2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-1-2005

Bianchi Trison Corp v. Secretary Labor

Precedential or Non-Precedential: Precedential

Docket No. 04-2093

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-2093

 

BIANCHI TRISON CORPORATION,

Petitioner

v.

ELAINE L. CHAO, SECRETARY OF LABOR,

Respondent

 

On Petition for Review of a Final Order of the 

Occupational Safety and Health Review Commission 

(OSHRC Docket Nos. 01-1367 and 01-1368)

 

Argued April 7, 2005

BEFORE: BARRY, AMBRO, and GREENBERG, Circuit Judges

(Filed June 1, 2005)

 

Robert G. Walsh (argued)

3819 Southpark Avenue

P.O. Box 1909

Blasdell, NY 14219-0109

 

 Attorney for Petitioner

Howard M. Radzely

Solicitor of Labor

Joseph M. Woodward

Associate Solicitor for

Occupational Safety and Health

Ronald J. Gottlieb (argued)
BTC is a New York State Corporation with its headquarters in 1

Syracuse, New York.

2

Susan Hutton

Ann Rosenthal

United States Department of Labor

Office of the Solicitor

Room S-4004

200 Constitution Avenue, N.W.

Washington, DC 20210

 Attorneys for Respondent

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

This matter is before this court on a petition for review in

which the petitioner, Bianchi Trison Corporation (hereinafter “BTC”),

challenges the disposition of administrative proceedings instituted by

the Secretary of Labor arising from safety and health problems that

arose in the demolition, implosion, and clean-up of the Three Rivers

Stadium in Pittsburgh, Pennsylvania. In response to a complaint 1

alleging unsafe conditions at the site, the Occupational Safety and

Health Administration (hereinafter “OSHA”) made several

inspections of the stadium which uncovered conditions that caused the

Secretary to bring an enforcement action against BTC under the

Occupational Safety and Health Act (hereinafter the “OSH Act”)

setting forth three citations alleging 45 violations of its standards and

proposing substantial penalties. After a hearing, an administrative law

judge (hereinafter “ALJ”) upheld 35 of the charges. BTC then filed a

petition for discretionary review with the Occupational Safety and

Health Review Commission, but the Commission did not direct the

case for review and thus the decision of the ALJ became the final

order of the Commission on February 27, 2004. BTC next filed a

timely petition for review of the February 27, 2004 order with this

court, which has led to the proceedings culminating in this opinion.
BTC vice-president David Bianchi testified that he told

2

O’Rourke president Timothy O’Rourke that BTC did not intend to do

any torch cutting before the implosion, although it was possible that

employees unexpectedly would run into a pipe or structural steel that

needed to be torch cut. Relying at least in part on this information,

O’Rourke advised Bianchi that BTC could use the exposure

determination from an earlier demolition project at a National Starch and

Chemical Company property as its initial exposure assessment for the

stadium. O’Rourke testified that he did not consider a potential lead

hazard prior to the implosion because BTC told him it did not plan to

torch cut before then. 

3

A. The Demolition of Three Rivers Stadium

We set forth the factual history of the matter as developed at

the hearing before the ALJ. The City of Pittsburgh, through its Sports

and Exhibition Authority (hereinafter the “SEA”), owned the stadium. 

The SEA, in August 2000, issued a request for bids for a contract to

demolish the stadium. BTC was the successful bidder, and,

accordingly, the SEA awarded it the contract. The demolition project

was broken into three distinct phases: pre-implosion demolition,

implosion, and cleanup. In addition to engaging BTC, the SEA

utilized AMEC Construction Management (hereinafter “AMEC”) as

project manager for the demolition and Makin Engineering to oversee

contract compliance. AMEC, in turn, hired Allegheny Asbestos

Analysis d/b/a Global Environmental Management to inspect the

stadium for asbestos and hazardous materials, other than lead. BTC,

however, retained the responsibility for lead abatement. Finally, as

material in these proceedings, BTC contracted with O’Rourke, Inc. to

provide full-time, on-site oversight of all safety and health aspects of

the project, including OSHA compliance. 

BTC started its work at the stadium on January 2, 2001. The

pre-implosion aspect of the contract required it to remove

environmental hazards and prepare the stadium for implosion. The

SEA and AMEC planned a public auction of the stadium’s seats,

freezers, and other stadium memorabilia during the pre-implosion

demolition period. The demand for stadium seats was greater than

expected, and in order to make seats available more quickly than it

had thought would be necessary, BTC directed laborers to torch the

bolts off the seats. On January 15, 2001, the memorabilia sale was

2

conducted with the items sold to be picked up by January 19, 2001.
The violations now at issue stemming from the Safety Case 3

arose from BTC’s failure to protect employees from hazards related to

floor openings and falling debris. 

4

During the pre-implosion phase of the demolition project,

workers complained to Robert Stanizzo, a representative of the

Pittsburgh Building and Construction Trades Council, about safety

issues. In response to these complaints, Stanizzo asked Robert

McCall, the Director of Safety for the Construction Industry

Advancement Program of Western Pennsylvania Fund, to assess the

safety situation at the stadium. McCall went to the stadium on

January 29, 2001, and met with two local union representatives and

examined the safety protections, concluding that they were

insufficient. After a meeting at which McCall received an

unsatisfactory response from BTC’s project manager, he and the

union representatives filed a complaint with OSHA’s Pittsburgh Area

Director, Robert Symanski.

In response to the complaint, OSHA, on January 29, 2001,

conducted a safety inspection of the premises. This inspection

revealed many safety lapses and led to the issuance of citations

alleging numerous violations of the OSH Act. These citations have

been referred to as the “Safety Case” in these proceedings.3

The issuance of the safety citations, however, did not stop the

project and by early February, BTC had demolished most of the

interior of the stadium. BTC through a subcontractor imploded the

stadium on February 11, 2001, following which for a two-month

period BTC processed and removed the remaining concrete and steel

debris. BTC assigned teams of employees to torch cut the steel into

smaller sizes in order to load them onto the trucks to be hauled away.

