I really don’t understand the mindset of these companies… they have a horrible accident, and rather than recognize something failed and needs to be fixed, they hire lawyers to fight all the OSHA citations rather than competent/qualified safety professionals to fix it all. These citations were like “taking candy from a baby” because the company managed respiratory protection use poorly. They even relied on a safety consultant, who provided the company with a copy of OSHA’s Respiratory Protection PowerPoint presentation to serve as their “written program.” We have all seen these kinds of lapses in our work, but for a company to defend such poor efforts and to fight this all the way to the OSHRC is just a sad state of affairs – especially after it was a fatality that brought all of these issues to light!
But I find comfort that ALJ Joys saw through the incredibly lame defense put forth by this company and upheld the citations. I hope the OSHRC will do the same.
(emphasis by me)
Item 2a: Alleged Violation of 29 C.F.R. § 1910.134(c)(1)
Item 2a alleges:
On or about December 29, 2014, at the Store number 2367 job site, the employer had not developed and implemented a written respiratory program for employees required to wear a tight-fitting 3M model 6200 respirator during fuel tank cleaning operations while overexposed to toxic aromatic vapor components of gasoline. An employee died from overexposure to benzene, ethyl benzene, xylene, acetaldehyde, and toluene. The required elements of items (i) through (ix) of the 29 CFR 1910.134(C)(1) standard were not in effect, specifically:
1. The employer had not established procedures for respirator selection based on contaminant concentration.
2. The employer had not conducted medical evaluations of employees required to wear respirators.
3. The employer had not developed written procedures for the use of respirators in routine and reasonably foreseeable emergency situations.
4. The employer had not developed procedures for cleaning disinfecting, storing, inspection, repairing, discarding, and otherwise maintaining respirators.
5. The employer had not developed procedures for evaluating the effectiveness of the program.
The standard at 29 C.F.R. § 1910.134(c)(1) requires:
In any workplace where respirators are necessary to protect the health of the employee or whenever respirators are required by the employer, the employer shall establish and implement a written respiratory protection program with worksite-specific procedures. The program shall be updated as necessary to reflect those changes in workplace conditions that affect respirator use. The employer shall include in the program the following provisions of this section, as applicable:
1910.134(c)(1)(i): Procedures for selecting respirators for use in the workplace;
1910.134(c)(1)(ii): Medical evaluations of employees required to use respirators;
1910.134(c)(1)(iii): Fit testing procedures for tight-fitting respirators;
1910.134(c)(1)(iv): Procedures for proper use of respirators in routine and reasonably foreseeable emergency situations;
1910.134(c)(1)(v): Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators;
1910.134(c)(1)(vi): Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators;
1910.134(c)(1)(vii): Training of employees in the respiratory hazards to which they are potentially exposed during routine and emergency situations;
1910.134(c)(1)(viii): Training of employees in the proper use of respirators, including putting on and removing them, any limitations on their use, and their maintenance; and
1910.134(c)(1)(ix): Procedures for regularly evaluating the effectiveness of the program.
Applicability of the Standard
The standard at 29 C.F.R. § 1910.134(c)(1) requires an employer to establish and implement a respiratory protection program where either “respirators are necessary to protect the health of the employees or whenever respirators are required by the employer…”
The company provided respirators to its fuel technicians and required their use whenever an employee was performing “a task that could generate vapors,” such as changing filters on the equipment in the truck, or any time an employee smelled gasoline vapors. The standard applies and the company was required to establish and implement a written respiratory protection program.
Failure to Comply with the Terms of the Standard
The Secretary contends the company’s respiratory protection program was deficient because it was not site-specific and did not contain procedures for respirator selection; medical evaluations; emergency procedures; cleaning procedures; and did not contain procedures for regular evaluation of the program’s effectiveness. No respiratory protection program was provided to CSHO Lincoln upon request during his inspection. The record contains what the company purports to be its written respiratory protection program at Exhibit R-14. The operations manager testified he was informed by a consulting company he hired that Exhibit R-14 was obtained from the OSHA website. A cursory review of the document reveals it to be a PowerPoint presentation covering the contents of the standard at 29 C.F.R. § 1910.134.
The standard at 29 C.F.R. § 1910.134 is a performance standard that must be interpreted in light of what is reasonable. Based upon my review of the contents of Exhibit R-14, I find no reasonable employer would conclude it was compliant with the cited standard. It is lacking the “worksite-specific procedures and elements required for respirator use” mandated by 29 C.F.R. § 1910.134(c). Much of the content is inapplicable to the conditions encountered by employees of the company during their work activities or to the type of respirators used by employees.
