NATIONAL STEEL AND SHIPBUILDING COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent

National Steel and Shipbuilding Co. (National) petitions for review of an order of the Occupational Safety and Health Review Commission (OSHRC or Commission) finding that it “willfully” violated a safety standard contrary to § 5(a)(2) of the Occupational Safety and Health Act (OSHA or Act), 29 U.S.C. § 654 (a)(2). We affirm.

I. Statement of the Case

National is engaged in building commercial and military oil tankers. During construction of a ship, a scaffolding is set up alongside the ship. The scaffolding is usu ally protected with top and midrails. When construction and inspection of the ship’s tanks are completed, the scaffolding is dismantled.

Although the tanks are painted before installation in the ship, there often remain “holidays” or blemishes where the paint has been knocked off the tank by scaffolding or burned off by welding. As the scaffolding is being dismantled, a painter stands ready to touch up the holidays.

During a routine inspection of National’s facility on October 10,1974, an OSHA Compliance Officer observed an employee painting inside a tank “45 feet above the bottom of the tank which was lined with heating coils.” The painter was standing on planking…