United States of America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
1120
20th Street, N.W., Ninth Floor
Washington,
DC 20036-3457
SECRETARY OF LABOR, |
|
Complainant, |
|
v. |
OSHRC Docket No. 09-0555
|
SHAW GLOBAL ENERGY SERVICES, INC., |
|
Respondent. |
|
ON BRIEFS:
Kristen M. Lindberg, Attorney; Heather R. Phillips,
Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of
Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC
For
the Complainant
McCord Wilson, Esq.; Rader & Campbell, P.C.,
Dallas, TX
For
the Respondent
Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
Shaw Global Energy Services, Inc. (“Shaw”) was contracted to decommission and demolish an area of the Occidental Chemical plant in Muscle Shoals, Alabama. This area, designated as the “cell room,” contained pipes, tanks, and equipment contaminated with mercury. Shaw used various techniques to remove the mercury while decommissioning the cell room, but all traces of it could not be eliminated before demolition. On September 25, 2008, following an anonymous referral, the Occupational Safety and Health Administration (“OSHA”) began an inspection of the worksite and, on March 13, 2009, issued Shaw two citations—one serious and one other-than-serious—alleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678. Under the serious citation, the Secretary alleged eleven violations relating to employee mercury exposure and proposed a total penalty of $27,500. Under the other-than-serious citation, the Secretary alleged one violation of a recordkeeping regulation and proposed a penalty of $1,000. Following a hearing, Administrative Law Judge Ken S. Welsch issued a decision affirming three of the eleven alleged serious violations and assessing a total penalty of $5,500. The judge also affirmed the alleged recordkeeping violation and assessed the proposed penalty.
On review before the Commission are the merits of one of the serious violations—a citation item relating to a “change house” used by Shaw employees at the plant, for which the judge assessed a penalty of $2,500—and the other-than-serious recordkeeping violation. For the reasons that follow, we vacate the change house citation item, affirm the recordkeeping citation item, and assess the proposed $1,000 penalty for that item.
DISCUSSION
I.
Serious
Citation 1, Item 5 (Change House)
Under this item, the Secretary alleges that Shaw failed to comply with 29 C.F.R. § 1926.51(i), which states that “[w]henever employees are required by a particular standard to wear protective clothing because of the possibility of contamination with toxic materials, change rooms equipped with storage facilities for street clothes and separate storage facilities for the protective clothing shall be provided.” It is undisputed that Shaw employees who worked in the plant’s cell room were required to wear protective clothing because of the possibility of mercury exposure. Shaw also required that these employees use the change house, a designated area of the plant that had three separate rooms in which employees could store their street clothes, change into their protective clothing, and shower at the end of their shift. Employees entered the room furthest from the work area at the start of their shift, changed out of their street clothes, and stored them in metal lockers with latching doors that lined three walls of that room. The next room included a shower area that employees used at the end of their shift. And the room closest to the work area contained open cubicles in which laundered protective clothing was stored for employee use, and chutes through which employees could deposit contaminated protective clothing.
According to the Secretary, the change house that Shaw “provided for employees working in the cell room . . . was not adequately demarcated to prevent [mercury] contamination.” The judge agreed, concluding that § 1926.51(i) “requir[es] storage facilities in separate rooms” as well as “a barrier between them,” reasoning that the definition of “separate” is a “unit apart or by itself, not joined or united with others.” Pointing to the undisputed fact that open doorways connected the change house’s three rooms, the judge concluded that “the change area did not meet the definition of separate.” (Emphasis added.) On review, Shaw claims that it complied with the requirements of the cited provision by providing separate storage facilities for contaminated protective clothing and street clothes.
We
agree with Shaw. Section 1926.51(i) plainly requires that an
employer’s change rooms contain “storage facilities
for street clothes and separate storage facilities for [] protective clothing,”
but does not address the separateness of the rooms.[1] See Oberdorfer Indus., Inc., 20 BNA OSHC
1321, 1328-29, 2002-04 CCH OSHD ¶ 32,697, p. 51,643
(No. 97-0469, 2003) (consolidated) (“To determine the meaning of a standard,
the Commission and the courts consider the language of the standard, the
legislative history, and, if the drafter’s intent remains unclear, the
reasonableness of the [Secretary’s] interpretation.”). The purpose of
providing separate storage facilities is simply to prevent contaminated
protective clothing from cross-contaminating the employees’ street
clothes. This purpose is evidenced by
the provision’s plain language—it applies only when “employees are required by
a particular standard to wear protective clothing because of the possibility of
contamination with toxic materials,” and it specifies that street clothes and
protective clothing be stored separately.[2] 29 C.F.R.
§ 1926.51(i).
In support of her argument that Shaw’s storage facilities failed to satisfy the requirements of § 1926.51(i), the Secretary points to the following evidence: (1) the results of air monitoring conducted by Shaw that the Secretary claims show no significant difference in mercury vapor levels between the room where protective clothing was stored and the room where street clothes were stored; (2) the absence of doors between these rooms, purportedly allowing mercury vapor to “travel freely between” them; and (3) testimony she contends shows that “[e]mployees wearing or carrying contaminated protective clothing or equipment could, and did, walk freely between” these rooms. None of this evidence, however, shows that the contaminated protective clothing, stored inside open cubicles or deposited in a laundry chute, was comingled with the street clothes stored in closed lockers on the opposite end of the change house. Nor does it establish that the protective clothing cross-contaminated the street clothes.
As
to the air monitoring referenced by the Secretary, the record shows that
between September 9, 2008, and October 2, 2008, Shaw measured airborne mercury
levels two times a day at multiple locations throughout the plant, including the two rooms in which the protective clothing and street
clothes were stored. Shaw conducted this
monitoring in order to assess whether the action level it set for
itself—0.05 mg/m3, which is half of OSHA’s 0.1 mg/m3 threshold
limit value (“TLV”) for mercury—had been exceeded. 29 C.F.R. § 1926.55(a) & App. A. In every instance,
the measured level of mercury vapor in the room with the street-clothes lockers
was lower than the level in the room with the protective clothing cubicles. Additionally, the measurements show that the
levels in the room with the street-clothes lockers never exceeded 0.05
mg/m3, which is half of the TLV for
mercury vapor, and that in all but three instances, the levels did not exceed 0.03
mg/m3.
Moreover, the record shows that employees removed their contaminated
protective clothing in the room furthest away from the street-clothes lockers,
and there is no evidence linking the airborne mercury vapors measured by Shaw
to the protective clothing, which is the only source of contamination
contemplated by the cited standard.
The other evidence referenced by the Secretary is no more compelling. The Secretary has not shown here that the absence of doors between the change house’s rooms could have led to any mercury cross-contamination. And even if we assume that Shaw employees wore contaminated protective clothing in the room where the street clothes were stored, the record still lacks evidence showing that mercury from the protective clothing could have cross-contaminated street clothes enclosed in lockers. Indeed, no tests were performed to verify that mercury was even present on any employee’s street clothes.[3]
Given this record, we find that the Secretary has not established that Shaw failed to comply with the requirements of § 1926.51(i). Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No. 78-6247, 1981) (listing elements of Secretary’s prima facie case, one of which is employer’s failure to comply with cited standard), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982). Accordingly, we vacate this citation item.
II.
Other-Than-Serious
Citation 2, Item 1 (Recordkeeping)
Under
this item, the Secretary alleges that Shaw violated 29 C.F.R.
§ 1904.29(b)(3) because it failed to record the work-related illness of an
employee who had been hospitalized and was receiving medical treatment for
mercury toxicity.[4] This provision requires that an employer “enter each recordable injury or illness on the OSHA 300
Log and 301 Incident Report within seven (7) calendar days of receiving
information that a recordable injury or illness has occurred.” 29 C.F.R. § 1904.29(b)(3). It is undisputed that the employee’s illness
was not recorded on any of Shaw’s OSHA 300 Logs for the relevant time period.
The judge affirmed this citation item based on the nature of the employee’s work with Shaw, the results of Shaw’s biological monitoring of the employee, and Shaw’s knowledge of the employee’s mercury toxicity diagnosis. On review, Shaw contends that within seven days of October 22, 2008, the date on which it completed its injury and illness log, it had not yet received enough information regarding the employee’s illness to trigger the recording requirements of § 1904.29(b)(3). For the following reasons, we reject Shaw’s argument and affirm the judge.