On February 13, 2001, several OSHA employees viewed a

Pittsburgh television evening news program which aired footage of a

worker torch cutting on a painted steel beam. The footage revealed

visible smoke fumes, and showed that the workers were not wearing

respirators. Their viewing of the program led several OSHA

employees to express concern over the potential for lead exposure to

the workers.

On February 14, the OSHA assistant area director, Edward

Selker, assigned two industrial hygienists to inspect the project for

health hazards. But the next day when the two hygienists went to the
OSHA and BTC concurrently took bulk paint samples at various 4

locations in the stadium on February 15.

On February 16, 2001, after OSHA obtained the inspection 5

warrant, the two hygienists returned to the site. But due to rain, BTC’s

safety consultant advised OSHA that BTC had shut down the burning

work until further notice. OSHA and BTC then reached an agreement

providing for BTC to notify OSHA when it was resuming burning. On

February 21, BTC’s project manager notified OSHA that it was ready to

return to torch burning operations. 

O’Rourke conceded that BTC did not have a written lead 6

compliance plan before February 16, 2001.

5

stadium to begin their inspection, BTC denied them entry. The

hygienists were able to gain entry to inspect the premises only after

contacting the SEA, which granted them permission to inspect the

premises. BTC, however, informed the hygienists that all burning

work had been suspended that day and thus they were only able to

interview the union steward, who indicated that employees had

performed pre-implosion torch burning and cutting. This revelation 4

led to OSHA serving both an administrative subpoena on BTC to

secure records related to the pre-implosion activities and an inspection

warrant to conduct a full inspection. Between February 15 and 5

February 21, BTC implemented a lead protection program at the

stadium, its first formal lead program at the site.6

OSHA made its full inspection on February 21, during which

its inspectors took bulk samples, did air monitoring, and conducted

interviews. BTC concurrently performed sampling. The results of

both OSHA’s and BTC’s sampling revealed that the level of exposure

to lead at the site was much greater than allowed under the OSH Act. 

Consequently, the Secretary issued a citation against BTC alleging

that there were 29 willful violations of the Lead-in-Construction

Industry Standard (hereinafter “the Standard”) at the stadium

(hereinafter the “Health Case”). 

B. The Safety Case

Though the Safety Case involved two citations and numerous

infractions, the only issues material to the Safety Case in these
The citations at issue relating to the removal of the escalators 7

are: 

Citation Number 2, Item 2a, instance (b):

an escalator had been dropped from level

5 to level 4, with only caution tape used

as a warning of the drop. 

Citation Number 2, Item 2a, instance (d):

the failure to provide barricade and

warning signs when an elevator shaft was

“cut.”

The citations at issue relating to fall hazards are: 8

Citation Number 2, Item 2b, instance (a):

failure to cover properly expansion joint

openings in the floor on the second and

third level. 

Citation Number 2, Item 2b, instance (b):

floor hole into which an employee,

Charles Wallace, fell without being

6

proceedings relate to fall hazards and hazards relating to falling

debris. In this regard, there were allegations stemming from falling

debris from BTC’s demolition and removal of the stadium’s

escalators, which BTC removed by burning each escalator’s top loose

from its supports. Sometimes, when the workers cut an escalator

loose, it would not fall, and in that circumstance workers would use a

machine to lower it the floor below. After one of the first escalators

fell, the work crew, in conjunction with the union stewards, enclosed

the areas below the escalators with tape, as a warning not to enter.7

BTC contends that when an escalator did fall, it fell onto the

concrete level from which it had come and did not cause a risk danger

to its employees. Three BTC employees, however, testified about the

risk from the failing debris, and documented incidents in which

different escalators fell two and four levels.

The BTC workers faced an additional risk during the preimplosion period when they were exposed to floor holes created by

uncovered drain-pipes and expansion joints. BTC employees 8
seriously injured. The hole was about 3

feet by 3 feet and was 15 to 20 feet above

the ground below and was covered by a

tin cover. 

Citation Number 2, Item 2b, instance (c):

floor hole into which an employee, David

Roberts, fell, and was injured seriously

with torn tendons and deep bruises

followed by surgery. At the time of the

hearing Roberts still used a cane. The

hole was 30 to 40 feet above the floor

below, covered by a pile of concrete

blocks. 

Certain of the charges not upheld were duplicative or involved 9

conduct that was not willful. 

7

testified that despite injuries and repeated notifications to their

supervisors about these dangers, BTC did not rectify the violations. 

C. The Health Case: Lead Exposure Activities

The Health Case allegations are divided into pre-implosion

exposure and post-implosion exposure violations. Ultimately, the

ALJ concluded that the Secretary had established that there were

many OSH Act health violations, and concluded that BTC engaged in

“willful violations includ[ing] failure to make an appropriate initial

determination of lead exposure and to provide interim and other

protections from excessive lead exposure.” App. at 17. The ALJ,

however, did not uphold all of the charges.9

1. Pre-Implosion Exposure

The pre-implosion exposure to unacceptable lead levels

stemmed from two activities. The first was the torch cutting of bolts

from the steel legs of the stadium seats coated with lead based paint. 

Approximately four employees spent two to four eight-to-ten hour

days engaged in this type of work. 
8

There was a second pre-implosion exposure when BTC

employees torch cut “notch-cuts” on lead-based painted structural

steel beams. These cuts were necessary to ensure that there was a

complete cave-in at the time of the implosion. Approximately four

employees performed this task in ten-hour shifts for varying degrees

of duration.

These activities caused several employees to complain to their

supervisors about the lack of respirators; however, BTC did not

supply safety equipment. Consequently, some employees resorted to

wearing their own half-mask respirators, though these devices did not

comport with the requirements of the OSH Act.

