Air Plastics, Inc.
Mixed ruling on pit hazards and chemical training
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Air Plastics manufactured fiberglass tanks using molds mounted over production pits that employees entered during setup. The judge vacated a failure-to-abate general duty clause citation alleging hazardous confined-space atmospheres because OSHA did not prove that employees faced a significant risk from toxic, oxygen-deficient, or combustible concentrations. He affirmed serious violations involving an unguarded shaft, chains, and sprockets, or alternatively the failure to lock out the equipment before pit entry. He also affirmed a repeated hazard-communication training violation because employees had not received the required information and training about workplace chemicals. Other items were resolved by agreement, including two affirmed serious violations, two reclassified other-than-serious violations, and one vacated item. Total penalties were $5,120.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1910.132(a), 1910.133(a)(1), 1910.147(d)(4)(i), 1910.219(c)(2)(i), 1910.219(f)(3), 1910.305(g)(2)(iii), 1910.1200(f)(5)(i), 1910.1200(f)(5)(ii), 1910.106(e)(6)(ii), and 1910.1200(h)
- Outcome: Some violations were affirmed or reclassified, the failure-to-abate citation and one other item were vacated, and $5,120 in penalties was assessed.
- Key point: A general duty clause charge requires proof of a significant risk, not speculation that harmful atmospheric concentrations might develop.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centte
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
COM (202) 6064100 COM (202) 6064050
Frs (202) 6064100 f=TS (202) 6OG5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-1883
AIR PLASTICS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE MW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 9, 1993. The decision of the Judge
will become a final order of the Commission on October 12, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
September 29 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. %200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: September 9, 1993
DOCKET NO. 92-1883
NOTICE IS GIVEN TO THE FOLLOWING: .
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re ional Solicitor
Office of ta e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Dennis E. Woll, Gen Manager
Air Plastics, Inc.
1224 Castle Drive
Mason, OH 45040
John H. Frye, III
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00103035804 :05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
COM(202)606-5100 COM j202)606-5050
ns(202)606-5100 f=rS(202)606-5050
l
.
SECRETARY OF LABOR, ..
..
Complainant, ..
.. Docket No. 924883
v. ..
AIR PLASTICS, INC.,
..
Respondent.
Appearances:
Mary Anne Ganq, Esq. Dennis E. Wall, pro se
Office of the Solicitor General Manager
U.S. Department of Labor Air Plastics, Inc.
Cleveland, Ohio Mason, Ohio
For Complainant For Respondent
Before: Administrative Law Judge John H Frye, III
INTRODUCTION
This matter is before the Commission pursuant to Section 10(c) of the Occupational
Safety and Health Act of 1970 (29 C.F.R. 651 et sea,.), hereinafter referred to as the Act.
Respondent is an employer engaged in a business affecting interstate commerce as defined
by Section 3(5) of the Act and has employees as defined by Section 3(6) of the Act and the
standards and regulations promulgated thereunder.
This case was heard on March 23, 1993 in Cincinnati, Ohio. Prior to the
commencement of the hearing, the parties agreed to the amicable resolution of certain
alleged violations on the following terms, which were entered into the record. Accordingly
Item 1 of Citation No. 1 is affirmed as a serious violation with a penalty of $400.00;
Item 2 of Citation No. 1 is affirmed as a serious violation with a penalty of $320.00;
Item 5 of Citation No. 1 is reclassified as an other than serious violation with no
penalty;
Item 6 of Citation No. 1 is reclassified as an other than serious violation with no
penalty; and
Item 1 of Citation No. 2 is vacated.
Although provided with the opportunity to do so, Respondent, Air Plastics, Inc., did
not submit a post-hearing brief. Accordingly, this decision is based largely on the brief
submitted by the Secretary.
STATEMENT OF FACTS
On April 28 and 29 of 1992, Mark Snyder, an industrial hygienist with the
Occupational Safety and Health Administration in Cincinnati, Ohio, conducted an inspection
of Air Plastics, Inc. in Mason, Ohio (Tr. 7, 9-10). Mr. Snyder inspected the company after
receiving a referral from Steve Brunette, a safety compliance officer in the Cincinnati Area
Office (Tr. 9-10). Mr. Snyder went to Air Plastics to conduct sampling of a confined space
at the facility (Tr 10).
