Allstate Painting & Contracting Co., Inc.

Read the official release (oshrc.gov)

Plain-English summary

OSHA cited Allstate Painting for numerous toxic-exposure and fall-protection violations on an Ohio bridge project. Although Allstate held the subcontract, it had assigned its rights and obligations to American Painting, whose long-term employees performed and supervised the work. Applying the common-law employment test, the Commission found that Allstate did not hire, fire, discipline, train, supervise, equip, schedule, or pay the exposed workers. American controlled the project account, payroll, safety training, and daily work through its own principals and supervisors. The Commission also rejected estoppel because OSHA possessed the management agreement and employee records showing American's role and even relied on American's citation history. Because the Secretary failed to prove that Allstate was the employer, all citations and the judge's $42,500 penalty assessment were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1127; 29 C.F.R. § 1926.62; 29 C.F.R. § 1926.1118; 29 C.F.R. § 1926.55; 29 C.F.R. § 1926.451(g)(1)(i); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.501(b)(15)
• Outcome: All consolidated health and safety citations were vacated, with no penalties against Allstate.
• Key point: Contract labels do not create an employment relationship when another company actually controls the workers, payroll, supervision, training, and equipment.

Full text (OSHRC public release)

Allstate Painting and Contracting Co., Inc., Docket Nos. 97-1631 & 97-1727

United States of America

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 97-1631& 97-1727

ALLSTATE PAINTING AND CONTRACTINGCO., INC.,

Respondent.

DECISION

Before: RAILTON, Chairman, STEPHENS and ROGERS, Commissioners.

BY THE COMMISSION:

These consolidated cases arise out of citations charging Allstate Painting and Contracting
Co., Inc. (Allstate), with numerous health and safety violations. A total penalty of
$112,400 was proposed. Allstate contested the citations and argued as a threshold matter
that it was not properly cited as the employer of the exposed workers. The judge
disagreed and affirmed most of the alleged violations, assessing a total penalty of
$42,500.

On review, Allstate argues that the judge erred in concluding that Allstate was the
properly cited employer. For the reasons that follow, we agree with Allstate and reverse
the judge.

Background

The cited project involved the abrasive blasting and painting of bridges located
near Fairborn, Ohio, for the Ohio Department of Transportation (ODOT). Using its status
as a disadvantaged business entity, Allstate bid on and received a contract to perform the
job for The Velotta Company (Velotta), a contractor hired by ODOT to perform bridge
repairs for the project. Following the execution of its contract with Velotta, Allstate
entered into a “management agreement” with American Painting Company, Inc.
(American), wherein American agreed to perform the blasting and painting work.
American’s performance on its contract with Allstate was conditioned on Allstate’s
execution of an irrevocable assignment of payments from the Allstate/Velotta agreement
to American, and Velotta’s execution of a written acknowledgment of the assignment. An
irrevocable assignment to American of Allstate’s right, title and interest in the
Velotta/Allstate agreement was attached to the Allstate/American agreement and was
executed on the same day. Shortly thereafter, Velotta acknowledged the assignment.

In its agreement with American, Allstate agreed to purchase public liability
insurance and any bonds required by the Allstate/Velotta contract. For its services,
Allstate ultimately received approximately 4% of American’s net profits from the job. In
return, American agreed to provide all payroll services, including the withholding of taxes
and the allotment of contributions to employee health and welfare funds. American also
agreed to comply with prevailing wage laws, administer collective bargaining
agreements, and replenish funds on the project account if they became low. The contract
also stated that American would provide the services of “Anthony and/or Michael
Katsourakis” to supervise and direct “Allstate’s employees” at the worksite.

The record shows that Anthony Katsourakis ran the job with the assistance of his
brother Michael and long-time American employee Ed Luba. The workers for the project
were long-time employees of American whose hearing testimony indicates that they
considered themselves to be American, not Allstate, employees. The Katsourakis brothers
set the workers’ salaries and had the de-facto authority to hire and fire, and together with
Luba, discipline employees. Except for the Katsourakis brothers, the employees were paid
from a project checking account established in the American/Allstate contract that was
titled “Allstate” but to which only American principals had access. According to the
record, Allstate had no supervisors or managers at the worksite except during the OSHA
inspection, when it sent its superintendent and foreman Pete Topsidas to participate in the
conferences. There is nothing in the record to show whether any other Allstate employees
were ever present at the site.

Discussion

Only an “employer” may be cited for a violation of the Act, see 29 U.S.C. §
658(a), and the Secretary has the burden of proving that a cited respondent is the
employer of the affected workers at the site . Timothy Victory , 18 BNA OSHC 1023,
1995-1997 CCH OSHD ¶ 31,431 (No. 93-3359, 1997). In determining whether the
Secretary has satisfied that burden, the Commission relies upon the test set forth in
Nationwide Mutual Insurance Company v. Darden, 503 U.S. 316 (1992) (“ Darden ”).

Don Davis , 19 BNA OSHC 1477, 2001 CCH OSHD ¶ 32,402 (No. 96-1378, 2001);
Vergona Crane Co ., 15 BNA OSHC 1782, 1991-1993 CCH OSHD ¶ 29,775 (No. 88-1745, 1992) (“ Vergona ”). See also Weary v. Cochran , 377 F.3d 522 (6th Cir. 2004)
(relevant circuit follows Darden ).

To decide whether the party in question was an employer under common law, the
Darden Court looked primarily to the hiring party’s right to “control the manner and
means by which the product [was] accomplished.” Factors pertinent to that issue include
“the skill required for the job, the source of the instrumentalities and tools, the location of
the work, the duration of the relationship between the parties, whether the hiring party has
the right to assign additional projects to the hired party, the extent of the hired party’s
discretion over when and how long to work, the method of payment, the hired party’s role
in hiring and paying assistants, whether the work is part of the regular business of the
hiring party, whether the hiring party is in business, the provision of employee benefits
and the tax treatment of the hired party.” Darden , 503 U.S. at 322, citing Community for
Creative Non-Violence v. Reid, 490 U.S. 730 (1989). While no single factor under
Darden is determinative, the primary focus is whether the putative employer controls the
workers . See Don Davis, supra . We find that Allstate lacked such control here.

The judge based his finding that Allstate had enough control over the workers to
be considered their employer on the Allstate/Velotta contract language placing
responsibility on Allstate to perform the work, and on the Allstate/American contract
identifying American’s work crew as Allstate’s employees. He also relied on what he
considered to be other indicia of control, such as the evidence that the employees’
paychecks were issued from an “Allstate” account and that the site-specific worker
protection plan had Allstate’s name on it.

The record establishes, however, that Allstate did not control the hiring, firing or
disciplining of the workers at the site; did not supervise their work; and did not supply
them with equipment or safety gear. T he workers were long-term employees of
American, not of Allstate, and Allstate had no right to assign any additional projects to
them, regulate their arrival and departure time, or determine how they should do their
work. Allstate also did not handle the workers’ training, despite the fact that the name
Allstate was written on top of the project’s training sheets and safety plan. According to
the record, American employees Ed Luba or Anthony Katsourakis conducted all safety
training for the project.

Contrary to the judge’s finding, the record also establishes that American, not
Allstate, paid the workers. While the checking account from which the workers were paid
had an Allstate title, the Allstate/American contract provided that only American
principals would have signatory powers on the account. Therefore, Allstate never had
access to any of the funds that were used to pay the employees, and reserved no right to
issue or withhold any such payments. Allstate also could not increase the workers’
salaries. Therefore, based on this evidence, we find that Allstate cannot be said to have
controlled the workers on the cited project such that it could be considered their
employer. See Darden; see also Vergona.

We further note that in relying on Allstate’s contract with Velotta to support his
conclusion that Allstate retained control of th ëoers, the judge ignored the undisputed fact
that Allstate’s right, title and interest in the Allstate/Velotta contract were irrevocably
assigned to American pursuant to the Allstate/American contract, an assignment that was
acknowledged by Velotta.

T he assignment clauses in the Allstate/American contract and
the establishment of the project account identifying only American principals as
authorized signatories establish that Allstate had no right to assert control over the
workers or interfere with American’s performance obligations to Velotta.

We also disagree with the judge’s finding that the Katsourakises were acting as
agents on behalf of Allstate and that their control was therefore imputable to Allstate.
Under common law, an agency relationship arises where the principal has indicated a
right to control the conduct of the agent on the matter entrusted to him. See
RESTATEMENT (SECOND) OF AGENCY §§1 &2, (1958) ; cf. Eyerman v. Mary Kay
Cosmetics, Inc ., 967 F. 2d 213, 219 (6 th Cir. 1992) citing Hanson v. Kynast , 24 Ohio St.
3d 171, 494 N.E. 2d 1091 (1986) (an agency relationship contains three elements, one of
which involves the right of the principal to control the agent’s conduct); see also Councell
v. Douglas , 163 Ohio St. 292, 126 N.E. 2d 597 (1955) (under Ohio law, the relation of
principal and agent is identified by the retention by the principal of the right to control the
agent’s activities). The judge based his agency finding on the clause in the
Allstate/American contract requiring American to provide the on-site services of one or
more of the Katsourakis brothers to supervise and direct the employees of Allstate. The
contract clause, however, does not indicate that the Katsourakises would be under
Allstate’s control or even act on its behalf as its representative on site, and there was no
indication on this record that Allstate had any de facto control over the Katsourakis
brothers. At best, the Katsourakis brothers were independent contractors and this alone
does not amount to an agency relationship. See RESTATEMENT (SECOND) OF
AGENCY §2 (1958).

Finally, the Secretary claims on review that Allstate should be estopped from
denying its employer status based on misrepresentations it made to OSHA.

To make out
a case for estoppel based on misrepresentation, the r eliance on the misleading conduct
must have been reasonable; the party claiming estoppel must show that he did not know
nor should have known that his adversary’s conduct was misleading. Heckler v.
Community Health Serv. of Crawford County, Inc. , 467 U.S. 51, 59 (1984). While the
record does show that certain misrepresentations were made to the compliance officers
during the inspection that may have led them to identify Allstate as the responsible
employer, there was also evidence available to the compliance officers during and
following the inspection that should have placed them on notice that Allstate lacked the
type of control required to be considered the employer of the exposed employees. The
record establishes that the compliance officers were aware that Anthony Katsourakis was
a principal of American and that he was in charge of the site and the safety precautions.
All of OSHA’s dealings were with him, and according to OSHA Safety Specialist Steve
Medlock, Katsourakis identified the workers at the job as employees of American who
were being paid by Allstate. OSHA also had possession of biological monitoring records
for the exposed employees identifying American as the employer, as well as a copy of the
Allstate/American contract which contained the irrevocable assignment of Allstate’s
obligations to American and Velotta’s written acknowledgment. Moreover, we find it
significant that OSHA relied on American’s citation history in determining how to
characterize the alleged violations for which Allstate was cited. Under these
circumstances, OSHA should have realized that Allstate was not the employer for this
project.

For all of these reasons, we find that the judge erred in finding that Allstate was
the employer of the exposed workers. Accordingly, we vacate the citations.

S/

W. Scott Railton

Chairman

S/

James M. Stephens

Commissioner

S/

Thomasina V. Rogers

Commissioner

Dated: March 15, 2005

Secretary of Labor,

Complainant,

v.

Allstate Painting & Contracting Co.,
Inc.,

Respondent.

OSHRC Docket Nos.

97-1631 & 97-1727

(Consolidated)

APPEARANCES

Heather J. Joys, Esq.                                                    Michael S. Holman, Esq.

Office of the Solicitor                                                     Bricker & Eckler, L.L.P.

U. S. Department of Labor                               Columbus, Ohio

Cleveland, Ohio                                                                      For Respondent

For Complainant  

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

Allstate Painting & Contracting Co., Inc. (Allstate), a bridge abrasive blasting and
painting contractor, was inspected twice by the Occupational Safety and Health Administration
(OSHA) while it was working at two bridges along Interstate 675 near Fairborn, Ohio, during the
Summer of 1997. As a result of the inspections, Allstate received serious and “other” than
serious health citations (inspection no. 180489918) on August 14, 1997, and serious and willful
safety citations (inspection no. 103233342) on September 12, 1997. Allstate timely contested
the citations. The health and safety citations were consolidated for hearing.

The health citations (inspection no. 180489918) allege various violations of the
cadmium standards at § 1926.1127; the lead standards at § 1926.62

; the inorganic arsenic
standards at § 1926.1118; and the air contaminant standards at § 1926.55 for exposure to
manganese and chromium. The health citation proposed penalties totaling $54,400.

The safety citations (inspection no. 103233342) allege violations of the fall
protection requirements at §§ 1926.451(g)(1)(i), 1926.501(b)(1)

and 1926.501(b)(15). The
safety citations proposed penalties totaling $58,000.

The hearing was held February 23 to March 4, 1999, in Columbus, Ohio. During
the hearing, the Secretary withdrew from the serious health citation (inspection no. 180489918),
the alleged violations of § 1926.1127(i)(2)(ii)(item 5), § 1926.1127(j)(3)(i)(item 7a),
§ 1926.1118(m)(2)(i)(item 7b), § 1926.1127(j)(3)(ii)(item8a), § 1926.1118(m)(3)(ii)(item 8b)
and  § 1926.1118(n)(1)(i)(A)(item 17).

The parties stipulated jurisdiction and coverage (Tr. 6). In addition to disputing
the alleged violations, Allstate argues that OSHA’s inspection was discriminatory towards Greek
Americans; Allstate was not the employer on the project; OSHA’s air monitoring was invalid;
and, if violations are found, the violations should be reclassified as other than serious. These
arguments are rejected, and the violations are affirmed or dismissed based on the evidence in the
record. The parties filed post-hearing briefs.

Background

On January 22, 1997, the Velotta Company, a bridge repair subcontractor under a
general contract with the State of Ohio, Department of Transportation (ODOT), contracted with
Allstate to perform abrasive blasting and painting on 15 bridges along a seven mile section of
Interstate 675 in the area of Fairborn, Ohio. Allstate was given the contract pursuant to a special
state program for disadvantaged business enterprises. The general contractor was Jurgensen
Construction (Exh. C-1; Tr. 18, 193-194, 196-197).

