Abstract
In 1993, the Ohio Department of Transportation hired a small, family-owned industrial and commercial painting contractor to remove lead-based paint from two parallel bridges before repainting occurred. The small company received two OSHA inspections in 1993 which resulted in citations for violations of fall protection and lead hazards. These citations were still being contested by the company when OSHA inspected the bridge site again in 1994.
When the case was reviewed by the Occupational Safety and Health Review Commission (OSHRC), the judges agreed that the painting contractor should have been fully aware of its compliance obligations under the Lead in Construction Standard by the time painting season began. Although the painting contractor took positive steps towards meeting those obligations, OSHRC ruled that the company showed a pattern of deliberately ignoring its compliance obligations, as well as the recommendations of the companies hired to assist in its compliance efforts. On April 25, 2007, the painting contractor was assessed a total penalty of $239,650.
Question 1: Was OSHA’s inspection of the painting contractor in 1994 invalid?
The painting contractor argued that under section 10(b) of the OSH Act, OSHA could not conduct an unauthorized, re-inspection of fall protection and lead hazards previously cited in 1993 because these citations were still being contested.
Conclusion
OSHRC rejected this claim and upheld the initial judge’s decision that the 1994 inspection was neither a re-inspection nor a follow-up inspection, but a separate or new “inspection of the same worksite for additional violations of standards previously cited and under contest.”
Question 2: Did the painting contractor meet its lead hazard obligations in regards to keeping its employees safe?
The painting contractor took positive steps toward staying compliant with the OSH Act by providing its employees with the equipment and tools they needed to stay safe. This equipment included the following:
- Respirators
- Air-supplied hoods
- Air vacuums with filtration systems
- Lead safety program
- Biological & air monitoring services
- Portable showers
The company also hired two companies to help it remain compliant with OSHA regulations — one which took air samples and another that monitored employee health.
Conclusion
OSHRC noted that the painting contractor failed to properly test the lead exposure levels before its employees began working on the bridge project. The company also failed to enforce its policy which required employees to take showers at the end of their work shifts. With regard to blood testing, the Commission found that the painting contractor failed to monitor some of its employees’ blood levels for the period of time outlined under the OSHA standard. In fact, the painting contractor ended the follow-up blood testing despite the expert advice given by the medical surveillance company it hired.
Question 3: Did the painting contractor make efforts to protect its employees from falls?
The painting contractor's employees were exposed to fall hazards that ranged from 30 to 140 feet. However, the company used safety nets for protection. OSHA cited the company for the unsafe use of an extended portable ladder in which employees, who were not tied off, were seen using the ladder as a landing surface, as well as a way to get from the bridge deck to a catwalk located below. It also cited the painting contractor for failure to provide guardrails on the painters’ pick scaffolds in three locations at the bridge worksite. In regard to the catwalk, the company was cited by OSHA for failure to properly guard the bridge’s permanent catwalk, as well as the pick scaffolds used as a runway to access the catwalk.
Conclusion
OSHRC determined that the portable ladder, which hung from a sky hook attached to a concrete barrier of the bridge, did not extend 36 inches above the surface as required by the standard. The painting contractor eventually reset the ladder to the proper height.
As for unguarded scaffolds, OSHRC said that since the painting contractor received a citation for the same condition that was still pending at the time, it could not be cited here. OSHRC also ruled on the permanent catwalk citation, stating that 48” guardrails above the floor or ground level were required. Since the painting contractor stacked pick scaffolds on the catwalks, which employees continuously walked over, it raised the floor of the catwalk making the standard guardrails unsafe and not in compliance.
Full text decision
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