X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
AfterOccupational Safety and HealthAdministration (OSHA) inspector, TimGainer, visited the Blue Island,Illinois, work site of Sierra Resources,Incorporated, Sierra was issued a nine-item “serious citation” [FOOTNOTE 1] allegingviolations of the OSHA standards dealingwith lead exposure in constructionwork. [FOOTNOTE 2] In a thorough analysis, theChief Judge for the Occupational Safetyand Health Review Commission(Commission), relying primarily oncredibility determinations, upheld thenine-item citation. In this borderlinefrivolous appeal, Sierra seeks review ofthe Commission’s order, arguing that: 1)the OSHA inspector violated its dueprocess rights; and 2) the order is notsupported by substantial evidence. Wedeny Sierra’s petition for review. I. BACKGROUND Sierra is a small construction companylocated in Batavia, Illinois, and is inthe business of installing and repairingstructural steel. From February 3, 1998,to March 26, 1998, Sierra was asubcontractor on a project to renovatethe Western Avenue Bridge in Blue Island,Illinois. On February 5, 1998, OSHA received ananonymous telephone complaint thatSierra’s employees working on the WesternAvenue bridge were being overexposed tolead (in the paint on the bridge) and,furthermore, that they were not beingsupplied with adequate protectiveequipment. The following day, OSHA sentone of its compliance officers, TimGainer, to inspect Sierra’s work site. Upon Gainer’s arrival at the work site,he met with Sierra’s vice president,Robert Sutphen, and advised him of thecomplaint that OSHA received and that hewas on the site to conduct an inspection.Although no employees were doing bridgework that day, Sutphen informed Gainerthat Ed Hawkinson and Gary Orszulak hadbeen descaling rust from bolts on thebearing assemblies and cutting the boltswith a torch in order that the assembliescould be removed and replaced. Gainerthen asked Sutphen whether there was anylead on the bridge, and Sutphen respondedthat there was a “minimal” amount. TheOSHA inspector next inquired if any airmonitoring of the employees’ work areahad been performed, and Sutphen repliedthat he had not done any at this site butthat he had seen testing at a similarsite and what he was doing was “okay.”Unpersuaded by Sutphen’s assurances thateverything was “okay,” Gainer asked ifthere would be any more torch cuttingperformed that day because he wasinterested in monitoring the air qualitywithin the employees’ breathing areawhile they were cutting the rusted bolts;Sutphen responded in the negative butpromised to advise OSHA the next timesuch work was about to be performed.Before leaving, Gainer took a sample ofpaint from where the bridge work had beenpreviously completed. [FOOTNOTE 3] Despite Sutphen’s assurances that hewould contact OSHA the next time Sierraemployees were engaging in torch cutting,Gainer did not hear from him. After beingunable to reach Sutphen on February 10,1998 (four days after Gainer firstarrived at the site), Gainer went back tothe site unannounced on Friday, February13, and observed Hawkinson and Orszulakworking on the bridge withoutrespirators. He told Sutphen that hewanted to do some “sampling” but wasinformed that it would not be a good dayto do so because for the remainder of theday the employees would only be doing”prep work” and no more torch cutting.The OSHA inspector informed Sierra thathe would be back the next day and did so,this time fitting sampling pumps onHawkinson and Orszulak. [FOOTNOTE 4] Gainer spent the remaining part of theday observing the two men, as well asreviewing Sierra’s lead program Sutphenhad given him. The inspector noted thatonly Orszulak wore a respirator (bothshould have been), that both employeeswore street clothes (while they shouldhave been wearing protective overalls),and that the necessary clothes-changingand hand-washing facilities were no placeto be found. When Gainer questionedSutphen about these problems, Sutphenrepeated that the work was being donesafely and that he had the test resultsto prove it; however, even though Gainerrequested the test results on each of thefive visits he made to the site, Sutphennever provided them. On March 17, 1998, Gainer received thetest results from the air sampling pumpswhich revealed that Orszulak had beenexposed to lead in excess of thepermissible limit and also thatHawkinson’s exposure exceeded the actionlevel. [FOOTNOTE 5] The OSHA inspector telephonedOrszulak on March 19, 1998, to give himthe results and ask him if he had everhad any training in lead safety; Orszulakresponded in the negative. On March 20,Gainer returned to Sierra’s job site andobserved Orszulak torch cutting andanother employee, Frank Mulcrone,descaling; both employees were wearingrespirators and overalls, but theoveralls had rips and tears in them andthe feet