BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

IT CORPORATION

International Technology Corporation

2790 Mosside Boulevard

Monroeville, PA 15146

                              Employer

 

 

Docket No.

97-R3D3-1175

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by IT Corporation [Employer] makes the following decision after reconsideration.

JURISDICTION

On October 17, 1996, a representative of the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at 14901 Central Avenue, Chino, California (the site). On March 28, 1997, the Division issued to Employer a citation alleging a serious violation of section1 5143(c)(2) [dust collection device], with a proposed civil penalty of $1,125.

Employer filed a timely appeal contesting the classification of the violation and the reasonableness of the proposed penalty.

A hearing was held before an administrative law judge (ALJ) in Anaheim, California. S. Reed Waters, Jr., corporate counsel, represented Employer. David W. Pies, staff attorney, represented the Division.

On August 25, 1999, the ALJ issued a decision denying Employer's appeal.
On September 22, 1999, Employer filed a petition for reconsideration. The Board granted Employer’s petition on November 9, 1999. The Division filed an answer to the order granting petition for reconsideration on December 3, 19992.

EVIDENCE

Employer performs environmental hazard remediation work. Employer had contracted to perform a lead abatement operation in the refrigeration and main culinary rooms at the California Institution for Men [CIM]. The abatement was to be done by sand blasting the lead paint. Employer was responsible for setting up containment methods and for insuring that all critical barriers were in place. Employer sub-contracted with Action Painting [Action] not only to install and maintain this ventilation system during the lead paint sand blasting operation, but also to perform the actual sand blasting.

Thomas Kanjcevich [Kanjcevich], inspecting officer for the Division, testified that when he arrived at the site he was told by Steven T. Edgar of Action that its employees were sand blasting in one large room. There were two negative air machines operating to expel air and keep the room under negative air pressure. Kanjcevich observed that the ducts for each machine dovetailed at an apex and were connected to an opening in the ceiling of the room that expelled the air to the outside atmosphere. The ducts were made from plastic material that had not been reinforced. He testified that there were two distinct breaches of the duct material.

Kanjcevich testified that he went to the site on October 17, 18, and 28, 1996, taking samples of dust from the roof above the abatement area on October 28, 1996. He had the samples tested and they were found to contain 1.67% lead.

Kanjcevich cited Employer for a violation of section 5143(c)(2) because Employer failed to maintain the exhaust ventilation system so that the discharge would not be hazardous to employees who might inhale it. He testified that Gary Lord [Lord], an employee of CIM, went on the roof to make sure the mechanical devices were functioning properly. Kanjcevich also testified that Ignacio Hernandez [Hernandez] was identified as Employer’s foreman at the site. Kanjcevich said he classified the violation as serious because exposure to lead can cause damage to the brain, liver and reproductive organs.

Lord testified that he was a stationary engineer for CIM. He said he had occasion to go to the roof area daily when the negative air machines were operating. He testified that some time prior to October 28, 1996 he observed a white plume coming off the roof above the abatement area.

ISSUE

Did the Division establish a serious violation of section 5143(c)(2)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division Failed to Establish a Serious Violation of Section 5143(c)(2).

Section 5143(c)(2) provides:

The air exhausted from blast-cleaning equipment, grinding, buffing, polishing equipment and all other equipment requiring exhausting of dust or particulate shall be discharged through dust-collecting equipment. Dust and refuse discharged from an exhaust system shall be disposed of in such a manner that it will not result in harmful exposure to employees.

The Appeals Board has consistently held that the Division has the burden of proving a violation, including establishing the applicability of the safety order, by a preponderance of the evidence (Howard J. White, Inc., OSHAB 78-741, Decision After Reconsideration (June 16, 1983).) since Appeals Board hearings are civil in nature. (Lee Bolin & Associates, OSHAB 80-720, Decision After Reconsideration (July 29, 1981).)

We have carefully reviewed the record, including the audio tape recordings of the hearing, and find that the evidence does not support a finding that any employee of Employer was exposed to the violative condition alleged by the Division in its citation.

Kanjcevich testified that Hernandez was identified as Employer’s foreman at the site but there was no testimony offered to link exposure of Hernandez, or any other IT Corporation employee, to any violative condition. Kanjcevich testified that Lord was an exposed employee. But, Lord was employed by CIM and not IT Corporation. As part of its burden of proof, the Division must show that employees of the cited employer2 were exposed to the hazard addressed by the safety order. (Rudolph & Sletten, Inc., OSHAB 80-602, Decision After Reconsideration (March 5, 1981).) “There must be some evidence that employees came within the zone of danger while performing work-related duties, pursuing personal activities during work, or employing normal means of ingress and egress to their work stations.” (Nicholson-Brown, Inc., OSHAB 77-024, Decision After Reconsideration, pg. 2 (Dec. 20, 1979).)

Kanjcevich testified that he issued the citation for a violation of section 5143(c)(2) based on the laboratory test showing 1.67% lead in the sample he took from the roof area on October 28, 1996. He was asked if any employees would come in contact with the material that he had sampled from the roof. He answered that several CIM employees would be exposed, specifically Gary Lord. Hernandez did not testify nor did any employee of Action, the sub-contractor who actually did the sand blasting.

We find that the evidence failed to establish that an employee of Employer was exposed to the violative condition alleged in the citation.

In its answer to the order granting petition for reconsideration the Division argues that the existence of the violation was not in issue at the hearing because Employer did not check the box on the Appeal form indicating its intention to challenge the existence of the violation. The Division asserts that Employer did not move to expand the scope of its appeal at the hearing and therefore there was no need for the Division to show by a preponderance of the evidence, the existence of the violation, including the element of employee exposure. We disagree.

A review of the hearing record discloses that the ALJ announced at the commencement of the hearing that “(t)he basis of the appeals are the existence of the violations.” The Division raised no objection at the time. The hearing proceeded and the Division put on evidence to prove the violation. The Division’s counsel asked Kanjcevich what Employer needed to do to comply with section 5143(c)(2). He answered that IT Corporation would have to install and maintain an exhaust ventilation system so that whatever was discharged would not harm employees. He said the sample he took from the roof area had to be airborne at one time and that it was possible that a person on the roof could inhale the lead contained in that sample. We find that the Division through its question about compliance with section 5143(c)(2) acknowledged the existence of the violation as an issue. The existence of the violation was raised and discussed at the hearing. We hold, therefore, that the Division waived its argument that the existence of the violation was not appealed by Employer. (See, Western Paper Box Company, OSHAB 86-812, Denial of Petition for Reconsideration (Dec. 24, 1986).)

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated August 25, 1999 is reversed and Employer’s appeal is granted.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 29, 2001


1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The Division filed an “Answer of Division to Order Granting Petition for Reconsideration.” This answer was received by the Board on December 6, 1999; an affidavit of service upon Employer was executed on December 3, 1999. Section 390(b) provides: “A party may, within 30 days of service of any petition for reconsideration, file an answer with the Appeals Board.” Similar language is found in Labor Code section 6619: “A copy of the petition for reconsideration shall be served forthwith upon all parties by the person petitioning for reconsideration. Any party may file an answer thereto within 30 days thereafter. [Emphasis added]. No objection was made that there was a late-filed answer and no argument offered that section 390(b) or Labor Code section 6619 is either mandatory or directory. We therefore choose to consider the Division’s answer.
2 Subsequent to the issuance of the citation in this case, effective January 1, 2000, Labor Code section 6400 was amended to provide that citations may be issued to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division: (1) the exposing employer, (2) the creating employer, (3) the controlling employer, (4) the correcting employer. Stats. 1999 ch.615 §4 9AB 1127).