2. Post-Implosion Exposure

The post-implosion exposure stemmed from the process of

cutting the remaining steel beams into smaller pieces in order to fit the

debris into trucks. Although mechanical shears could be used to cut

most of the steel, a number of the beams were too large for the shears

and therefore needed to be cut with torches. This torch cutting began

without protection from lead exposure on February 13, 2001, and

extended into the night shift of February 14, 2001. 

On February 21 and 22, OSHA and BTC concurrently engaged

in air monitoring to assess the lead danger. Three employees were

monitored over the course of two days, and, for the first time, were

supplied with air respirators with face shields. The results of both

OSHA’s and BTC’s testing revealed lead exposure significantly above

the permissible levels. The “permissible exposure limit” is 50:g/m3

(calculated as an 8-hour time average), though the lead standard

defines the “action level” of exposure at 30 :g/m (calculated as an 8- 3

hour time weighted average). See 29 C.F.R. §§ 1926.62(b) and (c). 

The concurrent sampling revealed the following exposure levels:

Date Employee OSHA Time

Weighted

Average (Time

Sampled)

BTC Time

Weighted

Average

(Time

Sampled)
Shawn Cramer was a working foreman who served as fire 10

watch for the employees engaged in burning tasks. Though he was not

overexposed on either day of the monitoring, he did not engage in

burning work; however, his sampling results did indicate that he was

exposed at more than the action level and half of the permissible

exposure limit.

9

2/21/2001 Shawn Cramer 36:g/m (321 3

min.)

36:g/m (234 3

min.)

2/21/2001 Kevin Opfar 259:g/m (323 3

min.)

209:g/m3

(230 min.)

2/21/2001 Eric Yockey 318.6:g/m3

(317 min.)

975 :g/m3

2/22/2001 Shawn Cramer 37:g/m (458 3

min.)

40 :g/m3

2/22/2001 Kevin Opfar 954.4:g/m3

(318 min.)

2158 :g/m3

2/22/2001 Eric Yockey 615.1:g/m3

(464 min.)

1453 :g/m3

See app. at 69. It was thus evident that BTC had been operating 10

with insufficient safety precautions given the significant lead exposure

risk.

3. BTC’s Efforts To Comply With The Lead Standard

The citations in the Health Case stem from BTC’s failure to

comply with the Standard, see 29 C.F.R. § 1926.62, which “applies to

all construction work where an employee may be occupationally

exposed to lead.” Id. Where employees may be exposed to lead, the

employer is required to perform an “exposure assessment” to

determine if any employee is exposed to lead “at or above the action

level.” Section 1926.62(d)(1)(i). The action level is defined as

“employee exposure, without regard to the use of respirators, to an

airborne concentration of lead of 30 micrograms per cubic meter of air

(30 :g/m ) calculated as an 8-hour time-weighted average.” Section 3

1926.62(b).
The Standard also establishes a rebuttable presumption that 11

certain tasks, including torch cutting materials with lead-based paint or

coatings, result in exposures above the permissible action level. See 29

C.F.R. § 1926.62(d)(2)(i)(A).

The report also was labeled the “Act report” because BTC hired

12

ACT Environmental Services, Inc. to perform the exposure assessment

of the National Starch demolition project. We call it the “National

Starch report” for clarity purposes.

10

The employer calculates an “exposure assessment” through an

“initial determination” in which covered employers “initially

determine if any employee may be exposed at or above the initial

action level.” Section 1926.62(d)(1). Section 1926.62(d)(3) sets 11

forth the various methods by which an employer can perform an

“initial determination.” Section 1926.62(d)(3)(i) notes, with two

exceptions, that “the employer shall monitor employee exposures and

shall base initial determinations on the employee exposure monitoring

results. . . .” 

BTC, however, did not monitor the potential exposure to lead

at the stadium to perform its “initial determination.” Rather, BTC,

aided by O’Rourke, relied on section 1926.62(d)(3)(iii), commonly

referred to as the “historical data” method, which allows an employer

to rely on monitoring results from a recent project involving

“workplace conditions closely resembling the processes, type of

material, control methods, work practices, and environmental

conditions used and prevailing in the employer’s current operations.” 

BTC utilized a lead assessment from its earlier National Starch

and Chemical Company demolition project (hereinafter called the

“National Starch report”) as the “historical data” for the stadium 12

project, reasoning that the National Starch project “closely resembled”

the stadium project. The National Starch project required BTC to

demolish an old power house and drying facility inside a corn starch

factory complex in Indianapolis, Indiana. The National Starch report

showed exposures below the action level for workers torch cutting in

that project. BTC concluded that it was not required to perform initial

monitoring (or to take interim steps in lieu of monitoring) at the

stadium because that project “closely resembled” that at National

Starch. Accordingly, BTC deemed it necessary only to provide handwashing facilities as protection against lead exposure. BTC does not

claim that it provided any protection against lead exposure for
The ALJ noted the deficiencies of the plan: 13

Specifically, it lacked: (1) a description of

each activity in which lead was emitted;

(2) a specific means to achieve

compliance; (3) a report of the technology

considered in meeting the [permissible

exposure limit]; (4) air monitoring data;

(5) a det ail ed schedul e for

implementation of the program; (6) an

administrative control schedule; and (7) a

description of arraignments made among

contractors to inform affected employees

of potential exposure to lead.

App. at 96.

11

employees who were torch cutting lead based paint between January 4

and, at least, February 14. See petitioner’s br. at 23; respondent’s br.

at 31.

BTC’s management first expressed concern over lead

exposure on February 13, and on February 14, 2001, BTC provided

half-mask respirators but not air-supplied respirators to affected

employees. It was not until February 16, a day after BTC attempted to

deny entry to the OSHA hygienists, that the first site specific lead

compliance program was drafted. The “plan” stated that BTC used

the National Starch report to determine that employees would not be

exposed to lead, and that there would be air monitoring. 