in the overalls were cut off.Gainer interviewed Mulcrone who informedhim that he had never received anytraining in the use of respirators norhad he participated in any lead safetyprograms. [FOOTNOTE 6] The OSHA inspector met withSutphen and noted the poor and tatteredcondition of the employees’ overalls and,once again, inquired about a change areaand a hand-washing facility. Sutphenresponded that a change area was neitherfeasible nor needed, and that employeescould use a bucket to clean up; Gainerlooked into the bucket Sutphen hadpointed to and discovered it was empty.While at the site, Gainer also met withCraig Satalic, the business agent for theemployees’ union. Satalic informed theinspector that he had visited the Sierrajob site on numerous occasions and askedfor respirators, overalls, blood tests,and change and wash facilities; however,on each occasion the request was deniedby Sutphen. On March 23, 1998, Gainer held a”closing conference” [FOOTNOTE 7] with Sutphen todiscuss the nine violations of 29 C.F.R.sec. 1926.62. Ten days later, on April 2,1998, pursuant to its authority under 29U.S.C. sec. 658(a), OHSA charged Sierrawith the nine violations that Gainer hadobserved. Sierra appealed this nine-item citationto the Commission, but the AdministrativeLaw Judge (ALJ), relying primarily oncredibility determinations, affirmed thecitation and assessed a penalty of $2100for item one (the failure to ensure thatits employees were not over exposed tolead) and a penalty of $750 for each ofitems two through nine, for a total of$8100. Sierra petitions for review. II. ANALYSIS In a review of enforcement actions byOSHA, we will affirm the agency’s legaldeterminations as long as these are notarbitrary or capricious and are inaccordance with law. Caterpillar, Inc. v.Occupational Safety and Health ReviewComm’n, 122 F.3d 437, 439-40 (7th Cir.1997); 5 U.S.C. sec. 706. We defer to theagency’s reasonable interpretations ofits own regulations. In re EstablishmentInspection of Caterpillar, Inc., 55 F.3d334, 336 (7th Cir. 1995). We affirmfindings of fact if supported bysubstantial evidence. Caterpillar, 122F.3d at 440 . . . . The ALJ’s credibilitydeterminations must be honored by areviewing court unless thesedeterminations are contradicted by”uncontrovertible [documentary orphysical] evidence.” Faultless Division,Bliss & Laughlin Industries, Inc. v.Secretary of Labor, 674 F.2d 1177, 1182(7th Cir. 1982) . . . . Union Tank Car Co. v. Occupational Safety& Health, 192 F.3d 701, 705 (7th Cir.1999); see also Martin v. Pav-SaverManufacturing Co., 933 F.2d 528, 530-32(7th Cir. 1991). A. Sierra’s Due Process Claims Sierra contends that its due processrights were violated because Sutphen: 1)was not given a copy of the complaintwhich was the basis for Gainer’sinspection; 2) did not have theopportunity to accompany Gainer as heperformed the walk-around portion of theinspection; and 3) was excluded fromGainer’s interviews with employeesHawkinson and Orszulak. However, Sierra’s argument seems toassume that for every statutory orregulatory violation of a proceduralnature there must necessarily be a dueprocess violation at a Constitutionallevel, a contention that is without anybasis in the law. See Paul v. Davis, 424U.S. 693, 700-01 (1976); United States v.Knottnerus, 139 F.3d 558, 561 n.5 (7thCir. 1998) (citing United States v.Caceres, 440 U.S. 741, 749-52 (1979);Bridges v. Wixon, 326 U.S. 135, 152-53(1945); Yang v. INS, 109 F.3d 1185, 1195(7th Cir. 1997)). Despite Sierra’sallegations that the OSHA inspectorfailed to follow the statutory andregulatory requirements concerningnotice, it is clear that when Gainerfirst arrived on the site he informedSutphen that he was an OSHA inspector andthat he was on the premises to conduct aninvestigation. It is also clear thatSierra had an opportunity to defenditself against the subsequent nine-itemcitation OSHA issued. The fact thatSierra does not agree with the ALJ’sdecision and argues that statutory andregulatory requirements regarding noticewere technically violated falls short ofgiving rise to a due process violation. The Due Process Clause of the UnitedStates Constitution requires that Sierrabe given notice and an opportunity torespond. Contrary to Sierra’s arguments,these requirements were clearly met inthis case. Because Sierra has failed topoint us to any support for itsConstitutional claim, nor have we foundany upon review, we decline to addressthis issue any further. See Knottnerus,139 F.3d at 561 n.5 (“An agency’s failureto follow its own regulations does notrise to the level of a constitutionalviolation unless the regulationsthemselves are compelled by theConstitution.”). B. The Nine Violations in the Citation Sierra next baldly contends that it didnot violate any of the lead safetystandards with which it was charged inOSHA’s nine-item citation. However, afterbriefing