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Click here for the full text of this decision FACTS:Eric Ho purchased an old hospital building in Houston to renovate into residential housing. Though he knew about the presence of asbestos on the site and also knew that asbestos removal was supposed to be removed by licensed and registered personnel, Ho nonetheless hired two men � Manuel Escobedo and Corston Tate � to conduct the removal. Escobedo and Tate, in turn, hired 11 illegal immigrants to remove the asbestos, starting in January 1998. Ho visited the work site every day, yet he did not provide for anything more substantial in the way of protective gear than dust masks. Ho did not provide for training, ventilation or monitoring, either. A city inspector viewed the site and told Ho to shut the work site down until he could hire a certified asbestos removal. Ho began negotiating with an asbestos removal company and even faxed them his approval of an agreement on March 27, but throughout the negotiation period, Ho directed that work resume as it had before. On March 11, Ho directed Tate to tap into an unmarked valve believed to be a water line to wash out the building. Tate did so, but the valve turned out to be to a gas line. When Tate started his truck, an explosion ensued, injuring him and two others. The next day, Ho offered all workers $1,000 for their work, plus $100 to release Ho from any future claims. After the explosion, Texas Department of Health and the Occupational Safety and Health Administration investigated. The Secretary of Labor issued 10 serious violations and 20 willful violations. Eleven of the charges were for willful violation of 29 Code of Federal Regulations 1926.1101(h)(1)(i), for failing to provide respirators to 11 employers. Eleven more charges were for failure to train the 11 employees under 29 C.F.R. 1926.1101(k)(9)(i) and (viii) on the hazards of asbestos removal and safety precautions. The secretary also charged Ho with willfully violating the OSH Act’s general duty clause by ordering Tate to tap into the unmarked valve. As these administrative penalties were pending, Ho was convicted of criminal violations of the Clean Air Act, and those convictions were upheld on appeal. Before the administrative law judge, Ho admitted that he violated the respirator and training standards. He argued, however, that he was not subject to the OSH Act’s requirements, because he was not engaged in a business affecting interstate commerce. Ho challenged the charges that were brought on a per-employee basis, and he also asserted that he did not violate the OSH Act’s general duty clause, or, if he did, he did not do so willfully. The ALJ rejected all of Ho’s arguments except for the one saying that his violation of the general duty clause was not willful. The ALJ also found that other corporate entities controlled by Ho � Ho Ho Ho Express Inc. and Houston Fruitland Inc. � could be held liable for the violations, too. On appeal, the Occupational Health and Safety Review Commission affirmed that Ho was subject to the OSH Act and that his violations of the respirator and training standards was willful. The commission, however, found that these violations should have been charged on a per-instance basis, not on a per-employee basis; therefore, 20 of the 22 violations on these counts were vacated. The commission reversed the ALJ’s finding on the corporate liability of the other businesses, but affirmed the finding that Ho’s violation of the general duty clause was not willful. Even after vacating 20 of the violations, the commission nonetheless assessed the maximum penalty, assessing him $70,000 for each of the remaining willful violations and $7,000 each for the serious violations. Both the secretary and Ho appeal. HOLDING:Affirmed. The court first considers the commission’s finding that Ho’s illegal asbestos abatement activities at the worksite affected interstate commerce, thereby subjecting Ho to the OSH Act. The court finds sufficient evidence in the record that Ho specifically deprived the asbestos removal firm it negotiated with � but never engaged � of a legitimate commercial job to remove asbestos from the hospital in accordance with the OSH Act. Furthermore, Ho’s deliberate decision to allow unlicensed workers perform the removal “sidestepped, and thus supplanted” a commercial firm that operates within the legitimate national market for asbestos removal. Consequently, Ho’s activities affected interstate commerce and the OSH Act applies to him. The court next considers whether Ho’s other corporate entities were alter egos of Ho. The court says this is a case of reverse corporate veil piercing, whereby the corporate entities � Ho Ho Ho Express and Houston Fruitland � can be held accountable for the individual actions of Ho. The court confirms that the commission used the proper legal standard for reverse corporate piercing by considering the totality of the factors enunciated by Permian Petroleum Co. v. Petroleos Mexicanos, 934 F.2d 635 (5th Cir. 1991). Applying the Permian factors itself, the court rules agrees with the commission that the evidence supports finding that Ho Ho Ho Express and Houston Fruitland should not be considered as Ho’s alter egos. These corporate entities had a limited stake in Ho’s hospital renovation project. Although Ho did borrow from the corporate entities to finance the renovation, the evidence indicates that each transaction was accompanied by a distinct debit ledger entry, as well as some repayments made by Ho to the corporate entities. The court then considers the commission’s legal conclusion that Ho did not willfully violate the OSH Act’s general duty clause as it related to his demand to tap the unmarked valve. The court finds no evidence of the “extra ingredient” needed to distinguish intentional disregard or plain indifference from willfulness. The court turns next to review whether Ho’s violations of the respirator and training standards should have been charged on a per-instance basis or a per-employee basis. The court affirms both findings of the commission, though it does so by different reasoning with respect to the training standards violations. The statutory language used in the training standards allow the secretary to use discretion in reasonably assessing penalties on a per-employee basis. However, the court finds that the decision to cite Ho on a per-employee basis for training standards violations in this case was unreasonable because a single training session would have abated all violations; individual training sessions would not have been necessary. On the other hand, the statute setting out respirator standards does not allow for violations on a per-employee at all. The court examines whether the commission abused its discretion in imposing the maximum penalties for Ho’s violations. The court finds the punishment supported by the commission’s findings regarding Ho’s lack of good faith, and the gravity of Ho’s violations. OPINION:DeMoss, J.; Barksdale, Garza, and DeMOSS, DISSENT:Garza, J. The dissent faults the majority for not deferring to the secretary’s reasonable interpretations of the ambiguous language of the training and respirator standards, for finding that Ho Ho Ho Express and Fruitland were not Ho’s alter egos, and for ruling that Ho’s order to tap into the unmarked pipe was not willful.

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