Air Plastics is a manufacturer of fiberglass tanks (Tr. 10). These tanks are fabricated
on molds which are attached to hydraulic motor turntables. In order to produce the tanks,
employees are required to enter a pit under the floor for the purpose of attaching the
turntables to the molds and to collapse and expand the molds (Tr. 13).
At the time of his inspection, Mr. Snyder observed an employee enter the pit below
mold turntable No. 1 (Tr. 13). The employee, Robert Bales, was required to crawl through
the pit until he reached the area of the mold (Tr.14). Once he reached the mold area, Mr.
Bales bolted the turntable to the mold (Tr.13). A shaft powered by a hydraulic motor ran
the entire length of the pit from the entrance to the exit under the mold (Tr. 14). The
exposed parts of the shaft were not protected by stationary casings nor were they enclosed
bv troughs (Tr.14.15).
d Y \ /
In addition to the exposed shaft, the chains and sprockets at the
entrance and exit of pit No. 1 were unguarded (Tr. 16). Neither were the chain and
sprocket next to the entrance of pit No.2 enclosed (Tr. 16). Both sets of chains and
sprockets were seven feet or less above floors or platforms (Tr. 16).
During the production process, Air Plastics (AP) employees used a number of
chemicals including styrene, acetone, resin flush and Rexco Purtall Film No. 10 (Tr. 21).
Before Mr. Bales entered the pit, the pit was not purged and ventilated. Nor did the
employer test the atmosphere in the pit for the presence of vapors or the absence of
sufficient oxygen. Furthermore, the employer had not devised means to retrieve an
individual from the pit in the event of an emergency (Tr. 34).
OPINION
I FAILURE TO ABATE CITATION - ALLEGED VIOLATION OF SECTION
S(A)(l) OF THE ACT BY FAILING TO FURNISH EMPLOYMENT AND A
PLACE OF EMPLOYMENT FREE FROM RECOGNIZED HAZARDS THAT
WERE LIKELY TO CAUSE DEATH OR SERIOUS PHYSICAL HARM TO
EMPLOYEES.
CSHO Snyder investigated the AI? facility following a referral from another
compliance officer. The referral related to a confined space at the facility; specifically, the
referral related to the pit area which employees were required to enter in order to bolt,
expand and collapse the molds. As a result of his inspection, Mr. Snyder concluded that the
employer had not developed a confined space entrv promam which adeauatehr addressed
* A WA v 1 d
the confined space hazards at the worksite. The compliance officer, therefore,
recommended that AP be charged with a violation of Section 5(a)(l) of the Act. The
Citation which was issued charges that Respondent’s
[elmployees entering the #l mold turntable pit to the production area were
exposed to the hazards of potential Oxygen deficient atmosheres or atmosheres
contaminated with toxic and/or combustible substances such as, but not limited
to styrene.
Significantly, it did not charge Respondent with having failed to develop a confined space
entry program. Rather, it identified a confined space entry program as “... one feasible and
acceptable method to correct this hazard....”
In order to establish a 5(a)(l) violation, the Secretary must prove that: 1) the
employer failed to render its workplace free of a hazard, 2) the cited hazard was recognized
by the cited employer or generally within the employer’s industry, 3) the hazard was causing
or likely to cause death or serious physical harm, and 4) there was a feasible means by which
the employer could have eliminated or materially reduced the hazard. Little-Beaver Creek
Ranches. Inc., 1982 CCH OSHD 26,125 (Rev. Comm. 1982). The Secretary has failed to
meet his burden with respect to the first of these elements and has, therefore, failed to
prove a S(a)(l) violation of the Act.
The Hazard Identified bv the Secretarv.
The Secretary’s evidence has been evaluated to determine if he established that the
hazard identified in the Citation existed. The Secretary maintains that a hazard existed
because the Respondent failed to develop and implement an acceptable confined space
entry program with regard to the pit area associated with turntable 1. Unfortunately, this
states the remedy for the hazard, not the hazard itself, which the Secretary identified in the
Citation as “ovgen deficient atmosheres or atmospheres contaminated with toxic and/or
combustible substances.”