On April 28, 1997, Allstate, in exchange for a percentage of the proceeds, hired
American Painting & Contracting, Inc. (American), also an abrasive blasting and painting
contractor, to “provide management services to assist Allstate in the completion of its
responsibilities set forth in the Subcontract Agreement with Velotta” (Exh. C-2). Under the
management agreement, American was to provide, among other things, two supervisors to
“direct the employees of Allstate,” furnish all “materials, equipment, tools, management, skill
and instrumentalities necessary for full and timely performance of all work,” and select “a
sufficient number of laborers to complete the services.” Work on the project started on May 9,
1997, and was completed on time in late August, 1997 (Tr. 196).

Two OSHA safety compliance officers, while returning from another inspection
on May 13, 1997, observed two Allstate employees climbing in the steel girders underneath a
bridge over Interstate 675. The employees were not wearing fall protection (Exh. C-14; Tr. 248,
284). As a result of their observations, the compliance officers performed a safety inspection
(inspection no. 103233342) resulting in citations for failing to provide fall protection.

Based on Allstate’s abrasive blasting work, the Cincinnati OSHA office also
conducted a health inspection of the project under a special emphasis program for lead in
construction (Tr. R-21; Tr. 334-336, 1070-1071, 1121-1122). Senior Industrial Hygienist (IH)
James Sweeney conducted the health inspection (Tr. 924). He performed air monitoring on two
dates at different bridges while the employees used abrasive blasting to clean the steel of old
paint and debris prior to painting.

During the abrasive blasting and painting, employees worked inside a large
temporary containment (approximately 60 feet long, 18 to 60 feet wide, and 18 feet high) made
from parachute material rigged from the bridge to ground level. The containment prevented dust
contaminants released during the abrasive blasting from harming the surrounding environment.
While inside the containment, the employees wore Bullard air supply helmets with a cape
covering their upper body, gloves, extra clothing and work boots. To perform the blasting,
Allstate used a System 10 abrasive blasting machine. The System 10 also allowed the used steel
grit to be vacuumed, cleaned and recycled for additional blasting (Exhs. C-51, R-58; Tr. 31-32,
69, 73, 534-535, 545, 938, 942).

IH Sweeney’s air monitoring was conducted on May 20, 1997, at a steel Core-10
overpass bridge (GRE-675-0895) (Tr. 935, 942). Employees John Jagars and Virgil Girten were
performing abrasive blasting inside the containment (Exh. C-58, Tr. 937, 971). The monitoring
results for Jagars showed a lead exposure level of 163 micrograms per cubic meter of air
(µg/m³), calculated as an 8-hour time weighted average (TWA); an inorganic arsenic exposure
level of 8.3 µg/m³ for an 8-hour TWA; and a cadmium exposure level of 1.63 µg/m³ for an 8-hour TWA (Exhs. C-21, C-23, C-43, C-59; Tr. 969). Girten was not monitored.

On June 4, 1997, IH Sweeney also conducted air monitoring on employees
working inside a containment erected at a railroad bridge (GRE-675-0615) (Exhs. C-45, C-46;
Tr. 939-940). Employees Tony Xipolitas and Mike Mavroudis were performing abrasive
blasting, while employee Steve Badurik periodically entered the containment to vacuum the used
steel grit (Tr. 973). The monitoring results found that the employees were exposed to lead in
excess of the permissible exposure level (PEL) of 50 µg/m³ for an 8-hour TWA and to cadmium
in excess of the PEL of 5 µg/m³ for an 8-hour TWA. Also, the results found the employees to be
exposed in excess of the PEL for inorganic arsenic and in excess of the threshold limit values
(TLV) for manganese and chromium (Exhs. C-22, C-24, C-59).

As a result of the health inspection (inspection no. 180489918), citations were
issued alleging violations involving the employees’ exposures to lead, cadmium, arsenic,
manganese, and chromium.

Discussion

Preliminary Matters

Selective Prosecution

Allstate argues that it was wrongly selected for inspection and citation because of
its Greek American ownership. Allstate alleges that discriminatory selection is shown by
OSHA’s targeting of abrasive blasting employers who are predominantly owned by Greek
Americans and by an alleged derogatory comment by IH Sweeney. The comment was made
during an argument over the scheduling of air monitoring when IH Sweeney allegedly called
Anthony Katsourakis, president of American Painting, a “damn Greek” (Tr. 173). Sweeney
denies making the comment (Tr. 985, 1102).

To establish an affirmative defense of selective prosecution, there must be
evidence of unreasonable conduct by OSHA. Hamilton Fixture , 16 BNA OSHC 1073, 1077
(No. 88-1720, 1993). The conscious exercise of some selectivity in enforcement is not in itself
unreasonable. Relief is available only if the decision to inspect is shown to have been
deliberately based on an unjustifiable standard such as race or religion or other arbitrary
classification. In U.S. v. Armstrong, 517 U.S. 456 (1996), the Supreme Court stated that a
person claiming selective prosecution:

[m]ust demonstrate that the prosecutorial policy had
a discriminatory effect and was motivated by a
discriminatory purpose.

To establish a discriminatory effect, the party must “show that similarly situated
individuals of a different race were not prosecuted.” Id at 465.

At the time of Allstate’s inspection, the Secretary was under a special emphasis
program involving “Lead in Construction” (Exh. R-21). The program established a procedure
for scheduling lead inspections. The program provided:

Inspection sites will be randomly selected for
inspection from the list compiled from the above
sources using a random numbers table. (This
selection process sets forth administratively neutral
criteria to identify establishments for inspection.)
As new sites are added they should be randomized
for inspection.

For scheduling lead inspections, the Cincinnati OSHA office obtained from
ODOT a list of bridge painting projects (Exh. R-34; Tr. 1074, 1078). OSHA agrees that most of
the bridge painting contractors in Ohio are owned by Greek Americans. IH Sweeney has
inspected many of the contractors in the past (Tr. 1079-1081, 1123-1124, 1127).

According to Allstate, there were many non-Greek American contractors among
other classes of lead employers which Sweeney overlooked (Tr. 176, 179-180). By selecting for
inspection Greek American employers, to the total exclusion of other employers, Allstate argues
that the program implemented by OSHA had a discriminatory effect. Given Sweeney’s racial
slur and his knowledge of the companies, Allstate alleges that its selection for inspection was
motivated by a discriminatory purpose.

Allstate’s selective prosecution argument is rejected. OSHA’s inspection was not
shown as motivated by prejudice towards Greek American employers. Allstate’s selection for a
health inspection resulted from an unplanned safety inspection because employees were
observed to be exposed to fall hazards without fall protection. When the safety inspection was
initiated, the compliance officers were unaware of the employer’s identity (Tr. 284-285). Upon
returning to the office, their observations were properly reported to supervisors who recognized
that the project involved abrasive blasting and was also within OSHA’s special emphasis
program for lead (Exh. R-21; Tr. 334, 1078). Richard Gilgrist, OSHA’s area director and
supervisor of industrial hygienists,

including Sweeney, testified that the health inspection was initiated after the referral from
the safety inspection and after finding the project was also listed by ODOT (Exh. R-34; Tr.
1121-1122, 1129).      The list obtained from ODOT identified only the location of the project
and not the employer (Tr. 1123). Also, according to OSHA, employers not involved in abrasive
blasting were inspected in 1997 because of potential lead exposures (Tr. 1074, 1129, 1135).

OSHA’s special emphasis program was implemented because of the serious
health hazards involved in employees’ exposure to lead. OSHA’s decision to inspect Allstate
was a reasonable response to the program. The program directed that lead inspections be
conducted based first on a referral and secondly on a planned inspection (Exh. R-21, p. 3). The
inspection of Allstate was not based on national origin but was more the result of a referral. In
scheduling inspections, OSHA needs to consider its manpower requirements and administrative
efficiency.

With regard to the ethnic slur allegedly used, IH Sweeney denied making the
comment and denied having any bias against Greek Americans (Tr. 985, 1102). CO Steven
Medlock, who observed the confrontation, heard no ethnic slur (Tr. 387-388, 395). However, an
apparent neutral third party, an employee with a state inspection company, testified that he did
overhear the derogatory comment (Tr. 780).

The statement, even if made, does not establish selective prosecution. Sweeney
did not select Allstate for inspection but was assigned the inspection by his office (Tr. 333-334,
1070, 1132). Also, Katsourakis agreed that the comment was made during a confrontation over
the scheduling of air monitoring. Both participants became emotional during the heated
argument (Tr. 171-172, 985, 1100). If said by IH Sweeney, the statement was clearly
inappropriate. However, it does not show that the inspection was motivated by discriminatory
purposes. In this context, it is not an indication of prejudice or basis. This conclusion is also
bolstered by listening to two days of IH Sweeney’s testimony and observing his demeanor in the
courtroom. He did not appear biased or show a lack of impartiality.

Furthermore, the facts offered by the Secretary establish a prima facie case of
alleged violations. There is no showing that the Secretary’s evidence was coerced, misleading or
fraudulently obtained. Much of the evidence is based on observations, air monitoring data and
employee interviews. John Jagars, an employee interviewed by IH Sweeney, testified that his
written statement reflected what was said and was not coerced in any way (Tr. 1345-1346, 1392-1393). Allstate is not relieved of its responsibility to comply with the Act.

Allstate Was the Employer

Allstate asserts that it was not the employer on the project. It claims that
American Painting & Contracting, Inc. (American), was the employer. Under the management
agreement with Allstate, American provided all of the services, equipment and supervision
necessary for Allstate to complete the bridge painting project. Specifically, American provided
(1) the on-site supervisory services of Michael Katsourakis and Anthony Katsourakis, both of
whom are in American’s management; (2) the payroll services, including payroll tax preparation,
bank deposits, contributions to employee health and welfare funds, payment of union dues, and
the preparation of certified payroll reports; (3) all materials, equipment, tools, management, and
skills needed to perform the job in a timely manner; (4) all documentation necessary for regular
payments to the project account; (5) per- formance and payment bonds to Allstate; and (6) a
sufficient number of laborers to complete the services required under the subcontract. The
contract payments were deposited in an Allstate project account, but the only authorized
signatures on the account were Ethel Katsourakis, Anthony Katsourakis and Michael
Katsourakis, all principals of American (Exh. C-2; Tr. 120-125, 200-202). In exchange, Allstate
received a percentage of the proceeds from the subcontract.

Under its subcontract agreement, however, Allstate was the employer ultimately
and contractually responsible for performing the work on the project. The responsibility for
assuring the completion of the work remained with Allstate. Allstate received the subcontract
because of its status as a disadvantaged business enterprise. Nick Hazinakis, president of
Allstate, signed the subcontract agreement binding Allstate “to furnish all labor, materials,
equipment, tools, management, skills and instrumentalities” necessary to fully and timely
complete the project (Exh. C-1; Tr. 21). Allstate remained contractually responsible for the
project.

Also, the management agreement with American provided that “Allstate wishes
to hire American Painting Company, Inc. (herein referred to as “American”), to provide
management services to assist Allstate in the completion of its responsibilities set forth in the
Subcontract Agreement with Velotta” (Exh. C-2). The employees working on the project
performing abrasive blasting and painting were specifically designated as employees of Allstate
under the management agreement. The agreement provided that American will:

[s]elect and secure for Allstate a sufficient number
of laborers to complete the services required by the
Subcontract Agreement, however, such laborers
shall be employees of Allstate.

The employees were paid with checks from Allstate’s account (Tr. 200). The
persons (Anthony Katsourakis and Michael Katsourakis) supervising the work of Allstate’s
employees, although owners of American, contracted to provide their supervisory skills to
complete Allstate’s project (Exh. C-2; Tr. 25). They acted as agents of Allstate and exercised
their supervisory authority on behalf of Allstate.

The Act and OSHA regulations place the burden of compliance on the employer.
An employer cannot shift its responsibility for the health and safety of its employees. Pride Oil
Well Service, 1991-1993 CCH OSHD ¶ 29,807, p. 40,587 (1992). With the exception of
Anthony Katsourakis and Michael Katsourakis, all of the employees who performed abrasive
blasting and painting activities on this project and were exposed to the hazards alleged were paid
by and identified as employees of Allstate (Exhs. C-3, C-57; Tr. 23, 381-382). The safety
programs and training materials used on the project identified Allstate as the employer (Exhs. C-8, R-10, R-11, R-12, R-13, R-14, R-55). The management agreement states that American shall
provide to Allstate services necessary to assist Allstate in its compliance with OSHA
requirements, “including any requirements involving paint removal and the Interim Lead
Standard” (Exh. C-2). The agreement is clear that it is Allstate who must comply with OSHA
requirements on the project.

The key factor in determining whether a party is an employer is whether it has the
right to control the work involved. An employer is liable for violations which it has the
authority to correct, whether or not it in fact has exercised that authority. The control of the
employees’ activities can be shared by more than one employer. Sam Hall & Sons, Inc. , 1980
CCH OSHD ¶ 24,927 (1980); Del-Mont Construction Co. , 1981 CCH OSHD ¶ 25,324 (1981).

Allstate was properly cited by OSHA as a responsible employer for OSHA
purposes. The Secretary is empowered with the “broad prosecutorial discretion” in deciding
who to prosecute for violations of the Act. DeKalb Forge Co. , 13 BNA OSHC 1146, 1153 (No.
83-299, 1987). Allstate’s motion to dismiss is denied.

The Validity of the Air Monitoring Results

IH Sweeney conducted air monitoring during Allstate’s abrasive blasting
operations on two dates and at two separate bridge locations (Tr. 925-926, 941). His air
monitoring found that three employees performing abrasive blasting and one employee
vacuuming inside the containment were exposed to airborne levels of cadmium, lead, inorganic
arsenic, manganese and chromium which, in some cases, exceeded the permissible exposure
limits or threshold limit values set by OSHA.

