BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

R. WRIGHT & ASSOCIATES, INC.,
dba Wright Construction & Abatement
17029 Devonshire Street, Suite 142
Northridge, CA 91325

                                                      Employer

Docket Nos. 95-R3D3-3649br>                      through 3656

 

               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 proceeding by R. Wright & Associates, Inc., dba, Wright Construction & Abatement (Employer), makes the following decision after reconsideration.

JURISDICTION

Between April 13, 1995, and May 24, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted a complaint inspection at a place of employment maintained by Employer at Facility #S-581, U. S. Marine Corps Logistics Base, Yermo, California (the site).

Employer, an asbestos and lead abatement contractor, was removing lead containing paint from the exterior of a metal water tower at the site as a subcontractor to the restoration project’s general contractor. Two Wright employees, one of them a supervisor, were working from a power operated suspended scaffold, using hand held electric disk sanders to remove paint from the side of the water tank, approximately 132 feet above ground. All of the citations issued alleged violations pertaining to conditions and practices of their work.

On September 11, 1995, the Division issued to Employer various citations and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations, certain of which Employer brought before the Board by petition for reconsideration, discussed below, are addressed here.

Employer filed timely appeals contesting the existence and classification of the alleged violations and the reasonableness of the abatement requirements and proposed penalties.

An administrative law judge of the Board (ALJ) conducted a hearing on Employer’s appeals on August 27, 1996. At the hearing, the ALJ granted the Division’s motions to withdraw Citation No. 1, Items 2, 3, 7, 8, 9 and 13; combine Citation No. 1, Items 5 and 6 to allege a single violation of section 1532.1(f)(4) with a proposed penalty of $125; and, reduce the classification of the violations alleged in Citation Nos. 4 and 5 from serious to general.

On October 22, 1996, the ALJ issued a decision granting Employer’s appeals from Citation No. 1, Items 10, 12 and 16 and Citation No. 6; reducing the classification of the violation alleged in Citation No. 3 from serious to general; reducing the penalties for all sustained general violations to $85 each; and, reducing the penalties for all sustained serious violations to $435 each.

On November 20, 1996, Employer petitioned the Board for reconsideration. On December 17, 1996, the Board granted Employer’s petition and stayed the ALJ’s decision pending reconsideration. The Division filed an answer to the petition on December 20, 1996.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record.

Issue No. 1

Were Employer’s rights violated during the inspection or the hearing?

Findings and Reasons
for
Decision after Reconsideration

Employer’s Rights Were Not Violated During the Inspection or the Hearing.

Employer contends in its petition that it was denied the right to be present during the inspection.

Labor Code section 6314 (d) provides, in part, that, an employer representative and an authorized representative of employees, "shall have an opportunity to accompany . . . [a Division inspector] on the tour of inspection" and to "discuss safety and health violations or safety and health problems with the inspector privately during the course of an investigation or inspection."

Here, the general contractor's employees were doing the same sort of lead abatement with similar or identical equipment and protective equipment as Employer's two employees. The general contractor's superintendent assigned work to Employer's employees, provided equipment, and oversaw their progress. The complaint that prompted the inspection was against the general contractor, whose superintendent consented to the inspection and accompanied the industrial hygienist. The general contractor at a multi-employer construction site controls the entire site. Hence, if the general contractor consents to an inspection, the Division representative may inspect the work of all sub-contractor employers without obtaining their consent. (Rossi Construction Company; Metro-Young Construction Co.)

The inspecting industrial hygienist testified that when he went to the site on April 13, 1995, he conducted an opening conference with Robin Wright, Employer’s principal owner, and Supervisor Jose Barragan. He advised them that a representative of Employer could accompany him on his inspection but that Ms. Wright declined, telling him that she was at the site just to drop off some uniforms and had a prior commitment elsewhere. He also testified that Supervisor Barragan was present during some part of the inspection.

Supervisor Barragan testified that he did not see Ms. Wright at the site that day and that she always called him before she arrived. As he recalled, she came to the site another day, spoke with the inspector, and then had to leave. He said that he spoke to the inspector and showed him equipment. Randy Wright, one of Employer’s stockholders, testified that Barragan was a supervisor.

