does not dispute that employees were exposed to carbon monoxide or the
carboxyhemoglobin levels found by the hospital during the blood tests. Also, Cumbie does not
dispute the correlation described by Dr. Steven Dawkins between the carboxyhemoglobin levels
found by the hospital to the PEL for carbon monoxide adopted by OSHA (Tr. 95). Using this
correlation, the exposure to carbon monoxide by the three employees working in the computer
room exceeded 100 parts per million (Tr. 95). The PEL established by OSHA is 50 part per
million. See § 1910.1000, Table Z-1. Therefore, the record establishes that the employees were
exposed to harmful levels of carbon monoxide.
In addition to showing harmful levels of carbon monoxide, the Secretary must also show
that Cumbie should have known with the exercise of reasonable diligence of the employees’
exposure to carbon monoxide. An employer’s failure to perceive the violative conditions as
hazardous is not a defense to the citation. An employer has a duty to inspect its work area for
hazards. It must make reasonable efforts to anticipate the particular hazards to which its
employees may be exposed in the course of their scheduled work. Automatic Sprinkler Corp. of
America, 8 BNA OSHC 1384, 1387 (No 76-5089, 1980); Pace Constr. Corp., 14 BNA OSHC
2216, 2221 (No. 86-758, 1991). Further, constructive knowledge may be predicated on an
employer’s failure to establish an adequate program to promote compliance with a safety
standard. Pride Oil Well Service, 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).
Cumbie did not have a written respirator program despite having employees exposed to
“extremely dusty” conditions (Tr. 263). Also, Cumbie failed to show that it maintained an

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appropriate monitoring or inspection program of its worksite. See Milliken & Co., 14 BNA
OSHC 2079, 2083 (No 84-767, 1991), aff'd 947 F.2d 1483 (11th Cir. 199l). There is no
evidence that Cumbie performed any atmospheric monitoring to know whether the levels of
carbon monoxide were harmful. Ralph Gemmill, former superintendent, testified that he did not
know that incomplete combustion can cause carbon monoxide. He “never knew that propane put
off carbon monoxide, thought it was not a by-product” (Tr. 240, 243).
Also, the work was performed in a visqueen, sealed room while employees operated a
large propane powered concrete saw. Three employees worked in the sealed room from 11:00
p.m. to 6:00 a.m. on a project Cumbie anticipated would take two days (Tr. 213). The room had
no forced ventilation. There were areas where the visqueen was not taped, which permitted the
flow of air.
However, there was no method utilized which assured the flow of fresh air into the room.
Although it may not have known that employees’exposure would exceed the PEL for
carbon monoxide, Cumbie should have known of the potential exposure to carbon monoxide from
operating the saw in an enclosed room. The MSDS for propane, which Cumbie did not maintain,
plainly states that carbon monoxide may be generated when propane is burned in an oxygen
deficient atmosphere (Exh. C-3). Cumbie relied on a negative air machine without doing any
atmospheric testing or monitoring in the room to determine oxygen levels and exposure to carbon
monoxide. Also, Gemmill was aware of complaints on Wednesday and Thursday nights about the
operation of the saw, its blade and its tendency to increase and decrease its speed of revolution
(Tr. 198). Gemmill knew that the saw had an internal combustion engine and knew it emitted an
exhaust (Tr. 213).
Cumbie’s argument that it was unaware of the potential for carbon monoxide is rejected.
The violation is affirmed.

                          Item 2b - Violation of § 1926.103(g)(2)
    The citation alleges that “the employer had not specified the correct respirator for each

job. Employees were exposed to such hazards as carbon monoxide and silica at the worksite.”
Section 1926.103(g)(2) requires that:

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The respirator type is usually specified in the work procedures by a
qualified individual supervising the respiratory protective program.
The individual issuing them shall be adequately instructed to insure
that the correct respirator is issued.

   The exposure to carbon monoxide in excess of the PEL was documented by the hospital

records and the testimony of Dr. Steven Dawkins, occupational medicine physician. According to
Dr. Dawkins, a 5 percent carboxyhemoglobin level correlates to the PEL of 50 parts per million
for carbon monoxide (Tr. 95). The carboxyhemoglobin level for the three employees working in
the computer room on the night of May 31, 1996, exceeded 10 percent with the highest of 20.2
percent (Exh. C-2).
Under Table E-4 of § 1926.103, the selection of an appropriate respirator for oxygen
deficiency requires a “self-contained breathing apparatus. Hose mask with blower. Combination
air-line respirator with auxiliary self-contained air supply or an air-storage receiver with alarm.”
The Muldex 21C type respirator is not self-contained air line respirator (Tr. 187). However, the
record does not show Gemmill’s training, or the basis for his selection (Tr. 149). The Muldex is
the wrong respirator for the potential conditions in the computer room.
The violation is affirmed.