13

As we already have noted, the results from monitoring by both

OSHA and BTC revealed that there were lead exposure levels

substantially greater than the action level allowed. On February 20,

2001, O’Rourke, in response to the sampling results, modified the

compliance program to require additional measures. The ALJ noted

that, “[e]ven the final revised plan did not provide sufficient detail

concerning the engineering controls to be used, technology to be used,

air monitoring, or a schedule for compliance.” App. at 96.

II. JURISDICTION
12

As we have indicated, the parties tried the case before an ALJ

who upheld most of the citations. BTC then filed a petition for

discretionary review with the Occupation Safety and Health Review

Commission, which, on February 27, 2004, denied review and entered

a final order. BTC then filed a petition for review with this court on

April 20, 2004. 

The Commission had jurisdiction to adjudicate this matter

pursuant to section 10(c) of the OSH Act, 29 U.S.C. § 659(c). We

exercise jurisdiction over this matter pursuant to section 11(a) of the

OSH Act, 29 U.S.C. § 660(a), which gives the court of appeals of the

circuit in which the violation occurred jurisdiction to hear an appeal

from a final order of the Commission with respect to the violation. 

See E & R Erectors, Inc. v. Sec’y of Labor, 107 F.3d 157, 160 (3d Cir.

1997).

III. DISCUSSION

A. Standard of Review

We will affirm the Secretary’s interpretation of OSHA

standards if it is reasonable. See Martin v. Occupational Safety &

Health Review Comm’n, 499 U.S. 144, 150-52, 111 S.Ct. 1171, 1176

(1991). We must uphold the Commission’s factual findings if they

are supported by substantial evidence in the record as a whole. See 29

U.S.C. § 660(a); D. Harris Masonry Contracting, Inc. v. Dole, 876

F.2d 343, 344 (3d Cir. 1989). We may set aside legal conclusions

only if they are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see

Atlantic & Gulf Stevedores v. Occupational Safety & Health Review

Comm’n, 534 F.2d 541, 547 (3d Cir. 1976). In addition, we must

defer to an agency's reasonable interpretation of an ambiguous

administrative statute. See Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843-46, 104 S.Ct. 2778, 2781-84 (1984).

B. The Health Case

1. BTC’s Use of “Historical Data” To Make an “Initial 

 Determination”
13

The first issue we address is “whether it was appropriate for

BTC to use ‘historical data’ to make an ‘initial determination’ that

potential employee exposure to lead was below the ‘action level’

when torch burning operations occurred during the pre-implosion and

post-implosion phases of the demolition of the stadium.” Petitioner’s

br. at 10. The ALJ determined that BTC’s use of the National Starch

report’s “historical data” was not appropriate for making an initial

determination with respect to employee exposure to lead during the

stadium demolition. 

The Standard defining the appropriate procedures for

performing an “initial determination” reads, in relevant part: 

(i) Except as provided under paragraphs

(d)(3)(iii) and (d)(3)(iv) of this section

the employer shall monitor employee

exposures and shall base initial

determinations on the employee

exposure monitoring results. . . .

. . . .

(iii) Where the employer has previously

monitored for lead exposures, and the

data were obtained within the past 12

months during work operations

conducted under workplace conditions

closely resembling the processes, type

of material, control methods, work

practices, and environmental conditions

used and prevailing in the employer's

current operations, the employer may

rely on such earlier monitoring results

to satisfy the requirements of

paragraphs (d)(3)(i) and (d)(6) of this

section if the sampling and analytical

methods meet the accuracy and

confidence levels of paragraph (d)(10)

of this section.

29 C.F.R. § 1926.62(d)(3) (emphasis added).

The ALJ first addressed the issue of whether the “historical
Both projects required burning on structural steel in the open 14

air.

Both projects involved cutting or burning lead painted

15

structural steel. 

Neither project required any control methods, other than

16

“normal [personal protective equipment], including [a] 3 foot Torch.”

App. at 74.

Both projects required notch cuts to be made on the steel during 17

10 hour shifts.

Both projects required performing the work in the open air 18

during cold weather. 

14

data” method represents an exception to monitoring, which is treated

as the preferred means of making an initial assessment, or, as BTC

contends, whether the “historical data” method is another valid, and

equally accepted, method that an employer can use to make the initial

determination with respect to lead exposure. The ALJ rejected

BTC’s contention and concluded that the “historical data” method of

making an initial assessment was an exception to the monitoring

method. Because she deemed the use of “historical data” to be an

“exception” to the preferred means to make an initial assessment, the

ALJ placed the burden on BTC to prove that its use of the “historical

data” was appropriate. In reaching her conclusion, the ALJ noted that,

“[i]n general, exceptions in remedial legislation, such as the OSH Act,

must be narrowly construed.” App. at 71. 

The ALJ continued by noting that the phrase “closely

resembling,” contained within the “historical data” exception, was not

defined in the Standard. BTC offered a broad interpretation of the

phrase which relied on comparing “the processes,” “the type of 14

material,” “the control methods,” “the work practices,” and “the 15 16 17

environmental conditions” involved in the two projects. Id. at 74. 18

In addition, BTC denied that a comparison of materials between the

two projects required a gathering and testing of bulk paint samples. 

The Secretary disagreed with BTC’s broad interpretation of

the phrase “closely resembling.” She noted that the “similarities

suggested by BTC [were] too superficial to meet an exception to a

standard intended to protect employees generating airborne lead.” Id. 
The ALJ noted that the characteristics of lead paint could not 19

be assumed to be the same.

15

The Secretary also asserted that BTC simply did not have enough

information to compare the two projects. In particular, she observed

that BTC had not taken bulk samples of the paint, nor made any other

attempts to secure data to make comparisons between the two sites.