On July 14, 2008, Shaw hired the employee at issue to perform demolition work in the cell room, and on August 20, about five weeks later, Shaw learned that the employee’s urinalysis measurement for mercury had exceeded the level at which Shaw’s program precluded employees from working in the cell room.[5] Shaw informed the employee of his test result in writing and allowed him to continue working at Shaw, but he was never assigned to the cell room again. While at work on September 8, the employee informed his foreman that he had hurt his back unloading tires at home, and that he needed to visit an emergency room (“ER”). At the ER, he was diagnosed with a strained muscle and prescribed medication. The next day, the employee visited a clinic where he was given a doctor’s note identifying his condition as “back strain” and indicating that the employee should not strain his back for two weeks. After the employee showed this note to the foreman, he was sent home pending a release from his doctor.
Over
the next couple weeks, the employee visited an ER near his home several times,
complaining of tremors, muscle cramping, sweating, weight loss, and
weakness. On September 21, 2008, the
employee was admitted to a hospital in Birmingham where he remained for seven
to nine days. The employee telephoned
Shaw’s safety manager on September 23, informing him that he had been diagnosed
with mercury toxicity and that his symptoms had started around September 8. After the phone call, the safety manager,
along with Shaw’s project manager, drove that same day to the hospital in
Birmingham to visit the employee. The
employee was medicated at the time of their visit, but the employee’s parents
told them that the employee was being treated for “mercury poisoning.” Also on that day, the employee’s father
called the corporate director of loss control for Shaw’s parent company to
inform him that the employee was being treated for mercury toxicity and that
“this issue” had been reported to the safety manager. In an email sent later that day, the director
notified the safety manager of this communication.
There is no question that mercury toxicity is a recordable illness under the recordkeeping regulation. 29 C.F.R. §§ 1904.4(a), .7(a), .29(b)(3). Thus, the only issue is whether Shaw had “receiv[ed] information that a recordable . . . illness [had] occurred.” 29 C.F.R. § 1904.29(b)(3). According to Shaw, the only medical documentation it had received from the employee indicated that he had suffered a non-work-related back injury, and the employee provided no medical records to Shaw concerning his mercury toxicity. In addition, Shaw contends that the employee did not exhibit any symptoms of mercury toxicity during an unrelated meeting he attended on September 10 or 11 with the safety manager, causing the safety manager to “question” what the employee had told him about his condition following his hospitalization.
We find that any misgivings Shaw claims to have had about the employee’s medical condition do not alter the fact that by September 23, 2008, Shaw had accepted that the employee was diagnosed with mercury toxicity. Shaw was well aware that the employee—assigned to cut pipes that contained mercury—worked in an environment from July 14 to August 20 that could have exposed him to mercury. Also, his urinalysis result from August 20 suggested such exposure. Against this backdrop, Shaw was informed on September 23 by the employee and his parents—both by telephone and in person—of the employee’s mercury toxicity diagnosis. And Shaw’s safety manager admitted to visiting the employee in the hospital that very day because “he was being treated for mercury.” No evidence in the record indicates that anything occurred during or after the safety manager’s hospital visit to dispel this understanding.[6] Under these circumstances, we find that Shaw had sufficient information to determine that a recordable illness had occurred.[7] Shaw therefore violated § 1904.29(b)(3) by failing to record the employee’s illness “within seven (7) calendar days of receiving information that a recordable . . . illness [had] occurred.” Accordingly, we affirm this citation item.[8]
ORDER
We vacate Citation 1, Item 5. Also, we affirm Citation 2, Item 1 as other-than-serious and assess a penalty of $1,000.
SO ORDERED.
/s/
Thomasina V. Rogers
Chairman
/s/
Cynthia L. Attwood
Dated: August 27, 2012 Commissioner
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
Secretary of Labor, |
|
Complainant |
|
v. |
OSHRC Docket
No. 09-0555 |
Shaw Global Energy Services, Inc., |
|
Respondent. |
|
Appearances:
Schean G. Belton, Esquire, and
Joseph B. Luckett, Esquire, Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee
For Complainant
McCord Wilson, Esquire, Rader
& Campbell, P.C., Dallas, Texas
For
Respondent
Before: Administrative Law Judge Ken S. Welsch
DECISION AND ORDER
Shaw
Global Energy Services, Inc. (Shaw Global) performs maintenance, decommission,
and demolition services at chemical plants.1 After receiving an employee’s complaint of
mercury toxicity, the Occupational Safety and Health Administration (OSHA)
inspected Shaw Global’s demolition work in the cell room at the Occidental
Chemical plant in Muscle Shoals, Alabama, on September 25, 2008. As a result of OSHA’s inspection, Shaw Global
received serious and other than serious citations on March 13, 2008. Shaw Global timely contested the citations.
Citation
No. 1 alleges serious violations of 29 C.F.R. § 1926.850(e) (Item 1a) for failing
to conduct mercury exposure monitoring; 29 C.F.R. § 1910.134(d)(1)(iii) (Item
1b) for failing to evaluate the mercury exposure for the housekeeping and
laundry service employees; 29 C.F.R. § 1910.134(f)(2) (Item 2a) for
failing to perform annual respirator FIT testing; 29 C.F.R.
§ 1910.134(h)(1)(i) (Item 2b) for failing to require employees to use
clean and sanitary respirators; 29 C.F.R. § 1926.21(b)(2) (Item 3a) for failing
to train employees in appropriate hygiene and work practice controls; 29 C.F.R.
§ 1910.1200(h)(3)(ii) (Item 3b) for failing to advise affected employees of the
signs and symptoms of mercury exposure; 29 C.F.R. § 1926.50(a) (Item 4) for
failing to provide medical intervention and assessment to employees exposed to
mercury; 29 C.F.R. § 1926.51(i) (Item 5) for failing to maintain separate
change rooms to prevent contamination; 29 C.F.R. § 1926.55(a) (Item 6a) for
exposing an employee above the threshold limit value (TLV) of 0.1 milligrams
per cubic meter (mg/m3) of mercury; 29 C.F.R. § 1926.55(b) (Item 6b) for
failing to implement feasible administrative or engineering controls to reduce
an employee’s exposure to mercury; and 29 C.F.R. § 1926.95(a) (Item 7) for
providing coveralls which were not impervious to mercury. The serious citation proposes total penalties
of $27,500.00.
Citation
No. 2 alleges other than serious violation 29 C.F.R. § 1904.29(b)(3) (Item 1)
for failing to record on the OSHA 300 log employees restricted from assigned
duties in the cell room due to elevated mercury levels and who had experienced
symptoms consistent with mercury exposure.
The other than serious citation proposes a penalty of $1,000.00.
The
hearing was held in Birmingham, Alabama, on March 17-19, 2010. The parties stipulated jurisdiction and coverage
(Tr. 4). The parties have filed post
hearing briefs.
Shaw
Global denies the alleged violations, their classifications, and the
reasonableness of the proposed penalties.2 Shaw Global does not assert any affirmative
defenses.
For
the reasons discussed, the violations alleged in Citation No. 1, items 1b, 2a,
and 5 and item 1 of Citation No. 2 are affirmed and total penalties of
$6,500.00 are assessed. Citation No. 1,
items 1a, 2b, 3a, 3b, 4, 6a, 6b, and 7 are vacated.
Background
Shaw
Global contracts to perform maintenance, decommission, and demolition work at
chemical companies. Shaw Global provides
the labor and skilled craft to maintain facilities while in operation and
during decommission/demolition work (Tr. 593-594).
In
2004, Shaw Global contracted to perform maintenance work at the Occidental
Chemical plant in Muscle Shoals, Alabama.
The Occidental plant manufactured chlorine as well as other products. The chlorine was made in the cell room, and
mercury was used in the manufacturing process (Tr. 477, 543, 598-599).
