BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

TUTOR-SALIBA-PERINI

15901 Olden Street

Sylmar, CA 91342

                              Employer

 

 

Docket No.

98-R5D2-068 and 98-R5D2-196

 

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 Tutor-Saliba-Perini (Employer), makes the following decision after reconsideration.

JURISDICTION

Between July 7 and September 30, 1997, the Division of Occupational Safety and Health (the Division) inspected the ventilation in two underground Los Angeles Metropolitan Transit Authority [MTA] rail stations, Vermont-Beverly [B-241] and Vermont-Sunset [B-261]. The Division issued two citations each alleging a general violation of section1 8437(i) [auxiliary ventilation] with a proposed civil penalty of $750 for each violation.

Employer filed timely appeals contesting the existence of the alleged violations and the reasonableness of the proposed civil penalties.

On December 15, 1998, a hearing was held before Dennis M. Sullivan, administrative law judge (ALJ) of the Board, in Los Angeles, California. David Watts, Corporate Safety Manager, represented Employer. David Pies, Attorney, represented the Division.

On January 14, 1999, the ALJ issued a decision denying both of Employer's appeals.

On February 11, 1999, Employer filed a petition for reconsideration. The Division did not file an answer.

EVIDENCE

Employer was the construction contractor for the Vermont-Beverly Station and the Vermont-Sunset Station of the Los Angeles Metro Red Line. Vertically, the stations were divided into three levels: a rail level, passenger platform, and mezzanine. At the north and south ends of the platform level and throughout the entire length of the mezzanine level, numerous rooms [ancillary spaces] had been walled off to house machinery and equipment, and for other operational purposes.

Between July 7 and September 30, 1997, the Division’s Compliance Officer Dan Ford inspected the ventilation of the stations. Ford testified that he observed Tutor-Saliba employees working in the stations during the course of his inspections. He identified them by the logos on their hard-hats and testified that it was his past experience that employees that he questioned wearing such logos invariably admitted to being Tutor-Saliba employees. Ford discovered that no fans were being used to circulate the air in the stations and ancillary spaces. He tested the air movement with a vane anemometer2 in both stations and found it measured zero or negligible airflow. Frank Estrada, Employer’s safety representative and gas tester, accompanied Ford and testified that he obtained similar readings to those obtained by Ford at station B-241. Ford also observed dust in the air and testified that had there been any air movement, it could easily have been seen because of the dust. Ford cited Employer for a violation of section 8437(i) at each station.

Ford photographed four employees cleaning up construction debris in the dust laden ancillary space on the mezzanine level of the B-241 station. Estrada identified the individuals in the Division’s photograph as employees of Employer and also testified that they were performing work at the time the photograph was taken. He testified, however, that “[t]hey had ambient air up above from the street.” He based his testimony on the light depicted in the lower center portion of the photograph [natural light]. Jack Barry, Employer’s underground ventilation expert looked at Ford’s photograph and admitted that the photograph showed “dust” in the air.


ISSUES

Did the Division establish a violation of section 8437(i) in Station B-241 when the ancillary space in which employees were working had an opening to fresh air?

Did the Division establish a violation of section 8437(i) in Station B-261?

Did the Division establish violations of section 8437(i) when it did not survey the entire area?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. A Violation of Section 8437(i) Was Established in Station B-241, Although the Ancillary Space in which Employees Were Working Had an Opening to Fresh Air

Employer argues that section 8437(i) does not apply because there is no need for additional ventilation when employees are exposed to fresh air. In support of its contention, Employer points out that: “…a very bright spot in the lower center of the photograph …demonstrates [that] these employees are in close proximity to a ‘deck opening’ that is open to ‘fresh air’.” Its witness, Estrada, testified that the light in the photograph signified there was an opening at the top and that “they had ambient air up above from the street.” The thrust of Employer’s argument apparently is that the opening to “fresh air” as depicted in the Division’s photograph provides the auxiliary ventilation required by section 8437(i).