The Respondent did not dispute the Secretary’s contention that employees entered
the pit area and did not rebut the contention that employees were exposed to toxic and/or
combustible substances such as styrene. Nor does Respondent appear to seriously dispute
that the pit is a confined space. 1 It is also clear that there was no direct ventilation of the
1 Richard Gilgrist, who was called as an expert witness by the Secretary,opined that the pit area was a
confined space (Tr. 113, 117). Mr. Gilgrist defined a confined space as an area that is not designed for
continuous human occupancy and has unfavorable natural ventilation. Further, a confined space is an area
where toxic or flammable levels of substances could accumulate or develop. It is not subject to normal
entry or exit, i.e. walking in or, out (Tr. 117). Mr. Gilgrist relied on the National Institute for
Occupational Safety and Health (NIOSH) criteria document “Working In Confined Spaces” and the
American National Standard Safety (ANSI) Requirements for Confined Spaces in formulating his opinion
(GX 15 & 16).
5
pit or underneath the mold and that there was limited entrance to and egress from the pit
(Tr.32). The pit was clearly not designed for human occupancy for extended periods of time
(Tr.31).
Respondent pointed out at hearing that, although toxic and/or combustible substances
were in use, no hazard existed because the concentrations of these substances in the pit were
we1 below hazardous levels. The Secretary countered by noting that this argument ignores
the possibility that hazardous or flammable levels of these substances could accumulate.
On the first day of the inspection, CSHO Snyder fitted an employee, Mr. Bales, with
a personal sampling device (Tr. 29-30). Mr. Bales entered the pit on three occasions that
day and an air sample was obtained for each of those entries (Tr.30). Mr. Snyder submitted
the sampling results to OSHA’s Salt Lake Technical Center and requested that the samples
be analyzed for the presence of styrene (GX 13). Styrene is contained in the resins used at
the Respondent’s facility (GX. 11 & 12). It is a carcinogen and exposure to styrene can
result in narcosis, which is a severe depression of the central nervous system. Styrene can
also cause dizziness and exposure to styrene can affect a person’s ability to reason (Tr. 118).
Furthermore, styrene is flammable and, therefore, presents fire and explosion hazards (Tr.
118). Mr. Gilgrist cited the fire and explosion hazards as the primary cause for OSHA’s
concern (Tr. 122, 154 163).
The sampling results disclosed that Mr. Bales was exposed to 76 parts per million
(PPM) of styrene during his last two entries and four PPM during his first (Tr. 30; GX 13).
The higher level represents three-quarters of the short term exposure level (STEL) for
6
styrene of 100 PPM allowable under the OSHA standardso Mr. Gilgrist, who is Board
Certified in the comprehensive practice of industrial hygiene, testified that the possibility of
overexposure to styrene existed because the test results were more than 50% of the STEL
(Tr. 139). Mr. Gilgrist did not explain this conclusion.
Since the pit is below floor level, it is subject to the accumulation of heavier-than-air
substances, such as organic vapors containing styrene (Tr. 117418). The presence of
heavier-than-air vapors in the pit could also expose employees to the hazards related to
oxygen depletion. Organic vapors, such as those present in fiberglass lay-up operations, can
displace the oxygen in confined spaces (Tr. 117).
As noted above, Mr. Gilgrist’s primary concern relates to exposing the employees
working in the pit to atmospheres contaminated with combustible substances. In addition
to its other properties, styrene is flammable. 3 Its lower explosive limit (LEL) is 11,000 PPM
(Tr. 162). The concentrations of styrene measured in the pit are less than one percent of
the LEL. Although Mr. Gilgrist conceded that the measured concentrations of styrene did
not pose a hazard (Tr. 165, 167), he explained that the Respondent was cited because the
circumstances presented in this matter are similar to those in which accidents have occurred
(Tr. 168) and are designed in anticipation of unusual levels that may occur where flammable
liquids are used on a routine basis (Tr. 164).
The Secretary has established that styrene, in use at the AP facility, is toxic and
flammable in certain concentrations and speculates that such concentrations could
‘. The STEL for styrene, which is listed in Table Z-1-A of 29 C.F.R. 1910.1000, is 100 PPM.
31n addition to styrene, acetone which is also a flammable, is used in the workplace (Tr. 118).