and a hearing in which testimonywas received from numerous individuals,the ALJ based his conclusions oncredibility determinations; the ALJcredited the testimony of Gainer,Sierra’s employees, and their unionbusiness agent, and discredited Sutphen’stestimony. [FOOTNOTE 8] In contending that it didnot violate OSHA regulations, Sierra isasking this court to substitute our owncredibility determinations for that ofthe ALJ, something we decline to do. SeeJet Star, Inc. v. NLRB, 209 F.3d 671, 676(7th Cir. 2000) (“We must affirmcredibility determinations made by theALJ, and adopted by the Board, in theabsence of extraordinary circumstances. .. . Such extraordinary circumstancesinclude a clear showing of bias by theALJ, an utter disregard foruncontroverted sworn testimony or theacceptance of testimony which on its faceis incredible.” (internal quotationsomitted)); see also United States v.Mancillas, 183 F.3d 682, 710 n.22 (7thCir. 1999) (“We do not second-guess the[ALJ]‘s credibility determinationsbecause he or she has had the bestopportunity to observe the verbal andnonverbal behavior of the witnessesfocusing on the subject’s reactions andresponses to the interrogatories, theirfacial expressions, attitudes, tone ofvoice, eye contact, posture and bodymovements, as well as confused or nervousspeech patterns in contrast with merelylooking at the cold pages of an appellaterecord.”). Sierra’s petition for review is DENIED. :::FOOTNOTES::: FN1OHSA issues “serious violations” for thoseconditions which create “a substantialprobability of death or serious physical harm.”29 U.S.C. sec. 666(k). FN2Specifically, the citation charged Sierra with:1) failing to assure that its employees were notoverexposed to lead; 2) failing to determine itsemployees’ lead exposure level at the start ofthe project; 3) failing to provide its employeeswith appropriate respiratory protection; 4)failing to provide its employees with appropriateprotective work clothing; 5) failing to provideits employees with a clean change area; 6)failing to provide its employees with adequatehand-washing facilities; 7) failing to provideits employees with blood sampling for leadlevels; 8) failing to provide its employees withsafety training; and 9) failing to establish andimplement a written lead safety/complianceprogram. FN3Tests revealed that the lead content in the paintwas 50%. FN4 According to Gainer’s testimony, the samplingpump is a small device that is affixed to anemployee’s waist and a filter runs up into theemployee’s breathing area. The device thenmeasures the air contaminants to which theemployee is exposed. FN5 The lead standard’s permissible exposure leveland action level are 50 and 30 micrograms percubic meter of air (ug/m3), respectively. See 29C.F.R. 1926.62(b). The parties stipulated thatthe air monitoring results showed Orszulak’sexposure to be 119.7 ug/m3 and Hawkinson’sexposure level to be 43.4 ug/m3. FN6 Gainer obtained authorization from Mulcrone,Orszulak, and Hawkinson (who had, for reasonsunexplained in the record, been fired fromSierra) to review their most recent blood testsfor lead. According to the blood tests,Hawkinson’s, Orszulak’s, and Mulcrone’s bloodlead levels were 50.5, 23.9, and 7.5 microgramsper deciliter of blood (ug/dl), respectively.According to 29 C.F.R. sec.sec. 1926.62(c)(1) and(k), Hawkinson should have been removed from thework site for medical reasons once his blood leadlevel reached 50 ug/dl. FN7 Cf. 29 C.F.R. sec. 1903.7(e) (“At the conclusionof an inspection, the Compliance Safety andHealth Officer shall confer with the employer orhis representative and informally advise him ofany apparent safety or health violationsdisclosed by the inspection.”). FN8 For example, when the ALJ discussed his reasonsfor finding that Sierra failed to ensure that itsemployees were not overexposed to lead, hestated, “I observed the demeanors of thewitnesses and found the testimony of [Gainer],Orszulak and Satalic convincing and credible. Thetestimony of Sutphen on the other hand, inaddition to being contrary to that of the otherwitnesses, was simply unpersuasive.”Additionally, when discussing Sutphen’s failureto provide OSHA with test results, the ALJstated, “Sierra failed to offer the results insupport of its position, and Sutphen’s testimonyabout his misplacing the results and hisinability to secure another copy from the companythat had them was unconvincing.”
Sierra Resources, Inc. v. Herman United States Court of Appeals For the Seventh Circuit No. 99-2492 SIERRA RESOURCES, INCORPORATED, Petitioner, v. ALEXIS M. HERMAN, Respondent. On Petition for Review of an Orderof the Occupational Safety and Health ReviewCommission. Argued: February 10, 2000 Decided: May 30, 2000 Before: COFFEY, FLAUM and DIANE P. WOOD, Circuit Judges.
 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