                          Item 2c - Violation of § 1926.103(g)(4)
   The citation alleges that “the employer did not have a qualified individual inspection to

ensure proper selection, use, cleanliness and maintenance of the respirators.” Section
1926.103(g)(4) provides that:
Respiratory protection is no better than the respirator in use, even
though it is worn conscientiously. Frequent random inspections
shall be conducted by a qualified individual to assure that
respirators are properly selected, used, cleaned, and maintained.

   Cumbie stipulates that it did not have a respiratory protection program (Tr. 7-8). Other

than providing the Muldex 21C respirator to employees, there is no showing that Ralph Gemmill,
former superintendent, was conducted or was qualified to conduct random inspections to assure
the Muldex was the proper respirator for the conditions in the computer room. Gemmill was in
charge of selecting the respirator. Gemmill told IH Roesler that he had selected only a dust mask

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(Tr. 149). Gemmill, however, was not familiar with the properties of propane or hazards
associated with using it to power a concrete saw in an enclosed, sealed room (Tr. 240, 243).
Although Gemmill was in the computer room at the beginning of each shift and at least once
during the shift, there is no evidence that he inspected the atmospheric conditions in the room or
the Muldex dust mask used by the employees. The violation is affirmed.

                          Item 2d - Violation of § 1926.103(g)(5)
    The citation alleges that “the employer had not ensured that the employees and the

supervisors were trained by a competent person on the selection, use, and maintenance of the
respirators provided.” Section 1926.103(g)(5) provides that:
For safe use of any respirator, it is essential that the user be
properly instructed in its selection, use, and maintenance. Both
supervisors and workers shall be so instructed by competent
persons. Training shall provide the men an opportunity to handle
the respirator, have it fitted properly, test normal air for a long
familiarity period, and, finally, to wear it in a test atmosphere.

    Gemmill testified that he held classes for employees on why to wear a dust mask and how

to put it on (Tr. 247). Such limited training is inadequate and does not comply with the standard.
There was no information given to employees as to the selection of the respirator or its use and
maintenance. None of the employees told IH Roesler that they were trained on how to use, clean,
and maintain the respirator (Tr. 152). The saw operator, Travis Asbell, testified that he received
no training on respirators (Tr. 66). The use of a respirator was optional for employees. The
violation is affirmed.

                          Serious Classification for Citation No. 1
    In determining whether the violations identified in citation no. 1 are serious within § 17(k)

of the Occupational Safety and Health Act (Act), the Secretary must show that Cumbie knew or
should have known, with the exercise of reasonable diligence, of the presence of the violative
conditions and that there was a substantial probability that death or serious physical harm could
result from the conditions.

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As discussed, the record establishes that Cumbie should have known, with the exercise of
reasonable diligence, of the lack of an MSDS for propane, the failure to train employees on
propane and failure to have a written respiratory program for the selection of respirators.
Because of Cumbie’s failure to know the hazards associated with working with propane and
selecting the respirator, the issue is whether the resulting injury would likely be death or serious
harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157,
1989 CCH OSHD ¶ 30,148, p. 41,478, n. 5 (No. 91-862, 1993).
As described by Travis Asbell and Ralph Gemmill, the resulting injuries to employees were
serious. Employees blacked out and suffered light-headedness, dizziness, headaches, and nausea
while working with the concrete saw (Tr. 40, 49, 55, 203, 244, 256). Dr. Dawkins testified that
at 20 percent level carboxyhemoglobin, an individual would experience nausea and vomiting (Tr.
105). Asbell’s carboxyhemoglobin level was still 20.2 percent several hours after the job was shut
down.4 Therefore, the violations of §§ 192659(g)(8), 1926.59(h), 1926.103(e)(1),
1926.103(g)(2), 1926.103(g)(4) and 1926.103(g)(5) are serious.

