Techno Coatings v. Occupational Safety & Health Review Commission
Docket: No. 04-72855; OSHRC No. 03-0865
Court: Court of Appeals for the Ninth Circuit; April 19, 2006; Federal Appellate Court
Techno Coatings (Techno) petitioned for review of an enforcement action initiated by the Secretary of Labor under the Occupational Safety and Health Act (OSHA) for violations of the lead standard. The review is under the jurisdiction of 29 U.S.C. 660(a). The Secretary withdrew one citation related to 29 C.F.R. 1926.62(n)(1)(ii), leading to the petition being granted concerning that citation. However, all other citations were denied. Techno was found to have failed in completing and documenting an initial exposure assessment as mandated by 29 C.F.R. 1926.62(b) and (d)(1)(i). Techno argued that it relied on historical data from a previous project in San Bernardino for this assessment, but this reliance was deemed inadequate for two reasons. First, Techno did not document its reliance on the historical data, which is required if historical evidence is used instead of actual monitoring (29 C.F.R. 1926.62(d)(5)). This documentation should confirm the relevance of such data to current job conditions. Second, even if documented, the reliance on the San Bernardino project was inappropriate. For historical data to be valid, it must reflect conditions closely resembling those of the current operations, which was not the case here. Specifically, the work practices differed significantly—nail guns used in San Bernardino had vacuum attachments, while those in San Diego did not. Additionally, the lead content of the paint monitored at San Bernardino was unknown, further undermining the validity of the reliance. Consequently, Judge Yetman concluded that Techno failed to conduct a valid initial exposure assessment. As a result, Techno was required to treat certain employees as if they were exposed to lead above permissible levels and to provide interim precautions, including a clean changing area and medical surveillance for employees using needle guns, as outlined in 29 C.F.R. 1926.62(d)(2). Evidence supported Judge Yetman’s findings that Techno did not provide these necessary precautions. The final ruling granted the petition in part by vacating the specific citation but denied it regarding all other citations, with each party bearing its own costs on appeal. The disposition is not intended for publication and cannot be cited in court except as per Ninth Circuit Rule 36-3.