Allstate argues that the air monitoring results are invalid because the monitoring
samples were contaminated by dust and grit inadvertently entering the monitoring cassettes
when the equipment fell off during monitoring. Also, Allstate notes that IH Sweeney failed to
(1) observe the employees wearing the monitoring equipment inside the containment, (2) record
pump information, and (3) place the monitoring cassette within the employee’s breathing zone.
These failures further affected the monitoring results.

To conduct air monitoring, OSHA used an MSA air sampling pump, trigon tubing
and a double-A mixed cellulose-type filter resting on a backup pad inside a plastic cassette with
a diameter of 37 millimeters. The cassette was attached to the back of the employee’s blasting
helmet pointing downward and the pump was clipped to the employee’s belt. Any airborne
particles of possible contaminants are collected on the filter as the pump draws air from the
surrounding area through a small inlet hole in the plastic cassette. The captured air passes
through the filter, which collects the particles for analysis. The pump has a floating ball or
rotameter which sets a continuous flow rate (Exh. R-25; Tr. 942-943).

Abrasive blasting is performed while the employee stands on narrow scaffolding
placed under the steel girders. The blaster moves along the scaffold and gets into every
conceivable position (Tr. 646-647, 1224, 1381). John Jagars, the employee performing abrasive
blasting on May 20, 1997, described leaning up against steel beams, sitting on the scaffold while
straddling it, and laying with his back on the scaffold (Tr. 1379-1382). Jagars was sampled for
approximately five hours and refused to wear the monitoring equipment longer because it was
bothersome and he was getting into tighter areas (Tr. 970, 1223). The other abrasive blasters on
June 4, Tony Xipolitas and Mike Mavroudis, were observed working under similar conditions
(Tr. 1590-1591). Steve Badurik, the groundsman who was also monitored, was observed
vacuuming on his hands and knees (Tr. 1592).

According to John Jagars, during his monitoring, the hose detached from the
pump, the cassette came loose and the whole unit fell to the floor of the containment (Tr. 1387-1388, 1400-1401). He also stated that he set the monitoring unit on the scaffold and reattached it
when leaving the containment (Tr. 1402). After exiting the containment, Jagars testified that he
took his Bullard helmet off and laid it on the ground, apparently while the pump continued to run
(Tr. 1375-1376, 1583-1584). Sweeney agreed that Jagars “might have on that one occasion
gotten his stuff off very, very quickly before I could turn it off and cap it” (Tr. 1334-1335).

George Levendis, operator of the System 10 blasting machine on June 4, testified
that he observed the monitoring pumps and cassettes continually falling off the employees (Tr.
1581-1582, 1588-1589). He also stated that the cassette on Steve Badurik, groundsman, was
vacuumed into the recycling unit and had to be retrieved (Tr. 1592-1593).

There is no dispute that IH Sweeney was not inside the containment to observe
what was happening (Tr. 951). However, having considered the testimony and reviewed the
sampling data, Allstate’s arguments as to the validity of OSHA’s monitoring results is rejected.
The testimony of John Jagars and George Levendis is found unreliable and overstated. During
the hearing, they appeared hostile, and their testimony was unclear and in some cases erroneous.
For example, Levendis identified Virgil Girten among those whose pumps he claimed to have
retrieved. However, Girten was never sampled by OSHA (Tr. 1271, 1580, 1605-1606, 1611).
Also, Levendis testified to retrieving a pump from within the System 10 by opening a door
without turning the equipment off (Tr. 1592-1593, 1617). However, the person involved in
designing and selling the System 10 testified that the door must be closed for the system to
operate (Tr. 825).

IH Sweeney did note in his sampling records several incidents when the
monitoring cassette fell or came loose and needed to be reattached (Exhs. C-21, C-22; Tr. 952-955). However, those incidents were taken into account when recommending the citations by
pre- and post-calibrating the flow rates, periodically checking the pumps and filter for debris,
frequently changing filters and adjusting the TWA calculations (Tr. 946-949, 950, 952, 956-957,
961, 1327-1328).

IH Sweeney observed the condition of the pumps and cassettes before, during and
after each sampling and documented anything of concern (Exhs. C-21, C-22). One sample was
discarded because it was damaged. The cassettes he retrieved were in the same location and
same condition as when he originally attached them (Tr. 951, 953-954, 961-962, 1323).

Ray Abel, supervisory chemist from OSHA’s Salt Lake City Laboratory, testified
that employees in the lab noticed nothing wrong in the condition of the cassettes or filters (Exhs.
C-23, C-24; Tr. 464, 479, 482, 484-485). The laboratory would have detected air versus non-air
contamination (Tr. 1228). Abel described the quality control procedures in his laboratory to
insure the integrity of the analysis. His review of the laboratory analysis did not show that any
grit was detected on any of the samples (Tr. 610-611). Edward Foley, Allstate’s expert, saw
nothing in the analytical reports provided by the laboratory to suggest that the samples were
contaminated (Tr. 1503).

Also, the cassettes which fell as described by Jagars and Levendis may have been
one of the cassettes placed inside the blasting helmet and not considered by OSHA for exposure
levels (Tr. 962). Allstate had requested an additional cassette inside the employee’s blasting
helmet. Further incidents such as disconnected pump tubing, a dead pump battery, and a
destroyed pump more likely would have resulted in lower recorded levels of contaminants than
reality. Under such conditions, the pump would cease drawing air through the filter (Tr. 606,
608-609, 1232, 1236, 1329).

Allstate’s additional arguments involving compliance with the OSHA technical
manual are speculative as to the affect on the monitoring results. There is no dispute that IH
Sweeney did not fully comply with recommended practices of the technical manual. However,
the manual’s purpose is to promote agency efficiency and not to create an administrative strait
jacket. Del Monte Corporation, 9 BNA OSHC 2136, 2140 (No. 11865, 1981). The Commission
has consistently found that the manual does not confer procedural or substantive rights on
employers. Caterpillar, Inc., 15 BNA OSHC 2153, 2173 n. 24 (No. 87-922, 1993).

IH Sweeney complied with the intent of the OSHA technical manual. His failure
to observe the blasting work and record pump information was not shown to have invalidated the
monitoring results. Sweeney did not enter the containment because he lacked appropriate
protective equipment. Similarly, although IH Sweeney did not record the pump reading during
sampling, he did check the pumps to assure that the readings remained consistent.  

With regard to the placement of the cassettes, the OSHA technical manual states,
when generally sampling for air contaminants, “attach the collection device to the shirt collar or
as close as practical to the nose and mouth of the employee, i.e. , in a hemisphere forward of the
shoulders with a radius of approximately 6 to 9 inches.” However, there are exceptions, such as
for welding fumes (Exh. R-25). Although OSHA is not required to absolutely follow the
procedures outlined in its technical manual, the Review Commission accords the guidelines
significance and it is probative evidence of the proper sampling technique. FMC Corp ., 5 BNA
OSHC 1707, 1710 (No. 13155, 1977).

The court is satisfied that, during abrasive blasting, placing the sampling cassette
in the back of the blasting helmet is an acceptable location to ascertain the level of employee
exposure. Also, such placement is more favorable to Allstate. The placement of the cassette on
the shoulder would have resulted in higher results caused by the dust hurricane generated during
the blasting operation. This was confirmed by the Secretary’s expert, John Cignatta, who has
regularly performed and reviewed monitoring data obtained during abrasive blasting (Tr. 598-599). He has sampled with the cassette behind the blasting helmet and considers the method
more appropriate than placing the cassette on the shoulder (Exh. C-39). Cignatta, who has
performed air monitoring on a number of abrasive blasting projects, found OSHA’s monitoring
results consistent with his expectation (Tr. 614-615, 617).

OSHA’s monitoring results are accepted to establish the levels of lead, cadmium,
inorganic arsenic, manganese and chromium exposure.

Alleged Violations

SERIOUS HEALTH CITATION (Inspection No. 180489918)

Items 1a, 13a, 20a, 25a and 26a - Alleged Violations

of §§ 1926.1127(c), 1926.1118(c), 1926.62(c)(1), and 1926.55(a)

The citation alleges that on June 4, 1997, two employees performing abrasive
blasting and one employee vacuuming were exposed to airborne concentrations of cadmium
(item 1a), inorganic arsenic (item 13a), and lead (item 20a) in excess of the permissible exposure
level (PEL). Also, the citation alleges that an employee performing abrasive blasting on May
20, 1997, was exposed to lead in excess of the PEL and one employee performing abrasive
blasting on June 4, 1997, was exposed to airborne manganese (item 25a) and chromium (item
26a) at concentration levels which exceeded the threshold limit value (TLV).

Section 1926.1127(c) provides:

The employer shall assure that no employee is
exposed to an airborne concentration of cadmium in
excess of five micrograms per cubic meter of air
(5µg/m³), calculated as an eight-hour time-weighted
average exposure (TWA).

Section 1926.1118(c) provides:

The employer shall assure that no employee is
exposed to inorganic arsenic at concentrations
greater than 10 micrograms per cubic meter of air
(10µg/m³), averaged over any 8-hour period.

Section 1926.62(c)(1) provides:

The employer shall assure that no employee is
exposed to lead at concentrations greater than fifty
micrograms per cubic meter of air (50 µg/m³)
averaged over an 8-hour period.

Section 1926.55(a) provides:

Exposure of employees to inhalation, ingestion,
skin absorption, or contact with any material or
substance at a concentration above those specified
in the “Threshold Limit Values of Airborne
Contaminants for 1970” of the American
Conference of Governmental Industrial Hygienists,
shall be avoided. See Appendix A to this section.

The May 20, 1997, air monitoring was performed at a Core-10 bridge (GRE-675-0895) and one employee (John Jagars) was sampled. Jagars’ monitoring results showed lead
exposure outside the helmet

of 163 µg/m³, arsenic exposure of 8.3 µg/m³ and cadmium
exposure of 1.63 µg/m³ calculated on an 8-hour TWA (Exhs. C-21, C-29, C-43, C-59; Tr. 972-973).

On June 4, 1997, air monitoring was also performed at the railroad bridge (GRE-675-0615) on abrasive blasters Tony Xipolitas and Mike Mavroudis and groundsman Steve
Badurik (Tr. 974). The monitoring results for Tony Xipolitas showed a lead exposure of 3,170
µg/m³, arsenic exposure of 17.3 µg/m³, and cadmium exposure of 39 µg/m³ calculated on an 8-hour TWA. Xipolitas’ monitoring also showed a chromium exposure of 1.26 µg/m³. The air
monitoring of Mike Mavroudis found a lead exposure of 2,500 µg/m³, arsenic exposure of 101
µg/m³, and cadmium exposure of 51.5 µg/m³, calculated on an 8-hour TWA. Mavroudis’
monitoring also found exposure to manganese of 12 µg/m³ for 116 minutes and 110 µg/m³ for 63
minutes. The air monitoring results for Steve Badurik showed a lead exposure of 271 µg/m³,
arsenic exposure of 15.2 µg/m³, and cadmium exposure of 5.83 µg/m³ (Exhs. C-22, C-30, C-31,
C-32, C-43, C-59; Tr. 978-979, 1044-1045, 1053, 1055).  

There is no dispute that exposure to lead, cadmium, inorganic arsenic, manganese
and chromium can cause serious health problems. Lead exposure is known to cause birth defects
and adverse affects to the blood forming system, reproductive system, nervous system and
urinary system (Tr. 980-981, 994). Exposure to cadmium is known to cause cancer, kidney
damage and lung damage (Tr. 981). Cadmium can be ingested or inhaled (Tr. 982). Exposure to
arsenic can cause lung cancer. It is also a systemic poison (Tr. 981). Manganese causes
problems with the central nervous system and adverse behavioral effects (Tr. 993). Chromium
can produce nodular pulmonary disease and reduced lung function (Tr. 982).

The record indicates that such airborne contaminants are reasonably anticipated
during abrasive blasting on bridges. John Cignatta, the Secretary’s expert, testified that a bridge
painted with a zinc rich prime coat, such as the railroad bridge (GRE-675-0615), always has lead
present in the zinc. Also, the paint on the bridge was peeling, suggesting that additional coats
containing lead may have been present (Tr. 548-549). He identified cadmium and arsenic also as
a very common additive in older paints (Tr. 549-552). Manganese and chromium were
described as trace alloy contaminants found in the bridge steel and the steel grit used for abrasive
blasting (Tr. 550-551). According to John Cignatta, old railroad bridges would always concern
him because of the possible presence of such heavy metals (Tr. 551-552).

On May 15, 1997, Allstate contracted Aapex Analytical, Inc., to conduct air
monitoring on the project (Exh. C-5). The sampling time was approximately 242 minutes, and
one sample involved the same railroad bridge, GRE 675-0615.

Aapex’s air monitoring found
the presence of lead, but identified the lead exposure levels for John Jagars and Mike Mavroudis
to be less than 21µg/m³.

Aapex’s monitoring results do not show Allstate acted with reasonable diligence
to conclude that the contaminants were not present in levels exceeding the applicable limits.
Allstate does not dispute that Aapex did not perform full-shift monitoring and did not test for air
contaminants, other than lead (Allstate Brief, p. 36; Tr. 39-40). Aapex’s air monitoring was not
representative. See § 1926.62(d)(1)(iv). Allstate should have known of the presence of
cadmium, inorganic arsenic, manganese and chromium.

Other than disputing the reliability of the monitoring, Allstate does not raise other
arguments. Items 1a, 13a, 20a, 25a and 26a are affirmed.

Items 1b, 13b, 20b, 25b and 26b - Alleged Violations

§§ 1926.1127(f)(1)(i), 1926.118(g)(1)(i), 1926.62(e)(1), and 1926.55(b)

The citation alleges that on June 4, 1997, the containment used to perform
abrasive blasting at the railroad bridge (GRE-675-0615) had no high volume dust collection
system or local exhaust ventilation system to minimize employee exposures to airborne
cadmium (item 1b), inorganic arsenic (item 13b), lead (item 20b), manganese (item 25b) and
chromium (item 26b).