Section 8437(a) provides that “Fresh air shall be provided …and shall not be less than 200 cubic feet per minute for each person underground.” Section 8437(i) provides that “Auxiliary ventilation shall be used to provide the required airflow to all work areas of the tunnel.” A “tunnel” is defined in section 8405 to include “…underground chambers and premises appurtenant thereto.” A “chamber” is also defined as “An opening, room, or vault excavated completely or partially underground which may be open to the surface at the top or connected to the surface by a tunnel or shaft.” “Appurtenant” is defined3 as annexed or belonging legally to some more important thing - to land or buildings.

The Division argued Employer was responsible for maintaining ventilation and air quality standards within the underground stations because it was the station contractor. Estrada’s testimony corroborated Ford’s that Employer’s employees were working in an ancillary area of B-241 and that they were underground. Tests conducted by Ford and Estrada showed that there was zero or negligible airflow. The regulations require 200 cubic feet per minute airflow for each person underground. The evidence established that there were at least four people working underground in station B-241 requiring a minimum 800 cubic feet per minute airflow. Under these facts the employees were exposed to a violative condition.

2. The Division Established a Violation of Section 8437(i) in Station B-261.

Ford testified that he observed Employer’s employees in both stations during his inspections. Ford testified that he was accompanied by another employee on his inspection of station B-261, who corroborated his readings of zero to negligible air flow but that employee kept no record of the test results.

Employer’s employees were observed by Ford working in station B-261 when there was zero or negligible airflow, in which case those employees were necessarily exposed to a violative condition since the required 200 cubic feet per minute airflow for each such employee was not registered.

The assertion that section 8437(i) does not apply is without merit. We find that employees were in two underground chambers, stations B-241 and B-261, and there was zero or negligible airflow in both stations.

3. Violations of Section 8437(i) were Established Even Though the Division did not Survey the Entire Area.

Employer next contends that the Division did not perform a comprehensive evaluation of the entire area and therefore failed to meet its burden of proof to establish violations of section 8437(i). Employer argues that the Division is required to use industry “best practices” to establish violations of section 8437(i). Its contention is that the Division’s method of testing does not conform to industry “best practices” because it did not perform a collection of airflow readings throughout an entire cross section of the tunnel, station, or ancillary spaces.

We disagree with Employer that a comprehensive evaluation of the entire area is necessary to establish a violation of section 8437(i). Ford tested for airflow at locations where the employees were working in underground chambers. He testified that the reading was zero or negligible airflow in the chambers.

The Division’s burden is to prove a violation by a preponderance of the evidence. (See, Howard J. White, Inc. OSHAB 78-741, Decision After Reconsideration (June 16, 1983).) The burden of showing something by a “preponderance of the evidence” simply requires the trier of fact to believe that the existence of the fact is more probable than its nonexistence before s/he may find in favor of the party who has the burden to persuade the judge of the fact’s existence. Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, (1993) 508 U.S. 602.

We disagree with Employer’s assertion that the Division failed to meet its burden of proof. We concur with the ALJ that both Ford for the Division and Estrada for Employer obtained similar airflow readings in work areas for which Employer was responsible and we find that those readings established that less than 200 cubic feet per minute airflow was provided for each person underground.

We have reviewed the safety orders and find that they do not prescribe a requirement for a comprehensive evaluation in order to establish a violation of section 8437(i). Once it is determined that the airflow in the stations and ancillary areas is zero or negligible when the safety order requires a specific positive airflow, we find a violation is established.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is sustained. Two general violations of section 8437(i) are established and a civil penalty of $750 for each violation is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON July 9, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 A portable instrument used to measure airspeeds in large ducts; consists of a number of vanes radiating from a common shaft and set to rotate when facing the wind. McGraw-Hill Dictionary of Scientific and Technical Terms, 4th ed. (1989) p.2014.
3 Webster’s Third New International Dictionary (1981) p.107