The ALJ concluded that the term “closely resembling” was

ambiguous. Thus, she looked to the Standard’s preamble to glean the

Secretary’s intent for including the “historical data” exception. The

ALJ found that the stated purpose of the exception was for those

situations where:

an employer on a construction site

conducted exposure monitoring for

previous job(s) and the current job was

‘substantially similar’ to the old one(s),

the previous ‘historical data’ could

substitute for new monitoring. So that

the old data could be ‘reasonably

assumed’ to be representative for lead

exposures on the new site, the historical

measurements had to be obtained ‘under

conditions which in all relevant and

significant respects are essentially the

same as the current project.’

Id. at 75 (quoting Lead Exposure in Construction, 58 Fed. Reg. 26599

(1993) (emphasis added by ALJ)).

 The ALJ held that, while the exception may not require an

“absolute identity” between projects, a case-by-case factual analysis

was necessary. The ALJ concluded that, “informed by the synonyms

for ‘closely resembling’ in the preamble and the stated purpose of the

exception, it is determined that BTC’s reliance on the historical data

was incorrect.” Id. The ALJ relied heavily on the fact that BTC had

not attempted to determine the lead content of the stadium, and thus

never bothered to discover “one component of what is necessarily a

two-part comparison.” Id. She therefore concluded that, “BTC could

not know whether the lead-containing material at the two projects was

‘substantially similar’ or ‘essentially the same.’” Id. While bulk 19

sampling would not always be necessary, the ALJ determined that it
The ALJ also noted that the methods, work practices, and 20

environmental factors differed to varying degrees as well. 

16

was in this case. The ALJ concluded that BTC’s reliance on the 20

historical data exception, therefore, was not reasonable.

BTC urges that the ALJ erroneously concluded that the use of

historical data to make an initial lead assessment constitutes an

exception to monitoring, and thereby incorrectly elevated monitoring

to the preferred method of performing an initial determination. BTC

contends that the use of historical data is not an “exception,” but is

another acceptable, and equally viable method by which the employer

may make the initial determination. BTC continues by contending

that this “erroneous legal determination had significant negative

consequences for BTC because it permitted the ALJ to erroneously

shift the burden of proof on that issue from the Secretary to BTC.” 

Petitioner’s br. at 24. BTC also asserts that because the ALJ deemed

the use of “historical data” an exception to the monitoring

requirement, she erroneously narrowed the scope of what could be

deemed a permissible comparison site. 

We reject BTC’s contentions. The Commission and this court

must accept the Secretary’s interpretation of the Standard if it is

reasonable. See Martin, 499 U.S. at 150-52, 111 S.Ct. at 1175-76

(1991). The Secretary’s interpretation of the Standard, deeming the

historical data exception as just that, i.e. an exception to the

monitoring mandate, clearly is reasonable. First, the plain language of

the Standard identifies the “historical data method” as an exception: 

“Except as provided under paragraphs (d)(3)(iii) . . . .” 29 C.F.R. §

1926.62(d)(3) (emphasis added); see also 29 C.F.R. § 1926.62,

Appendix B, II (explaining that the “initial determination requires

[the] employer to monitor workers’ exposure unless he or she has

objective data which can demonstrate conclusively that no employee

will be exposed to lead in excess of the action level”) (emphasis

added). Second, Congress intended in the OSH Act to protect

employees from the disastrous effects of lead exposure. The statute

and regulations repeatedly demonstrate a preference for the protection

of employees. See, e.g., 29 C.F.R. § 1926.62(d)(2) (establishing

presumption that certain tasks, including torch cutting materials with

lead based paint or coating, results in exposures above the action

level). It was clearly reasonable for the Secretary to apply the statute

and regulations in a manner so that the acquisition of actual data on

the potential exposure to lead through monitoring on the current
17

project, rather than reliance on data from an entirely separate project,

constitutes the preferred method of performing an initial assessment.

Because the use of historical data represents an exception to

the monitoring requirement, and BTC relied on this exception, the

ALJ correctly placed the burden on BTC to demonstrate that it

properly utilized the National Starch report for making an initial

determination with respect to the stadium. Clearly, the ALJ also was

correct in her holding that BTC could not meet this burden and prove

the appropriateness of its reliance on the historical data. The

workplace conditions at the National Starch structure and the stadium

were so dissimilar that they could not be deemed to “closely

resemble” one another under any meaningful construction of that

phrase. The ALJ, at length, documented the differences between the

two sites with respect to environmental conditions and work practices.

While these differences are important factors that show

dissimilarities, the major focus must rest on a comparison of potential

lead exposure. As the results of the sampling revealed, there were

wide inconsistencies between the conditions at the National Starch

project and those at the stadium predicated on the differences between

the actual level of lead exposure at the sites. To highlight one glaring

example, two bulk samples taken from the painted steel beams at the

National Starch site revealed 0.095 and 0.484 percent lead content. 

At the stadium, the bulk samples of the seats ranged from 3.0 to 8.0

percent lead content, and the steel beams ranged from 2.2 to 43

percent lead content. It is clear that conditions involving such

divergent amounts of lead cannot be deemed to “closely resemble”

one another under any coherent definition of that phrase.

The ALJ therefore correctly held that BTC’s use of the

National Starch report as “historical data” to make the “initial

determination” that potential employee exposure to lead at the

stadium was below the “action level” was inappropriate.

2. The ALJ’s Determination That BTC Willfully 

 Violated the Standard

The next issue raised is whether there was substantial evidence

in the record supporting the ALJ’s determination that BTC willfully
18

violated the Standard. The ALJ concluded that BTC’s violations were

“willful” because “[t]he record establishe[d] that BTC had a

heightened awareness of the cited requirements of the lead standard

yet chose to disregard them.” App. at 108. She found that BTC had

heightened awareness of the presence of lead based on its experience

with comparable projects in which it dealt with lead and its having

held itself out to the public as an expert on lead and applicable OSHA

standards. Moreover, the ALJ indicated that “it is well known that

torch burning and cutting steel can generate high levels of airborne

lead.” Id. at 109-10. 

