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Bridge Painter Loses Lead Case Appeal

Friday, July 27, 2012

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A federal commission has three words of advice for bridge painting contractors who are blasting off old lead-based coatings.

Monitor, monitor, monitor.

Different tasks, different containment structures, different practices and different employees on different days may all add up to very different levels of lead exposure—even at the same work site, the Occupational Safety and Health Review Commission reports.

 One blaster’s blood lead level was three times the Permissible Exposure Limit, an Industrial Hygienist said.


One blaster’s blood lead level was three times the Permissible Exposure Limit, an Industrial Hygienist said.

That means that exposure determinations for one area may not necessarily be applied to another area, the panel said.

And so, L&L Painting Company Inc., of Hicksville, NY, should have monitored employees performing abrasive blasting and coatings removal at both ends of the George Washington Bridge in New York City in 2004, the commission ruled.

That lapse, and several other serious lead-related violations, will cost the company $14,000, under a 44-page final order issued June 28 by the commission, an independent agency that reviews decisions by the Occupational Safety and Health Administration.

2001 Case

The case dates to 2001, when L&L began to remove lead-based paint from the bridge by abrasive blasting inside containment enclosures. The company was working under a contract with the Port Authority of New York and New Jersey.

The project included removing lead-based paint from two large towers on each end of the bridge.  In mid-2004, while finishing up its work on the New Jersey side, L&L started working on the New York side.

On July 7, 2004, Regan Branch, an OSHA Industrial Hygienist, began an inspection on the New York side of the bridge. OSHA initiated the inspection after being notified by the New Jersey Department of Health and Senior Services that L&L workers on the bridge had elevated blood lead levels.

During the OSHA inspection, Branch asked L&L for the results of any area lead sampling and personal employee air monitoring it had conducted.  L&L told her that it had conducted no sampling on the New York side of the bridge but gave her results of sampling it had conducted on the New Jersey side.

After Branch found excessive lead levels at various locations and in one employee on the site, OSHA issued a 20-item serious citation, primarily under the lead in construction standard. Proposed fines totaled $33,500.

Second Appeal

Since then, the case has been well traveled, having been affirmed by the original judge, kicked upstairs to the review commission, bounced back to the judge for additional consideration, re-affirmed, then returned to the review commission.

In the end, the commission upheld a number—but not all—of the serious violations, including several involving lapses in personal protective equipment and hygiene practices.

 (The commission did dismiss one citation that had alleged the lack of an eating area for workers. The panel found that the workers had a planked area on which to eat—an area that actually was covered with lead paint dust. But because the citation involved lack of an eating area, not lead, the commission dismissed it.)

Monitoring Issues

The heart of the case, however, involved whether L&L had been required to determine lead exposure on the New York side of the bridge after work shifted to that end.

 The George Washington Bridge

 Department of the Interior

Lead exposure conditions from work on the two ends of the George Washington Bridge could have varied dramatically, the commission decided.

Under the standard cited (Section 29 C.F.R. § 1926.62(d)(1)), employers must “initially determine if any employee may be exposed to lead at or above the action level.”  To do so, an employer may either monitor employee exposure, or establish a so-called historical monitoring exception by “relying on monitoring results from a previous worksite if conditions were sufficiently similar to the employer’s current worksite.”

L&L contended that its earlier determination at the New Jersey end of the bridge, two-thirds of a mile away, qualified it for an exemption on the New York side.

The commission disagreed.

Grounds for Exception

An exception required L&L to prove that workplace conditions at the New Jersey site “closely resembl[ed] the processes, type of material, control methods, work practices, and environmental conditions used and prevailing” at the New York site.

“We find that L&L has failed to make such a showing,” the commission’s order said.  "Contrary to L&L’s assertions, the record establishes that L&L had different job tasks at the two separate bridge worksites.”

Branch, the Industrial Hygienist, testified that “clouds” of dust surrounded the employee she had sampled on the New York side.

That worker was vacuuming debris outside the active containment area—a different task than that performed when the New Jersey-side tests were performed—and his overexposure was established, the commission noted.

Although they agreed that the exception did not apply, however, the panel split on whether L&L violated the initial determination requirement. To expedite the case, the citation was upheld but not given the weight of an official precedent, leaving similar cases on somewhat shaky ground in the future.