In
February 2008, Occidental decided to cease manufacturing chlorine and, through
a subsidiary, contracted Shaw Global to decommission and demolition the cell
room. Shaw Global’s decommission/demolition
work began in July 2008. The
decommission work included purging, draining, and cleaning the pipes and
systems that contained mercury. The
demolition work involved cutting into pieces and removing the pipes and
systems. The work involved approximately
50 employees working, four days a week, 10 hours per day (Tr. 204, 486, 539,
542, 600).
In performing the
demolition work, Shaw Global was aware its employees would be exposed to
mercury in liquid and vapor (Tr. 479).
As described in the Material Safety Data Sheet (MSDS),
mercury is a silver-white,
odorless, heavy liquid. Mercury is
highly toxic, irritating, and causes sensitization and neurological
symptoms. The primary health hazard
associated with overexposure to this product is the potential for irritation of
skin, eyes, or other contaminated tissues.
Mercury causes severe, adverse health effects after chronic exposure to
low vapor levels; emergency response efforts must be directed to removal of all
traces of this product (Exh. C-5).
Due
to the presence of mercury, Shaw Global initiated various measures. Prior to the
demolition work, the pipes and systems in the cell room were purged with
water or other solutions to reduce the presence of mercury. Shaw Global was aware that purging would not
remove all of the mercury. Residual
amounts would remain around flange areas, pipe threads, and in the pipes low
areas due to heavy nature of mercury (Tr. 480).
Therefore, during demolition, employees were required to wear half-mask
negative respirators, rubber gloves, coveralls, goggles, hard hats, and rubber
boots while in the cell room. The cell
room was cleaned with bleach and water twice a day and ventilation fans were
utilized.
Before
entering and after leaving the cell room, employees changed their street
clothes and protective clothing/equipment in a separate change area. One side of the change area was designated
for changing from street clothes into clean protective clothing/equipment
(clean side). The other side was for changing
out of their worn protective clothing/equipment (dirty side). The two sides of the change area were
separate rooms accessed through two open doorways. A shower facility was located in the middle
of the change area which employees were required to use upon leaving the cell
room for breaks, lunch and the end of shift (Exh. ALJ-1; Tr. 79, 242, 381, 503, 509).
To
monitor the mercury levels in the cell room, Shaw Global used direct read
instruments twice a day. If the
instrument’s reading exceeded .05 milligrams per cubic meter (mg/m3) action
level,3
the employees were removed from the cell room until the level was reduced (Exh.
C-14; Tr. 481, 483, 519). Each employee
also received a weekly urinalysis. If
the employee’s urinalysis results exceeded 75 micrograms per gram (ug/g), the
employee was not allowed to work in the cell room until his level was reduced
(Exh. R-21; Tr. 485-486).
On
July 14, 2008, a new employee was hired to perform demolition work in the cell
room. This was the employee’s first job
after graduating from high school. He
was assigned to cut PVC pipe into 6-foot sections. In August 2008, the employee complained to
Shaw Global of back pain which he believed was caused from lifting tires during
the weekend. After going to the
emergency room, the employee was diagnosed with a strained muscle. He was prescribed medication and returned to
work. The next day, he went to a clinic
and was given a note for two weeks of light duty. Instead, the employee was sent home by Shaw
Global until released by the doctor. In
mid-August, Shaw Global was informed the employee’s last urinalysis exceeded 75
ug/g. When his symptoms including
tremors, sweating, lose of weight, and weakness persisted and after several
more visits to the emergency room, the employee went to a hospital in
Birmingham, Alabama, on September 21, 2008.
The hospital’s toxicologist diagnosed the employee with mercury
toxicity. The employee remained in the
hospital for nine days. At the hearing,
the employee testified that he was receiving treatment for mercury toxicity and
his symptoms included numbness in his hands and poor memory. He believed the mercury poisoning was the
result of a scratch he received while loading copper-plated straps in the cell
room. He did not inform Shaw Global of
the scratch. Because of the mercury
poisoning, the employee testified he has sued Shaw Global for money damages
(Exhs. R-1, R-31; Tr. 8, 22, 31, 58, 69, 78)
As
a result of the employee’s hospitalization, a referral was made to OSHA. Compliance Safety and Health Officer (CSHO)
Alpha Davis initiated the inspection of Shaw Global’s work in the cell room on
September 25, 2008. Davis interviewed
employees and observed the cell and change area. She walked through the change area but did
not enter the cell room. On October
2, 2008, Davis performed personal monitoring on five employees working in the cell room. One employee’s sample result showed an
elevated level of mercury exposure above the threshold level of .1 mg/m3 (Exhs.
C-9, C-10; Tr. 196-197, 207, 211).
The
serious and other than serious citations were received by Shaw Global based
upon OSHA’s inspection.
Discussion
The Alleged Violations
In order to establish a violation of
an occupational safety or health standard, the Secretary has the burden of
proving: (a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to the violative
conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or, with the exercise of
reasonable diligence could have known, of the violative conditions).
Atlantic Battery Co., 16
BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Shaw
Global does not dispute the application of the construction standards to the
decommission/demolition work at the Occidental Chemical plant. Part 1926 standards apply to employees who
are engaged in construction work or who are engaged in operations that are an
integral and necessary part of construction activities. Snyder Well Servicing, Inc., 10 BNA
OSHC 1371 (No.77-1334, 1982). The
decommission/demolition work in the cell room is considered an integral part of
construction activities.
Serious
Citation No. 1
Item 1a -Alleged Serious Violation
of § 1926.850(e)
The
citation alleges that “during demolition operation(s) when the presence of a
hazardous chemical was present or suspected, testing and purging was not performed,
such as but not limited to, exposure monitoring was not conducted to determine
the amount of the mercury present in the work area.” Section 1926.850(e) provides:
It shall also be determined if any
type of hazardous chemicals, gases, explosives, flammable materials, or
similarly dangerous substances have been used in any pipes, tanks, or other
equipment on the property. When the presence of any such substances is apparent
or suspected, testing and purging shall be performed and the hazard eliminated
before demolition is started.
Mercury,
as demonstrated by the MSDS, is a hazardous chemical. The MSDS notes that “the most significant
routes of occupational over-exposure are inhalation and contact with skin and
eyes” (Exh. C-5). There is no dispute
the hazards posed by mercury were present during Shaw Global’s demolition work
of cutting and removing the pipes from the cell room. The
employees testified to the presence of mercury (Tr. 10, 96). Shaw Global’s direct monitoring during the demolition work verified the
presence of mercury (Exh. C-14).
Despite
purging the pipes, Shaw Global knew traced amounts of mercury remained in the
pipe’s joints, around flanges and threads because of mercury’s heavy nature
(Tr. 479, 480). Shaw Global’s purging
efforts did not eliminate the presence of mercury.
The
Secretary acknowledges that the mercury could not have been totally purged from
the pipes before starting the demolition work.4 Davis agreed purging would not remove the
trace amounts of mercury (Tr. 365). Shaw
Global complied with the purging requirements of §1926.850(e).
With
regard to the testing requirement, Shaw Global performed area direct read
monitoring of the mercury vapor levels twice daily throughout the cell room
(Tr. 481, 484). If the direct read
instrument showed a reading in excess of .05 mg/m3 for mercury vapor (half the
TLV of 0.1 mg/m3), the employees were removed from the cell room until the
level was reduced below the action level (Tr. 483, see §1926.55(a),
Appendix A). Also, Shaw Global conducted
weekly urine tests on employees. If the
employee’s urinalysis exceeded 75 ug/g, the employee was removed from the cell
room and not allowed to return until an acceptable urinalysis (Exh. R-21; Tr.
485-486). The MSDS for mercury provides
that “analysis of the blood, hair, urine, or feces can be done to determine the
level of Mercury exposure” (Exh. C-5, p. 4).
The
Secretary argues the testing required by §1926.850(e) is personal
monitoring. Davis testified that
personal monitoring was required to determine each employee’s time-weighted
average (TWA) exposure to mercury (Tr. 260).
Shaw Global agrees that it only performed area monitoring. The
Secretary’s argument is rejected. The
cited standard does not specifically require personal monitoring of
employees. It only requires
“testing.” Davis was unable to identify
any OSHA document or interpretation which defined “testing” to require personal
monitoring (Tr. 363-365). The standard
expresses mercury exposure in terms of location and not personal employee
exposure.