                             Penalty Considerations for Citation No. 1
    The Commission is the final arbiter of penalties in all contested cases. In determining an

appropriate penalty, the Commission considers the size of the employer’s business, history of
previous violations, the employer’s good faith, and the gravity of the violation. Gravity is the
principal factor to be considered.
Cumbie employs 35 - 40 employees. There were 3 - 4 employees working in the
computer room at the library (Tr. 185). OSHA gave Cumbie 40 percent credit for size (Tr. 131).
Cumbie is also entitled to credit for history and good faith. There is no record that Cumbie has
received a citation in the past (Tr. 131, 181). Also, there is no evidence that Cumbie was
uncooperative during the inspection. Cumbie’s written hazardous communication program was
not considered deficient by OSHA (Tr. 186).
For violations of §§ 1926.59(g)(8), and 1926.59(h) (items 1a, 1b), a grouped penalty of
$1,500 is reasonable. There is no dispute that Cumbie failed to maintain an MSDS for propane

4
Hospital records indicate that Asbell was at the hospital at 8:42 a.m. (Exh C-2).

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and train employees associated with working in an enclosed space while burning propane. Three
employees worked two shifts of six to eight hours each. The employees suffered dizziness,
nausea, and black outs. The employees went to the hospital and received oxygen. Asbell spent
time in a hyperbaric chamber (Tr. 64).
For violations of §§ 1926.103(e)(1), 1926.103(g)(2), 1926.103(g)(4) and 1926.103(g)(5)
(items 2a, 2b, 2c, 2d), a grouped penalty of $2,300 is reasonable. Cumbie used an inappropriate
respirator for the conditions. It was ineffective for the hazards associated with burning propane in
an enclosed room. Three employees were exposed and suffered serious health conditions.

WILLFUL CITATION NO. 2
Item 1a - Violation of § 1926.55(b)
The citation alleges that “employees working in the Strozier Library on Florida State
University campus were overexposed to carbon monoxide which was generated by a faulty
operating, propane gas powered saw.” Also, it alleges that “The employer failed to assure that
engineering controls in place were adequately operated and maintained to assure a safe working
environment.” Section 1926.55(b) provides that:
To achieve compliance with paragraph (a) of this section,
administrative or engineering controls must first be implemented
whenever feasible. When such controls are not feasible to achieve
full compliance, protective equipment or other protective measures
shall be used to keep the exposure of employees to air contaminants
within the limits prescribed in this section. Any equipment and
technical measures used for this purpose must first be approved for
each particular use by competent industrial hygienist or other
technically qualified person. Whenever respirators are used, the use
shall comply with 1926.103.

   There is no dispute that Cumbie used a negative air machine and employees wore dust

masks in the enclosed computer room while cutting holes in the concrete floor with a propane
powered saw. The purpose of the negative air machine was to draw the dust from the room to
the outdoors. The negative air machine was provided by the general contractor and was the type
used in asbestos abatement (Tr. 17-18, 158, 195). The filters to the negative air machine were
checked and replaced repeatedly during the two nights (Tr. 21, 23, 196). However, the computer

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room was sealed with visqueen. In certain small places where the visqueen was not taped, small
amounts of air could pass into the room. The room was not completely air tight (Tr. 196-197).
However, the room needed to be sealed sufficiently to prevent the escape of dust to other rooms
in the library. If there was no air in the room, the tubing for the negative air machine to the
outside would have collapsed. According to Gemmill, he repeatedly checked the tubing and there
was no collapsing (Tr. 196). However, there was no fresh air forced into the room. Also, there
was no evidence that Cumbie performed air flow monitoring to show the amount of ventilation,
nor was any other ventilation provided to the room.
Although a negative air machine may be used for asbestos abatement, employees working
in an asbestos-regulated area should wear air purifying or supplied air respirators, not dust masks
as used by Cumbie (See § 1926.1101(h)(2) construction asbestos standard for respirators). Also,
the ventilation in the asbestos-regulated area must be able to move air contaminants away from
employees (See § 1926.1101(g)(1)(iii)).
It is undisputed that three Cumbie employees working in the computer room were
exposed to an excessive amount of carbon monoxide from the operation of a propane powered
concrete saw. IH Roesler testified that the employees should have been protected with
appropriate respiratory protection. He also opined that a pneumatic saw instead of propane
powered saw could have been utilized (Tr. 189). Ralph Gemmill, former superintendent,
acknowledged that a pneumatic saw was used to complete the job (Tr. 253-254).
The record establishes, therefore, that engineering controls and alternative protective
equipment could have been utilized if Cumbie knew or should have known, with the exercise of
diligence, of the potential for carbon monoxide exposure. Although propane may be a clean
burning fuel and suitable for some indoor uses, Cumbie used it to power a combustible engine in
an enclosed/sealed room. According to the MSDS, propane should be used in a opened, well
ventilated room (Exh. C-3). The MSDS which Cumbie did not maintain plainly advises against
burning propane in an oxygen deficient environment. Gemmill agreed that the computer room
was not a well ventilated room (Tr. 244). Gemmill described the work in the computer room as
an “extremely dusty job, I’ll not deny it” (Tr. 263).
There is no evidence that the concrete saw was faulty (Tr. 179). Also, Gemmill denied
that until he shut the job down, he was unaware that employees were feeling ill from fumes from