7
accumulate in the pit area. However, the Secretary has not established that harmful levels
have accumulated or that any published standard related to employee exposure has been
violated in the past, nor has he provided an adequate evidentiary basis on which to conclude
that such concentrations might in fact so accumulate in the future.4
The speculation that harmful concentrations might accumulate is insufficient to
establish that the hazard identified in the Citation exists at the AP facility for purposes of
0 5(a)(l) of the Act.
[I]n order to prove the existence of a hazard within the meaning of the
l .*
general duty clause, the Secretary cannot merely show that there may be some
degree of risk to employees. He must show, at a minimum, that employees
are exposed to a significant risk of harm.
Kizstalon,Inc. and Conap, Inc., 12 BNA OSHC 1928, 1932 (Rev. Corn. 1986). See ako
Walden Healthcare Center, 16 BNA OSHC 1052, 105940 (Rev. Corn. 1993). Mr. Gilgrist’s
conclusions fall short of showing that AP’s employees are exposed to a significant risk of
harm. They show only that these employees might be exposed to a significant risk of harm
if certain unspecified events were to occur. They amount to no more than speculation
‘Perhaps in recognition of this fact, the Secretaryargues that, although an employer may not be in
violation of a standard, that employer’sfailure to test in a confined atmosphere before possible exposure
of employees to toxic substances is a violation of the Act, citing Con Rgrq Inc., 11 BNA OSHC 1141,1983
CCH OSHD 26,240 (Rev. Comm. 1983).
In contrast to the instant case, Con Agra presents a factual situation in which a hazardwas clearly
demonstrated. There, the Secretarysought to compel the testing of the atmospheres of freight cars loaded
with grain prior to exposing workers who were requiredto sample and test the grain, in part by smelling it.
Con Agra argued that the Secretaryhad not established that any employees had been exposed to
concentrations of airborne toxic substances in violation of 5 1910.1W and hence had not shown that a
hazard existed The Commission held that the duty to test was distinct from the duty to avoid exposing
employees to concentrations in excess of the limits stated in (r 1910.1000. Pointing to the fact that
substantial numbers of cars could be expected to contain contaminated atmospheres and that the placard
system devised to identify such cars was not reliable, the Commission held that a hazard had been
established. In this case, the comparable evidence is Mr. Gilgrist’s conclusion that is based largelyon
anecdotes drawn from his experience with other facilities and the identification, in connection with the
confined space rulemaking proceeding, of AP’s industry code as one for particular attention (Tr. 11849,
158-59, 16749).
. 8
informed by Mr. Gilgrist’s experience and the confined space rulemaking proceeding.
Unfortunately, the Secretary has proved that the Respondent did not implement the
method of abating the hazard identified in the Citation, not that the hazard itself existed.
If upheld, this approach would, in effect, force Respondent to establish that the hazard does
not exist? While it may be permissible for the Secretary to require affected industries to
shoulder such burdens after fully conside’ring the implications of and necessity for such a
policy in a rulemaking, he may not, simply on the basis of an informed guess, force individual
respondents to show that a particular risk does not exist in order to defeat a 0 5(a)(l)
citation. In light of the fact that the Secretary has not demonstrated that a hazard exists,
it is unnecessary to consider whether the alleged hazard was recognized by AP or AP’s
industry, whether the alleged hazard was likely to cause death or serious physical harm, and
whether there was a feasible means by which AP could abate the hazard. The Failure to
Abate Citation is vacated.
II CITATION 1. ITEMS 3 AND 4 - ALLEGED VIOLATION OF 29 C.F.R.
1910.219 (c)[2J(i) AND 1910.219(%3) BECAUSE OF UNGUARDED CHAINS,
SPROCKETS. AND SHAFT: ALTERNATIVELY, ALLEGED VIOLATION OF
29 C.F.R. 1910.147 (D)(4@) BECAUSE LOCKOUT DEVICES WERE NOT
USED.
Employees who were required to enter pit No. 1 were exposed to a horizontal shaft
as they crawled through the pit (Tr. 18). The shaft was not protected by casings or a trough
(Tr. 14-15). The employer’s failure to guard the shaft violated the requirements of section
51ndeed, the confined space rule, to which Respondent is presumably now subject, has this effect, Section
1910.146(c)(1) requires employers to “... evaluate the workplace to determine if any spaces are permit-
required confined spaces.” Permit-required confined spaces include those with the potential to contain a
hazardous atmosphere. The pit in question appears to fall within this definition.