Also,
conditions in the cell room changed constantly when cutting and removing the
pipes. Direct read instruments provided
instantaneous readings of the work.
There was no waiting for laboratory results (Tr. 518-519). As noted in OSHA’s Technical Manual, direct
read instruments provide “information at the time of sampling, thus enabling
rapid decision-making” and the data obtained is useful “to evaluate existing
health and/or safety programs and to assure proper selection of personal
protective equipment (PPE), engineering controls and work practices” (Exh.
R-20, p. 32). The use of direct read
instruments was appropriate.
The violation of
§1926.850(e) is not established.
Item 1b - Alleged Serious Violation
of § 1910.134(d)(1)(iii)
The
citation alleges “the employer had not evaluated respiratory hazards related to
mercury exposure for employees performing various tasks such as but not limited
to housekeeping and laundry services.”
Section 1910.134(d)(1)(iii)5 provides:
The employer shall identify and
evaluate the respiratory hazard(s) in the workplace; this evaluation shall
include a reasonable estimate of employee exposures to respiratory hazard(s)
and an identification of the contaminant's chemical state and physical form.
Where the employer cannot identify or reasonably estimate the employee
exposure, the employer shall consider the atmosphere to be IDLH.
There
is no dispute Shaw Global required all employees working in the cell room
to wear appropriate half-face
respirators. There is no evidence
employees failed to wear the respirators. The
duties of the laundry room worker and housekeeper did not require them to work
in the cell room. The laundry worker
handled and washed the dirty towels, coveralls and other clothing worn by the
employees who worked in the cell room.
The housekeeper was responsible for cleaning the change area and
transporting the dirty towels and coveralls to the laundry. According to the Secretary, the dirty towels
and coveralls were potentially contaminated with mercury which could have
exposed the two employees (Tr. 218, 276, 278).
An
employer’s respiratory hazard evaluation must include a reasonable estimate of
employee exposure to the hazard, the toxicity and concentration of the
hazardous material, and the amount of oxygen present. Where the employer cannot identify or
reasonably estimate the employee exposure, the employer must consider the
atmosphere IDLH and select a respirator accordingly.
Shaw
Global acknowledges the housekeeper and laundry worker were not required to
wear a respirator. Site safety manager
Rick Carraway testified that the housekeeper and laundry worker were part of
the Shaw Global’s urinalysis program. He
said Shaw Global determined the employees did not need to wear a respirator
based upon their urinalysis tests (Tr. 532, 576).
The
standard requires an employer to identify and evaluate the respiratory hazard
created by mercury exposure. Shaw
Global’s job safety analysis of the various tasks involved in the demolition
work did not include the laundry worker and housekeeper jobs (Exh. R-24). Shaw Global’s training acknowledgment states
that “respiratory protection is required for all tasks where mercury vapor
concentrations exceed .05, when handling contaminated materials and to enter
coned or barricaded areas” (Exh. R-12).
Shaw Global’s mercury vapor direct read results show that on at least
two occasions, August 27, 2008 and September 2, 2008, the washing machine and
laundry room tested at or above the TLV with respective readings of 1.0 and
1.80 (Exh. C-14; pp. 31, 35). Although
Shaw Global’s urinalysis testing showed an employee’s absorption of mercury,
the cited standard addresses respiratory hazards such as mercury vapor. To evaluate the respiratory hazard, Shaw
Global needed to evaluate it based upon air monitoring.
By
not including the housekeeping and laundry jobs in its respiratory program,
Shaw Global ignored its direct read monitoring.
Such air monitoring results showed levels comparable to those obtained
in the cell room where employees were required to wear respirators.
The
violation of §1910.134(d)(1)(iii) is established.
Item 2a - Alleged Serious Violation
of § 1910.134(f)(2)
The
citation alleges that “annual FIT testing had not been provided for employees
using negative pressure respirators.”
Section 1910.134(f)(2), provides:
The employer shall ensure that an
employee using a tight-fitting facepiece respirator is fit tested prior to
initial use of the respirator, whenever a different respirator facepiece (size,
style, model or make) is used, and at least annually thereafter.
When
Davis reviewed Shaw Global’s respiratory records, she found four employees
whose respirators were fit tested in June 2007 but were not retested until
October 2008 (Exhs. C-11, R-30; Tr. 283-285).
OSHA’s inspection was initiated in September 2008. Shaw Global was aware of the requirement for
annual fit testing. It was addressed in
its Respiratory Protection Policy (Exh. C-7).
Shaw
Global concedes there was a lapse of approximate 16 months between the
employees’ fit testing. It argues the
standard requires fit testing within each calendar year and not within 365 days
(Tr. 523-524). If the Secretary meant
within 365 days, she should have so stated.
For example, Shaw Global notes that §1910.134(k)(4), involving
respiratory training, states training must be repeated “no later than 12 months
from the date of the previous training.”
OSHA
Standard Interpretation letter dated December 23, 1998, defines “annual” as
within 365 days (Exh. C-12). The
Secretary’s interpretation is reasonable and is entitled to deference. The standard’s purpose is to ensure the
employee’s continued protection from respiratory hazards by requiring retesting
within a proscribed period.
The
standard requires “fit testing at least annually thereafter” the initial fit
test. Such language anticipates no more
than 365 days. Calendar year fit testing
does not achieve this purpose. To apply
a calender year, respirator retesting could range from more than 22 months to
less than 12 months apart. Such range
would lead to in6.5in 17.0in 17.5in 18.0in 18.5in;
mso-layout-grid-align:none;text-autospace:none'> Shaw Global’s argument that if it violated the standard,
the Secretary failed to prove a hazard
is rejected. As a specific standard, a
hazard is presumed. National
Engineering & Contracting Co., v. OSHA, 928 F.2d 762 (6th Cir.
1991). Proper fit testing ensures the
adequacy of the respiratory protection from possible inhalation of mercury
vapor.
The
violation of §1910.134(f)(2) is established.
Item 2b - Alleged Serious Violation
of § 1910.134(h)(1)(i)
The
citation alleges “respirators being used in ‘cell demolition’ were not clean,
sanitary and placed in ‘cubbies’ with other contaminated equipment.” Section 1910.134(h)(1)(i) provides:
Respirators issued for the exclusive
use of an employee shall be cleaned and disinfected as often as necessary to be
maintained in a sanitary condition.
Davis
observed respirators stored with other equipment in cubbies located between the
cell room and the change area (Exh. C-4; Tr. 289). She was concerned the respirators were
contaminated because of the possible presence of mercury from the cell room and
other equipment. The cubbies were
located near the cell room. Davis did
not test the respirators for mercury or otherwise observe the respirators worn
in an unsanitary condition (Tr. 381).
She was told the employees cleaned the respirators before use with wipes
which she considered inadequate for cleaning (Tr. 382-383, 290). Shaw
Global’s written respiratory program requires employees to clean their
respirators before each use (Exh. C-7).
The policy states that the proper procedures to sanitize respirators
require the respirators to be washed in warm running water or immersed in a
chlorine, iodine or disinfecting solution.
The
Secretary failed to establish the alleged violation. The standard addresses the need for sanitary
respirators, not their storage. There is
no evidence the employees failed to clean their respirators before use or used
unsanitary respirators. Employees were
trained to make sure their respirators were maintained in a clean and sanitary
condition before its use (Tr. 525). Shaw
Global’s respiratory protection program requires respirators to be cleaned and
disinfected as often as necessary to keep them sanitary.
Davis
agreed that all employees had been trained on Shaw Global’s respiratory
program. Also, Davis acknowledged the
company’s work rule required employees to clean their respirators prior to each
use. There is no evidence employees failed
to clean their respirators. Davis
never tested or looked at any respirator
to determine if it was unsanitary. She
did not pick one up, check it or test it (Tr. 380, 401).