GlobeSt. Multifamily Spring 2022 (Formerly APTS)

February 22, 2022 - February 23, 2022
Hollywood, FLA

Join the industry's top owners, investors, developers, brokers & financiers at THE MULTIFAMILY EVENT OF THE YEAR!


Learn More

China Law & Practice Awards 2021

February 24, 2022
Beijing

The annual China Law & Practice Awards is the jurisdiction's most prestigious legal awards ceremony that applauds China's elite.


Learn More

Legalweek Leaders in Tech Law Awards 2022

March 10, 2022
New York, NY

Recognizing innovation in the legal technology sector for working on precedent-setting, game-changing projects and initiatives.


Learn More

Senior Litigation Paralegal


The Law Office of Domingo Garcia is looking for a personal injury paralegal who has experience (a) responding to written discovery requests,...


Apply Now ›

Attorney - Personal Injury


Suisman Shapiro, the largest law firm in eastern Connecticut, is devoted to our diverse community, and is actively recruiting candidates who...


Apply Now ›

Personal Injury Attorney


Job description We are seeking a Personal Injury Attorney with a minimum of 3-5 years experience to become a part of our team! You will be ...


Apply Now ›

INGLESINO, WEBSTER, WYCISKALA & TAYLOR, LLC

01/24/2022
NJLJ Web

Inglesino Webster Wyciskala & Taylor, LLC is pleased to announce that JOSEPH M. FRANCK, Esq. JODI M. LUCIANI, Esq. & ALYSSA E. SPECTOR, Esq. have become Partners of the Firm


View Announcement ›

CAROL BALL

01/24/2022
NJLJ Web

In Memoriam


View Announcement ›

HISTORICAL SOCIETY OF THE NEW YORK COURTS

01/19/2022
NYLJ Web

HISTORICAL SOCIETY OF THE NEW YORK COURTS Mourns the Passing of Roy L. Reardon July 20, 1929 January 7, 2022 A Salute to..... Roy L. Reardon A Lawyer for all Seasons


View Announcement ›