Section 1926.1127(f)(1)(i) under the cadmium standards provides in part:

the employer shall implement engineering and work
practice controls to reduce and maintain employee
exposure to cadmium at or below the PEL, except
to the extent that the employer can demonstrate that
such controls are not feasible.

Similarly, engineering and work practice controls are required to be implemented
whenever feasible to reduce employees’ exposure below the applicable PEL or TLV, under the
inorganic arsenic standard at § 1926.1118(g)(1)(i), under the lead standard at § 1926.62(e)(1),
and for other airborne contaminants such as manganese and chromium under the standard at
§ 1926.55(b). As discussed, the record establishes that on June 4, Mavroudis, Xipolitas and
Badurik were exposed to cadmium, inorganic arsenic and lead in excess of the applicable PEL,
and manganese and chromium in excess of their TLV.

There is no dispute that the use of a dust collection system or local exhaust
ventilation system minimizes the abrasive blaster’s exposure (Tr. 997, 1029-1030, 1045-1046).
Allstate recognizes the need for ventilation systems as an engineering control in its lead and
cadmium programs (Exhs. C-61, R-55).

The issue in dispute is whether Allstate used a dust collection system during the
June 4 abrasive blasting operation.

The Secretary maintains that there was no dust collection
system. IH Sweeney testified that in checking the containment, he did not see a dust collection
system (Tr. 974, 1045, 1053, 1094, 1255, 1312-1313). He also stated that Anthony Katsourakis
and Steve Badurik agreed during their interviews (Tr. 974). His notes show Badurik as stating,
“I don’t recall any ventilation inside the containment on the day I was sampled by OSHA, 6-4-97” (Exh. C-56).

Allstate claims that dust collection was used on June 4. According to John Jagars,
an abrasive blaster, on May 20, 1997, a dust collector was operating any time there was blasting,
otherwise the visibility would be very poor (Tr. 1355, 1397). Edward Luba, groundsman and
quality control, testified that he set up the dust collector and hoses at both the May 20 and June 4
containments. As far as he knew, the dust collector was operating (Tr. 1535-1536). George
Levendis, also a groundsman who operates the System 10, was certain the dust collection system
was operating (Exh. R-56; Tr. 1576,1587). Another employee, Scott Whitmyer, who performed
painting, sandblasting and rigging, testified that he rigged the dust collection equipment and
hoses for the containment. However, he was not on the project on June 4 during OSHA’s air
monitoring (Tr. 1656-1657). Anthony Katsourakis also testified that dust collection equipment
was at the containment (Exh. R-57; Tr. 1716-1717).

The weight of the evidence indicates, however, that a dust collection system was
not operating during the June 4 abrasive blasting. IH Sweeney did not see a system during his
approximate 8 hours on site performing air monitoring. Sweeney has conducted a number of
inspections involving abrasive blasting and is familiar with dust collection systems

(Tr. 924,
1079-1081). The testimony of Allstate’s witnesses is conflicting as to who supposedly set up the
system (Luba or Whitmyer) and involves employees who were not present during OSHA’s air
monitoring (Jagars, Whitmyer and Katsourakis). Also, the reliability of Levendis’ testimony has
previously been discussed.

Even if Allstate’s dust collection system was operating, John Cignatta, the
Secretary’s expert, testified that additional engineering controls were feasible. He recommended
a smaller containment, a more effective ventilation system with a dust collector and louvers
(Exh. C-53; Tr. 561, 565-566, 745-746). If implemented, Cignatta anticipated a 50-percent
reduction in the employees’ exposure levels (Tr. 749). Allstate did not challenge Cignatta’s
recommended additional engineering controls. Allstate is required to implement all feasible
controls (Tr. 997-998). Items 1b, 13b, 20b, 25b and 26b are affirmed.

Items 1c and 13c - Alleged Violations

of §§ 1926.1127(f)(5)(i) and 1926.1118(g)(2)(i)

The citation alleges that Allstate did not implement a written compliance program
for cadmium (item 1c) or inorganic arsenic (item 13c) prior to the commencement of the project.

Section 1926.1127(f)(5)(i) provides:

Where employee exposure to cadmium exceeds the
PEL and the employer is required under paragraph
(f)(1) of this section to implement controls to
comply with the PEL, prior to the commencement
of the job the employer shall establish and
implement a written compliance program to reduce
employee exposure to or below the PEL. To the
extent that engineering and work practice controls
cannot reduce exposures to or below the PEL, the
employer shall include in the written compliance
program the use of appropriate respiratory
protection to achieve compliance with the PEL.

Section 1926.1118(g)(2)(i) under the inorganic arsenic standard provides:

The employer shall establish and implement a
written program to reduce exposures to or below the
permissible exposure limit by means of engineering
and work practice controls.

The Secretary argues that a copy of Allstate’s cadmium compliance program was
not provided to OSHA during the inspection (Tr. 998-999).

Although no reason was given for not furnishing OSHA with a copy, Allstate
offered its cadmium compliance program at the hearing (Exh. R-55). The written program
describes the use of engineering controls and respirator protection. The Secretary identifies no
deficiencies. The fact that OSHA was not given a copy does not establish a violation.

On the other hand, a copy of Allstate’s arsenic compliance program was
requested and received by OSHA (Exh. C-60). According to IH Sweeney, Allstate failed to use
the engineering controls on June 4, 1997, required by its written program.

The failure to use the engineering controls, which is the subject of another
citation, does not mean that Allstate failed to have a written program. However, Allstate’s
written program did not contain, as required, any plans and studies used to determine the
methods selected for reducing arsenic exposure, reports of technology considered in meeting the
PEL, monitoring data, or a schedule for implementing engineering controls (Tr. 1034). Allstate
does not dispute these deficiencies in its written program (Allstate Brief, p. 34).

Item 1c is vacated. Item 13c is affirmed.

Item 2a - Alleged Violation of § 1926.1127(d)(1)(i)

The citation alleges that Allstate did not perform any scrape or other sampling to
detect the presence of cadmium. Section 1926.1127(d)(1)(i) provides:

Prior to the performance of any construction work
where employees may be potentially exposed to
cadmium, the employer shall establish the
applicability of this standard by determining
whether cadmium is present in the workplace and
whether there is the possibility that employee
exposures will be at or above the action level. The
employer shall designate a competent person who
shall make this determination. Investigation and
material testing techniques shall be used, as
appropriate, in the determination. Investigation
shall include a review of relevant plans, past
reports, material safety data sheets, and other
available records, and consultation with the
property owner and discussions with appropriate
individuals and agencies.

Allstate concedes that no determination for cadmium was made on the project
(Allstate Brief, p. 29). The air monitoring performed by Aapex Analytical, Inc., on behalf of
Allstate sampled for the presence of lead only (Exh. C-5, Tr. 39-40). Allstate failed to perform
air or scrape sampling to determine the presence of cadmium (Tr. 1000-1001). Also, there is no
showing that it reviewed relevant plans, past reports, material safety data sheets (MSDS), other
records, or consulted with state officials to determine if cadmium was present. Item 2a is
affirmed.

Item 2b - Alleged Violation of § 1926.1127(d)(2)(i)

The citation alleges that Allstate did not conduct air sampling to measure airborne
cadmium levels for employees during the abrasive blasting operation. Section
1926.1127(d)(2)(i) provides in part:

where a determination conducted under paragraph
(d)(1)(i) of this section shows the possibility of
employee exposure to cadmium at or above the
action level, the employer shall conduct exposure
monitoring as soon as practicable that is
representative of the exposure for each employee in
the workplace who is or may be exposed to
cadmium at or above the action level.

The air sampling performed for Allstate on this project related only to lead
exposure (Exh. C-5). Allstate offered no evidence that it considered or sampled for the presence
of cadmium. Also, the sampling done by Aapex was not representative because it did not
include the employee vacuuming the used steel grit.

Allstate’s argument that since no determination was made, as required in item 2a
above, there can be no violation of § 1926.1127(d)(2)(i), is rejected (Allstate Brief, p. 29). The
standards address separate abatements. Section 1926.1127(d)(1)(i) involves a determination
prior to commencing work of the possibility of cadmium exposure. Section 1926.1127(d)(2)(i)
requires representative air monitoring to determine the exposure level for each employee. Item
2b is affirmed.

Items 3a and 15a - Alleged Violations

of §§ 1926.1127(e)(1) and 1926.1118(f)(1)

The citation alleges that a cadmium (item 3a) or an arsenic (item 15a) regulated
area was not established for each abrasive blasting containment.

Section 1926.1127(e)(1) provides:

The employer shall establish a regulated area
wherever an employee’s exposure to airborne
concentrations of cadmium is, or can reasonably be
expected to be in excess of the permissible exposure
limit (PEL).

Similarly, § 1926.1118(f)(1) provides:

The employer shall establish regulated areas where
worker exposures to inorganic arsenic, without
regard to the use of respirators, are in excess of the
permissible limit.

The Secretary argues that Allstate did not establish a regulated area to prevent
cadmium or arsenic exposure to other employees (Tr. 1037-1039). There is no dispute that
Allstate’s abrasive blasting was performed inside a containment consisting of tarps hung from
the bridge. Access to the containment was limited to employees properly clothed and equipped
with personal protective equipment (Exhs. R-32, R-37). The employees who entered the
containment wore Bullard air supply helmets with capes, gloves, extra clothing and work boots
(Tr. 938).

OSHA defines a “regulated area” under the cadmium standard as “an area
demarcated by the employer where employee’s exposure to airborne concentrations of cadmium
exceeds, or can reasonably be expected to exceed the permissible exposure limit (PEL).” See
definitions at § 1926.1127(b). Similarly, under the arsenic standard, a regulated area is defined
as “an area demarcated and segregated from the rest of the workplace which minimizes the
number of persons exposed to arsenic; where access is limited to employees wearing proper
clothing and equipment including respirators and where the consumption of food or beverages is
prohibited.” See § 1910.1118(f).

As defined by OSHA, the containment used to perform the abrasive blasting was
a regulated area. Access to Allstate’s containment was limited to employees properly clothed
and equipped with air feed respirators. There is no evidence that employees, not properly
equipped, were permitted in the containment. Also, there is no evidence that employees
consumed food or beverages inside the containment. Although the containment was erected to
prevent the release of airborne lead into the environment, it also functioned to regulate
employees’ exposure to air contaminants, including cadmium and arsenic. Items 3a and 15a are
vacated.

Items 3b, 15b and 24 - Alleged Violations of

§§ 1926.1127(m)(2), 1926.1118(p)(2)(i) and 1926.62(m)(2)(i)

The citation (item 3b) alleges cadmium warning signs bearing the information
that “DANGER. CADMIUM. CANCER HAZARD. CAN CAUSE LUNG AND KIDNEY
DISEASE. AUTHORIZED PERSONNEL ONLY. RESPIRATORS REQUIRED IN THIS
AREA” were not posted at the containments. Section 1926.1127(m)(2) provides:

(i) Warning signs shall be provided and displayed
in regulated areas. In addition, warning signs shall
be posted at all approaches to regulated areas so
that an employee may reach the signs and take
necessary protective steps before entering the area.

Subsection (ii) identifies the information that must be on the warning sign.

The citation (item 15b) also alleges that arsenic warning signs were not posted at
the containments where abrasive blasting was performed. Section 1926.1118(p)(2)(i) provides:

The employer shall post signs demarcating
regulated areas bearing the legend; DANGER
INORGANIC ARSENIC CANCER HAZARD
AUTHORIZED PERSONNEL ONLY NO
SMOKING OR EATING RESPIRATOR
REQUIRED

Further, the citation (item 24) alleges that lead warning signs were not posted
where abrasive blasting was performed. Section 1926.62(m)(2)(i) provides:

The employer shall post the following warning
signs in each work area where an employees
exposure to lead is above the PEL. WARNING
LEAD WORK AREA POISON NO SMOKING
OR EATING

IH Sweeney testified that he did not observe any warning signs “anywhere on the
project” (Tr. 1002-1004, 1051). Allstate agrees that there were no posted arsenic warning signs
(Allstate Brief, p. 34; Tr. 1037-1038). Also, Allstate does not dispute the lack of cadmium
warning signs.

George Levendis, operator, testified that a lead warning sign was taped on the
front of the System 10 (Tr. 1565). As stated, the testimony of Levendis is not reliable. There is
no showing that a warning sign was posted at the entrance to the containment. By failing to
properly post warning signs, employees were not advised of the precautions to take and the
adverse health effects of cadmium, lead and arsenic. Items 3b, 15b and 24 are affirmed.

Items 4a, 4b and 4c - Alleged Violations

of §§ 1926.1127(i)(1), 1926.62(g)(1) and 1926.1118(j)(1)

The citation alleges that Allstate did not provide employees with work shoes and
outer protective clothing to prevent exposure to cadmium (item 4a), lead (item 4b) and arsenic
(item 4c). Section 1926.1127(i)(1) provides in part:

If an employee is exposed to airborne cadmium
above the PEL or where skin or eye irritation is
associated with cadmium exposure at any level, the
employer shall provide at no cost to the employee,
and assure that the employee uses, appropriate
protective work clothing and equipment that
prevents contamination of the employee and the
employee’s garments.

Section 1926.62(g)(1) provides:

Where an employee is exposed to lead above the
PEL without regard to the use of respirators, where
employees are exposed to lead compounds which
may cause skin or eye irritation (e.g. lead arsenate,
lead azide), and as interim protection for employees
performing tasks as specified in paragraph (d)(2) of
this section, the employer shall provide at no cost to
the employee and assure that the employee uses
appropriate protective work clothing and equipment
that prevents contamination of the employee and
the employee’s garments.

Section 1926.1118(j)(1) provides:

Where the possibility of skin or eye irritation from
inorganic arsenic exists, and for all workers
working in regulated areas, the employer shall
provide at no cost to the employee and assure that
employees use appropriate and clean protective
work clothing and equipment.