Employer’s acknowledgement that Barragan was a supervisor, coupled with Barragan’s testimony concerning participation in the inspection, is a sufficient basis for finding that Employer was afforded the opportunity to have a representative present during the inspection. Even if Barragan was not a representative of Employer and Robin Wright was not at the site on April 13, 1995, the industrial hygienist had the right to proceed with the inspection, because the Division is obligated to offer an employer the opportunity to accompany the inspector only if the employer has a representative present at the site when the inspection is made. (See, e.g., Novo-Rados Enterprises; Don Dittemore Co., Inc.; and Caves Construction.) Accordingly, Employer failed to prove that it was denied the opportunity to have a representative accompany the industrial hygienist on his inspection.

Employer also contends that the hearing was unfair because Employer "was not allowed to see any evidence that the District had in its possession" or to interview the Division’s inspecting industrial hygienist before the hearing.

Employer is correct in asserting that it had a right to discover Division documents pertaining to this proceeding and to seek to question the industrial hygienist before the hearing. But those rights must be exercised in accordance with the Board’s rules of Practice and Procedure (345-397). By serving the Division before the hearing with a written request to inspect or copy documents pursuant to section 372.1, Employer could have obtained access to the documents it wished to review. Also, by obtaining and serving on the industrial hygienist a subpoena re deposition pursuant to section 372.3, Employer may have compelled him to appear and answer questions in advance of the hearing. Employer does not assert in its petition that it acted in accordance with these provisions and presented no evidence at the hearing to prove that it had. Thus, Employer failed to prove that it was deprived of pre-hearing discovery and deposition rights unfairly.

Issue No. 2

Citation No. 1, Item 4

Does the evidence support the finding that Employer’s emergency action plan was deficient?

FINDINGS AND REASONS
FOR
DECISION
AFTER RECONSIDERATION

The Evidence Does Not Support the Finding that Employer's Emergency Action Plan was Deficient.

The Division issued Citation No. 1, Item 4, because the industrial hygienist reviewed a document he believed to be Employer's Emergency Action Plan and determined that it lacked certain of the elements specified in section 3220(b). However, section 3220(e)(3) provides that, "For those employers with 10 or fewer employees the . . . [Emergency Action Plan] may be communicated orally to employees and the employer need not maintain a written plan." It was undisputed that Employer had five to seven employees, as recited by the ALJ and generally corroborated by the 40% size adjustment, available only to employers with 10 or fewer employees (335(b), that the Division granted Employer in its penalty calculations.

The Board holds that review of a written document without inquiry into what was "communicated orally to employees" is an inadequate means of determining the sufficiency of a small employer's Emergency Action Plan.

By committing its Emergency Action Plan for the site to writing, Employer may have become obligated to ensure that it included all of the elements specified in section 3220(b). Section 3220(b) does not require that a plan be implemented, but if one is, then it must meet the requirements that section 3220(b) sets forth. (See, Tulip Corporation, dba Automotive Battery Products Co.) But, even if that were so, the evidence does not support the finding of a violation.

The ALJ found that Employer's Emergency Action Plan was deficient because it lacked "plans to provide emergency escape routes and procedures; the rescue and medical duties for employees; and the names and regular job titles of persons to contact."

The job was being performed for the Marine Corps on a military reservation. To comply with federal requirements, Employer had to present a plan of operations for the lead-related work on the water tank that included "Emergency Services and Procedures."

These provisions, rather than the completed, "fill-in-the blanks," Emergency Action Plan form at page 37 of Employer's IIPP referenced by the ALJ, describe the plan in detail. And, they include directions for the employees to follow to get back to the ground from the suspended scaffold or from the water tower itself in the event of an emergency. The "rescue and medical duties" of the employees are also specified. Finally, persons and agencies to contact, depending on the nature of the emergency, are identified therein specifically, not by name, but by title, and, with one exception, by telephone number. This complied substantially with the section 3220(b)(6) requirement of including in the plan the "names or regular job titles of persons or departments who can be contacted for further information or explanation of duties under the plan." Thus, the Board finds that the Division failed to prove the alleged violation.

Issue No. 3

Citation No. 1, Items 5 and 6

Does the Evidence Support the Finding that Employer’s Respiratory Protection Program was Deficient?

FINDINGS AND REASONS
AND
DECISION AFTER RECONSIDERATION

The Evidence Does Not Support the Finding that Employer's Respiratory Protection Program Was Deficient.