The
two employees who testified for the Secretary said they were trained to clean
their respirators and they never used them in an unsanitary condition. The employees testified they cleaned their
respirators daily and always cleaned them before putting them on (Tr. 59,
124-125, 156-157). It was not shown why
Davis believed the Mercon wipes were inadequate (Tr. 381, 383). Also,
with regard o the respirators in the cubbies, Davis did not verify the
respirators even belonged to Shaw Global employees (Tr. 383). The record shows that employees of other
companies (Occidental and Nelson Services) were using the same cubbies (Tr.
184, 524). There were no names on the
respirators.
The
violation of §1910.134(b)(1)(i) is not established.
Item 3a - Alleged Serious Violation
of § 1926.21(b)(2)
The
citation alleges “employees were not adequately trained in hygiene and work
practice controls.” Section
1926.21(b)(2) provides:
The employer shall instruct each
employee in the recognition and avoidance of unsafe conditions and the
regulations applicable to his work environment to control or eliminate any
hazards or other exposure to illness or injury.
According
to Davis, the employees working in the cell room did not “appear to be adequately
trained in the hygiene and work practices that were adequate to ensure that
they weren’t going to be exposed to mercury vapor” (Tr. 294). Her concerns were based on her general
observations of the work area, the change area, and respirator usage. Although she was shown training documents,
she did not believe that such training related to the employees’
decommission/demolition work. A training
video shown all employees by the Tennessee Valley Authority did not cover the
specific work at the Occidental plant (Tr. 296). Davis considered the hazards encountered
during demolition of the cell room were different from those encountered in
operating the cell room.
To
prove a violation of the standard, the Secretary must show that the cited
employer failed to instruct employees on how to recognize and avoid the unsafe
conditions that they may encounter on the job and the regulations applicable to
those hazardous conditions. SEMA
Construction Inc., 19 BNA OSHC 1667 (No. 01-0084, 2001). The Secretary has to burden to show that the
instructions given were inadequate or somehow deficient.
Carraway
testified the overall training of mercury awareness and the hazards presented
by mercury is the same whether dealing with an operating cell house or one
being demolished (Tr. 544). He described
that employees were trained on where mercury would be located, the proper PPE
to wear to protect themselves from mercury exposure, and what to do if they got
mercury on themselves. He claimed this
training applies no matter what work was being conducted.
Davis
agreed that “every Shaw employee had mercury awareness training” and respirator
protection training (Tr. 399. 401). She
did not identify any problems with Shaw’s employee training documents. Although Davis considered the training failed
to address demolition work, she offered no evidence identifying any specific
deficiencies. She did not identify any
differences in the type of training because of the demolition work. Davis based her lack of training concerns on
her observations in the change area and cubbies. Such observations do not establish the lack
of training.
The
testimony of the two employees showed proper training. They received four hours of basic safety
training at hire and site specific orientation which included mercury exposure
(Tr. 9, 43, 82-83, 156, 171, 179). The
site specific training required employees to have Mercury Awareness Training
before being allowed to enter the cell room.
The employees’ training also included the MSDS for mercury (Tr. 44-45,
163). Shaw Global’s training records and
employees’ testimony establish the sufficiency of the training.
The violation of
§1926.21(b)(2) is not established.
Item 3b - Alleged Serious Violation
of § 1910.1200(h)(3)(ii)
The
citation alleges “employees’ training did not advise affected employees of the
signs and symptoms of mercury.” Section
1910.1200(h)(3)(ii)6 provides:
Employee training shall include at
least: The physical and health
hazards of the chemicals in the work area.
Davis
claims employees were not instructed in the signs and symptoms of mercury
exposure. She testified that when she
asked one employee if he knew mercury can cause dermatitis, the employee said
“no” (Tr. 401-402). She believed this showed
a deficiency in the employee’s training.
The
Secretary did not meet her burden of proof.
Shaw Global showed that its training program included employee’s
training on what mercury looked like, its exposure limits, its location, its
safe handling, the proper PPE, and effects of mercury exposure (Exh. R-10, p.
16: Tr. 82-83, 171, 179). Employees were
trained on the MSDS for mercury (Tr. 48, 128, 495).
Although
two employees testified to not understanding the symptoms and signs of mercury
exposure, the record shows that the employees received training on mercury
including two videos, mercury awareness and the MSDS. Such training included the signs and symptoms
of mercury exposure.
The
inability of an employee to remember that dermatitis can be caused by mercury
does not establish that the employee was not trained. An employer is not responsible if the
employee does not retain the information or does not understand the compliance
officer’s questions.
The
violation of §1910.1200(h)(3)(iii) is not established.
Item 4 - Alleged Serious Violation
of § 1926.50(a)
The
citation alleges, in part, that “Medical intervention and assessment was not
provided to employees who either exhibited health effects or had elevated
urinary mercury levels.” Section
1926.50(a) provides:
The employer shall insure the
availability of medical personnel for advice and consultation on matters of
occupational health.
According
to Davis, employees working in the cell room were exposed to mercury without
medical assessments of the health hazards (Tr. 305). The record shows that during its demolition
work, 17 employees had elevated mercury levels based on Shaw Global’s urine
test. The employees were removed from
the cell room. At the time of the
inspection, 12 employees were on removal status (Tr. 307-308). According to Davis, Shaw Global did not
review the urinalysis results (Tr. 310).
When the employees were removed from the cell room, Davis testified no
further instruction was given to the employees.
One employee testified that when he was removed from the cell room, he
was given a sheet of paper with a number on it.
He did not know what it meant. He
was only told that his levels were elevated (Tr. 69). Another employee testified that there was no
one he could go to regarding an illness (Tr. 176).
The
standard requires an employer to have medical personnel available for advice and
consultation on occupational health issues that arise at the worksite. Rick Carraway, the site safety manager who
was a licensed advanced EMT, testified that he was available at the plant for
medical consultation. Carraway has
worked at hospitals as an EKG and hyperbaric technician. He also was a corporate first aid and CPR
instructor for the Red Cross. His hard
hat had EMT written on the side. He
testified that employees were told that he was available to answer any
questions regarding the health effects of mercury exposure (Tr. 473-474,
531). Davis knew of Carraway’s status as
an EMT (Tr. 310).
As
an example of Carraway’s assistance, one employee who developed a rash on his
arm was taken to the doctor by Carraway when he became aware of the rash (Exh.
C-1; Tr. 97, 99). The doctor did not
relate the rash to mercury exposure. The
rash disappeared when Carraway did a followed-up, even though the employee
refused the doctor’s treatment suggestion (Tr. 99, 566). Physicians to whom employees were sent
included Dr. Daniel and Dr. Krebs who oversaw the urinalysis program. The physicians were located within 5 miles of
the Occidental plant.
The
record shows medical personnel were available for advice and consultation on
medical matters in the workplace.
Carraway was available to give advice and counsel on medical
matters. He was qualified to render such
advice based on his training and experience.
Raytheon Constructors, Inc., 19 BNA OSHC 1311, 1313 (No. 00-0128,
2000) (EMT’s are considered medical personnel under the standard). Other medical personnel were also available
including an EMT with Occidental and a health clinic within five miles from the
plant. There is no evidence that an
employee was denied an opportunity to see a doctor or his questions were
unanswered (Tr. 404-405). The written
notification of the urinalysis results was self-explanatory (Exh. R-21; Tr.
486-487). The fact that employees were
removed from the cell room because of elevated mercury levels does not
establish a violation of the standard.
The cited standard requires an employer to ensure the “availability” of
medical personnel.
The
violation of §1926.50(a) is not established.
Item 5 - Alleged Serious Violation
of § 1926.51(i)
The
citation alleges “the change area provided for employees working in the cell
room and exposed to mercury was not adequately demarcated to prevent
contamination.” Section 1926.51(i)
provides:
“Change rooms." Whenever
employees are required by a particular standard to wear protective clothing
because of the possibility of contamination with toxic materials, change rooms
equipped with storage facilities for street clothes and separate storage
facilities for the protective clothing shall be provided.
Shaw
Global’s change area, used by employees to change into and out of their work
clothing and equipment, was a separate, enclosed area. One room in the change area, referred to as
the “clean side,” was where employees stored their street clothes and put on
clean coveralls. The other room referred
to as “dirty side” with lockers was for employees to place their worn dirty
coveralls and protective equipment used in the cell room (Exh. ALJ-1; Tr. 111,
407). The change area also had a shower
facility. The showers were used by
employees after working in the cell room.