In addition, the ALJ found that the Secretary independently

also could have established a willful violation by demonstrating “plain

indifference” to employee safety. The ALJ documented at length the

instances in which BTC ignored or deflected questions by its

employees related to inquiries about lead, and noted several occasions

in which BTC denied its employees’ requests for safety equipment. 

App. at 111 (citing Fluor Daniel, Nos. 96-1729 and 96-1730, 19

O.S.H. Cas. (BNA) 1529 (2001), 2001 WL 1117965 (O.S.H.R.C.),

aff’d sub nom., Fluor Daniel v. Occupational Safety & Health

Comm’n, 295 F.3d 1232 (11th Cir. 2002) (employer who consciously

chose to deprive employees of emergency respirators committed

willful violation)).

The ALJ additionally rejected BTC’s argument that it had a

“reasonable reliance” defense to the allegations of “willfulness.” BTC

asserted that it could not have acted “willfully” because it merely was

relying on and following the advice that O’Rourke, its safety

consultant, gave it. The ALJ concluded that “[t]he fact that BTC

hired the small safety and health consultant company does not relieve

it of responsibility for conditions it knew were unsafe. BTC’s attempt

to distance itself from the lead expertise it claimed in other contexts

was unconvincing.” App. at 110.

“Although the [OSH] Act does not define the term ‘willful,’

courts have unanimously held that a willful violation of the [OSH]

Act constitutes ‘an act done voluntarily with either an intentional

disregard of, or plain indifference to, the [OSH] Act's requirements.’”

Ensign-Bickford Co. v. Occupational Safety & Health Review

Comm'n, 717 F.2d 1419, 1422 (D.C. Cir. 1983) (quoting Cedar

Constr. Co. v. Occupational Safety & Health Review Comm'n, 587

F.2d 1303, 1305 (D.C. Cir.1978)); see also Ensign-Bickford, 717 F.2d

at 1422 (citing nine cases from courts of appeals embracing the
BTC relies heavily on Sasser Electric & Manufacturing Co., 21

No. 82-178, 11 O.S.H. Cas. (BNA) 2113 (1984), 1984 WL 34886

(O.S.H.R.C.). In Sasser, a crane operator accidentally swung the boom

of the crane into nearby power lines. The Commission held that the

general contractor reasonably had relied on the safety efforts of the crane

company with which it subcontracted, because: (1) the cited hazard dealt

with the operation of a crane and fell within the expertise of the

subcontractor; (2) the subcontractor had exclusive control over the

hazard; (3) the general contractor had warned the subcontractor of the

closeness of the power lines; and (4) considering that the subcontractor

19

“intentional disregard or plain indifference” standard); Universal Auto

Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir. 1980). 

Multiple violations of the lead standard can be deemed willful where

the employer manifested both intentional disregard for the Standard

and plain indifference to employee safety. See Interstate Lead Co.,

Nos. 89-2088P and 89-3296, 15 O.S.H. Cas. (BNA) 1989 (1992),

1992 WL 277025, at *29-32 (O.S.H.R.C.A.L.J.). We will uphold the

Commission’s factual findings if they are supported by substantial

evidence in the record as a whole; whether a violation was willful is a

question of fact. See Universal Auto, 631 F.3d at 23.

BTC asserts that there is not substantial evidence in the record

to support the findings that its violations were “willful.” BTC raises

three arguments to lend credence to its purported lack of willfulness:

(1) it did not engage in willful conduct because it reasonably relied on

O’Rourke’s expert advice pertaining to lead hazard; (2) the ALJ did

not amply factor into her analysis the confusion rendered by the

Standard’s ambiguity and incompleteness, resulting in a violation that

was more a misunderstanding than a willful violation; and (3) after it

discovered that it erroneously had relied on the National Starch report

it took steps to remedy the problem.

BTC’s attempt to claim that its violations were not willful are

unconvincing. First, the ALJ correctly denied BTC’s attempt to shift

responsibility for the violations to O’Rourke. The Commission

previously had held that a company cannot evade its safety and health

responsibilities to its workers simply by contracting away the

responsibilities mandated under the OSH Act. See Well Solutions,

Inc., No. 91-340, 17 O.S.H. Cas. (BNA) 1211, 1214 (1995), 1995 WL

242595, at *3 (O.S.H.R.C.) (“[T]he [OSH] Act places ultimate

responsibility for compliance with its requirements on the employer,

who cannot contract away those duties to another party.”) As the 21
had performed the same work previously without incident, there was no

reason for the general contractor to have foreseen that the crane operator

would have swung the boom into the power lines. Sasser, 1984 WL

34886, at *3.

This case is plainly distinguishable from Sasser. BTC is claiming

that it contracted away its responsibility with respect to OSHA

requirements by hiring an environmental and safety consulting firm.

But, unlike the situation in Sasser, BTC’s employees still were

performing the labor, and BTC as a company operated the equipment

significant in the context of this case. This situation also is different

from that in Sasser because in that case the general contractor, by reason

of its lack of expertise, contracted out a particular task to an independent

contractor who was expected to perform that discrete function fully. 

20

ALJ noted, BTC has experience in the undertaking of demolition

projects involving lead hazards. In the circumstances, its claims of

naivete as to the dangers of its course of conduct, based on the

suggestions of a small consulting firm, are dubious at best. App. at

110. Considering that OSHA employees ascertained BTC’s safety

failures by watching the local nightly news, its claims of ignorance are

unconvincing. 