At the Division's motion, these two items were combined to allege a single general violation of section 1532.1(f)(4)(A), which pertains specifically to the hazard of airborne lead and provides that "employer shall institute a respiratory protection program in accordance with section 1531(b), (d), (e) and (f)."

Section 1531 is the "Respiratory Equipment Protection" standard which generally applies to employees whose work exposes them to the danger of inhaling contaminants. Subsection (b) mandates the use of respirator equipment approved by designated authorities. Subsection (d) establishes rules for the maintenance and sanitation of respiratory protective equipment. Subsection (e) sets standards for the quality of air used in compressed air or supplied air respirators. Subsection (f) states that respiratory protection programs must (1) have "written operating procedures governing the selection and use of respirators" that "include procedures for selection, instruction and training, cleaning and sanitizing, inspection and maintenance;" (2) ensure proper selection and issuance of respirators in accordance with American National Standard Institute (ANSI) guidelines; and, (3) provide for appropriate program surveillance and evaluation.

The ALJ found that Employer's respiratory protection program did "not contain the required material on selection, maintenance, storage, and cleaning of respirators" and sustained the alleged general violation of section 1532.1(f)(4)(A).

The Board’s review of Wright’s program, titled, "Wright Construction & Abatement, Employee Respirator Program for Lead Dust Hazards for Water Tank Improvement, MCLB, Barstow, California" (Wright’s Program) indicates that the ALJ’s finding is inaccurate. More than six pages of Wright’s Program provide detailed information on the selection, maintenance, storage, and cleaning of respirators. It also includes procedures for ensuring proper selection and issuance of respirators and for surveillance and evaluation of the program. Accordingly, the Board finds that Wright’s Program did include the information concerning the selection, maintenance, storage, and cleaning of respirators, required by section 1532.1(f)(4)(A), and grants Employer’s appeal from Citation No. 1, Items 5 and 6.

Issue No. 4

Citation No. 1, Item 11

Does the evidence support the finding that Employer’s compliance program was deficient?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Finding that Employer's Compliance Program was Deficient.

Section 1532.1(a) [Scope] states that section 1532.1 "applies to all construction work where an employee may be occupationally exposed to lead," and defines "construction" to include the "removal . . . of materials containing lead." The paint on the water tank contained lead. The employees were removing the paint with power-operated disk sanders. Use of the sanders generated lead-containing dust.

The employees were using half-face respirators designed to provide protection in atmospheres where the airborne concentration of lead was up to 500 micrograms (g) per cubic meter of air (m), or 10 times the 8-hour time-weighted average (TWA) permissible exposure limit (PEL) for airborne lead of 50 g per m. (1532.1(c)) However, section 1532.1(d)(1)(B) provides, that for exposure assessment purposes, "employee exposure is that exposure which would occur if the employee were not using a respirator."

All of Employer's exposure assessment records show that employees doing the work always were exposed to, at least, minimal concentrations of airborne lead and, on some occasions were exposed to appreciable concentrations. For example, the records indicate that on March 30, 1995, Jose Barragan was exposed to an 8-hour TWA of 6.52 g of lead per m of air, and that Luis Magana was exposed to the same concentration on March 31, 1995. The records also show that on March 29, 1995, Magana was exposed to an 8-hour TWA of 61.73 g of lead per m of air, which exceeded the 8-hour TWA PEL for airborne lead of 50 g per m of air. Accordingly, it is found that the employees sanding the water tank were "occupationally exposed" to lead, and that the requirements of section 1532.1 applied.

By section 1532.1(e)(2), Employer was required to develop and implement a written compliance program to ensure that employees would not be exposed to airborne lead in excess of the PEL. Subsection (e)(2)(B) specifies nine elements that must be covered in writing. The ALJ found that Employer’s program lacked four of the elements, to wit, "a detailed schedule for implementation of the program, a work practice program, an administrative control schedule, and arrangements with other contractors for informing employees of exposure."

As Employer contends in its petition, many of the required compliance program elements are covered in several different documents. They include Employer’s IIPP, Respirator Program, Employer’s plan of operations for the job, Employer’s lead paint removal and safety standards for the job, and the engineering controls and instruction manual for the type of power sanders the employees were using.