Among other deficiencies, the program does not contain a provision for medical evaluations and the company concedes it did not conduct them. The program does not provide instruction on cleaning of respirators. It contains no information regarding selection of respirators. It lacks a schedule or rule for changing of the respirator cartridges. It does not contain a provision for evaluating the effectiveness of the program. To the extent Exhibit R-14 is the company’s written respiratory protection program, it fails to comply with the requirements of 29 C.F.R. § 1910.134(c)(1). To the extent the company suggests because the PowerPoint was obtained from OSHA’s website, it should be found compliant, I disagree. On the second page of the document is the following proviso:
This program is intended to be a resource for instructors of Occupational Safety and Health and not a substitute for any of the provisions of the Occupational Safety and Health Act of 1970 or for any standards issued by the United States Occupational Safety and Health Administration (OSHA).
An employer reading this sentence could not reasonably conclude the document serves a substitute for a compliant respiratory protection program.
I disagree with the company’s contention the violations alleged in Items 2b-2g are mere duplications of the allegations in Item 2a.
In the preamble to the standard, the Secretary emphasized the need for the respiratory protection program to be in writing:
OSHA’s experience and that of the industrial hygiene community have demonstrated that health and safety programs can best be effectively implemented and evaluated when written. In addition, because workplaces differ substantially, each program must be tailored to the specific conditions of the workplace if it is to protect employee health, and developing a written program is the most efficient way of ensuring that the program reflects the unique characteristics of each. Developing and writing down worksite-specific procedures requires employers to design their respiratory protection programs to address the respiratory hazards in their particular workplace, and this process requires employers to think about and document all relevant information pertaining to the hazardous atmospheres that their employees may encounter under normal operating conditions or during reasonably foreseeable emergencies that may occur in the workplace. Finally, OSHA’s enforcement data indicate that compliance with the previous standard has not been optimal, particularly in smaller workplaces, and a written program will help employers, employees, and compliance officers gauge the adequacy of a given program. 63 Fed. Reg. 1152-01, 1187-88.
Because of the importance of documentation of the program provisions, the company’s failure to have a compliant written program is a violation distinct from the failure to comply with the requirements of the standards cited in Items 2b – 2g.
Employee Exposure to a Hazard
A respiratory protection program is intended to ensure appropriate respirators are properly used in order to protect employees from inhalation hazards to which they may be exposed. The company management conceded employees were exposed to gasoline vapors. On the night of the accident, the company’s crew and rescue personnel smelled gasoline vapors. The Side Technician’s autopsy report indicates he was exposed to fatal levels of some of the components of gasoline. According to the Material Safety Data Sheet for gasoline, gasoline poses an inhalation hazard to the “nose, throat, lungs and respiratory tract.” It can also pose an inhalation hazard to the central nervous system. The purpose of a written safety and health program is to ensure the effective protection of employees. The Secretary has established employees were exposed to inhalation hazards associated with gasoline vapors as a result of the company failed to develop and implement a respiratory protection program.
Employer Knowledge of the Violation
There is no dispute the company was aware its employees were exposed to gasoline vapors and that there were occasions employees used respirators for respiratory protection. It is also undisputed the company management was aware of the contents of its purported respiratory protection program. The operations manager testified he trained employees using the program contained in Exhibit R-14. The auditor testified employees receive annual refresher training on the program.
The company contends it reasonably relied on the consultant it hired to develop a respiratory protection program. Such reliance was not reasonable under the circumstances. The program provided by the consultant was nothing more than a PowerPoint presentation summarizing the contents of the standard itself. It contains the proviso referenced above indicating it was not a substitute for compliance with the standard. Reasonable diligence requires an employer, at a minimum, read its safety programs before implementing them. Even a cursory review of the PowerPoint presentation would have lead to the conclusion it was not a substitute for the written program required under 29 C.F.R. § 1910.134(c)(1). The Secretary has established the company’s knowledge of the violation.
Item 2b: Alleged Violation of 29 C.F.R. §1910.134(d)(1)(i)
Item 2b alleges:
On or about December 29, 2014, the employer had not determined all respiratory hazards that would affect the selection, performance, and reliability of respirators worn by employees who were exposed to gasoline vapors and diesel exhaust gases while filtering fuel tanks.
