Court Upholds OSHA’s Power to Protect Workers

Statement of facts

The hospital renovation and removal of asbestos fireproofing

Ho is a naturalized citizen who, at the time relevant here, resided in Houston, Texas. (R 8:49, p. 1). In December 1997, Ho used funds provided by Fruitland, a fruit and vegetable wholesale company he and his family owned, to buy the abandoned Alief General Hospital and Professional Building in Houston for investment purposes. (R-1; Tr. 40, 53). An Environmental Site Assessment prepared in 1994 by the prior owner indicated that the fireproofing covering structural beams and columns throughout the hospital contained 10% asbestos. (C-17; Tr. 34-36). The broker gave Ho a copy of the report and recommended a further assessment of the severity of the asbestos problem. (Tr. 37). Ho later signed a Commercial Property Condition Statement acknowledging that the buildings contained "asbestos components." (C-19; Tr. 42-43).

In mid-January 1998, apparently without performing any further assessment, Ho hired up to eleven undocumented Mexican nationals to remove asbestos- containing fireproofing and other materials from the buildings. (Tr. 167-170, 178, 259-263, 350-351). Although two supervisors were on site to direct the work, and Ho himself was present to inspect and monitor the progress of the job, no one warned the workers of the presence of asbestos, trained any of them on the hazards associated with asbestos, or provided any of them with appropriate safety equipment such as respirators and protective clothing. (Tr. 125-126, 131, 171-174, 176, 262-263, 274). Ho paid the workers with funds from Ho Express, a Ho family owned trucking company. The workers stood on ladders or on the floor, and used putty knives to scrape the fireproof coating off pipes, beams, columns and decking. (Tr. 58, 60, 73, 120-121,168-170, 197-200, 342-343; C- 28, pp. 4-10). The scraping process produced a dry, fluffy powder that fell onto the workers' heads and faces, and covered their clothes. (Tr. 60-61, 170, 174-175, 198-201). When the powder settled onto the floor, the men swept it into plastic trash bags. (Tr. 124).

The fireproofing powder caked on the men's faces, making it difficult for them to breathe, and turned the street clothing in which they worked white. (Tr. 174-175, 200, 284-285). Some of the workers tried using ordinary paper masks, suitable for nuisance dusts, to keep them from breathing the powder but discarded them as ineffective. (Tr. 60, 120, 174- 175; C-2). There was no running water or clean room available, so the men wore their contaminated clothing home at night. (Tr. 134, 177-178).

On February 2, city building inspector Tim Steward came to the site to investigate a complaint that work was being performed without a permit. (Tr. 56-57). Stewart saw ten workers scraping fireproofing from beams and columns. (Tr. 71, 73-74). He observed as the asbestos-laden powder fell onto the hair and shoulders of the workers and drifted throughout the open building. (Tr. 60, 74, 76-77). After ascertaining that the project lacked a permit, Stewart issued a stop-work order and placed a red tag on the hospital's main entrance. (Tr. 62-63, 267, C-22). The order stated that the work could not continue until the proper permits, plans and approvals were posted. (Ibid.)

In response to the stop-work order, Ho contacted Alamo Environmental, an asbestos abatement firm, for an estimate to remove the remaining fireproofing. After walking through the building with Ho, Alamo's manager Don Weist prepared an estimate of $159,876 for removal of asbestos-containing fireproofing "in strict accordance with EPA, OSHA guidelines." (C-23).

Ho did not accept the Alamo bid; instead he decided to defy the stop-work order and resume his illegal asbestos abatement activities at night. (Tr. 122-123, 268, 271-272). One week after the city inspection, the workers began working twelve-hour shifts beginning at 6 pm, seven days a week, scraping asbestos fireproofing from the hospital's beams and pipes in the same manner they had prior to the stop work order. (Tr. 123-129, 285-286). Ho regularly visited the site to check on the progress of the work and to ensure that the fireproofing was thoroughly scraped. (Tr. 125,-126, 173-174, 273-274).

Ho directed that the gate to the property be kept locked while the men were working at night; only Ho and two supervisors had keys. (Tr. 138, 285-286). There was nothing to drink unless the workers brought something with them, or gave money to a supervisor to buy water or soft drinks. (Tr. 183, 185, 192, 321). The one portable toilet at the site was never serviced and consequently became unusable. (Tr. 183, 299). The men relieved themselves on the property or used the bathroom of a filling station or restaurant some 300 feet away. (Tr. 183, 321-322, 331). Working in this manner, the men finished scraping the asbestos-containing fireproofing on March 10. (Tr. 293).

The natural gas explosion

On March 11, Ho decided to wash down the interior of the hospital building. (Tr. 293). Ho believed that the sprinkler system was still connected to a water source and could be used for washing. (Ibid.). Ho and Corston Tate, a Ho employee, walked around the building and found two pipes that they thought might be water lines. (Ibid.). Ho directed Tate to open one of the pipes to see if it contained water, and then left the site. (Tr. 294). When Tate tried to loosen some bolts on the pipe, it cracked open and pressurized natural gas began to escape. (Tr. 299). Tate and two other workers tried to plug the pipe, but Tate's van was in the way. (Tr. 295-296). When Tate attempted to start the van to move it, the gas exploded, severely injuring the three men and blowing a hole in the exterior wall of the hospital.