9
1910.219(c)(2)(i). As a result of the violation, employees were exposed to a serious hazard
which could have resulted in an amputation (Tr. 20). .In addition to being cited for a
violation of section 1910.219(c)(2)(i), the Respondent was cited for violating section
1910.219(f)(3) b ecause in the production areas of mold turntables Nos. 1 and 2, chains and
sprockets which drive the exposed shafts were unguarded (Tr. 14; GX 7).
The Respondent did not dispute that the shaft was unguarded. Rather, the employer
relied on the fact that equipment was turned “off’ when employees entered the pit. CSHO
Snyder, however, testified that while Mr. Bales was in the pit, the equipment was not locked
out (Tr. 19). As a result, the equipment could have been activated while Mr. Bales was
exposed to the unguarded shaft
The Secretary argues, in the alternative, that since the equipment could have been
activated while Mr. Bales was in the pit, the provisions of the lockout standard apply. That
standard requires that employers utilize procedures for the control of potentially hazardous
energy whenever employees are engaged in activities covered by 29 C.F.R. 1910.147 et seq..
These activities are defined in the scope provision of the standard which appears at 29
C.F.R. 1910.147(a)(l)(i). Section 1910.147(a)(l)(i) makes the lockout provisions applicable
to the “servicing and maintenance of machines and equipment in which the unexDected
(emphasis in original) energization (sic) or start up of machines or equipment, or release of
stored energy could cause injury to employees.”
Servicing and maintenance are defined in the standard as “Workplace activities such
as constructing, installing, setting up, adjusting, inspecting, modifying, and maintaining and/or
servicing machines and equipment.” 29 C.F.R. 1910.147(b). Mr. Bales entered the pit for
. 10
the purpose of attaching the mold to the turntable (Tr. 18). This activity constitutes setting
up the machine and is subject to the provisions of the lockout standard.
Section 19100147(d)(4)( i) re q uires that lockout or tagout devices be affixed to each
. energy isolating device by authorized employees. A lockout device is defined in the standard
as:
A device that utilizes a positive means such as a lock, either key or combination type,
to hold an energy isolating device in a safe position and prevent the energizing ‘of a
machine or equipment. 29 C.F.R. 1910. 147(b).
Energy isolating device is defined in 29 C.F.R. 1910.147(b) as:
A mechanical device that physically prevents the transmission or release of energy,
including but not limited to the following: A manually operated electrical circuit
breaker; a disconnect switch; a manually operated switch by which the conductors of
a circuit can be disconnected from all ungrounded supply conductors, and, in
addition, no pole can be operated independently; a line valve; a block and any
similar device used to block or isolate energy.
CSHO Snyder testified that lockout or tagout devices were not affixed to an energy isolating
device while Mr. Bales was working in the pit (Tr.19). Since the equipment was not isolated
from its energy source before he began working on it, Mr. Bales was exposed to the
unexpected activation or start up of the shaft while he was in the pit. In the instant case,
the breaker depicted in Complainant’s Exhibit No. 1 should have been shutoff and a lockout
device applied so that the equipment could not be energized while Mr. Bales was exposed
to the shaft (Tr.19).
An exception in the lockout standard exists for work which is being performed using
alternative measures which provide protection consistent with that required by the machine
guarding standard. .The relationship between the lockout and machine guarding standards
11
was explained at hearing by Dennis Collins, an OSHA employee in the Cincinnati Area
Office.6
Mr. Collins explained that equipment must be adequately guarded if during normal
operations employees would be exposed to a hazard. If equipment would expose employees
to a hazard during servicing, it must be disconnected and padlocked by the employee who
would be exposed (Tr. 95). If everything were guarded, there would be no need for
lockout. Conversely, guarding would not be required if employees locked out the equipment
before entering the pit (Tr. 99). In the instant case, the Respondent failed either to guard
the equipment or to ensure that lockout devices were being affixed.
The Respondent introduced evidence at hearing to show that a lock was available to
employees (Tr. 84). This creates the inference that the employee’s failure to use the lock
was the result of misconduct. An isolated incident of misconduct is an affirmative defense,
and to avail itself of the defense an employer must show that employees acted without its
knowledge and contrary to uniformly enforced company work practices. Weatherhead Co.,
19761977 CCH OSHD 20,784 (Rev. Comm. 1976). Mr. Bales testified that prior to Mr.
Snyder’s inspection it was not standard practice to lock and tag out equipment (Tr. 76). Mr.