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the saw. He testified that the employees did not tell him of being sick (Tr. 200-201, 222).
However, Travis Asbell, saw operator, testified that he told Gemmill of the problems with the
fumes during a telephone call on Thursday afternoon and during a break on Thursday evening (Tr.
49, 54). However, in his statement to IH Roesler, taken on June 6, 1996, Asbell stated that he
never told Gemmill of his health problems (Tr. 68-69). Since his statement to OSHA was taken
immediately after the accident and Asbell is currently involved in legal action against Cumbie,
Asbell’s testimony on this point is not credible. Gemmill’s testimony, on the other hand, appears
more credible and devoid of any reason to fabricate. Gemmill was fired by Cumbie several
months after the accident “because we have different ideas” (Tr. 210).
IH Roesler testified that Willie Atkinson stated that he told Gemmill of problems with the
fumes on Wednesday night (Tr. 162, 164). However, Atkinson did not testify, and no signed
statement was made a part of the record. Although an admission under § 801(d)(2), Federal
Rules of Evidence, the statement is given little weight. Gemmill’s testimony at hearing and in his
statement to IH Roesler contradicts Atkinson’s statement to Roesler (Exh. C-4; Tr. 200-201).
Also, Atkinson, like Asbell, is currently involved in legal action against Cumbie (Tr. 176).
Larry Davis, foreman for Biltmore Construction, general contractor, was aware that the
employees were not feeling well during their first evening of work in the computer room.
However, he only told Gemmill that “all looked normal that night” (Tr. 23, 30).
The record, therefore, does not support Cumbie’s actual knowledge of conditions in the
computer room. However, Cumbie had constructive knowledge of the conditions. Cumbie was
operating a combustion engine in an enclosed room without knowing whether there was adequate
ventilation or proper respiratory protection. If Cumbie had maintained the MSDS for propane, it
would have known of the health hazards of burning propane in an oxygen-deficient atmosphere.
The MSDS warns that “when burned in a deficiency of oxygen, CO can be formed” and “at high
concentrations and when mixed with air, the gas may become an anesthetic and subsequently an
asphyxiant by diluting or decreasing the available oxygen in potential breathing zones” (Exh. C-3).
Gemmill knew the room was not well ventilated (Tr. 244). He did not know that propane “put
off carbon monoxide” (Tr. 243). Gemmill was using a product without knowing its properties
and potential health hazards. There is no showing that Gemmill exercised reasonable diligence in
designing proper ventilation for an enclosed/sealed room; monitoring the conditions in the

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computer room; and understanding the potential health affects of propane. The constructive
knowledge of a supervisory employee is imputed to Cumbie. See Tampa Shipyards, Inc., 15
BNA OSHC 1533 (Nos. 86-360, 86-469, 1992).

                            Willful Classification for Citation No. 2
     The violation of § 1926.55(b) is classified as “willful.” A willful violation is “one

committed with intentional knowing or voluntary disregard for the requirements of the Act, or
with plain indifference to employee safety.” Conie Construction, Inc., 16 BNA OSHC 1870,
1872 (No. 92-264, 1994). A willful violation is differentiated from other classifications of
violations by a heightened awareness of the illegality of the conduct or conditions and by a state
of mind showing conscious disregard or plain indifference.
A violation, however, is not willful if the employer has a good faith belief that it was not in
violation. The test of good faith for these purposes is objective--whether the employer’s belief
concerning a factual matter, or the interpretation of a rule was reasonable under the
circumstances. General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064 (No. 82-630,
1991).
The record does not support a willful violation of § 1926.55(b). There is no history that
Cumbie was previously cited by OSHA for unsafe conditions (Tr. 181). Also, the work in the
computer room changed from what Cumbie had anticipated and planned. There was new
carpeting in other rooms and the thickness of the concrete floor exceeded 5 inches (Tr. 194).
These unexpected conditions changed Cumbie’s method of work. It required sealing the
computer room from other areas in the library. Also, to use a blade large enough to cut through
the concrete floor, a propane powered saw was needed (Tr. 201-202). Cumbie knew that a
gasoline powered saw was not acceptable. Cumbie in good faith believed that propane was an
appropriate fuel for indoor use. Also, the use of a negative air machine was believed adequate to
remove excessive levels of dust from the room. To protect workers, Cumbie used NIOSH-
approved dust masks suitable for dust, fumes, and mists (Tr. 187).
Ralph Gemmill, former superintendent, in his repeated visits inside the computer room
denied smelling any fumes or exhaust (Tr. 200, 240, 252). When he did smell the exhaust and
started feeling dizzy, he immediately shut down the job and sent the workers home after asking