Between the clean side and dirty side of the change area, there were two
open doorways. The doorways lacked
doors.
Shaw
Global argues it complied with the standard because the change area was
“equipped with storage facilities for street clothes and separate storage
facilities for the protective clothing.”
The change area had separate storage for street clothes and for
protective clothing. The standard says
nothing about requiring storage facilities in separate rooms, much less a
barrier between them. The standard requires “separate” storage
facilities for street clothes and protective clothing. The definition of “separate” means a “unit
apart or by itself, not joined or united with others.” By having open doorways, the change area did
not meet the definition of separate.
Although generally lower, Shaw Global’s direct monitoring in the change
area showed mercury contamination in the clean side despite its regular
cleaning. The direct monitoring results
in the change area show no significant difference in mercury contamination
between the clean side and dirty side, thus indicating the lack of separation
(Exh C-14; Tr. 325).
The
lack of doors establishes the lack of separation between the clean and dirty
storage areas (Tr. 316-317). There were
no barriers to prevent mercury contamination from transferring from the dirty
side to the clean side. Nothing
restricted the employee’s movement from one side to the other. The two employees who testified said that
although employees were not supposed to, employees did move between clean and
dirty side with their dirty coveralls and equipment because of the open
doorways.
The
violation of §1926.51(i) is established.
Item 6a - Alleged Serious Violation
of § 1926.55(a)
The
citation alleges that “the cell room worker was exposed to a time-weighted
average of 0.134 milligrams per cubic meter (mg/m3) of mercury. The level is 1.3 times the TLV of 0.1
milligrams per cubic meter (mg/m3). The
sampling time was 460 minutes during one shift on October 2, 2008. Zero exposure was assumed for the unsampled
time.” Section 1926.55(a) provides:
Exposure of employees to
inhalation, ingestion, skin absorption, or contact with any material or
substance at a concentration above those specified in the "Threshold Limit
Values of Airborne Contaminants for 1970" of the American Conference of
Governmental Industrial Hygienists, shall be avoided. See Appendix A to this
section.
Davis
conducted personnel monitoring on five employees who were working in the cell
room on October 2, 2008. Her monitoring
results found one employee with a mercury exposure level of 0.134 mg/m3 (Exhs.
C-9, C-10; Tr. 326-329, 411). The TLV
for mercury is 0.1 mg/m3 (Appendix A to §1926.55(a)). The TLV is “the exposure level to which it is
believed that nearly all workers may be repeatedly exposed, day after day or
short term, without adverse effect” (Exh. C-6, p. 2). The employee’s TWA of mercury exposure was
1.3 times the TLV. The sampling time was
460 minutes. None of the other employees
monitored by Davis exceeded the TLV.
Davis’
personal monitoring was shown unreliable and contradictory. The four other employees sampled by Davis
showed exposure levels less than half of the TLV (Tr. 411). The sampling media used to monitor the
employees was not kept with the employee or in view of Davis during the sampling period. The sampling equipment was removed by
employees several times during the sampling period in order to take showers and
change clothes. During these times,
Davis had no idea what was done with the sampling equipment. She did not retain control or maintain
visibility of the sampling equipment when the employees removed it. Davis also failed to give the employees
adequate instruction concerning what to do with the sampling media during
breaks or showers (Tr. 527-528). OSHA’s
Technical Manual provides at section III.B that the compliance officer should “stress
the importance of not removing or tampering with sampling equipment (Exh. R-20,
p. 3).
In
performing her sampling, Davis allowed the employee to go into the change area
and remove the monitoring pump to change clothes and take a shower. While in the change room, Davis was unable to
observe the employee to ensure no tampering with the equipment. Her sampling method failed to ensure
reliability of the monitoring results.
The
violation of §1926.55(a) is not established.
Item 6b - Alleged Serious Violation
of § 1926.55(b)
The citation alleges that based on an
employee’s exposure to mercury exceeded the TLV, the “general methods of
abatement include but are not limited to: Install local and general ventilation
of the work areas.” Section 1926.55(b) provides:
To achieve compliance with
paragraph (a) of this section, administrative or engineering controls must
first be implemented whenever feasible. When such controls are not feasible to
achieve full compliance, protective equipment or other protective measures
shall be used to keep the exposure of employees to air contaminants within the
limits prescribed in this section. Any equipment and technical measures used
for this purpose must first be approved for each particular use by a competent
industrial hygienist or other technically qualified person. Whenever
respirators are used, their use shall comply with 1926.103.
The
Secretary asserts Shaw Global needed to implement administrative and
engineering controls in the cell room and change area because of an employee’s over
exposure to mercury (Tr. 330).
Davis testified that additional ventilation was needed to reduce
exposure (Tr. 331, 332). Because the Secretary failed to establish the
over exposure to mercury as discussed in item 6a above, there was no
requirement on Shaw Global to implement administrative or engineering
controls. However, the record shows such
controls were in place.
As
discussed by Carraway, the cell room was provided with ventilation fans. There were fans on the walls for circulation
and dozens of exhaust fans in the ceiling of the cell room (Exhs. R-17, R-25,
R-26, R-28; Tr. 508-512). The floors of
the cell room were cleaned twice a day with bleach and water. Additionally, there were ventilation fans and
air conditioning in both sides of the change area and laundry room (Tr.
370-371).
Although
Davis knew ventilation was in place in the cell room and the change area, the
only control identified was ventilation (Tr. 369). She failed to describe where the additional
ventilation should be installed and how additional ventilation would reduce the
levels of mercury exposure. There was no
showing how the ventilation should be changed, increased or improved. Davis admitted that she was unaware how or
where additional controls should be implemented (Tr. 434-435). Davis’ concern about the lack of personal
monitoring to evaluate controls says nothing about whether feasible controls
were in place.
The
violation of §1926.55(b) is not established.
Item 7 - Alleged Serious Violation of
§ 1926.95(a)
The
citation alleges “the coveralls provided and used for cell room demolition work
were not impervious to mercury and could not be reliably decontaminated.” Section 1926.95(a) provides:
Application. Protective equipment, including personal
protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition wherever it
is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner
capable of causing injury or impairment in the function of any part of the body
through absorption, inhalation or physical contact.
Compliance
with § 1926.95(a) requires personal protective equipment (PPE) be provided when
the employer has knowledge of a hazard requiring the use of personal protective
equipment. Armour Food Co., 14
BNA OSHC 1817, 1820 (No 86-247, 1990) (case involves § 1910.132(a), a similar
provision as § 1926.95(a), applies to general industry).
Shaw
Global provided employees working in the cell room with PPE including coveralls
to protect them from contact with mercury.
The MSDS for mercury describes the hazards associated with skin contact
and absorption (Exh. C-5). The MSDS
states that “Mercury can be irritating to contaminated skin and eyes. Symptons of skin exposure can include
redness, dry skin, and pain.” Also, it
states that “skin absorption is a significant route of potential over-exposure
to Mercury. Currently, no quantitative
estimates of the rate of penetration are available. Symptoms of such over-exposure would include
redness and irritation of the contaminated area, as well as the development of
symptoms described for ‘inhalation.”
Under personal protection for the body, the MSDS recommends to “use body
protection appropriate for task (i.e. lab coat, coveralls, Tyvek suit).”
The
coveralls provided by Shaw Global were described as blue poly-cotton. Davis testified that such coveralls were not
impervious to mercury (Tr. 336). She
claimed that she was told the coveralls had to be washed multiple times and
that testing on the coveralls after washing showed high levels of mercury (Tr.
237). She also testified that Carraway
agreed the coveralls were not designed to prevent mercury contamination on the
employee (Tr. 338). Davis also relied on
Shaw Global’s urinalysis results requiring employees to be removed from working
in the cell room to show the inability of the coveralls to protect employees
from mercury contact.
There
was no testing data offered showing that cleaned coveralls remained
contaminated with mercury. The laundry worker
did not tell Davis that the clean uniforms were checked and found to be
contaminated (Tr. 395). While the
laundry worker did tell Davis that the coveralls were washed three times a day,
she did not say the numbers of washing were increased because of problems with
contamination.