The standard at 29 C.F.R. §1910.134(d)(1)(i) reads:
The employer shall select and provide an appropriate respirator based on the respiratory hazard(s) to which the worker is exposed and workplace and user factors that affect respirator performance and reliability.
Applicability of the Standard
Like the requirements of 29 C.F.R. § 1910.134(c), the requirements of § 1910.134(d)(1) apply whenever an employer provides respirators to employees and requires their use. The company provided its employees with respirators and mandated use under certain conditions. The standard applies.
Failure to Comply with the Terms of the Standard
The Secretary contends the company failed to make an adequate assessment of the chemicals to which its employees were exposed before selecting the respirator for its employees to use. The company provided employees with half-face tight-fitting respirators for use at the worksite. According to the operations manager, he selected the 3M 6003 cartridge filter for use with the respirator based on the manufacturer’s representation that the cartridge was suitable for use in “environments where petrochemicals would be present.” He testified he consulted several manufacturer’s documents found at Exhibits R-4; R-5; R-6; R-7; R-8; and R-9. He had also performed atmospheric testing in the winter of 2013 at a worksite in Ohio. On that occasion, he tested only for hexane. He testified he could not recall specifically why he only tested for hexane, but believed it was because his review of the MSDS for gasoline lead him to conclude hexane was “more prevalent and presented more of a hazard.” The Secretary contends this evaluation was inadequate because it did not take into account all of the components of gasoline or the different concentration levels that might be found at different worksites at different times. I agree with the Secretary that the company did not comply with the requirements of the standard.
As noted in the preamble to § 1910.134(d)(1), the standard is intended to ensure that employers take into consideration “the context of the workplace and worker conditions that may reduce or impair the effectiveness of a respirator otherwise appropriate for the hazard” when selecting a respirator.
63 Fed. Reg. 1152-01, 1196.
The preamble goes on:
There is general agreement that taking working conditions into account is crucial to proper respirator selection: a respirator that is protective under some conditions of wear will fail under others, while a respirator that is appropriate for a given hazard may not be workable in a particular workplace…
Workplace factors such temperature and humidity may also affect the physiological stress on the wearer as well as the effectiveness of the filters and cartridges.
The company failed to take into account the difference in workplace conditions between the tested workplace (a location in Ohio in the winter) and other workplaces (many of which are in southern states) violated the mandates of the standard. The company’s contention that providing respiratory protection that may be used for exposure to petrochemicals is sufficient simply ignores the provisions of the standard requiring the employer take into consideration “workplace and user factors that affect respirator performance and reliability.” The Secretary has established the company failed to comply with the cited standard.
Nor could the company have reasonably relied on the information it points to from the cartridge manufacturer to make its respirator selection. The operations manager did not explain how he used the documents referenced, he simply testified that he did. Upon careful review of these documents, I am unable to find a basis for his reliance on these documents. The manufacturer’s overview of the cartridge from its product catalog provides only a general description of the types of respiratory irritants from which it may provide protection. The User Instructions provide even less information and prohibit use where concentrations of contaminants are unknown. Exhibit R-6 is an “Article Information Letter” that states “User is responsible for determining whether 3M product is fit for a particular purpose and suitable for user’s method of use or application.” The Selection Guide indicates the cartridge is approved for use to protect against “Certain Organic Vapors, Chlorine, Hydrogen Chloride, and Sulfur Dioxide or Hydrogen Sulfide or Hydrogen Fluoride and Particulates.” It does not specifically indicate approval for use with petrochemicals or all the chemical components of gasoline. The manufacturer’s selection guide contained in Exhibit R-8 recommends air sampling and, if concentrations are unknown, it recommends air-supplied respirators be provided. It also recommends a full-face respirator for use with exposure to gasoline. Exhibit R-9 summarizes the results of a study that gives no indication it is applicable to the company’s worksites or work activities. The company’s reliance on these documents to select respirators for use at its worksites does not meet the requirements of the standard.
Employee Exposure to a Hazard
The proper selection of respirators ensures employees are protected from those hazards to which they may be exposed. Failing to take into consideration both the conditions of the worksite and the respiratory irritants to which employees may be exposed resulted in employees being exposed to the hazards associated with inhalation of gasoline vapors previously discussed. In addition, respirators that are not appropriate to the environment can increase the stress level on employees wearing those respirators. 63 Fed. Reg. 1152-01, 1196.