Arguably, these documents contain enough information to form a "work practice program" and, considering the fact that only two contractors were working there, to provide "arrangements with other contractors for informing employees of exposure." It was not shown that Employer was obligated to implement administrative controls, and none were implemented. Hence, the need for the plan to include an administrative control schedule was not proven.

However, the Board finds nothing that could be construed as "a detailed schedule for implementation of the program." Moreover, information that can be found only by reading through two or three different documents is not the integrated written program contemplated by the safety order. For these reasons the Board concurs in the ALJ’s finding that Employer violated section 1532.1(e)(2).

Issue No. 5

Citation No. 1, Item 14

Does The Evidence Support the Finding that Section 1532.1(i)(2) applied and that Employer violated the safety order by not ensuring that change areas were equipped with separate storage facilities for street clothing?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Finding that Section 1532.1(i)(2) Applied and that Employer Violated the Safety Order by Not Ensuring that Change Areas Were Equipped with Separate Storage Facilities for Street Clothing.

Subsection A of section 1532.1(i)(2) [Change areas] states that "the employer shall provide clean change areas for employees whose airborne exposure to lead is above the PEL." Subsection B requires employers to equip change areas "with separate storage facilities for protective work clothing and equipment and for street clothes which prevent cross-contamination."

There was a change area at the site, but it did not have separate storage facilities for street clothes. For that reason, the ALJ found that Employer violated section 1532.1(i)(2).

In its petition, Employer challenges the finding of a violation on the ground that the Division failed to prove that an employee was exposed to lead in excess of the PEL on the date of the inspection. The Board rejects Employer's challenge because the evidence shows that an employee was exposed in excess of the PEL on March 29, 1995, approximately two weeks before the inspection, and that Employer was not providing separate storage facilities for street clothes in the change area at that time.

The Division alleged that an employee was exposed to lead in excess of the PEL on March 29, 1995, among other dates. The Division was unable to demonstrate how it had calculated the extent by which the exposure exceeded the PEL from the monitoring records provided by Employer. Nonetheless, according to the exposure assessment records, as amended or clarified by the consultant who performed the assessments for Employer, and the testimony of one of Employer’s witnesses, the records show that on March 29, 1995, employee Luis Magana was exposed to an 8-hour TWA of 61.73 g of lead per m of air. As stated above, for purposes of lead exposure assessment under section 1532.1(d), "employee exposure is that exposure which would occur if the employee were not using a respirator." By this measure, Magana's exposure on March 29, 1995, exceeded the PEL for lead of 50 g of lead per m of air. Hence, section 1532.1(i)(2) applied, and Employer was thereby obligated to provide separate storage for street clothes that day.

The respirator prevented the lead from entering Magana's lungs while he used the respirator, but it did not prevent lead dust that collected on him and his protective clothing and equipment as he worked from being carried into the change area and causing a clothing cross-contamination danger.

The Division was not restricted to citing Employer only for violations that occurred on the date of the inspection. Pursuant to Labor Code section 6317, the Division may cite an employer for any violation that occurs within the six months preceding the issuance of the citation. The citation was issued on September 11, 1995, less than six months after March 29, 1995. Citation No. 1, Item 14 alleges that an excessive exposure occurred on March 29, 1995, and the evidence proves that it did. Therefore, the Board concurs in the ALJ’s finding of a violation.

Issue No. 6

Citation No. 1, Item 15

Does the evidence support the finding that Employer was obligated by section 1532.1(i)(3) to ensure that employees showered at the end of the workday and failed to do so?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Finding that Employer was Obligated by Section 1532.1(i)(3) to Ensure that Employees Showered at the End of the Workday and Failed to Do So.

Pursuant to section 1532.1(i)(3), an employer must "provide shower facilities, where feasible, for use by employees whose airborne exposure to lead is above the PEL" and, where showers are available, must assure that employees shower at the end of each shift. A shower was available for use by Employer’s employees in a building near the water tower. However, Supervisor Jose Barragan testified that he and employee Luis Magana washed their hands and faces in a sink but did not shower at the end of each shift. The ALJ found a violation.