The
OSHA CPL 2-2.6 similar to the MSDS states that coveralls can be used as PPE
when dealing with mercury (Tr. 388). It
further states that it is appropriate to wear coveralls when exposed to mercury
above the PEL and when there is repeated contact with mercury fumes, dust or
solution (Tr. 390).
Davis
did not test any pair of coveralls (Tr. 394).
She could not identify any documents showing the coveralls were still
contaminated after washing (Tr. 394).
She failed provide any support for her opinion that poly-cotton
coveralls were not suitable coveralls to prevent mercury contact. Although she testified as to an OSHA web site
not recommending cotton coveralls, such interpretation was not specifically
identified or provided as part of the record.
The
violation of § 1926.95(a) is not established.
Serious Classification
Items
1b, 2a, and 5, affirmed for the reasons discussed, were classified as
serious. In order to establish that a
violation is “serious” under § 17(k) of the Occupational Safety and Health Act
(Act), 29 U.S.C. §651 et. Seq., the Secretary needs to show that there
is a substantial probability of death or serious physical harm that could
result from the cited condition and the employer knew or should have known with
the exercise reasonable diligence of the presence of the violation. She need only show that the result of an
accident would likely be death or serious physical harm. The likelihood of an accident is not an
issue. Spancrete Northeast, Inc.,
15 BNA OSHC 1020,1024 (No. 86-521, 1991).
The
affirmed violations were properly classified as serious. Shaw Global’s failures to evaluate the
housekeeper and laundry worker’s exposure to a respiratory hazard; to provide
annual respirator fit retesting of respirators for employees; and to have
separated change rooms can cause employees serious health illnesses due to
mercury exposure as described in the MSDS.
There
is no dispute Shaw Global knew of these unsafe conditions. Site manager Carraway was present at the
plant and was aware of the conditions involving the two employees, respirator
fit testing and the change area.
Carraway’s knowledge is imputed to Shaw Global. Dun Par Engineered Form Co., 12 BNA OSHC
1962 (No. 82-928, 1986)(the actual or constructive knowledge of an employer’s
supervisor can be imputed to the employer).
Other
than Serious Citation No. 2
Item 1 - Alleged Other Violation of
§ 1904.29(b)(3)
The
citation alleges “employees restricted from assigned duties in the cell room
due to mercury levels and who had experienced symptoms consistent with mercury
exposure or who had received medical treatment for mercury exposure were not
recorded on the OSHA 300 log.” 7 Section 1904.29(b)(3) provides:
How quickly must each injury or
illness be recorded? You must enter each recordable injury or
illness on the OSHA 300 Log and 301 Incident Report within seven (7) calendar
days of receiving information that a recordable injury or illness has occurred.
In
order to be recordable, the illness or injury must be work related. 29 C.F.R. § 1904.4(a)(1). The illness or injury is work related “if the
event or exposure in the work environment either caused or contributed to the
resulting condition or significantly aggravated a pre-existing injury or
illness.” 29 C.F.R. § 1904.5(a). If it is not obvious the injury or illness
occurred in the work place, an employer “must evaluate the employee’s work
duties and environment to decide whether or not one or more events or exposure
in the work environment either caused or contributed to the resulting condition
or significantly aggravated a pre-existing condition.” 29 C.F.R. § 1904.5(b)(3). The employer must consider an injury or
illness recordable “if it results in any of the following: death, days away
from work, restricted work or transfer to another job, medical treatment beyond
first aid, or loss of consciousness.” 29
C.F.R. § 1904.7(a). However, an employer
does not have to record any injury or illness that resulted solely from a
non-work related event or exposure that occurs outside the work
environment. 29 C.F.R. §
1904.5(b)(2)(ii).
Shaw
Global’s OSHA 300 logs on September 26, 2008 and October 22, 2008 recorded no
employee illness or injury (Exhs. C-15, C-16).
During this period, an employee was in the hospital for nine days and
receiving treatment for mercury toxicity.
His hospitalization and mercury toxicity was not recorded on the Shaw
Global’s 300 log (Tr. 343). Davis
testified that Carraway told her he was aware of the employee’s hospitalization
on October 22, 2008 (Tr. 346, 346).
Shaw
Global argues that the employee’s only medical information provided to the
company was not sufficient to establish a recordable illness. The employee worked a short period of time,
July 14 to September 9, 2008. After such
a short period, the employee reported that he hurt his back unloading tires at
home (Exh. R-1). His doctor’s statement
verified a back strain and requested that he be placed on two weeks of light
duty (Exh. R-31; Tr. 31). Such injury
was not work related.
Shaw
Global’s argument ignores other information pertinent to a recordable illness. Carraway visited the employee in the hospital
(Tr. 25). There is no dispute the
employee’s hospitalization was not reported by Shaw Global on the OSHA 300 log
(Tr. 581). Company e-mails show that as
of September 22, 2008, Shaw Global was aware of the employees hospitalization
for mercury toxicity (Exhs. C-17, C-18; Tr. 552). In a telephone conversation, the employee
informed Carraway of his mercury poisoning and that his symptoms included
tremors, sweats, constipation, high blood pressure and fast heart beat (Tr.
590). Carraway recognized these symptoms
as consistent with an overexposure to mercury.
Such symptoms are described in the MSDS for mercury (Tr. 589). Shaw Global knew the employee’s job of
cutting pipes exposed him to mercury based upon its direct monitoring and
urinalysis. The employee’s last urine
test on August 20, 2008 showed a elevated level of mercury which according to
the company’s policy, prohibited him from working in the cell room (Tr. 69,
556). Johnson Controls Inc., 15
BNA OSHC 2132, 2139 (No. 89-2614, 1993) (elevated blood lead levels are
considered an illness). Such record is
sufficient to require recording on Shaw Global’s 300 log.
A
violation of §1904.29(b)(3) is established.
Penalty Consideration
In
determining an appropriate penalty, the Act requires consideration of the size
of the employer’s business, history of the employer’s previous violations, the
employer’s good faith, and the gravity of the violation is required. Gravity is the principal factor.
Shaw
Global is part of a large company with 30,000 employees. It is also not entitled to credit for history
because prior serious citations were issued within the proceeding three years. Shaw Global is entitled to credit for good
faith because it maintained a safety program with a written safety manual,
safety training and monitoring.
A
penalty of $2,000.00 is reasonable for serious violation of §
1910.134(d)(1)(iii) (Citation no. 1, item 1b).
Two employees (laundry room worker and housekeeper) were not properly
evaluated to determine their exposure to respiratory hazards associated with
mercury. On at least two occasions, the
mercury levels in their work area exceeded the .1 mg/m3 TLV based on Shaw
Global’s direct read instruments.
A
penalty of $1,000.00 is reasonable for serious violation of § 1910.134(f)(2)
(Citation no. 1, item 2a). The four
employees who were exposed to mercury vapor in the cell room had not received
respirator fit retesting in excess of 16 months.
A
penalty of $2,500.00 is reasonable for serious violation of §1926.51(i)
(Citation no. 1, item 5). Shaw Global
provided a separated change room with shower facility. However, the doorways between the clean side
and dirty side change rooms were open, without doors, allowing mercury
contamination to pass into the clean side.
Although low, the area direct readings by Shaw Global reflect no
variation in mercury levels between the two sides.
A
penalty of $1,000.00 is reasonable for other than serious violation of §
1904.29(b)(3) (Citation no. 2, item 1).
One employee was not recorded on Shaw Global’s 300 log. His last urinalysis showed an elevated level
of mercury exposure subjecting him to removal from the cell room. Shaw Global was aware of his symptoms were
related to mercury exposure.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based
upon the foregoing decision, it is ORDERED:
Serious Citation No. 1
Item
1a, serious violation of § 1926.850(e), is vacated and no penalty is assessed.
Item
1b, serious violation of § 1910.134(d)(1)(iii), is affirmed and a penalty of
$2,000.00 is assessed.
Item
2a, serious violation of § 1910.134(f)(2), is affirmed and a penalty of
$1,000.00 is assessed.
Item
2b, serious violation of §1910.134(h)(1)(i), is vacated and no penalty is
assessed.