The company required its employees to wear respirators despite having failed to ensure those respirators were appropriate for the worksite conditions. The Secretary has established employee exposure.
Employer Knowledge of the Violation
The operations manager made the selection of respirator for use by the company employees. He did so without knowledge of exposure levels for all components of gasoline or all worksite conditions that affect exposure to respiratory hazards. He also made the determination based on documentation that did not contain sufficient information. The company had knowledge of the inadequacy of its respirator selection process.
Item 2c: Alleged Violation of 29 C.F.R. § 1910.134(d)(3)(iii)(B)(2)
Item 2c alleges:
On or about December 29, 2104, employees wearing tight-fitting respirators with 3M 6003 organic vapor cartridges while exposed to gasoline vapors were not provided a change schedule by the employer for replacement of the cartridges.
The Standard at 29 C.F.R. § 1910.134(d)(3)(iii)(B)(2) reads:
If there is no ESLI appropriate for conditions in the employer’s workplace, the employer implements a change schedule for canisters and cartridges that is based on objective information or data that will ensure that canisters and cartridges are changed before the end of their service life. The employer shall describe in the respirator program the information and data relied upon and the basis for the canister and cartridge change schedule and the basis for reliance on the data.
Applicability of the Standard
The standard applies where air-purifying respirators that do not contain ESLI (end of service life indicator) are used by employees. The company provided its employees with respirators and mandated their use. The respirators used by the company employees were air-purifying respirators and did not have an ESLI. The standard applies and the company was required to implement a change schedule for its respirator cartridges, and to include the basis for that change schedule in its written respirator program.
Failure to Comply with the Terms of the Standard
The standard at § 1910.134(d)(3)(iii)(B) specifies the conditions under which air-purifying respirators may be used. Among those conditions is the requirement the employer implement a change schedule and document the basis for that schedule in its written respiratory protection program.
63 Fed. Reg. 1152-01, 1206-07.
As explained in the preamble:
Developing a filter change schedule involves a number of decisions. The employer must evaluate the hazardous exposure level, performance capacity of the filters being used, and the duration of employee use of the respirator, which impact on the service life calculations.
The company’s change schedule consisted of an unwritten rule. According to the company auditor (and former lead) and the operations manager, employees were instructed to change the cartridges a minimum of three months “or if it quits working.” Employees know the cartridge has quit working if he or she can “smell gas when you put it on.” The operations manager could not recall the “exact” calculation that went into the company’s three month rule. He testified it was based on the time it took to perform those jobs for which the company anticipated employees would be exposed to gasoline vapors. The Secretary contends the company policy is inadequate because it did not include an evaluation of the exposure time or concentration. As a result, the company would not know the rate at which the cartridges are absorbing the air contaminants to which its employees may be exposed. I agree with the Secretary, the company did not comply with the standard’s requirements.
The company’s respiratory protection program contains no instruction on its cartridge change schedule. Nor does it contain any information regarding the objective basis for the development of its unwritten schedule. The record is devoid of such evidence. The company conducted no testing of the components of gasoline vapors to which its employees were exposed and therefore, could not have known whether its rule was adequate to ensure continued protection. The company auditor (and former lead) testified to significant variance from job to job in the amount of time respirators would be worn. There was no credible evidence regarding how employees were to track the three month schedule.
The only instruction contained in the documents upon which the operations manager testified he relied indicate 3M P-series particulate filters should be disposed of when damaged, soiled, or if breathing becomes difficult or, when used in environments containing only oil aerosols, after 40 hours of use or 30 days, whichever is first. To the extent he relied on this document, it does not support his conclusion that a filter change every three months was appropriate.
Based upon the totality of the evidence, I find the company’s policy to change respirator cartridges every three months was arbitrarily adopted. The company has not developed a respirator change schedule in accordance with the requirements of 29 C.F.R. § 1910.134(d)(3)(iii)(B)(2).
Employee Exposure to a Hazard
A respirator change schedule ensures respirators are not used beyond their effective life. Failing to ensure respirators were not used after they had become ineffective resulted in the company employees being potentially exposed to the hazards associated with inhalation of gasoline vapors previously discussed. The company required its employees to wear respirators despite having failed to ensure those respirators were appropriate for the worksite conditions. The Secretary has established employee exposure.
Employer Knowledge of the Violation
The operations manager was aware of the contents of the company’s respiratory protection program. He should have been aware it did not contain documentation of a respirator change schedule or the objective basis for that schedule. He could neither recall the calculations upon which the schedule was purportedly developed nor did the documentation on which he relied comport with the company’s unwritten schedule. The company had knowledge of the inadequacy of its respirator change schedule.