Employer contends that the evidence does not support the finding of a violation because the Division did not prove that an employee was exposed to airborne lead in excess of the PEL. Employer raised the same contention in seeking relief from the section 1532.1(i)(2) violation alleged in Citation No. 1, Item 14. There the Board rejected the contention, finding that the evidence did support a finding that employee Luis Magana was exposed in excess of the PEL on March 29, 1995. The same reasons apply in this case. The Board incorporates them here by reference and, based thereupon, finds that Employer violated section 1532.1(i)(3) by not assuring that Magana showered on March 29, 1995.

Issue No. 7

Citation No. 1, Item 17

Did Employer fail to specify grounds for reconsidering the ALJ’s decision that Employer violated section 1532.1(n)(1)(B) by not including certain information in exposure records?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer Failed to Specify Grounds for Reconsideration.

Employer states in its petition that it is seeking relief from the ALJ’s decision in Citation No. 1, Item 17 that Employer violated section 1532.1(n)(1)(B) by not including "the type of respiratory protective devices in use, or the social security numbers and job classifications of the employees" in exposure records, as required by that regulation. However, Employer has not complied with section 391 by specifying "the grounds upon which … [it] considers the . . . [Citation No. 1, Item 17] decision to be unjust or unlawful." Instead, Employer offers "grounds" pertaining to the violation of section 1532.1(m)(2) [lead warning signs] alleged in Citation No. 1, Item 16 and vacated by the ALJ. Since Employer did not specify grounds for reconsidering the Citation No. 1, Item 17 decision, reconsideration of that item is denied.

Issue No. 8

Citation No. 2

Does the evidence support the finding of a violation of section 2510.58(a) regarding the absence of grounding poles on extension cords and, if so, does it also support the serious classification?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Finding of a Violation of section 2510.58(a) But Does Not Support the Classification of the Violation as Serious.

A violation of section 2510.58(a) was established by undisputed Division evidence of the fact that the plugs on two extension cords being used by the employees were missing the grounding poles required by that section. The cords were linked together with other cords to conduct 120-volt current from a source on the ground to the scaffold suspended 132 feet thereabove to supply power to the sanders and other equipment. Part of the Division’s reason for classifying the violation as serious was the belief that there was a high concentration of lead in the air that could cause an explosion and rupture the water tank if ignited by electrical arcing around the defective plugs. The ALJ sustained the serious violation.

For a violation to be classified as serious, the Division must prove it is substantially probable that the violation could cause death or serious physical harm to an employee and that the employer knew of the violation or could have known of it by exercising reasonable diligence. (Labor Code 6432(a).) Checking the condition and safety of all equipment before use shows reasonable diligence. Supervisor Barragan could have known the grounding poles were missing from the plugs simply by examining the cords before using them. That was not done. Hence, the Board agrees that the employer knowledge element of a serious violation was proven.

A result is "substantially probable" if it "is more likely to occur than not." (Abatti Farms/Produce; and see, Pacific Steel Casting Co.) The industrial hygienist’s testimony concerning the catastrophe that could occur if a missing grounding pole caused an accident in an explosive atmosphere was offered as proof of the substantial probability that death or serious harm could result. However, the ALJ properly found the evidence upon which the Division based its belief that an explosive atmosphere was present to be unreliable. That finding having been made, the Division’s proof of substantial probability rested solely on the industrial hygienist’s opinion that accidental contact with 120-volt current could have serious consequences. No testimony was offered to prove that the industrial hygienist was an expert on the subject of the probable effects of accidental contact with 120-volt current. Moreover, the industrial hygienist offered no reasonably specific scientific or experienced based rationale for his opinion, and the Division produced no reliable or generally accepted empirical evidence tending to prove the substantial probability of such dire consequences.

Given the unreliability of the industrial hygienist's hazard-enhancing, explosive atmosphere testimony, and the lack of foundational or supporting evidence for his substantial probability opinion, the Board finds his opinion insufficient to prove there was a substantial probability the violation could result in death or serious physical harm. Accordingly, the Board reduces the classification of the violation to general and the penalty to $85.

Issue No. 9

Citation No. 3

Does the evidence support the finding of a violation of section 1675(a) for failure to provide safe ladder access to an elevated position?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Finding of a Violation of section 1675(a).

