OR-OSHA v. A & B Sheet Metal Works

"As set forth by a leading treatise, federal law dictates that the agency must show, in the absence of proof of actual exposure, that it is reasonably predictable that employees, by 'operational necessity' or otherwise (including inadvertence) in the course of their work or associated activities (e.g., going to rest rooms) will be in the zone of danger created by the cited condition." OR-OSHA v. Moore Excavation, Inc., 257 Or App 567, 577, 307 P3d 510 (2013).

Both parties petitioned for review of an ALJ decision. OR-OSHA assigned error to the ALJ's use of "actual exposure" requirements in the initial determination violation, while A & B assigned error to the finding that A & B's actions did not meet the standard of a "determination" under 29 CFR § 1910.1025(d)(2). A & B argued that OSHA improperly cited it for a violation based on performance standards, therefore allowing an employer to make a subjective assessment as to exposure levels. OR-OSHA argued that the ALJ incorrectly found "OR-OSHA could not establish exposure to any hazardous condition, thus rendering any violation noncitable. . . . . As set forth by a leading treatise, federal law dictates that the agency must show, in the absence of proof of actual exposure, that it is reasonably predictable that employees, by 'operational necessity' or otherwise (including inadvertence) in the course of their work or associated activities (e.g., going to rest rooms) will be in the zone of danger created by the cited condition." OR-OSHA v. Moore Excavation, Inc., 257 Or App 567, 577, 307 P3d 510 (2013).  The Court found that the ALJ erred in dismissing the citation, because 29 CFR § 1910.1025 applies to workplaces where lead exposure is present in any quantity, and failure to perform the mandatory initial determination is a citable violation. Reversed on petition; affirmed on cross-petition.