Woll admitted that the company did not check to ensure that the equipment was being
locked out (Tr. 202) and that the company began physically locking the pits out after Mr.
Snyder’s inspection (Tr.212). Thus Respondent has failed to establish an affirmative
defense, and Respondent has violated 29 C.F.R. 1910.147(d)(4)(i) or alternatively, 29 C.F.R.
1910.219(c)(2)(i). Items 3 and 4 of Citation 1 were properly classified as serious violations
6Mr. Collins visited AP’s facility on March 9, 1993 specifically to review the alleged guarding/lockout
violations at the facility (Tr. 91).
12
and are affirmed. Respondent has not contested the amount of the penalty proposed by the
Secretary. Consequently, a penalty in the amount of $800 for each item is affirmed.
III CITATION 2. ITEM 2 - ALLEGED VIOLATION OF 29 C.F.R. 1910.1200(h)
BECAUSE EMPLOYEES WERE NOT PROVIDED INFORMATION AND
TRAINING ON HAZARDOUS CHEMICALS IN THEIR WORK AREA
Pursuant to section 1910.1200(h), employees must be provided with information and
training as specified in 29 C.F.R. 1910.1200(h)(l) and (2). This information and training is
to be provided when employees are initially assigned to a work area and whenever a new
hazard is introduced to the area. The information which must be provided includes the
operations in the facility where hazardous chemicals are present, and the location and
availability of the employer’s written communication program and material safety data
sheets. The training which must be provided includes methods and observations that may
be used to detect the presence or release of hazardous chemicals, the physical and health
hazards of the chemicals, measures employees can take to protect themselves and details of
the employer’s hazard communication program.
A “hazardous chemical” is defined by the standard as “Any chemical which is a
physical or health hazard.” 29 C.F.R. 1200(c). At hearing, CSHO Snyder testified regarding
the hazardous chemicals in use at the Respondent’s facility. These chemicals include
styrene, acetone, resin flush, and Rexco Purtall Film No.10. (Tr. 21). Mr. Snyder also
explained how these chemicals were used in the workplace and the hazards associated with
their use (Tr. 21-22). The material safety data sheets for these chemicals were introduced
into evidence (GX. 842).
*
13
After talking to management and interviewing employees, CSHO Snyder determined
that employees had not been provided with the information and training required by section
1910.1200(h) (Tr. 23-24). Specifically, he concluded that employees had not been informed
of the hazards associated with the chemicals in use in the workplace (Tr. 24). He concluded
that employees had not been informed of the location and availability of the employer’s
hazard communication program and the material safety data sheets (MSDS).
CSHO Snyder also determined that the employees had not been trained in methods
for detecting the presence or release of hazardous chemicals (Tr. 25). At the time of the
inspection, employees were not wearing the protective equipment recommended in the
MSDS (Tr. 24-25). In fact, they were using acetone, a skin irritant, to wash their hands (Tr.
63) l
At the time of the inspection, Mr. Bales had been employed by AP for more than
four years. He testified that he worked with styrene, acetone and the Purtall film (Tr. 720
73). He indicated that he had not received training and had not been told of the hazards
associated with the chemicals to which he was exposed (Tr. 72-73). Before Mr. Snyder’s
inspection, he had not seen the employer’s hazard communication program and he did not
know where the MSDS were located (Tr. 73-74). Neither had he been trained in hazard
recognition or how to protect himself from the physical and health hazards of the chemicals
(Tr. 74).
On cross-examination, Mr. Bales testified that he knew resin was flammable and
could cause a rash (Tr. 80). He explained that he had prior experience in the industry and
knew styrene vapors were harmful but he did not know “what it could do to you” (Tr. 80).
14
Mr. Bales clearly was not aware of all the hazards to which he was exposed. He appeared
confused regarding effects of styrene on the central nervous system (Tr. 85-86).
