Painting company's non-compliance with a new OSHA standard results in penalty of $383,590

Abstract

A small, family-owned industrial and commercial painting contractor started a project for the Ohio Department of Transportation in March of 1993. The company was hired to repaint the Jeremiah Morrow Bridge in Lebanon, Ohio which required abrasive blasting to remove lead-based paint from two parallel bridges before repainting could begin.

While working on the project, a new lead in construction standard went into effect. Although compliance with the new standard was required "as soon as possible," certain sections of the standard, including administrative and work practice controls, were mandated by OSHA to be in compliance no later than 60 days from the effective date.

OSHA inspected the painting contractor's worksite exactly 60 days after the standard's effective date, as a result of an inquiry by a physician who treated one of the company's employee for lead poisoning.

Based on the findings in that inspection, OSHA issued serious and willful citations which included allegations of lead overexposure, the lack of a compliance program, and the failure to provide adequate respiratory protection, protective work clothing, housekeeping, hygiene facilities/practices, and medical removal protection and surveillance.

An administrative law judge affirmed most of the alleged violations. Although the painting contractor challenged the new standard and sampling methods used by OSHA, the Occupational Safety and Health Review Commission (OSHRC) ruled that the standard was applicable to most of the cited conditions, and the sampling results were reliable to establish employee overexposure to lead. OSHRC assessed a total penalty of $383,590.

Question 1: What did the painting contractor's hazard communication program lack?

In regard to hazard communication, numerous employees indicated to the OSHA inspector that they had not been trained in some or all of the chemical hazards at the worksite. The Secretary of Labor alleged that the painting contractor failed to provide information to numerous employees about the hazards associated with a number of chemicals used at the worksite, as well the contents of the hazard communication (HazCom) standard and the employer’s HazCom program.

Conclusion:

Based on the evidence, the judge and OSHRC found that these violations were supported and an other-than-serious violation was accepted.

Question 2: Where did the painting contractor fail to provide adequate respiratory protection?

The painting contractor admitted that the abrasive blasting — which occurred inside large canvas containments placed around sections of the bridge — released airborne lead which exceeded the PEL. The Secretary alleged that the painting contractor failed to provide protective clothing to employees exposed above the PEL without regard to the use of respirators.

Conclusion:

The judge concluded that the employees lacked appropriate protective clothing and were exposed to all routes of lead entry until the painting contractor initiated and enforced a full protective clothing policy. The judge also found that the painting contractor was aware that its employees were repeatedly using unlaundered clothing. In addition, the barrels provided to hold the contaminated clothing did not have labels that warned employees of the full caution described in the standard. The judge and OSHRC affirmed serious violations.

Question 3: What other standards did the painting company violate?

According to OSHRC, the painting company:

• Failed to timely report to employees the air sampling results obtained by company hired to conduct personal samplings.
• Failed to provide written lead hazard to an employee at the time he laundered his work clothing at home.
• Improperly removed debris from the trailer floor by dry sweeping rather than vacuuming with proper equipment.
• Used compressed air without proper ventilation to remove lead-containing dust from the steel bridge in preparation for repainting.
• Permitted the presence and consumption of food, beverages and tobacco products in the grit recycling area.
• Did not provide separate storage facilities for work clothing/equipment and street clothes; did not ensure that employees left any contaminated equipment and clothes at the worksite; and did not provide shower facilities.
• Failed to ensure that employees washed hands or faces prior to drinking or smoking.
• Failed to provide repeat blood lead level tests to 15 employees within two weeks of receiving test results that showed their blood lead levels were above the PEL.
• Failed to provide employees with the written results of blood lead level testing.
• Delayed training on the contents of OSHA's Lead Exposure in Construction Standard.
• Failed to have a copy of the lead standard available for employees at the worksite.
• Failed to have required lead warning signs on the jobsite.
• Failed to maintain complete records of all monitoring data associated with employee exposure assessments.
• Failed to timely initiate air sampling to determine employees' lead exposure levels.
• Failed to remove employees from blasting work where lead exposure was high.

Full text decision

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