The related standards further identify the required protective work clothing and
equipment, such as coveralls, gloves, boots, face shields and full-body work clothing.

IH Sweeney testified that certain employees wore only their own personal pants,
which they purchased as outer protective clothing and that all employees wore their own
personal work boots (Tr. 1005-1006). Based on written interview statements, the Secretary
maintains that Virgil Girten wore his own clothing; and Girten, Xipolitas and Mavroudis wore
their own work shoes (Exh. C-56). Girten, Xipolitas and Mavroudis did not testify.

The record fails to establish a violation. The Secretary’s reliance on written
interview statements is misplaced. The statements from Girten, Xipolitas and Mavroudis are
unclear and not given under oath (Exh. C-56). For example, Girten states that Allstate “pays for
the overalls.” He also states later that “Tony (Katsourakis) makes available uniform style shirts
and pants, but I wear jeans and sweatshirts that I purchase.” Xipolitas also agrees that Allstate
pays for the uniform shirt and pants. He does not discuss his work boots.

Also, the statements do not show whether the employees were asked if they were
reimbursed for their purchases. The employees who did testify stated uniformly that their
purchases of work boots and outer clothing were reimbursed by Allstate or they used the
company credit card. John Jagars, abrasive blaster, testified that Tony Katsourakis reimbursed
him for the purchase of boots (Tr. 1348-1349, 1353-1354). Similarly, George Levendis,
groundsman, testified that he was reimbursed (Tr. 1567). Scott Whitmyer, abrasive blaster and
painter, and Edward Luba, groundsman, stated that they sometimes used the company credit card
for purchases (Tr. 1537, 1634, 1655, 1694). Items 4a, 4b and 4c are vacated.

Items 6a, 6b and 6c - Alleged Violations of

§§ 1926.1127(i)(3)(iii), 1926.1118(j)(2)(viii) and 1926.62(g)(2)(viii)

The citation alleges that at least two abrasive blasting employees exposed to
cadmium (item 6a), arsenic (item 6b) and lead (item 6c) routinely used compressed air to blow
off their clothing before eating lunch.

Section 1926.1127(i)(3)(iii) provides:

The employer shall prohibit the removal of
cadmium from protective clothing and equipment
by blowing, shaking, or any other means that
disperses cadmium into the air.

Section 1926.1118(j)(2)(viii) provides:

The employer shall prohibit the removal of
inorganic arsenic from protective clothing or
equipment by blowing or shaking.

Section 1926.62(g)(2)(viii) provides:

The employer shall prohibit the removal of lead
from protective clothing or equipment by blowing,
shaking, or any other means which disperses lead
into the air.

John Jagars and Virgil Girten, in their written interviews, stated that they used
compressed air to blow dust off their clothing before exiting the containment (Exh. C-56,
Tr. 1009-1010). Jagars similarly testified at the hearing (Tr. 1355, 1374). Allstate does not
dispute that employees used compressed air to blow off their clothing (Allstate Brief, p. 30;
Tr. 80). Allstate’s written lead program provides that “at no time will compressed air be used for
cleanup outside the contained and ventilated area” (Exh. C-62).

Sweeney did not see compressed air being used. Since compressed air was used
inside the containment, any cadmium, arsenic and lead was confined to the containment and
collected by the dust ventilation system (Tr. 1270, 1355). The airborne concentrations of
cadmium and lead were not “dispersed into the air.” Inside the containment, employees wore
Bullard air supply helmets, capes and protective clothing (Tr. 1270). After the employees exited
the containment, George Levendis, groundsman, vacuumed them off using a HEPA vacuum
(Tr. 1374, 1593). Also, Girten was not monitored and there was no evidence that Girten was
exposed to any contaminated dust. Items 6a, 6b and 6c are vacated.

Item 7c - Alleged Violation of § 1926.62(i)(3)(ii)

The citation alleges that one employee exposed to lead did not shower at the end
of the work shift. Section 1926.62(i)(3)(ii) provides:

The employer shall assure, where shower facilities
are available, that employees shower at the end of
the work shift and shall provide an adequate supply
of cleansing agents and towels for use by affected
employees.

The Secretary relies on the interview statement of Virgil Girten, who told IH
Sweeney that he did not regularly shower at the end of his shift (Exh. C-56; Tr. 1011-1012).
Girten, who performed both abrasive blasting and painting work, stated that he preferred to
shower in his motel room (Exh. C-56; Tr. 1362).

Girten did not testify and was not monitored for exposure to lead during OSHA’s
air monitoring. The employees who did testify stated that showers were available and used.
Girten, in his statement, described the shower trailer as having “soap, shampoo, clean towels,
warm water and separate lockers for clean street clothing” (Exh. C-56).

Allstate’s policy required employees to shower (Exhs. C-61, C-62). If Girten was
not showering, there is no showing that Allstate knew or should have known of Girten’s failure
to use the shower trailer. Also, there is no showing that Girten’s painting work exposed
employees to airborne lead concentrations which would require a shower (Tr. 1363-1364).
Girten’s statement is not clear whether he was referring solely to the blasting operations. Item
7c is vacated.

Item 8c - Alleged Violation of § 1926.62(i)(4)(iii)

The citation alleges that an abrasive blasting employee exposed to airborne lead
failed to wash his face prior to eating lunch. Section 1926.62(i)(4)(iii) provides:

The employer shall assure that employees whose
airborne exposure to lead is above the PEL, without
regard to the use of a respirator, wash their hands
and face prior to eating, drinking, smoking or
applying cosmetics.

The employees ate their lunch alongside the expressway (Tr. 1014). IH Sweeney
testified that Virgil Girten, an employee performing abrasive blasting on May 20, 1997, stated
that he did not wash his face prior to eating. He washed his hands (Exh. C-56; Tr. 1280).
Sweeney observed Girten eating his lunch (Tr. 1012-1013).

The standard applies if the employee’s exposure is above the PEL for lead. Virgil
Girten was not monitored and his exposure level was not ascertained. Although Girten’s
exposure was not monitored, the Secretary argues that he performed the same job and was in the
same containment as John Jagars, another employee performing abrasive blasting (Tr. 1013-1014). Jagars’ air monitoring results showed lead exposure of 163 µg/m³, three times higher
than the PEL for lead. Although Jagars results are accepted, the record fails to establish that
Girten’s lead exposure exceeded the PEL. It was not shown that Girten was in the containment
for the same amount of time, during the same periods and in the same locations as Jagars. IH
Sweeney was not in the containment and did not observe Girten (Tr. 951).

Further, Allstate’s written lead training program requires employees to wash their
faces and hands prior to eating. It directs employees not to enter the eating area “until
appropriate decontamination procedures have been completed, including washing their face and
hands thoroughly” (Exh. C-62). There is no showing that Allstate was aware of Girten’s failure
to completely wash. Other employees did properly wash. Item 8c is vacated.

Item 9a, 9b, and 9c - Alleged Violations of

§§ 1926.1127(j)(4)(ii), 1926.62(i)(4)(iv), and 1926.1118(m)(5)

The citation alleges that HEPA filtered vacuums were not provided or were not
used by employees exposed to cadmium, lead, and arsenic to suction surface dust off their
clothing before eating lunch.  

Section 1926.1127(j)(4)(ii) provides:

The employer shall assure that employees do not
enter lunchroom facilities with protective work
clothing or equipment unless surface cadmium has
been removed from the clothing and equipment by
HEPA vacuuming or some other method that
removes cadmium dust without dispersing it.

Section 1926.62(i)(4)(iv) provides:

The employer shall assure that employees do not
enter lunchroom facilities or eating areas with
protective work clothing or equipment unless
surface lead dust has been removed by vacuuming,
down draft booth, or other cleaning method that
limits dispersion of lead dust.

Section 1926.1118(m)(5) provides:

The employer shall provide facilities for employees working in
areas where exposure, without regard to the use of respirators,
exceeds 100 µg/m³ to vacuum their protective clothing and clean
or change shoes worn in such areas before entering change rooms,
lunchrooms or shower rooms required by paragraph (j) of this
section and shall assure that such employees use such facilities.

A HEPA vacuum is a high efficiency particulate air purifying vacuum
which prevents the dispersement of dust which may contain cadmium, lead and inorganic arsenic
(Tr. 1015). OSHA’s air monitoring establishes the presence of cadmium, lead and inorganic
arsenic. Allstate’s own monitoring showed lead was present (Exh. C-5).

IH Sweeney testified that Mike Katsourakis, supervisor, stated that prior to June
4, there was no HEPA vacuum (Exh. C-56; Tr. 1016). Sweeney was also told by Virgil Girten
on May 19, 1997, and again on August 7, 1997, that there was no vacuum available on site (Exh.
C-56; Tr. 1016). Mike Katsourakis and Girten did not testify.

Edward Luba, groundsman, testified that a HEPA vacuum was on site on June 4,
1997; and it was located on the back of the System 10 (Tr. 1536). Luba testified that the vacuum
was also present at the containment on May 20, 1997. John Jagars, who was abrasive blasting on
May 20, recalled that Levendis used the HEPA vacuum to remove the dust from his protective
clothing (Tr. 1374). He testified that the HEPA vacuum was on the back of the blast unit
(Tr. 1369).

The record is not sufficient to find a violation. The sworn testimony of Luba and
Jagars contradicts the hearsay statements made to IH Sweeney. Also, Sweeney’s testimony is
unclear whether a HEPA vacuum was present at the project on June 4, 1997. During his direct
testimony, he concedes that he may have seen the HEPA vacuum (Tr. 1016). However, on
cross- examination, he testified that he did not observe anyone using the HEPA vacuum on June
4 (Tr. 1281). Sweeney acknowledged that Mike Mavroudis and Tony Xipolitas, abrasive
blasters, told him that they vacuum off their clothing before eating lunch (Tr. 1273, 1281). Items
9a, 9b and 9c are vacated.

Item 10a and 10b - Alleged Violation of

§§ 1926.1127(l)(2)(ii) and 1926.1127(l)(4)(i)

The citation (item 10a) alleges that the 1997 medical examinations did not
include blood and urine testing for cadmium and for Beta-2 microglobulin in urine. Two
abrasive blasters did not receive initial medical tests. Also, the citation (item 10b) alleges that
employees did not receive periodic medical examinations within 12 months after the initial
examination.

Section 1926.1127(l)(2)(ii) provides:

The initial medical examination shall include:
(A) A detailed medical and work
history, with emphasis on: Past, present, and
anticipated future exposure to cadmium; and history
of renal, cardiovascular, respiratory, hematopoietic,
reproductive, and/or musculo-skeletal system
dysfunction; current usage of medication with
potential nephrotoxic side-effects; and smoking
history and current status.

Section 1926.1127(l)(4)(i) provides:

For each employee who is covered by medical
surveillance under paragraph (l)(1)(i)(A) of this
section because of current or anticipated exposure
to cadmium, the employer shall provide at least the
minimum level of periodic medical surveillance,
which consists of periodic medical examinations
and periodic biological monitoring. A periodic
medical examination shall be provided within one
year after the initial examination required by
paragraph (l)(2) of this section and thereafter at
least biennially. Biological sampling shall be
provided at least annually either as part of a
periodic medical examination or separately as
periodic biological monitoring.

The standard requires an initial medical examination for all employees who “are
or may be” exposed to cadmium above the action level as part of a medical surveillance
program. The action level for cadmium is an airborne concentration of 2.5 µg/m³, calculated as
an 8-hour TWA. The initial medical examination includes a test of cadmium and Beta-2
microglobulin in urine and blood. See 1926.1127(l)(2)(ii). The examination determines how a
person’s body may react to the cadmium exposure (Tr. 1020-1021). Within one year after the
initial examination, a follow-up medical examination is also to be provided.

There is no dispute that Girten and Jagars were performing abrasive blasting on
May 20. Jagars’ air monitoring results showed cadmium exposure of 1.63 to 2.6 µg/m³
calculated for an 8-hour TWA (Exh. C-59). As discussed, Girten’s exposure was not monitored.

The record shows that no initial medical examination was given to Virgil Girten
or John Jagars. Allstate presented no documentation showing that Girten or Jagars received an
initial medical examination. Also, other employees (Mike Mavroudis and Tony Xipolitas) were
not shown to have received an analysis of cadmium in urine or Beta-2 microglobulin in urine in
April, 1996 (Exh. C-9)

Although Tony Xipolitas, Mike Mavroudis and Steven Badurik received initial
medical examinations in April, 1996, they did not receive follow-up exams within 12 months, as
required (Tr. 1019-1020). Their follow-up examinations were not until June 19, 1997 (Exh. C-10, R-42). Allstate does not dispute the lack of medical examinations (Allstate Brief, p. 32).
Items 10a and 10b are affirmed.

Items 11a, 11b, 19a and 19b - Alleged Violations of §§ 1926.1127(m)(4)Ii), 1926.1127(m)(4)(iv)(A), 19261118(o)(1)(i) and 1926.1118(o)(2)(i)

The citation alleges that cadmium (item 11a) and arsenic (item 19a) training
programs were not provided to employees who worked inside the containment. Also, copies of
OSHA’s cadmium (item 11b) and arsenic (item 19b) standards and their appendices were not
made readily available to the employees (item 11b).

Section 1926.1127(m)(4)(i) provides:

The employer shall institute a training program for
all employees who are potentially exposed to
cadmium, assure employee participation in the
program, and maintain a record of the contents of
such program.

Section 1926.1127(m)(4)(iv)(A) provides:

The employer shall make a copy of this section and
its appendices readily available to all affected
employees and shall provide a copy without cost if
requested.

Section 1926.1118(o)(1)(i) provides:

The employer shall institute a training program for
all employees who are subject to exposure to
inorganic arsenic above the action level without
regard to respirator use, or for whom there is the
possibility of skin or eye irritation from inorganic
arsenic. The employer shall assure that those
employees participate in the training program.