Hygiene and Housekeeping

The commission did take the opportunity to criticize a variety of L&L’s hygiene, personal protective equipment and housekeeping practices. It noted that:

• Visibly dusty employees were eating without washing;

• Workers were wearing respirators while sporting facial hair that prevented a tight fit;

• Respirators were “visibly dirty and had dirty cartridges,” with lead dust on several units;

• Respirators were hung from belts or scaffolding, rather than stored properly;

• Workers were allowed to use compressed air to blow lead dust off clothing, which is prohibited by standard; and

• Lead was found on lockers in the clean side of the decontamination unit, on a water cooler, in a bag of rags used by employees, and on the lunch plank.

“[T]he evidence shows that it was ‘practicable’ for L&L to have done more to keep surfaces at this worksite free from lead accumulation,” the commission’s order said.

Although 70 painters and blasters were working on a platform measuring 180 by 120 feet and a tower of “tremendous” size, just one worker was assigned “to clean the job site, top to bottom,” the company had testified.

“Indeed,” the commission said, “L&L could have reduced the lead accumulation by assigning more than just one of its seventy employees to perform all of its housekeeping duties.”


Tagged categories: Abrasive blasting; Bridges; Containment; Exposure conditions; Health and safety; Industrial Contractors; Lead paint abatement; OSHA; Painters

Comment from michael deaton, (7/30/2012, 10:10 AM)

total neglect by the safety manager of the contractor...

Comment from Catherine Brooks, (7/30/2012, 10:42 AM)

An excellent article and example I will use to discuss WORKER exposure in RRP cases.

Comment from mickey walton, (7/31/2012, 4:03 AM)

In Reference to your article : Bridge Painter Loses Lead Case Appeal: It really doesn't matter if your on the New York side or the New Jersey side, and it doesn't matter the containment size and all the other hocus pocus B.S., the issue at hand is its a lead abatement job- Several factors are introduced - first of all,its the responsibility of the workers to maintain a clean job site to be reinforced and overseen by its Supervisors and project managment- this to be over seen by OSHA- its a reflection on the companies overall unprofessional attitude and lack of respect towards the potential harm red lead is capable of inflicting; if their job site is run in such a lack luster way only imagine the home environment of the personnel; the harm their children are exposed to- if anyone has met someone who was exposed to lead as an infant and witnessed its side effects first hand, they would surely be a believer, its no joke- further more it seems all parties are guilty of neglect, the contractor for the above noted, the workers especially and then OSHA for not enforcing THEIR rules and regulations, with all the needless and senseless accidents and fatalities in the recent past one would think OSHA as well as contractors would be putting a serious foot forward to end these senseless and needless happenings- for the PPE issues- from personal experience these are the the main points driven into you from day one on any lead project!!- improper storage and maintenance of personal PPE especially in a lead environment- hanging inside of your containment on scaffolding, around your waist?!!! eating without cleaning your person and contamination on the clean room side of your work site!- a lunch plank?!! eating areas are not even supposed to be on the immediate vicinity to begin with!! come on guys get with the program for christ sake-- all gone without disciplinary action of any for the most part- a $14,000 fine, one respirator violation is up to $10,000- so what were they fined for ?? then to consider most will probably be suspended before its all over with anyway-- all this after a state agency report of high blood lead levels??!!- whats next- an award at their next inspection- surely there's no need to inspect their blast equipment- you know; hoods, air line (connections and such)air monitoring systems etc,etc etc, lets not even question the 'safety' of the CE air supplied respirators they're sporting-surely they're not full of lead dust by any stretch of the imagination - how does anyone expect to take these projects with any sense of importance- we should just take all the money spent for all training and education put into lead awareness and toss it rite out the window, it seems to be yet another complete waste of time, lets not forget the IUPAT as they to should be thoroughly embarrassed by these happenings as well, it doesn't say much for their education and awareness programs; this is not a single individual with a high blood lead level its a complete blast, paint and cleaning crew with support personel- In light of all the recent fatalities and such- all of which could have been avoided in some way, shape or form; this is nothing less than sheer embarrassment for our industry. Not much to be said for the pursuit in quality in craftmanship and quality of life in both on and off the job site-

Comment from Scott Tyler, (8/4/2012, 7:12 PM)

Iv'e been doing Heavy Industrial work now for 40 years. Our job just keeps getting harder and harder and more expensive to be able to preform this type of work. It is of the new generation and the new people coming into this profession that OSHA is trying to keep SAFE. For any of you Estimators (and yes I have been in your shoes) We need to factor in our bids the extra expended time and cost's for the employee's Saftey. That or you will be paying for it in the end.

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