Furthermore, BTC committed pre-implosion violations before

it ever “relied” on O’Rourke’s advice. Though BTC could not

pinpoint the exact date of its decision to rely on the National Starch

report, Timothy O’Rourke testified that the date was around January

20, 2001. The ALJ noted that “[t]hat date would have been after

employees burned painted structural steel for about 10 days . . . .” Id.

at 110 (emphasis in original). Additionally, BTC informed O’Rourke

that it would not be doing pre-implosion cutting. O’Rourke

concluded, partially on the basis of this information, that the National

Starch report would be a valid basis for use of the “historical data”

exception. In the circumstances, we are satisfied that BTC cannot

find a safe harbor in an erroneous assessment of the lead dangers

when its own incomplete information and false diagnosis led to the

misuse of the historical data. 

BTC next argues that its failings were not “willful,” but rather

stemmed from the ambiguity and incompleteness in the regulations. 

In an attempt to demonstrate this point, BTC cites 29 C.F.R. §

1926.62(d)(3)(iii) (emphasis added):
21

(iii) Where the employer has previously

monitored for lead exposures, and the

data were obtained within the past 12

months during work operations

conducted under workplace conditions

closely resembling the processes, type

of material, control methods, work

practices, and environmental conditions

used and prevailing in the employer's

current operations, the employer may

rely on such earlier monitoring results

to satisfy the requirements of

paragraphs (d)(3)(i) and (d)(6) of this

section if the sampling and analytical

methods meet the accuracy and

confidence levels of paragraph (d)(10)

of this section.

BTC contends that section 1926.62(d)(3)(iii) is ambiguous because

subparagraph (d)(10), to which the section refers, does not exist. The

ALJ noted this drafting peccadillo, and stated, “[t]he intended

reference is to subparagraph (d)(9).” App. at 72 n.14. Subparagraph

(d)(9) reads: 

(9) Accuracy of measurement. The

employer shall use a method of

monitoring and analysis which has an

accuracy (to a confidence level of 95%)

of not less than plus or minus 25

percent for airborne concentrations of

lead equal to or greater than

30MUg/m3.

 BTC argues that the ALJ’s finding of willfulness was

erroneous because, “nowhere in her decision does she take into

account the potential for mistake the ambiguity and incompleteness of

the standard would create for a layperson.” Petitioner’s br. at 33. 

BTC continues by arguing that “willfulness should not be found

where the standard is complex and not perfectly clear and a violation

resulted in negligence and misunderstanding rather than intentional

disregard or plain indifference.” Id. at 34.

We reject BTC’s contention because it should have been
22

obvious to it that subparagraph (d)(10) could not relate to “accuracy

and confidence levels,” or indeed anything else, as the subparagraph

did not even exist. Thus, it should have been evident that section

1926.62(d)(3)(iii) was referring to the sequentially numbered

subparagraph (d)(9) as it is labeled “Accuracy of Measurement.”

BTC’s argument is essentially that, upon reaching this drafting error,

such “confusion” befell on it that its decision not to provide

substantive safety precautions to protect against lead exposure could

not be deemed willful. But BTC is an experienced company, and we

reject its contention that its confusion over a misplaced, tangentially

relevant guideline can excuse it from performing its safety

obligations. Thus, the ALJ correctly rejected this contention.

Additionally, we reject BTC’s attempt to hold itself out as a

“layperson” faced with a complex statute it could not understand. Its

own management, including foremen, had extensive experience

navigating OSHA regulations and handling demolition involving lead

based paint. BTC’s decision to ignore the regulations because of a

sense of “confusion” is simply not believable. 

Finally, BTC claims that its violations were not willful, as

witnessed by the steps it undertook to alleviate exposure after the

level of lead was discovered. The ALJ correctly rejected this claim as

well. BTC, in fact, did not take steps to alleviate the valid concerns of

its employees during the pre-implosion phase of the demolition. 

Moreover, the steps it took in response to the OSHA inspection were

inadequate, and continued to violate unambiguous standards of the

applicable OSH Act provisions and regulations. For example, rather

than suspend burning or prospectively comply with the OSH Act’s

mandates, BTC gave its employees half-mask respirators, not the

required mandated air-supplied respirators. Additionally, BTC did

not (1) advise its employees in writing of its “negative determination”;

(2) failed to advise employees of their blood test results; (3) failed to

use known engineering controls to reduce exposures; and (4) failed

even to post a warning sign. There clearly was substantial evidence in

the record supporting the ALJ’s determination that BTC willfully

violated OSHA’s lead standards.

C. The Safety Case

1. The “Cutting” of Escalators
BTC contends that “[t]here was no ‘shaft’ where heavy 22

machinery fell into. To the contrary, the escalator top, once unhinged,

merely dropped to the level where the foot of the escalator rested.”

Petitioner’s br. at 49 (emphasis added).

23

BTC next asserts that the ALJ erred in holding that “dropping”

the escalators without proper safety measures violated 29 C.F.R. §

1926.850(h). The violation at issue arose when BTC “cut” escalators,

i.e., “when the top of the escalator was released, on some occasions it

would fall to the floor unexpectedly.” Petitioner’s br. at 47. The

regulations at issue provide: 

(h) When debris is dropped through

holes in the floor without the use of

chutes, the area onto which the material

is dropped shall be completely enclosed

with barricades not less than 42 inches

high and not less than 6 feet back from

the projected edge of the opening above. 

Signs, warning of the hazard of falling

materials, shall be posted at each level. 

Removal shall not be permitted in this

lower area until debris handling ceases

above.

(i) All floor openings, not used as

material drops, shall be covered over

with material substantial enough to

support the weight of any load which

may be imposed. Such material shall be

properly secured to prevent its

accidental movement.

29 C.F.R. § 1926.850 (h), (i).

 BTC asserts that the ALJ erred in determining that

subparagraph (h) was applicable to the escalator drops, because the

escalators were not “debris . . . dropped through holes in the floor

without the use of chutes.” See petitioner’s br. at 47. BTC’s

argument is simply that there were no “holes,” because despite the

potential crashing of escalators to the surfaces below, it was the

removal of the escalators that “created” the holes.22
We do not discuss separately the elevator situation, but we 23

conclude that the ALJ did not err in her findings with respect to it.