Section 1926.1118(o)(2)(i) provides:

The employer shall make readily available to all
affected employees a copy of this standard and its
appendices.

IH Sweeney testified that based on his interview, Virgil Girten had not received
cadmium and arsenic training (Exh. C-56; Tr. 1021, 1041-1042). Sweeney’s review of Allstate’s
training records failed to show any training on cadmium or arsenic (Tr. 1021-1022, 1042).
Allstate’s records described the training in lead and respiratory protection (Exhs. C-62, R-10, R-11, R-12). Also, during the OSHA inspection, Edward Luba, quality control, was not able to
produce a copy of OSHA’s standards. According to IH Sweeney, he was told that a copy was in
Luba’s motel room (Tr. 1023).

There is no dispute that Allstate has a written cadmium and arsenic program (Exh.
C-60, R-55). Girten did not testify and his written statement was not under oath. Also, as
discussed, Girten’s exposure was not monitored.

The record shows that training was provided to employees, including Girten (Tr.
1396, 1532, 1541). Employees testified that they had received cadmium and arsenic training and
that Girten participated in the training (Tr. 1396, 1532). Despite a lack of training records, Luba
testified that he provided lead training prior to the 1997 bridge painting season, and it covered
cadmium and arsenic (Tr. 1531-1532). As part of Allstate’s lead training manual, which Luba
used for training, there is a section describing the health affects of cadmium and arsenic
exposure (Exh. C-62, Section III; Tr. 1541). The other sections in the training manual deal with
respiratory protection, medical surveillance, and engineering and work practice controls which
are also applicable to cadmium and arsenic exposure.

Also, an employer is required to make copies of the cadmium and arsenic
standards available to employees if the employees are exposed above the action limit. IH
Sweeney requested a copy of the standards from Ed Luba, who failed to produce a copy (Tr.
1043). A copy was not produced at the site (Tr. 1043).

However, a copy of the standards were in the motel where the employees, except
Jagars, stayed (Tr. 1043, 1599). It was not shown that the standards were not readily available as
required. The location of the motel was not identified. Also, the record indicates that a copy of
the standards may have been available in the job trailer (Tr. 1599). If employees wanted to see
the regulations, they knew they should see Ed Luba (Tr. 1598-1599). Items 11a, 11b, 19a and
19b are vacated.

Items 12a, 12b and 12c - Alleged Violations of

§§ 1926.1127(m)(3), 1926.1118(j)(2)(vii) and 1926.62(g)(2)(vii)

The citation alleges that warning labels for cadmium (items 12a), arsenic (item
12b) and lead (item 12c) were not attached to bags and barrels in which used outer protective
clothing and equipment were discarded.

Section 1926.1127(m)(3) provides:

Shipping and storage containers containing
cadmium, cadmium compounds, or cadmium
contaminated clothing, equipment, waste, scrap, or
debris shall bear appropriate warning labels, as
specified in paragraph (m)(3)(ii) of this section.

Section 1926.1118(j)(2)(vii) provides:

The employer shall assure that the containers of
contaminated protective clothing and equipment in
the workplace or which are to be removed from the
workplace are labeled as follows: CAUTION:
Clothing contaminated with inorganic arsenic; do
not remove dust by blowing or shaking. Dispose of
inorganic arsenic contaminated was water in
accordance with applicable local, State or Federal
regulations.

Section 1926.62(g)(2)(vii) provides in part:

The employer shall assure that the containers of
contaminated protective clothing and equipment
required by paragraph (g)(2)(v) of this section are
labeled.

Warning labels on containers used for the disposal of contaminated clothing
advise employees of the type of contaminant (lead, arsenic or cadmium), the possible health
affects and certain precautions, such as not to blow or shake clothing.

The Secretary does not dispute that Allstate used bags or barrels for discarded,
contaminated clothing at the end of the work shift. The bags or barrels did not have cadmium,
arsenic or lead warning labels. According to Girten, the barrels were labeled as “contaminated”
(Exh. C-56; Tr. 1025-1027, 1317-1318).

Allstate does not dispute that the containers lacked the required warning labels
(Allstate Brief, p. 33). Allstate’s written lead program provides that reusable clothing is
collected at the end of each day in bags or containers which are properly labeled as contaminated
clothing (Exh. C-62). The air monitoring performed for Allstate showed the presence of lead on
the project (Exh. C-5). Allstate should have been aware of the presence of cadmium and arsenic.
Items 12a, 12b and 12c are affirmed.

Item 14 - Alleged Violation of § 1926.1118(e)(2)

The citation alleges that no air sampling for arsenic was performed by or for
Allstate. Section 1926.1118(e)(2) provides:

Each employer who has a workplace or work
operation covered by this standard shall monitor
each such workplace and work operation to
accurately determine the airborne concentration of
inorganic arsenic to which employees may be
exposed.

Allstate acknowledges that it did not monitor for arsenic (Allstate Brief, p. 34). It
monitored only for lead (Exh. C-5; Tr. 1036). According to Cignatta, it is common to find
arsenic on bridge blasting projects (Tr. 550). There is no indication that Allstate made any effort
to determine if arsenic was present on the project. OSHA’s air monitoring showed the presence
of inorganic arsenic above the PEL and that three employees were exposed. Item 14 is affirmed.

Item 16 - Alleged Violation of § 1926.1118(m)(3)(i)

The citation alleges that an appropriate lunchroom facility for employees exposed
to inorganic arsenic was not provided. Section 1926.1118(m)(3)(i) provides:

The employer shall provide for employees working
in regulated areas, lunchroom facilities which have
a temperature controlled, positive pressure, filtered
air supply, and which are readily accessible to
employees working in regulated areas.

Allstate does not dispute that there was no lunchroom facility (Allstate Brief, p.
34-35). Employees ate lunch on the grass along the side of the expressway. IH Sweeney
observed employees on June 4, including abrasive blasters Tony Xipolitas and Mike Mavroudis,
as well as their helper Steve Badurik, eating their lunches on the grassy area (Tr. 1039-1040).
Xipolitas, Mavroudis and Badurik were exposed to inorganic arsenic. Item 16 is affirmed.

Item 18a and 18b - Alleged Violations of

§§ 1926.1118(n)(5) and § 1926.1127(l)(9)

The citation alleges that appropriate information required by the inorganic arsenic
(item 18a) and cadmium (item 18b) standards was not provided to physicians who performed
medical examinations on employees. Sections 1926.1118(n)(5) and 1926.1127(l)(9) require that
an employer provide the examining physician with certain information, including a copy of the
arsenic and cadmium standards, a description of the affected employee’s duties, the employee’s
anticipated exposure level, a description of protective equipment, and information from previous
medical examinations.  

After he requested all information provided to the employees’ examining
physician, IH Sweeney was only provided a copy of the OSHA lead standard (Tr. 1040-1041).
There is no showing that the physicians were provided information about cadmium and arsenic
exposures (Allstate Brief, p. 35). Items 18a and 18b are affirmed.

Item 21 - Alleged Violation of § 1926.62(d)(1)(iv)

The citation alleges that the air sampling performed by Aapex Analytical on May
15, 1997, was not representative of employees’ exposures to lead. Section 1926.62(d)(1)(iv)
provides:

Full shift personal samples shall be representative
of the monitored employee’s regular, daily
exposure to lead.

Whenever an employer has employees who may be subject to an occupational
exposure to lead, the employer must make an initial determination if the employee may be
exposed above the action level. Initial monitoring must include full shift personal samples that
are representative of the employee’s regular daily exposure to lead.

Allstate contracted with Aapex Analytical to perform initial air monitoring.
Aapex performed its air monitoring on May 15, 1997, and monitored two employees for 241 and
242 minutes. Aapex recorded lead levels of less than 21 µg/m³ (Exh. C-5).

Allstate acknowledges that Aapex’s air monitoring did not comply because it was
not for a full shift (Allstate Brief, p. 36). Also, the monitoring did not include all job
classifications, i.e. , the employee vacuuming the used abrasive grit (Tr. 1046-1048, 1315, 1330-1331). Additionally, Aapex’s sample results may not have been valid after May 15, since
Allstate replaced a new grit recycling system with an older system and changed the steel grit (Tr.
1046-1047, 1319-1320). Item 21 is affirmed.

Items 22 and 23 - Alleged Violations of § 1926.62(f)(4)(i)

The citation (item 22) alleges that one employee did not perform a positive
pressure and/or negative pressure leak check on his half-face air purifying respirator used to
protect against lead, cadmium, arsenic, manganese and chromium exposures. Also, the citation
(item 23) alleges that frequent testing for carbon monoxide was not performed on an oil
lubricated air compressor used to supply breathing air to employees working inside the
containment. Section 1926.62(f)(4)(i) provides:

The employer shall institute a respiratory protection
program in accordance with 29 CFR 1910.134(b),
(d), (e) and (f).

Section 1910.134(e)(5)(i) requires that a pressure leak check be performed each
time the respirator is used. Also, the respiratory protection program at § 1910.134(d)(2)(ii)
requires that the oil lubricated compressor used to supply breathing air be frequently tested for
carbon monoxide. OSHA’s respiratory protection program was effective in 1997.

Allstate’s written respiratory program requires a positive and negative pressure
test each time a respirator is used (Exh. C-63, p. 3). However, the written interview statement of
Steve Badurik, the groundsman who vacuumed the used steel grit, indicates that he performed no
test on his respirator (C-56). Badurik, who received three fit tests on the job, stated that “we do
a negative and a positive respirator leak check at each respirator fit test, but at no other time”
(Exh. C-56; Tr. 1293). Secretary asserts therefore that leak checks were not performed
(Tr. 1048-1049).

Badurik did not testify. Badurik’s statement by itself without further explanation
is ambiguous. He could have meant the formal fit test with smoke. Also, even if Badurik did
fail to do the pressure test, there is no showing that Allstate knew or should have known.
According to Katsourakis, employees regularly performed pressure leak checks (Tr. 136). It is a
simple test to check the pressure when you put the respirator on and take it off (Tr. 136). It is
required by Allstate’s written respirator program. Also, other employees (Girten and Xipolitas)
told Sweeney that they did daily pressure tests (Exh. C-56).

However, the record does establish that frequent tests for the presence of carbon
monoxide (item 23) were not conducted on the air compressors used to supply breathing air
(Tr. 1049-1050). Allstate acknowledges that the tests were not performed (Allstate Brief, p. 37).
Item 22 is vacated. Item 23 is affirmed.

Item 27 - Alleged Violation of § 1926.33(g)(1)

The citation alleges that Allstate failed to provide employees with information,
initially and annually, concerning access to exposure records and medical records. Section
1926.33(g)(1) requires employees’ access to their records and references § 1910.1020(g)(1),
which provides:

Upon an employee’s first entering into
employment, and at least annually thereafter, each
employer shall inform current employees covered
by this section of the following:

(i) The existence, location, and availability
of any records covered by this section;

(ii) The person responsible for maintaining
and providing access to records; and

(iii) Each employee’s rights of access to
these records.

Virgil Girten and Tony Xipolitas stated to IH Sweeney that they had not received
any training regarding OSHA’s “Employee Access Exposure or Medical Records” standard
(Exh. C-56, R-44, Tr. 1056). The Secretary argues that the employees were unaware of their
rights (Tr. 1057).        During the hearing, employees testified that they were familiar with their
right to access medical records. John Jagars knew where his medical records were located and
never had any trouble getting them. He was mailed the results of blood tests at his home (Tr.
1365). George Levendis testified that his medical records were at the office and he kept a copy
(Tr. 1598).

IH Sweeney agreed that Xipolitas and Mavroudis had also stated that their air and
blood samples were kept at the office (Tr. 1298). Badurik told him that he had received training
from Ed Luba on OSHA access to exposure and medical records (Tr. 1298). The same training
was also given to Mavroudis, Xipolitas and Girten (Tr. 1298-1299). The statement by Girten is
unclear. He may not have understood what was covered by the standard. Girten did not testify.
Item 27 is vacated.

Items 28a and 28b - Alleged Violations of

§§ 1926.59(f)(5)(i) and 1926.59(f)(5)(ii)

The citation alleges that on May 20, 1997, an identity label (item 28a) and an
information label (item 28b) were not attached to a 500-gallon tank containing diesel fuel used in
operating the compressor. Section 1926.59(f)(5)(i) refers to § 1910.1200(f)(5)(i), which requires
that each container of hazardous chemicals leaving the workplace be labeled, tagged, or marked
with the “identity of hazardous chemical(s) contained therein.”

Section 1926.59(f)(5)(ii) refers to § 1910.1200(f)(5)(ii), which provides:

Appropriate hazard warnings, or alternatively,
words, pictures, symbols, or combinations thereof,
which provide at least general information
regarding the hazards of the chemicals, and which,
in conjunction with the other information
immediately available to employees under the
hazard communication program, will provide
employees with the specific information regarding
the physical and health hazards of the hazardous
chemical.

There were two 500-gallon diesel fuel tanks at the project. Diesel fuel is a
combustible liquid, and the fumes can cause eye and respiratory irritation. It is also classified as
a potential carcinogen (Exh. C-64). IH Sweeney testified that one tank was not labeled and did
not identify the health hazards associated with diesel fuel (Exh. C-58; Tr. 1058-1059).

However, IH Sweeney videotaped two tanks, but he could not recall which tank
was the basis for the alleged violation (Exh. C-58; Tr. 1299). One tank in the video is clearly
labeled as diesel fuel. Sweeney did not test either tank to see if they contained diesel fuel (Tr.
1299). Sweeney did not ask whether the tank was empty (Tr. 1299). Sweeney, however, did ask
and receive an MSDS for diesel fuel (Tr. 1300).

The standard requires labeling on containers leaving the workplace. See
§ 1910.1200(f), which applies to “each container of hazardous chemicals leaving the
workplace.” There was no showing that the diesel tank was leaving the project. At least one
purpose of providing the hazard information is to protect employees during shipment. Items 28a
and 28b are vacated.