The Respondent called John Hockstok to testify (Tr. 186). Mr. Hockstok is a
supervisor at AP and has been delegated the responsibility to coordinate, supervise and train
(Tr. 188). Mr. Hockstok testified regarding the type of training which was provided to AP
employees. Mr. Hockstok testified that he had discussed the MSDS information with the
employees, although he could not remember when this occurred and was vague with regard
to when five current new employees would receive such training (Tr. 196-98). Mr. Hockstok
indicated that the primary means of training new employees is to assign them to a more
experienced employee for a period of time (Tr. 192).
Mr. Hockstok admitted that AP had no formal training program (Tr. 193). The
company had no written program (Tr. 192) and made no attempt to determine if employees
understood the hazards to which they were exposed (Tr.214). Mr. Hockstok’s testimony
cannot overcome the evidence presented by the Secretary which clearly shows that
employees were not provided the training required by section 1910.1200(h).
Citation 2, Item 2 was classified as “repeat” based on an earlier citation issued to
Respondent for a violation of the same standard. On September 9, 1991, the Respondent
was cited for violating 29 C.F.R.1910.12OO(h). The employer entered into an informal
settlement agreement, waiving its right to contest this violation (Tr.26-27). Pursuant Section
10(a) of the Act, the citation became a final order of the Commission.
, 15
me word “repeated” is not defined in the Act but the meaning to be accorded to
the word was the subject of the Review Commission’s decision in Potlatch Corp., 1979 CCH
OSHD 23,294 (Rev. Comm. 1979). In Potlatch the Review Commission held that:
A violation is repeated under section 17(a) of the Act if, at the
time of the alleged repeated violation, there was a Commission
final order against the same employer for a
substantially similar violation. Id. at 28,171.
Citation 2, Item 2, is affirmed as a repeat violation. Respondent has not contested
the amount of the penalty proposed by the Secretary. Consequently, a penalty in the
amount of $2800 is also affirmed.
CONCLUSIONS OF UW
1l Respondent Air Plastics, Inc., was at all times pertinent hereto an employer
within the meaning of Section 3(5) of the Occupational Safety & Health Act of 1970, 29
U.S.C. Section 65 l-678 (1970).
20 The Occupational Safety & Health Review Commission has jurisdiction of the
parties and the subject matter.
30 Respondent Air Plastics, Inc., committed a serious violation of the standard
set out at 29 CFR 5 1910.132(a) as charged in the Citation 1, Item 1. A civil penalty of $400
is appropriate.
4a Respondent Air Plastics, Inc., committed a serious violation of the standard
set out at 29 CFR 5 1910.133(a)(l) as charged in the Citation 1, Item 2. A civil penalty of
$320 is appropriate.
16
5. Respondent Air Plastics, Inc., committed a serious violation of the standards
set forth at 29 C.F.R. 1910.219 (c)(2)(i) and 29 C.F.R. 1910.219(f)(3) as charged in Citation
1, Items 3 and 4. Alternatively, Respondent Air Plastics, Inc., committed a serious violation
of the standard set forth at 29 C.F.R. 6 1910.147 (d)(4)(i). Penalties in the amount of’$1600
are appropriate.
6 l Respondent Air Plastics, Inc., committed an other-than-serious violation of the
standard set out at 29 CFR # 1910.305(g)(2)(“‘)
rrr as charged in the Citation 1, Item 5. A civil
penalty of $00 is appropriate.
7 l Respondent Air Plastics, Inc., committed other-than-serious violations of the
standards set out at 29 CFR 3 1910.1200(f)(5)(i) and (ii) as charged in the Citation 1, Items
6a and 6b. A civil penalty of $00 is appropriate.
80 Respondent Air Plastics, Inc., was not in violation of the standard set out at
29 CFR g 1910.106(e)(6)(ii) as charged in Citation 2, Item 1.
9 l Respondent Air Plastics, Inc., committed a repeat violation of the standard set
forth at 29 C.F.R. 1910.1200(h) as charged in Citation 2, Item 2. A penalty in the amount
of $2800 is appropriate.
100 Respondent Air Plastics, Inc., was not in violation of 5 5(a)(l) of the Act as
charged in the Failure to Abate Citation.
17
ORDER
The Failure to Abate Citation and Citation 2, Item 1, are vacated.
Civil penalties in the amount of $5120 are assessed.
Dated: SEP - 0 1993
washiigtoi,‘liC.
18
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