On Petition for Review of a Final Order of the Occupational Safety and Health Review Commission (OSHRC Docket Nos. 01-1367 and 01-1368)
The opinion of the court was delivered by: Greenberg, Circuit Judge
BEFORE: BARRY, AMBRO, and GREENBERG, Circuit Judges
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. *fn1 In response to a complaint 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.
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. *fn2 On January 15, 2001, the memorabilia sale was conducted with the items sold to be picked up by January 19, 2001.
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. *fn3
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 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. *fn4 This revelation 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.*fn5 Between February 15 and February 21, BTC implemented a lead protection program at the stadium, its first formal lead program at the site. *fn6
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").
Though the Safety Case involved two citations and numerous infractions, the only issues material to the Safety Case in these 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. *fn7
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. *fn8 BTC employees 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.*fn9
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.
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/m3 (calculated as an 8-hour time weighted average). See 29 C.F.R. §§ 1926.62(b) and (c). The concurrent sampling revealed the following exposure levels:
DateEmployeeOSHA Time Weighted Average (Time Sampled)BTC Time Weighted Average (Time Sampled)
2/21/2001Shawn Cramer36:g/m3 (321 min.)36:g/m3 (234 min.)
2/21/2001Kevin Opfar259:g/m3 (323 min.)209:g/m3 (230 min.)
2/21/2001Eric Yockey318.6:g/m3 (317 min.)975 :g/m3
2/22/2001Shawn Cramer37:g/m3 (458 min.)40 :g/m3