Item 29 - Alleged Violation of § 1926.59(h)(1)

The citation alleges that Allstate did not train employees regarding the symptoms
and potential health hazards associated with manganese and chromium. Section 1926.59(h)(1)
refers to § 1910.1200(h)(1), which provides in part:

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.

Allstate’s training primarily focused on exposure to lead. The Secretary argues
that Virgil Girten in a written interview statement stated that there was no training on manganese
and chromium. Also, documents received by IH Sweeney did not show any training (Tr. 1059-1061).

In the interview statement, Girten stated only that he did not “recall” receiving the
training on manganese and chromium (Exh. C-56; Tr. 1284). However, Girten was present when
Ed Luba, quality control, conducted his annual refresher training in the Spring of 1997 (Exh. C-56; Tr. 1396, 1540). Other employees testified that they had received the training and that
Girten participated (Tr. 1396, 1532). Despite a lack of training records, Luba testified that lead
training provided prior to the 1997 bridge painting season also covered other contaminants, such
as manganese and chromium (Tr. 1531-1533). As part of Allstate’s lead training manual, which
Luba used for training, there is a section describing the health affects of manganese and
chromium (Exh. C-62, Section III; Tr. 1541). The other sections in the training manual deal
with respiratory protection, medical surveillance, engineering, and work practice controls, which
are also applicable to manganese and chromium exposure. Item 29 is vacated.

SERIOUS CLASSIFICATION

FOR HEALTH CITATION NO. 1

A violation is serious under § 17(k) of the Act (29 U.S.C. § 666(k)), if it creates a
substantial probability of death or serious physical harm and the employer knew or should have
known of the violative condition. In determining whether a violation is serious, the issue is not
whether an accident is likely to occur; it is rather, whether the result would likely be death or
serious harm if an accident should occur. Whiting-Turner Contracting Co ., 13 BNA OSHC
2155, 2157 (No. 87-1238, 1989).

Allstate argues that the health violations, if found, should be reclassified as other
than serious. Allstate notes that the employees showed no symptoms of poisoning from lead,
cadmium, arsenic, manganese or chromium, nor had elevated blood levels requiring removal
from work (Exh. R-36). When inside the containment, the employees wore a Bullard Hood and
a half-mask respirator with a combined respiratory protection factor of 250 (Tr. 1448).

The violations affirmed were properly classified as serious. Allstate was aware of
the presence of lead on the project and should have been aware of the other contaminants if its
air monitoring was properly performed. Also, the employees were exposed to possible serious
harm to their health. OSHA’s air monitoring found employees exposed to levels in excess of the
PEL for lead, cadmium and inorganic arsenic and the TLV for manganese and chromium (Exh.
C-43; Tr. 1242-1243). Even the monitoring results from inside the blasting helmet showed
Jagars’ exposure was excessive

for lead (68 µg/m³) and cadmium (2.6 µg/m³); and Badurik’s
exposure was excessive for lead (89 µg/m³)(Exh. C-43). Although not requiring medical
removal, the employees’ blood tests taken by Allstate also show the presence of these
contaminants (Exh. R-42).

There is no dispute that individually, each of these contaminants can subject
employees to serious health risks if exposure levels are excessive and adequate precautions are
not taken. Such precautions which were not taken by Allstate included the lack of warning signs
or labeling, failure to provide medical examinations and appropriate information to physicians,
and the lack of lunchroom facilities.

OTHER THAN SERIOUS HEALTH CITATION (Inspection No. 180489918)

Item 1 - Alleged Violation of § 1926.62(f)(2)(ii)

The citation alleges that no powered, air-purifying respirators (PAPR) were
available or offered to employees. Section 1926.62(f)(2)(ii) provides:

The employer shall provide a powered, air-purifying respirator in lieu of the respirator
specified in Table 1 whenever: (A) An employee
chooses to use this type of respirator; and (B) This
respirator will provide adequate protection to the
employee.

The standard requires the employer to provide a PAPR “whenever . . . an
employee chooses to use this type of respirator.” IH Sweeney learned from Mike Katsourakis
that Allstate had no PAPR’s on site. Rather, Allstate had two types of atmospheric supplying
abrasive blasting respirators and half-face air purifying respirators (Tr. 1061). Virgil Girten told
Sweeney that he had not seen any PAPR’s on site (Tr. 1062). The Secretary argues that the
failure to have any PAPR’s available meant employees could not choose (Tr. 1300).

The Secretary failed to show that any employee chose or wanted to wear a PAPR.
The standard does not require that a PAPR be available on site. The standard only requires that
one be provided if an employee chooses. IH Sweeney admitted that no employee voiced any
concerns about not having a PAPR (Tr. 1301). Also, in his interview statement, John Jagars
stated that “PAPR’s are available to people who work for Allstate” (Exh. R-44). Xipolitas and
Mavroudis indicated that “the helpers have worn PAPR’s on this job” (Exh. R-44; Tr. 1302).
Item 1 is vacated.

SERIOUS SAFETY CITATION (Inspection No. 103233342)

Item 1 - Alleged Violation of § 1926.451(g)(1)(i)

The citation alleges that an employee spray painting from a catenary scaffold on
the underside of a bridge (GRE-675-0737) was not protected by fall protection when moving to
another location. Section 1926.451(g)(1)(i) provides in part:

Each employee on a scaffold more than 10 feet (3.1
m) above a lower level shall be protected from
falling to that lower level.

Compliance Officer Steve Medlock observed two employees painting from a
catenary scaffold inside a containment erected under the railroad bridge (Tr. 339-340, 347). The
scaffold was approximately 14' 6" above the ground and was suspended beneath the bridge by
cables (Tr. 344-345). The scaffold was erected under and perpendicular to the bridge’s steel
girders. To attach their safety harnesses and lanyards, horizontal lifelines were erected parallel
to the girders and along the lower flange. The horizontal lifelines were erected approximately 10
feet apart (Exh. C-14).

One painter, Tony Xipolitas, was observed not remaining tied off while moving
on the scaffold from one side of the girder to the other side. When moving, Xipolitas unhooked
his lanyard from one horizontal lifeline, sat down on the scaffold, and scooted along the scaffold
to the next horizontal lifeline before re-hooking his lanyard. While being observed, he unhooked
his lanyard at least seven times during the 20-minute period (Tr. 340-341, 348-349). OSHA
recommends that the employee wear two safety belts (Tr. 352-353).

Anthony Katsourakis was present while the two employees were painting (Tr.
352). Katsourakis agreed that Allstate’s fall protection plan required employees to be tied off at
all times. He also agreed that the employee could use a second lanyard (Tr. 62, 352-353, 431-432). The situation was corrected by providing the employee with a second lanyard. Item 1 is
affirmed as serious.

WILLFUL SAFETY CITATION (Inspection No. 103233342)

Item 1 - Alleged Violation of § 1926.501(b)(1)

or in the alternative § 1926.451(g)(1) or § 5(a)(1) of the Act

The citation alleges that employees working from a vehicle-mounted elevating
platform under the bridge (GRE-675-0737) were not provided with fall protection. The
Secretary alleges, in the alternative, violations of §§ 1926.501(b)(1), 1926.451(g)(1) and 5(a)(1)
of the Act.

Section 1926.501(b)(1) provides:

Each employee on a walking/working surface
(horizontal and vertical surface) with an
unprotected side or edge which is 6 feet (1.8 m) or
more above a lower level shall be protected from
falling by the use of guardrail systems, safety net
systems, or personal fall arrest systems.

Section 1926.451(g)(1) provides in part:

Each employee on a scaffold more than 10 feet (3.1
m) above a lower level shall be protected from
falling to that lower level.

Section 5(a)(1) of the Act is referred to as the General Duty Clause. To establish
a violation of § 5(a)(1), the Secretary must prove that (1) there was an activity or condition in the
employer’s workplace that constituted a hazard to employees, (2) either the cited employer or its
industry recognized that the condition or activity was hazardous, (3) the hazard was causing or
likely to cause death or serious physical harm, and (4) there were feasible means to eliminate the
hazard or materially reduce it. Waldon Healthcare Ctr. , 16 BNA OSHC 1052, 1058 (No. 89-2804, 1993).

While returning from another inspection, Compliance Officers Dale Henderson
and Sam Merrick observed two employees

without fall protection. The employees were
stringing a cable for a containment (Tr. 248, 251, 285, 353-354). The employees were exposed
to a fall hazard of 28 feet (Tr. 360). The platform was approximately 14 feet above the ground
(Exhs. C-14, R-10; Tr. 256, 365-368, 380). Anthony Katsourakis, supervisor, was at the site (Tr.
45, 286).

To access the underside of the bridge, the employees used an elevated platform
mounted in the bed of a pickup truck. The platform had guardrails which could be raised into
place (Tr. 1664). However, on the day of the OSHA inspection, the guardrails were not in place.
On the platform, a 24-foot ladder was placed to access the bridge girders. One employee (Mike
Kindinis) remained on the platform and held the ladder while two employees climbed to the
girders (Tr. 256, 380). While on the platform, Kindinis was not tied off or otherwise protected
from a fall hazard (Tr. 257).

Based on the record, the elevated platform was a scaffold which violated
§ 1926.451(g)(1). A scaffold at § 1926.450(b) is defined as:

any temporary elevated platform (supported or
suspended) and its supporting structure (including
points of anchorage), used for supporting
employees or materials or both.

The elevated platform was attached to and separate from the truck. It was a scaffold used
by employees to place a ladder to access the bridge.

Allstate maintains that the elevated platform was not above 10 feet in height.
Anthony Katsourakis testified that unextended the platform is 9 feet 11 inches (Tr. 100). Scott
Whitmyer, however, testified that the platform was not completely down and was elevated
approximately one foot (Tr. 1695-1696). After the incident, Medlock attempted to reconstruct
the height of the platform and asked the operator to place it at the same height. Medlock
measured the height as 12.9 feet (Tr. 327-329). The record, therefore, establishes the height to
exceed 10 feet (Exhs. C-14, R-19; Tr. 256, 365-368, 380).

Allstate’s greater hazard defense is also rejected. Allstate claims that the
guardrails on the platform could not be raised because of the positioning of the ladder used to
access the bridge (Tr. 56, 108-109). Richard Hayes, Allstate’s safety expert, testified that the
guardrails interfered with the use of the ladder (Tr. 851).

In order to establish a greater hazard, an employer must show that (1) the hazards
of compliance exceeded the hazards of noncompliance, (2) alternative means of protecting
employees are unavailable; and (3) a variance is unavailable or inappropriate. Lauhoff Grain
Corp. , 13 BNA OSHC 1084, 1088 (No. 81-984, 1987). See also Walker Towing Corp ., 14 BNA
OSHC 2072, 2078 (No. 87-1359, 1991).

Section 1926.501(b)(1) requires fall protection whether by guardrails or a
personal fall arrest system. The record fails to establish that the ladder could not have been
positioned in another way which did not interfere with placing the guardrails. Scott Whitmyer,
who used the ladder, agreed with Medlock that there was no reason for not using the guardrails
(Exh. C-67; Tr. 1740-1741).

Also, Allstate failed to show that other means of fall protection were not
available. Allstate’s claim that the employee could not be tied off because he needed to move
was not supported by the record (Tr. 56). The employee on the platform did not move, and he
could have tied off (Tr. 256, 288, 380-381). Richard Hayes’ testimony indicates that the use of
fall protection may only delay the operation and not create a greater hazard (Tr. 851). Further,
Allstate acknowledges they did not request a variance (Tr. 64-66). Item 1 is affirmed.

Item 2 - Alleged Violation of § 1926.501(b)(15)

The citation alleges that employees working from a flange on the underside of the
bridge (GRE-675-0822 and 0823) were not provided fall protection. Section 1926.501(b)(15)
provides:

Except as provided in § 1926.500(a)(2) or in §
1926.501(b)(1) through (b)(14), each employee on a
walking/working surface 6 feet (1.8 m) or more
above lower levels shall be protected from falling
by a guardrail system, safety net system, or personal
fall arrest system.

While the employee (Kindinis) held the ladder on the elevated platform, two
employees (Scott Whitmyer and Tom Karagiannakis), also without fall protection, were walking
or standing on the flange of the steel girders. The girders were approximately 28 feet above the
ground. The employees were stringing a cable for a containment (Exh. C-14; Tr. 97, 353-354).
After climbing the ladder from the elevated platform, Whitmyer described his job as carrying a
rope 20 feet along the 10-inch wide flange of the girder to the next cross-brace, tying the rope,
returning to the ladder, pulling the cable up which is attached to the rope, again walking across
the flange to the next cross-brace, pulling the cable to the cross-brace, and returning to the ladder
(Tr. 1666-1673). The other employee, Karagiannakis, remained at the ladder and pulled the
“slack up for the cable” (Tr. 1678). Allstate does not dispute that the employees did not have
fall protection.

Allstate argues that the employees were inspecting the girders to determine their
adequacy to support the cables holding the scaffolding used for abrasive blasting and painting
(Tr. 46- 47, 96-97, 850-855). Section 1026.500(a) provides that the fall protection requirements
do not apply “when employees are making an inspection, investigation, or assessment of
workplace conditions prior to the actual start of construction work or after all construction work
has been completed” (Tr. 415-416).

The record fails to show that the employees were inspecting bridge conditions
prior to work. Allstate’s bridge project had commenced in early May and was not completed
until August. Also, when the three employees climbed onto the bridge, it was at the end of the
work day (Tr. 1661). Hayes agreed that such inspections are not usually done at the end of the
work day (Tr. 886). Whitmyer was installing the cables. He was performing work, not
inspecting for future work. An inspection would not require all the activity described by
Whitmyer (Tr. 361). See 59 Fed Reg 40672, 40675 (August 9, 1994).

During the OSHA inspection, there was no mention that Allstate was doing an
inspection (Tr. 361-362, 1745). Katsourakis suggested that the reason he allowed them to work
without fall protection was because it was near the end of the day and he wanted the task
completed (Tr. 362).