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the employees if they needed a doctor (Tr. 203-204). Gemmill testified that “if felt conditions
were unsafe, he would not have done the job regardless of Biltmore (general contractor)
instruction” (Tr. 212).
The Secretary failed to show intentional disregard or plain indifference. Cumbie
maintained an adequate written hazardous communication program (Tr. 185-186). The violation
of § 1926.55(b) is serious in that Cumbie should have known of the potential hazard of burning
propane in an enclosed space and employees were exposed to serious injury. Three employees
showed exposure levels to carbon monoxide in excess of the PEL.

                          Penalty Consideration for Citation No. 2
   A penalty of $4,000 for violation of § 1926.55(b) is reasonable. For the reasons

previously discussed, Cumbie is entitled to credit for size, history and good faith. The gravity is
high. Three employees were injured from their exposure to excessive levels of carbon monoxide.
Asbell was blacking out and vomiting. He was taken to the hospital and treated with oxygen and
placed in a hyperbaric chamber. Even after serval hours, Asbell’s carbon monoxide exposure
level exceeded four times the PEL adopted by OSHA.

OTHER THAN SERIOUS CITATION NO. 3
Item 1 - Violation of § 1926.102(a)(5)
The citation alleges that “the employer had not provided the employees with face and eye
protection that was adequate for the hazards of cutting concrete. Face shields and goggles were
the eye and face protection needed for cutting concrete.” Section 1926.102(a)(5) provides that:
Table E-1 shall be used as a guide in the selection of face and eye
protection for the hazards and operations noted.

   The standard requires an employer to use Table E-1 when selecting eye protection for its

employees. There is no dispute that employees were cutting concrete with a propane powered
saw and the job was “extremely dusty” (Tr. 263). IH Roesler testified, based on discussions with
employees, that safety glasses were provided for the concrete cutting in the computer room.

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According to Roesler, Table E-1 requires goggles to protect employees’eyes from the dust and
particulates arising from the concrete cutting operation (Tr. 154-155).
Gemmill testified that there were “safety goggles” but he could not remember whether
they were being worn by employees. He did not describe the “goggles,” and there is no indication
that Table E-1 was taken into consideration in making the selection (Tr. 217). Travis Asbell, saw
operator, testified that he did not wear any eye protection. Thus, Asbell’s testimony is unrefuted
and appropriate eye protection was not worn by employees.
Cumbie argues that on June 5, 1996, as alleged in the citation, the project was complete
and there was no showing of a violation on that date. The citation alleges the violation to have
occurred “on or about 6/5/96." The failure to use proper eye protection occurred May 30 to June
1, 1996, at the library project. The citation reasonably notifies Cumbie of the nature of the
violation and the date of occurrence. If not, the citation is amended sua sponte to reflect the
violation to have occurred on May 30- June 1, 1996. It is clear from the record that the failure to
properly select eye protection occurred at the library project. It was the subject of the hearing.
Cumbie did not object to the testimony of IH Roesler and is not prejudiced by the amendment (Tr.
154-155).
An “other” than serious violation of § 1926.55(b) is affirmed.

                               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


   Based upon the foregoing decision, it is ORDERED that:

CITATION NO. 1

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1. Item 1a, violation of § 1926.59(g)(8) and Item 1b, violation of § 1926.59(h), are
affirmed and a grouped penalty of $1,500 is assessed.
2. Item 1c, violation of § 1926.21(b)(2), is vacated.
3. Item 2a, violation of § 1926.103(e)(1); Item 2b, violation of § 1926.103(g)(2);
Item 2c, violation of § 1926.103(g)(4); and Item 2d, violation of § 1926.103(g)(5), are affirmed
and a grouped penalty of $2,300 is assessed.

CITATION NO. 2
1. Item 1a, violation of § 1926.55(b), is affirmed as serious and a penalty of $4,000 is
assessed.

CITATION NO. 3
1. Item 1, violation of § 1926.102(a)(5), is affirmed and no penalty is assessed.

                                                 /s/ Ken S. Welsch

                                           KEN S. WELSCH
                                           Judge

Date: July 2, 1998

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