An encaged metal ladder, affixed to one of the metal columns supporting the elevated water tank, provided access to a catwalk encircling the tank. The fixed ladder started approximately ten feet above ground. To provide access from the ground to the fixed ladder someone had placed and secured a portable metal ladder against the bottom of the support column, directly under the fixed ladder. There was a 41-inch vertical gap between the top step of the portable ladder and the bottom rung of the fixed ladder.

Employer’s two employees were working from the suspended scaffold when the industrial hygienist arrived. He asked the general contractor’s superintendent to get the employees down so he could interview them. The superintendent yelled to the employees to come down. They started to descend on the slow-moving scaffold. The superintendent then told them to climb down the ladders, which they did. Employer’s supervisor Juan Barragan testified that he and the other employee had never used the ladders before the superintendent directed them to do so.

The industrial hygienist observed the employees climb down the ladders, transiting the 41-inch vertical gap. This led the Division to charge Employer with a serious violation of section 1675(a) for not providing safe ladder access to an elevated location. The ALJ sustained the violation but reduced the classification to general and the penalty to $85.

The Division made no effort to impeach Supervisor Barragan’s testimony that this was the first and only time Employer’s employees used the ladders and it is accepted as true. Thus, the issue presented is whether one descent of the ladders is a sufficient basis for finding Employer responsible for the violative exposure that did occur. The Board finds in the circumstances of this case that it was.

Employer had only two employees at the site, the men descending the ladder. While they had never used the ladders, the 41-inch gap was obvious to Employer’s supervisor on the job, Barragan, who had to bridge it himself.

The fact that the employees were coming down at the request of the Division did not make the Division the moving force in the violation. The industrial hygienist directed them to come down, and did not ask them to use any method other than the power-driven scaffold. The general contractor’s superintendent, not the industrial hygienist, was the source of the direction to use the ladder.

The Board has always refused to recognize conditions or exposures created by other employers on a construction job as a defense for the employer of the exposed employees. The fact that the direction to use the ladders came from another employer on the site provides Employer no defense to this citation.

The Board therefore affirms the ALJ’s finding of a general violation of section 1675(a).

Issue No. 10

Citation Nos. 4 and 5

Does the evidence support the finding of the violations of section 1512(g) requiring a two-way emergency communication system and section 1512(h) requiring a basket litter?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Findings that Employer Violated sections 1512(g) and 1512(h).

The Division reduced the classification of these violations to general at the hearing and the proposed penalties to $85 each. Both relate to emergency assistance devices employers must provide to employees working on structures that are 48 feet or more above ground. The water tank and tower on which the employees were working was a structure. The top of the tank was 161 feet above ground. The employees were working about 132 feet above ground when observed by the industrial hygienist.

Citation No. 4 was issued because the employees did not have a ""two-way emergency communication system" on the scaffold, as required by section 1512(g), and Citation No. 5 was issued because they did not have a basket litter with straps and blankets or the equivalent, as required by section 1512(h). The Division’s evidence of the violations was undisputed. However, Employer’s witness testified that the general or prime contractor was supposed to provide both of these items. Therefore, Employer argued, the general contractor, not Employer, should have been held responsible for the violation. Employer also argued that the employees could communicate with people on the ground by shouting and that the scaffold could be used as a litter to lower an injured employee to the ground. The ALJ upheld both violations.

In its petition for reconsideration, Employer reiterates the argument that the responsibility for the violations should fall solely on the general contractor. It is not a valid defense to the citations. An employer cannot by contract or other means divest itself of responsibility for ensuring that its employees are provided with required safety devices. Moran Constructors, Co. Accordingly, the Board affirms the violations.

Issue No. 11

Citation No. 7

Does the evidence support the finding that Employer violated section 2340.1 requiring electrical equipment to be maintained free of hazards?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Does Not Support the Finding of a Violation of section 2340.1.

Power to operate the scaffold was supplied by two cords furnished to Employer with the scaffold by an equipment rental business. The cords hung down vertically from the scaffold to the ground where they were connected to a power source.

Section 2340.1 provides that "[e]lectrical equipment shall be maintained free from recognized hazards that are likely to cause death or serious physical harm." The Division cited Employer for a serious violation of section 2340.1 because one of the cords was suspended vertically 132 feet from a railing of the scaffold to the ground without support.

