* *

United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1120 20^th 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


  DECISION

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] <#_ftn1>  /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] <#_ftn2>  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/m^3 , which is
half of OSHA’s 0.1 mg/m^3 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/m^3 ,
which is half of the TLV for mercury vapor, and that in all but three
instances, the levels did not exceed 0.03 mg/m^3 .  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] <#_ftn3> 

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] <#_ftn4>  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] <#_ftn5>  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]
<#_ftn6>  Under these circumstances, we find that Shaw had sufficient
information to determine that a recordable illness had occurred.^^[7]
<#_ftn7>  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] <#_ftn8>

*
*

* *

*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
<#_ftn9>  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
<#_ftn10>  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),

mercuryis 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
<#_ftn11> 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 <#_ftn12>  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 <#_ftn13> 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 <#_ftn14> 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 <#_ftn15> 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] <#_ftnref1> 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] <#_ftnref2> 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] <#_ftnref3> 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] <#_ftnref4> 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] <#_ftnref5> 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] <#_ftnref6> 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] <#_ftnref7> 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] <#_ftnref8> 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).

^1 <#_ftnref9>The 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.

^2 <#_ftnref10>Issues not briefed are deemed waived. See
/Georgia-Pacific Corp/., 15 BNA OSHC 1127 (No. 89-2713, 1991).

^3 <#_ftnref11>Shaw’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.

^4 <#_ftnref12>Shaw 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.”

^5 <#_ftnref13>The 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).

^6 <#_ftnref14>The standards at §1910.1200 are incorporated into the
construction standards by §1926.59.

^7 <#_ftnref15>Although 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.