United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor 

 Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, OSHRC Docket No. 05-0055 

v. 

L&L PAINTING COMPANY, INC., 

Respondent. 

BRIEFING NOTICE 

The issues that follow have been identified by the Review Commission as of particular 

interest on review. 

1. With respect to Citation 1, Item 2, did the judge err in holding that 

because L&L relied exclusively on historical data that did not include 

monitoring of the “work that J.G. was performing,” L&L Painting 

Company, Inc. (“L&L”) failed to establish the historical monitoring 

exception under 29 C.F.R. § 1926.62(d)(3)(iii) and, therefore, did not 

comply with § 1926.62(d)(1)? 

 Given the language in § 1926.62(d)(1)(iii), which prescribes the 

lead exposure monitoring methodology for paragraph (d), but 

specifically “except[s] [initial determination] . . . monitoring under 

paragraph (d)(3),” the parties are asked to discuss: (a) whether the 

standard requires that historical monitoring data relied upon for an 

“initial determination” must have included personal samples “for each 

job classification,” as outlined in § 1926.62(d)(1)(iii), or (b) whether, in 

making an “initial determination,” the standard permits reliance on 

historical data that is limited to “a representative sample of the exposed 

employees who the employer reasonably believes are exposed to the 

greatest airborne concentrations of lead in the workplace,” as outlined 

in § 1926.62(d)(3)(ii). 

2. With respect to Citation 1, Items 3, 8, 10 and 11, did the judge err in 

affirming violations of the cited lead standard provisions relating to 

hygiene and personal protective equipment? In addressing these items, 

the parties are asked to discuss whether L&L knew or could have 
known of the cited conditions, with particular reference to all of its 

monitoring obligations under the standard, including the monitoring 

requirements under § 1926.62(d)(4). 

3. With respect to the remaining citation items, which were not the 

subject of the Commission’s September 29, 2008 Remand Order, we 

will rely exclusively on the parties’ prior submissions. 

The parties are advised that when the merits or characterization of an item are before the 

Commission for review, the appropriateness of the penalty is also subject to review. 

Accordingly, the parties may address the amount of the penalty if they so choose. 

 All briefs are to be filed in accordance with Commission Rule 93.1

 The first brief is to be 

filed within 40 days of this notice. A party who does not intend to file a brief must notify the 

Commission in writing setting forth the reason therefore within the applicable time for filing 

briefs, and shall serve a copy on all other parties. The time for filing briefs (or similar notices of 

intent) of opposing parties shall commence on the date of service. 

 

 BY DIRECTION OF THE COMMISSION 

Dated: February 2, 2010 /s/ 

 Ray H. Darling, Jr. 

 Executive Secretary 

 

1

 The Commission requests that all briefs include an alphabetical table of authorities with 

references to the pages on which they are cited, and that an asterisk be placed in the left-hand 

margin of the table to indicate those authorities on which the brief principally relies. The 

Commission also requests that copies of cited authority, other than statutes, case law, law journal 

articles and legal treatises, be provided to the Commission and to the opposing party. Parties 

should be cautioned that these materials will be considered only if appropriate. 
05-0055 

NOTICE IS GIVEN TO THE FOLLWING: 

Charles F. James 

Counsel for Appellate Litigation 

Office of the Solicitor, U.S. DOL 

Room S4004 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

Nancy B. Schess, Esq. 

Peter J. Dugan, Esq. 

Klein Zelman Rothermel, LLP 

485 Madison Avenue 

New York, NY 10022