Item
3a, serious violation of § 1926.21(b)(2), is vacated and no penalty is
assessed.
Item
3b, serious violation of § 1910.1200(h)(3)(ii), is vacated and no penalty is
assessed.
Item
4, serious violation of § 1926.50(a), is vacated and no penalty is assessed.
Item
5, serious violation of §1926.51(i), is affirmed and a penalty of $2,500.00 is
assessed.
Item
6a, serious violation of § 1926.55(a), is vacated and no penalty is assessed.
Item
6b, serious violation of § 1926.55(b), is vacated and no penalty is assessed.
Item
7, serious violation of § 1926.95(a), is vacated and no penalty is assessed.
Other Than Serious Citation No.23
Item
1, other than serious violation of § 1904.29(b)(3), is affirmed and a penalty
of $1,000.00 is assessed.
___/s/_____________________ KEN
S. WELSCH
Judge
Date: October 25, 2010
[1] To
the extent the judge read § 1926.51(i) as
requiring separate “change rooms” based on the provision’s plural use of that
phrase, we find that the provision’s regulatory history precludes such an
interpretation. Oberdorfer Indus., Inc., 20 BNA OSHC
1321, 1328-29, 2002-04 CCH OSHD ¶ 32,697, p. 51,643
(No. 97-0469, 2003) (consolidated). A review of that history shows that the provision’s plural use of “change rooms” is a vestige
of its initial version, which was focused on providing separate change rooms
based on gender. In 1993, the
change room requirement in 29 C.F.R. § 1910.141(e) was incorporated into
§ 1926.51(i). Incorporation of
General Industry Safety and Health Standards Applicable to Construction Work,
58 Fed. Reg. 35,076, 35,084 (June 30, 1993).
The first version of
§ 1910.141(e), effective on August 27, 1971, stated as follows:
(e) Change rooms—(1) Separate
facilities. Separate change or dressing rooms equipped with individual
clothes facilities shall be provided for each sex wherever it is the practice
to change from street clothes or wherever it is necessary to change because the
work performed involves exposure to excessive dirt, heat, fumes, vapor, or moisture. In the event that change rooms are not
provided, facilities shall be furnished for hanging outer garments.
This provision was amended to its current form on May 3, 1973. Part 1910—Occupational Safety and Health Standards, 38 Fed. Reg. 10,930, 10,933-34 (May 3, 1973); Part 1910—Occupational Safety and Health Standards, 39 Fed. Reg. 23,502, 23,675 (May 28, 1974) (republishing standard without explanation of provision). The Federal Register notice analyzing the amendments explained that (1) “[a]ll provisions relating to separate facilities based on sex are eliminated,” and (2) the revised provision requires “[s]eparate storage facilities (both for each employee and for street and work clothing).” Sanitation—Proposed Safety and Health Standards, 37 Fed. Reg. 13,996, 13,996 (July 15, 1972).
[2]
This purpose is explicitly identified by OSHA in the preambles to the change
room provisions for other substance-specific standards—such as asbestos, lead,
chromium, and cadmium. In these preambles,
OSHA either states that separate storage “prevent[s] cross-contamination,” or
explicitly requires the employer to ensure that storage facilities are
separated in a manner that prevents protective clothing from contaminating
street clothes. 29 C.F.R. §§ 1910.1001(i)(1)(ii), .1025(i)(2)(ii), .1026(i)(2),
.1027(j)(2). Tellingly, the
preambles to most of these substance-specific standards explain that the change
room provisions were intended to serve the same purpose as § 1910.141(e) and/or
§ 1926.51(i), the cited provision here. Occupational Exposure to
Hexavalent Chromium, 71 Fed Reg. 10,100, 10,356 (Feb. 28, 2006) (final rule);
Occupational Exposure to Asbestos, 51 Fed. Reg. 22,612, 22,698 (June 20, 1986)
(final rules); Occupational Exposure to Lead, 43 Fed. Reg. 52,952, 52,995 (Nov.
14, 1978) (final rule).
[3] As further support for her argument, the Secretary points to a photograph and testimony showing that laundered protective coveralls and towels were stored in open cubicles located in the room closest to the work area, “through which all cell room employees walked wearing contaminated clothing.” Even if an assumption could be made that the protective clothing and towels became contaminated simply by virtue of their proximity to the work area, such a finding would not establish that laundered protective clothing or towels could, in turn, contaminate street clothes that were separately enclosed in lockers located on the opposite end of the change house.
[4] Although described more broadly in the citation, the Secretary clarified in her post-hearing brief that this allegation pertains only to Shaw’s failure to record the specific work-related illness addressed here.
[5] Although there is no OSHA standard requiring an employer to conduct biological monitoring for mercury or remove an employee based on elevated levels of mercury in urine, Shaw’s safety program required removal from the cell room if an employee’s urinalysis measurement for mercury exceeded 75 µg/g (micrograms of mercury per gram of creatinine). The record shows that the Chlorine Institute, a relevant industry resource here given that the cell room had been used to produce chlorine, recommends removal if urinalysis shows a mercury level at or above 100 µg/g. According to Shaw’s safety manager, when demolition commenced at the plant, Shaw lowered the mercury level for triggering removal under its program from 100 µg/g to 75 µg/g, because its work activity created “the possibility for elevated mercury vapors there.”
[6] And we find no support for Shaw’s claim that the employee “appeared to be doctor shopping” for a mercury toxicity diagnosis “to help set up a claim for damages against Shaw.” Citing to the employee’s testimony, Shaw states in its brief that during each of his visits to the ER, the employee “took his . . . sheet showing that he had elevated mercury levels, yet none of the four doctors he saw in his ER visits diagnosed him with mercury toxicity.” This assertion mischaracterizes the employee’s testimony. The employee testified that he only showed his urinalysis result to the last doctor he saw before going to the hospital in Birmingham. A blood test was taken at that time, but the employee did not receive the blood test result before being admitted to the Birmingham hospital on September 21, 2008, where, as we have found, he was being treated for mercury toxicity. We find nothing suspect about this sequence of events.
[7] In its brief, Shaw relies on Amoco Chemicals Corp. for the proposition that, to establish a violation of § 1904.29(b)(3), the Secretary must prove Shaw’s decision not to record the employee’s illness was unreasonable in light of the information and expertise available to Shaw at the time of its decision. 12 BNA OSHC 1849, 1855, 1986-87 CCH OSHD ¶ 27,621, p. 35,904 (No. 78-250, 1986). But Shaw’s safety manager admitted that at the time of his hospital visit, he knew the employee was being treated for mercury toxicity. In these circumstances, Shaw’s decision not to record was plainly unreasonable.
[8] Neither party challenges the judge’s characterization of the violation as other-than-serious or his penalty assessment. See, e.g., KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11, 2004-09 CCH OSHD ¶ 32,958, p. 53,925 n.11 (No. 06-1416, 2008) (affirming judge’s characterization of violation and penalty assessment where undisputed on review).
1The citations were issued to Shaw Group, Inc. By unopposed motion to amend, dated May 24, 2010, the Secretary corrected the name of the cited employer to Shaw Global Energy Services, Inc.
2Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127 (No. 89-2713, 1991).
3Shaw’s action level of .05 is half of the OSHA Threshold Limit Value (TLV) of .1 mg/m3 for mercury (Tr. 483). See 29 C.F.R. §1926.55(a), Appendix A.
4Shaw Global’s argument that the issue of inadequate purging was not properly before the court, is rejected. The citation specifically alleged “testing and purging was not performed.”
5The general industry standards for respirators apply to Shaw Global’s demolition work because the construction standard at §1926.103 incorporates the respiratory requirements of §1910.134 (Tr. 274).
6The standards at §1910.1200 are incorporated into the construction standards by §1926.59.
7Although the citation alleges the failure to record employees removed from the cell room because of high urinalysis results, the Secretary did not address this issue in her brief and the evidence presented is not sufficient to make a finding. The court considers the issue waived. At the time of OSHA’s inspection, there were approximately 12 employees on medical removal status from the cell room (Tr. 308). There is no evidence regarding the date(s) of their removal from the cell room.