24

BTC’s contention that the ALJ inappropriately applied the

regulation to the falling escalators is simply erroneous. The ALJ was

correct in her assessment that “whether or not BTC specifically

created the escalator and elevator holes for removal of debris is

irrelevant. BTC specifically used the holes for removal of debris.” 

App. at 56 (emphasis in original). It clearly is reasonable to interpret

23

the regulation so as to recognize that an escalator falling only one

floor, even through the hole in which it originally stood, creates the

precise hazard against which the standard required BTC to protect. 

The fact that the hole was not “preexisting” is immaterial. The

Commission’s and Secretary’s interpretation of section 1926.850(h)

“sensibly conforms to the words and purpose of the standard” and

therefore we must uphold it. See Martin, 499 U.S. at 151, 111 S.Ct. at

1176.

2. The ALJ’s Determination That BTC Willfully 

 Violated OSHA Standards Relating To Fall 

 Hazards and the Hazards Relating To Falling Debris

BTC also contends that there is not substantial evidence in the

record as a whole to support the ALJ’s determination that certain

violations relating to fall hazards and hazards relating to falling debris

were willful. The ALJ concluded that in light of BTC’s experience

with and knowledge of OSHA requirements, as well as evidence

demonstrating BTC’s knowledge of these hazards (demonstrated by

its own employees’ complaints), BTC acted willfully with respect to

both the fall hazards, as well as the hazards from falling debris. BTC

argues that the ALJ’s determination that these violations were willful

was unfounded.

We will uphold the Commission’s factual findings if they are

supported by substantial evidence in the record as a whole; whether a

violation was willful is a question of fact. See Universal Auto, 631

F.3d at 23. Here there is substantial evidence in the record

demonstrating that BTC was aware of the violations and safety

hazards, but chose not to rectify the problems though the measures

mandated under the OSH Act. Thus, substantial evidence in the

record as a whole supported the ALJ’s conclusion that BTC willfully
The Secretary contends that she was not required to abide by 24

the 90-day disclosure requirement because the January 28, 2002

scheduling order set the “discovery deadline” for ten days before trial.

See respondent’s br. at 46-47. The Secretary argues that the ten-day

deadline represents “other directions from the court” and therefore the

90-day period was inapplicable. BTC contends that “no such argument

was advanced at trial and, as such, was not preserved for appeal.”

25

violated the OSH Act. 

D. Expert Testimony

The final issue BTC raises is that “[t]he ALJ allowed the

Secretary to proffer expert testimony in derogation of Rule 26 of the

Rules of Civil Procedure.” Petitioner’s br. at 25. The OSH Act

provides that the Federal Rules of Civil Procedure apply to actions

before the Commission unless the Commission has adopted an

applicable procedural rule. 29 U.S.C. § 661(g); 29 C.F.R. §

2200.2(b). While the Commission has adopted procedural rules

governing discovery, these rules do not address expert testimony

specifically. See 29 C.F.R. § 2200.51-2200.57.

On January 28, 2002, the ALJ issued an order setting the date

of the hearing for March 20, 2002. Discovery was set to end ten days

prior to the start of that hearing. During a February 5, 2002

teleconference, the ALJ rescheduled the hearing for June 3, 2002. At

that time the ALJ directed the parties to comply with Fed. R. Civ. P.

26. 

Fed. R. Civ. P. 26(a)(2) requires parties to identify their

proposed experts, and mandates additional requirements for experts

who are “retained or specially employed to provide expert testimony.” 

The rule requires that the party retaining the expert, “in the absence of

other directions from the court or stipulation by the parties,” provide a

report prepared by the expert explaining his proposed testimony and

provide other personal background information. Fed. R. Civ. P.

26(a)(2)(B). The default time for these disclosures is 90 days prior to

the trial date. Fed. R. Civ. P. 26(a)(2)(C).

It is without dispute that the Secretary did not comply with the

90-day requirement. See petitioner’s br. at 26; respondent’s br. at

24
Petitioner’s reply br. at 10. We need not address this point as BTC does

not demonstrate how the procedure permitting the introduction of the

testimony at issue prejudiced it. 

26

47. On these grounds, BTC challenges the ALJ’s decision to allow

the testimony of John Cignatta, Raymond Feldman, Dr. Cortinovis,

Compliance Officer Jan Oleszeweski, and Assistant Area Director

Edward Selker.

BTC’s claims, however, are without merit as it does not

demonstrate that the ALJ’s decision to allow the testimony in question

prejudiced it. Cignatta and Cortinovis, the witnesses with whom that

BTC takes the most umbrage, testified on a number of points, none of

which was in contention. BTC never disputed the fact that

overexposure to lead poses a “serious” hazard, nor was their

testimony essential to establish the violations at issue. Indeed, BTC’s

own testing revealed unacceptably high lead exposure at the stadium

and, accordingly, its erroneous reliance on the National Starch report

as historical data. 

The Secretary offered the testimony of the other witnesses

BTC challenged to rebut BTC’s expected challenges to the reliability

of OSHA’s monitoring results. This testimony could not have

prejudiced BTC as it never argued that weather or recalibration

irregularities significantly impacted OSHA’s test results; and again,

BTC’s own testing provided ample evidence of the lead exposure

violations. Given BTC’s inability to demonstrate that either the

procedures permitting the introduction of the testimony in question or

the testimony itself prejudiced it, we reject its contentions relating to

expert testimony.

IV. CONCLUSION

After a complete examination of this matter we are satisfied

that the points BTC has raised lack sufficient merit and thus we will

deny its petition for review of the February 27, 2004 order.