Allstate’s infeasibility argument must also fail. To prove infeasibility, an
employer must show that: (1) the means of compliance prescribed by the applicable standard
would have been infeasible under the circumstances in that either (a) its implementation would
have been technologically or economically infeasible or (b) necessary work operations would
have been technologically or economically infeasible after its implementation; and (2) either (a)
an alternative method of protection was used or (b) there was no feasible alternative means of
protection. Gregory & Cook , 17 BNA OSHC 1189, 1190 (No. 92-1891, 1995).

As described by the Secretary, Whitmyer could have used a fall protection device
that allowed him to move on the flange while being tied off with a harness (Exhs. C-6, C-7; Tr.
360, 420-421). Allstate did not establish that such a device was not feasible. Also, Whitmyer
agreed that there were times he could have tied off, such as when he was stationary (Exh. C-67;
Tr. 1667-1668, 1739). Also, there is no showing that the other employee, Karagiannakis, who
remained stationary, could not have been tied off (Tr. 1678-1680). Item 2 is affirmed.

WILLFUL CLASSIFICATION FOR ITEMS 1 AND 2

OF SAFETY CITATION (Inspection No. 103233342)

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. 92-0264, 1994). A willful violation is
“differentiated from other types of violations by a heightened awareness--of the illegality of the
conduct or conditions--and by a state of mind--conscious disregard or plain indifference”
General Motors Corp., Electro-Motive Division, 14 BNA OSHC 1064, 2068 (No. 82-630 et al.,
1991).

Allstate’s violations of § 1926.501(b)(1) and § 1926.501(b)(15) were willful.
Three employees were subject to a fall hazard in excess of 10 feet without fall protection.
Allstate’s subcontract required compliance with OSHA (Exh. C-1). Scott Whitmyer, who had
received fall protection training, was in charge of the rigging operation (Tr. 1639-1640, 1680).
Also, Anthony Katsourakis, supervisor, was present at the site when the work was performed
(Tr. 1712-1713). Katsourakis was also familiar with OSHA’s fall protection requirements based
on training and experience (Tr. 42-43). He knew that the employees were not wearing fall
protection and that it violated the standards. Katsourakis’ company, American Painting, has
been inspected by OSHA and has received previous citations for the lack of fall protection (Tr.
41). In April, 1997, American Painting was inspected by the Toledo OSHA office and fall
protection was specifically discussed with Katsourakis (Tr. 40-41, 223). Also, Katsourakis
admitted to Medlock that he erred in not requiring fall protection and blamed his employees (Tr.
362-364). No employees had been disciplined (Tr. 44).

Allstate’s disregard for use of fall protection was an attempt to reduce the time to
complete the job. The project needed to be completed within a certain time (Tr. 46). Allstate
was subject to damages of $10,000 per day if the project took more than 105 days to complete
(Tr. 169-170). Allstate’s concern about any delay in the work was shown by Katsourakis’
objection to OSHA’s air monitoring (Tr. 170-171). Allstate’s claim of making an inspection was
concocted after the fact. The real task was to string the cable for the containment.

PENALTY CONSIDERATIONS FOR

HEALTH AND SAFETY CITATIONS

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

Allstate is a small employer with less than 26 employees. Allstate maintained
appropriate health and safety programs which were for the most part adequate (Tr. 302). Allstate
is entitled to credit for history because it had not received a serious citation within the preceding
three years. As stated, Allstate was considered the employer in this case and American
Painting’s prior citations are not considered as part of Allstate’s history. The appropriate penalty
for each violation is as follows:

SERIOUS HEALTH CITATION NO. 1

A grouped penalty of $1,500 is reasonable for violations of § 1926.1127(c)(item
1a) and § 1926.1127(f)(1)(i)(item 1b). Three employees were exposed to excessive levels of
cadmium. Cadmium is known to cause cancer, kidney and lung damage. The principal
engineering control of a dust ventilation system was not used for the containment on June 4,
1997.

A grouped penalty of $2,000 is reasonable for violations of §
1926.1127(d)(1)(i)(item 2a) and § 1926.1127(d)(2)(i)(item 2b). The three employees monitored
showed exposure to excessive levels of cadmium. Allstate failed to sample and perform air
monitoring to detect the presence of cadmium. Allstate only monitored for lead.

A penalty of $1,000 is reasonable for violation of § 1926.1127(m)(2)(item 3b).

Three employees were exposed to cadmium in excess of the PEL. There were no
warning signs to identify the presence of cadmium and its adverse health affects.

A grouped penalty of $2,000 is reasonable for violations §
1926.1127(l)(2)(ii)(item 10a) and § 1926.1127(l)(4)(i)(item 10b). Two employees had not
received initial medical examinations and three employees had not received their annual medical
examinations within 12 months. When they did, the examination was not complete. The
employees were exposed to excessive airborne concentrations of lead, cadmium and inorganic
arsenic.

A grouped penalty of $2,000 is reasonable for violations of §
1926.1127(m)(3)(item 12a), § 1926.1118(j)(2)(vii)(item 12b), and § 1926.62(g)(2)(vii)(item
12c). Containers used to discard protective clothing were not provided with warning labels
identifying the cadmium, arsenic and lead contamination. Without warning labels, employees
and other persons handling the discarded clothing were not advised of the possible health affects
and the necessary precautions.

A grouped penalty of $2,000 is reasonable for violations of § 1926.1118(c)(item
13a), § 1926.1118(g)(1)(i)(item 13b) and § 1926.1118(g)(2)(i)(item 13c). Three employees
were exposed to excessive levels of inorganic arsenic, and Allstate’s written arsenic program
was inadequate and not complied with.

A penalty of $2,000 is reasonable for violation of § 1926.1118(e)(2)(item 14).
Allstate failed to perform air monitoring for inorganic arsenic, although it is common on bridge
blasting projects.

A penalty of $1,000 is reasonable for violation of § 1926.1118(p)(2)(i)(item 15b).
No arsenic warning signs were posted at the containment advising employees of potential health
affects and precautions.

A penalty of $2,000 is reasonable for violation of § 1926.1118(m)(3)(i)(item 16).
An appropriate lunchroom facility was not provided to protect employees from arsenic exposure.
Employees ate their lunch in a grassy area.

A grouped penalty of $2,000 is reasonable for violations of § 1926.1118(n)(5
(item 18a) and § 1926.1127(l)(9)(item 18b). Appropriate information and a copy of the
standards for arsenic and cadmium was not provided to physicians who performed medical
examinations.

A grouped penalty of $2,000 is reasonable for violations of § 1926.62(c)(1)(item
20a) and § 1926.62(e)(1)(item 20b). Employees were exposed to excessive levels of lead, and
all engineering controls were not implemented to reduce the levels of concentration.

A penalty of $2,000 is reasonable for violation of § 1926.62(d)(1)(iv)(item 21).
Although Allstate had air monitoring performed for lead, it was not representative of employees’
exposure.

A penalty of $2,000 is reasonable for § 1926.62(f)(4)(i)(item 23). Allstate used
compressors to supply breathing air to employees. However, frequent tests were not performed
for the presence of carbon monoxide.

A penalty of $1,000 is reasonable for violation of § 1926.62(m)(2)(i)(item 24).
There was no lead warning signs posted at the containment.

A grouped penalty of $2,000 is reasonable for violations § 1926.55(a)(items 25a
and 26a) and § 1926.55(b)(items 25b and 26b). Employees were exposed to excessive levels of
manganese and chromium and not all feasible engineering controls were implemented to reduce
the airborne concentrations.

SERIOUS SAFETY CITATION

A penalty of $1,000 is reasonable for violation of § 1926.451(g)(1)(i)(item 1).
One employee was exposed to a fall hazard of approximately 14 feet while painting from
scaffolding. The employee was tied off except when moving from a location. During a short
period of time, the employee unhooked his safety line seven times.

WILLFUL SAFETY CITATION

A penalty of $5,000 is reasonable for § 1926.501(b)(1)(item 1). One employee on
an elevated platform was exposed to a fall hazard in excess of 10 feet without any fall protection.
Although guard railing and safety belts were available, fall protection was not utilized.

A penalty of $10,000 is reasonable for violation of § 1926.501(b)(15)(item 2).
Two employees were exposed to a fall hazard in excess of 20 feet without fall protection.

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:

SERIOUS HEALTH CITATION NO. 1 ISSUED AUGUST 14, 1997

1.           Item 1a, in violation of § 1926.1127(c), and item 1b, in violation of
§ 1926.1127(f)(1)(i), are affirmed as serious and a penalty of $1,500 is assessed.

2.           Item 1c, in violation of § 1926.1127(f)(5)(i), is vacated.

3.           Item 2a, in violation of § 1926.1127(d)(1)(i), and item 2b, in violation of
§ 1926.1127(d)(2)(i) are affirmed as serious and a grouped penalty of $2,000 is assessed.

4.           Item 3a, in violation of § 1926.1127(e)(1), is vacated.

5.           Item 3b, in violation of § 1926.1127(m)(2), is affirmed as serious and a
penalty of $1,000 is assessed.

6.           Item 4a, in violation of § 1926.1127(i)(1), item 4b, in violation of
§ 1926.62(g)(1), and item 4c, in violation of § 1926.1118(j)(1), are vacated.

7.           Item 5, in violation of § 1926.1127(i)(2)(ii), is withdrawn by the
Secretary.

8.           Item 6a, in violation of § 1926.1127(i)(3)(iii), item 6b, in violation of
§ 1926.1118(j)(2)(viii), and item 6c, in violation of § 1926.62(g)(2)(viii), are vacated.

9.           Item 7a, in violation of § 1926.1127(j)(3)(i), and item 7b, in violation of
§ 1926.1118(m)(2)(i), are withdrawn by the Secretary.

10.         Item 7c, in violation of § 1926.62(i)(3)(ii), is vacated.

11.         Item 8a, in violation of § 1926.1127(j)(3)(ii), and item 8b, in violation of
§ 1926.1118(m)(3)(ii), are withdrawn by the Secretary.

12.         Item 8c, in violation of § 1926.62(i)(4)(iii), is vacated.

13.         Item 9a, in violation of § 1926.1127(j)(4)(ii), item 9b, in violation of
§ 1926.62(i)(4)(iv), and item 9c, in violation of § 1926.1118(m)(5), are vacated.

14.         Item 10a, in violation of § 1926.1127(l)(2)(ii), and item 10b, in violation
of § 1926.1127(l)(4)(i), are affirmed as serious and a grouped penalty of $2,000 is assessed.

15.         Item 11a, in violation of § 1926.1127(m)(4)(i), and item 11b, in violation
of § 1926.1127(m)(4)(iv)(A), are vacated.

16.         Item 12a, in violation of § 1926.1127(m)(3), item 12b, in violation of
§ 1926.1118(j)(2)(vii), and item 12c, in violation of § 1926.62(g)(2)(vii), are affirmed as serious
and a grouped penalty of $2,000 is assessed.

17.         Item 13a, in violation of § 1926.1118(c), item 13b, in violation of
§ 1926.1118(g)(1)(i), and item 13c, in violation of § 1926.1118(g)(2)(i), are affirmed as serious
and a grouped penalty of $2,000 is assessed.

18.         Item 14, in violation of § 1926.1118(e)(2), is affirmed as serious and a
penalty of $2,000 is assessed.

19.         Item 15a, in violation of § 1926.1118(f)(1), is vacated.

20.         Item 15b, in violation of § 1926.1118(p)(2)(i), is affirmed as serious and
penalty of $1,000 is assessed.

21.         Item 16, in violation of § 1926.1118(m)(3)(i), is affirmed as serious and a
penalty of $2,000 is assessed.

22.         Item 17, in violation of § 1926.1118(n)(1)(i)(A), is withdrawn by the
Secretary.

23.         Item 18a, in violation of § 1926.1118(n)(5), and item 18b, in violation of
§ 1926.1127(l)(9), are affirmed as serious and a grouped penalty of $2,000 is assessed.

24.         Item 19a, in violation of § 1926.1118(o)(1)(i), and item 19b, in violation
of § 1926.1118(o)(2)(i), are vacated.

25..        Item 20a, in violation of § 1926.62(c)(1), and item 20b, in violation of
§ 1926.62(e)(1), are affirmed as serious and a grouped penalty of $2,000 is assessed.

26.         Item 21, in violation of § 1926.62(d)(1)(iv), is affirmed as serious and a
penalty of $2,000 is assessed.

27.         Item 22, in violation of § 1926.62(f)(4)(i), is vacated.

28.         Item 23, in violation of § 1926.62(f)(4)(i), is affirmed as serious and a
penalty of $2,000 is assessed.

29.         Item 24, in violation of § 1926.62(m)(2)(i), is affirmed as serious and a
penalty of $1,000 is assessed.

30.         Items 25a and 26a, in violation of § 1926.55(a), and items 25b and 26b, in
violation of § 1926.55(b), are affirmed as serious and a penalty of $2,000 is assessed.

31.         Item 27, in violation of § 1926.33(g)(1), is vacated.

32.         Item 28a, in violation of § 1926.59(f)(5)(i), and item 28b, in violation of
§ 1926.59(f)(5)(ii), are vacated.

33.         Item 29, in violation of § 1926.59(h)(1), is vacated.

OTHER THAN SERIOUS HEALTH CITATION ISSUED AUGUST 14, 1997

Item 1, in violation of § 1926.62(f)(2)(ii), is vacated.

SERIOUS SAFETY CITATION ISSUED SEPTEMBER 12, 1997

Item 1, in violation of § 1926.451(g)(1)(i), is affirmed as serious and a penalty of
$1,000 is assessed.

WILLFUL SAFETY CITATION ISSUED SEPTEMBER 12, 1997

1.           Item 1, in violation of § 1926.501(b)(1), is affirmed as willful and a
penalty of $5,000 is assessed.

2.           Item 2, in violation of § 1926.501(b)(15), is affirmed as willful and a
penalty of $10,000 is assessed.

/s/  

KEN S. WELSCH

Judge

Date: February 7, 2000