The Division contended that the stress imposed on the cord by its own weight was a "recognized hazard" that could cause the conductors inside the cord to pull apart, exposing employees to accidental contact with the 120-volt current they carried. In support of its position the Division cited section 300-19 of the 1993 National Electrical Code which states that vertical cables in raceways are to be supported. However, the Division did not test the strength of the sheath of the cord or attempt to determine its vertical suspension capabilities through contact with the equipment renter or the scaffold manufacturer. The industrial hygienist testified that it was substantially probable that accidental contact with the current could result in death or serious physical harm. The ALJ upheld the serious violation.

The Board’s review indicates that the evidence does not support that finding. The California Low-Voltage Electrical Safety Orders do not prohibit vertically suspending or hanging electrical cords or impose support requirements for vertically suspended cords. Moreover, cords designed for use with power-operated scaffolds which may, by necessity, have to be vertically suspended for considerable distances, may incorporate fortification or support against any stress caused by vertical suspension. The Division did not determine this.

The fact that the National Electrical Code requires vertically suspended permanent wiring in raceways to be supported does not prove that failing to support flexible cords designed for use with power-operated scaffolds is a "recognized hazard" to which section 2340.1 applies.

Also, to establish a violation of section 2340.1, the Division had to prove that the alleged "recognized hazard" would be "likely to cause death or serious physical harm." And, for the same reasons the Board found the industrial hygienist’s opinion insufficient to prove there was a substantial probability that the Citation No. 2 violation could result in death or serious physical harm, the Board finds his opinion insufficient to prove that the violation alleged in this citation would be "likely" to cause harm that severe. Accordingly, the Board finds that the alleged violation was not proven and grants Employer’s appeal from Citation No. 7.

Issue No. 12

Citation No. 8

Does the evidence support the finding of a general violation of section 1532.1(e)(3) requiring an Employer to evaluate the performance of a mechanical ventilation system?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Supports the Finding of a General Violation of section 1532.1(e)(3).

To prevent the lead-containing air exhausted by a sander from entering the breathing zone of the employee using the sander, Employer fashioned a cloth and duct tape hood over the back of the sander head and taped the intake end of a one or one and one-half inch diameter hose into the hood. The hose’s discharge end was connected to an electric pump that drew the air from the sander through High Efficiency Particulate Air (HEPA) filters to trap the lead particles before the air was released into the atmosphere. Because the system conditioned or ventilated air and depended "upon power-driven equipment for its operation," it was a "mechanical ventilation system" as defined in section 5140.

Section 1532.1(e)(3) provides that "[w]hen [mechanical] ventilation is used to control lead exposure, the employer shall evaluate the mechanical performance of the system in controlling exposure as necessary to maintain its effectiveness." The Division concluded that Employer had not evaluated the mechanical performance of the system and believed that, on some days, the sanding work exposed the employees to airborne lead concentrations that were hundreds of thousands, even millions, of times in excess of the PEL. Thus, in Citation No. 8, the Division charged Employer with a serious violation of section 1532.1(e)(3).

The ALJ found that the Division’s evidence concerning the levels of airborne lead to which the employees were exposed was unreliable and reduced the classification of the violation to general and the penalty to $85. He found a general violation of section 1532.1(e)(3) because Employer’s testimonial and documentary evidence "does not disclose how the ventilation system of the grinder is to be evaluated."

Employer argues that the results of the monitoring of the concentrations of lead in the breathing zones of the employees, which frequently indicated exposures far below the PEL, demonstrated that the effectiveness of the mechanical performance of the sander’s ventilation system was maintained. That, however, is an inference, not an evaluation of the ventilation system itself, and it does not explain the significantly greater levels of exposure that occurred on March 29 and 31, 1995. Malfunction of the ventilation system could have been a contributing factor. To determine if it was a factor, the system itself would have to be examined and evaluated, and that was not done. For these reasons the Board finds that Employer’s reliance on indirect or inferential evaluation of the system's performance did not meet the requirements of section 1532.1(e)(3) and affirms the ALJ’s finding of a violation.

DECISION AFTER RECONSIDERATION

The ALJ's decision with respect to Citation No. 1, Items 4, 5, and 6, Citation Nos. 3 and 7 is reversed and the appeals granted. The decision is also modified by reducing the classification of the Citation No. 2 violation to general and the civil penalty to $85. The remainder of the decision is reinstated and affirmed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – November 29, 1999