By: Thomas H. Welby Published: September 2012

Safety Policy: Employees' Acute Carbon Monoxide Poisoning Gets Contractor "Willful" OSHA Violations, $112,000 in Penalties

A Chicago-area concrete contractor was charged with three "Willful" OSHA violations, following an incident in which four employees were sickened, and two diagnosed with acute carbon monoxide poisoning.

At trial before an administrative law judge, the employer succeeded in having one of the three citation items vacated, and the other two reduced in gravity from "Willful" to "Serious."

On appeal to the OSH Review Commission, however, the Commission reinstated the dismissed item and affirmed all three citation items as "Willful." The Commission imposed penalties totaling $112,000.00.

The project was the pouring of a concrete floor inside a commercial structure being added to a pre-existing building. The new addition was 90 x 75 feet x 30 feet high. It was connected to the existing structure by an overhead door, which led to a vestibule area. In addition to the overhead door, which faced west onto a parking lot, there was a man door near the newly-constructed, steel-frame addition. A second man door was located on the southwest side of the building, which opened onto a parking lot on the adjoining street.

Elliott Construction, the employer, had a "flat work" crew of twelve at the site, under the direction of foreman Michael Dynowski. In setting up for the pour, Dynowski deployed three fans to provide ventilation, as a gasoline-powered laser screed, power rake, and power trowels were to be used in the indoor space. He set up two large industrial fans, one at the man door opening to the outside parking lot, and the other at the overhead door that led to the vestibule. A small pedestal fan was placed at the other man door, to blow air in from outside. Dynowski had had safety training regarding carbon monoxide (CO), and knew that CO, as would be emitted by the gasoline-powered equipment, posed a potential danger to his crew members' health.

In addition to exhaust from gasoline-powered equipment being used indoors, the size of the pour required a dozen concrete trucks to remain idling, while parked near one of the building's few openings.

At about 10:15 A.M., Employee "A" complained to Dynowski of a headache, but attributed it to a sinus condition. Employee "A" took an outdoor break of 15-20 minutes, and returned to work. A few minutes after Employee "A" went outside, Employee "B" reported feeling ill, at which point Dynowski, as he later testified, realized that "there was a carbon monoxide issue."

Despite that realization, Dynowski did not stop the pour, even after Employee "B" vomited, and Employees "C" and "D" also reported feeling ill. Despite Elliott's policy, which was to get everyone out of the building and to contact Safety Check (an outside consultant) to perform CO monitoring, Dynowski did nothing more than permit the affected workers to take breaks outdoors. A pause in the work was taken only when the supply of concrete ran out, and the crew had to wait for more to be delivered.

When the additional concrete arrived, Dynowski took the crew (minus the four ill employees) back inside, to resume working. Fortuitously, an employee from Safety Check stopped by on a routine visit, and summoned medical assistance.

All four workers were administered oxygen and taken to hospital, where Employees "C" and "D" were diagnosed with acute CO poisoning. Adjusted for time of exposure and timing of the blood tests, the test results calculated that Employee "C's" exposure level was 104.1 PPM, and Employee "D's" was 80.5 PPM. OSHA's maximum Permissible Exposure Limit (PEL) for airborne CO is a time-weighted average of 50 PPM.

Elliott was cited for three violations. One was for failing to maintain a program providing for "frequent and regular inspections" of the job site, by failing to conduct air monitoring for CO. The other two items were for exposing Employees "C" and "D" to levels of CO above the PEL.

In part because, four years previously, Elliott had been cited for exposing seven employees to CO, at levels up to 4.4 times the PEL, the Secretary characterized the violations as "Willful," and sought penalties of $112,000. Elliott contested all items and the penalties.

At trial, Elliott pointed out that the OSHA standard requiring "inspections," unlike several other OSHA airborne contaminant standards, does not specifically require that the employer "monitor" or "test" the air. That's a plausible argument, under the rule of statutory interpretation that, if a requirement appears in one or more provisions directed to a common end, its omission in other provisions having the same purpose should be regarded as deliberate. Based on that argument, the ALJ vacated the first, failure-to-inspect citation item.

The employer was less successful in its challenge to the excess-exposure citation items, which was based on evidentiary issues and expert witness testimony attacking the methodology employed, in the absence of monitoring at the site, to calculate the CO exposures of Employees "C" and "D" by working backward from their tested blood levels of carboxyhemoglobin, a byproduct of inhaling CO that reduces the blood's oxygen-carrying capacity.

This latter challenge failed, the ALJ sidestepping the methodology issues by relying on monitoring by the local fire department following the workers' exposure, all four employees' symptoms during and after their exposure, and the indisputably elevated levels of carboxyhemoglobin in the blood of Employees "C" and "D."

However, while the ALJ affirmed the two excess-exposure items, she fund in favor of the employer on the "close issue" of willfulness. As a result, these items were affirmed as "Serious" rather than "Willful," and only $14,000 in penalties was assessed.

On review, the Commission reinstated the "failure to inspect" item, finding that the absence of the terms, "test" or "monitor" could not be determinative, given that, because CO is colorless and odorless, the only way to "inspect" a worksite to ensure that the PEL for CO will not be exceeded is by air monitoring.

The Commission further ruled all three violations to have been "Willful," and increased the penalties from the $14,000 imposed by the ALJ to $112,000 as originally sought by the Secretary.

Gasoline-powered equipment is more commonly used outdoors. The indoor use of such equipment (if not equipped with catalytic converters) should be avoided where possible.

Engineering measures (the use of fans) to keep CO levels below the PEL were not, as required, approved for that particular use by a competent industrial hygienist, or other technically qualified person. Neither were respirators used.

Those omissions were particularly important in the Elliott case, because the building where the work was being performed was barrier-tight, and had few openings to the exterior.

In ruling the violations to be "Willful," the Commission relied also on the fact that Elliott had adopted, but later abandoned, the daily use of CO monitors following the prior incident.

The hallmark of a "Willful" OSHA violation is an "intentional, knowing or voluntary disregard" for the requirements of the OSH Act, or "plain indifference to employee safety." Apart from heftier penalties, and potential damage to your ability to get work, "Willful" violations are harmful to your firm's reputation, and to employee morale as well.

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