Item 2d: Alleged Violation of 29 C.F.R. § 1910.134(e)(1)
Item 2d alleges: “On or before December 29, 2014, the employer had not provided medical evaluations to employees required to wear tight fitting respirators while exposed to gasoline vapors.”
The standard at 29 C.F.R. § 1910.134(e)(1) requires the employer to “provide a medical evaluation to determine the employee’s ability to use a respirator, before the employee is fit tested or required to use the respirator in the workplace.”
Applicability of the Standard
The standard at § 1910.134(e)(1) requires a medical evaluation prior to fit testing or respirator use. The standard applies regardless of duration of use. 63 Fed. Reg. 1152-01, 1209.
The company provided employees with respirators, fit-tested those employees for their respirators, and mandated their use. The standard applies and the company was required to provide its employees with medical evaluations.
Failure to Comply with the Terms of the Standard
The company does not dispute it did not provide employees with medical screenings before providing them with respirators and requiring their use. When interviewed by CSHO Lincoln, employees could not recall having had such evaluations before using company supplied respirators. The company violated the cited standard.
Employee Exposure to a Hazard
The Lead Fuel Technician testified he used his respirator on December 29th, prior to the accident, when changing a filter on the filtration system. He had not undergone a medical evaluation to determine whether he was able to wear a respirator prior to that date.
The purpose of the medical evaluation is to ensure employees do not have a medical condition that could compromise his ability to tolerate the physiological burden imposed by respirator use.
63 Fed. Reg. 1152-01, 1208.
The record establishes employees were exposed to hazards associated with this physiological burden.
Employer Knowledge of the Violation
It is undisputed the company was aware it had not provided its employees with medical evaluations. The company was aware its employees had been fit tested, were provided with respirators, and expected employees to use them. The company had knowledge of the violation.
Item 2e: Alleged Violation of 29 C.F.R. § 1910.134(h)(1)
Item 2e alleges:
On or about December 29, 2014, employees performing fuel tank filtration wore respirators that had not been properly cleaned following use with gasoline vapors, allowing migration of contaminants throughout the respirators.
The standard at 29 C.F.R. § 1910.134(h)(1) states:
The employer shall provide each respirator user with a respirator that is clean, sanitary, and in good working order. The employer shall ensure that respirators are cleaned and disinfected using the procedures in Appendix B-2 of this section, or procedures recommended by the respirator manufacturer, provided that such procedures are of equivalent effectiveness.
Applicability of the Standard
The standard requires where employees use respirators, the employer is required to provide them in a clean, sanitary and working condition. The standard applies whenever respirators are provided or used. The Company provided employees with respirators and mandated their use. The standard applies.
Failure to Comply with the Terms of the Standard
The Secretary contends the company did not comply with the terms of the standard because the company did not have written procedures for cleaning respirators, did not store the respirators in a manner that ensured no cross-contamination, and used only wipes to clean out respirators. During the inspection, the company did not provide CSHO Lincoln with any written procedures for cleaning respirators. The Lead Fuel Technician told CSHO Lincoln he was storing his respirator in a bag on the side of his truck. CSHO Lincoln found this inadequate because the company had not instituted any procedures to ensure the respirator was not subject to contamination during storage. The Lead Fuel Technician told CSHO Lincoln he was provided wipes to use for cleaning the respirator. The procedures the company had in place for cleaning of respirators did not comply with the requirements of the cited standard.
The operations manager testified the company’s respirator cleaning procedures were contained in the company’s respiratory protection program or Exhibit R-14. According to him, in addition to the procedures contained on page 60 of the Exhibit R-14, employees were verbally “encouraged to clean [their respirator] as often as they feel comfortable doing so” or at a minimum every time it is used and before putting in storage. The Lead Fuel Technician testified it was “drilled into” him that he was to clean his respirator every two or three times it was used or if it was visually dirty.
The procedures described in Appendix B-2 include washing the respirator with warm water and a mild cleanser after disassembling it. The section of Exhibit R-14 to which The Company points contains no specific instructions. It simply reads: “Use procedures in Appendix B-2 or the equivalent manufacturer’s instructions.” It does not specify the frequency with which respirators are to be cleaned. Rather, it reads: “as often as necessary when issued for exclusive use.” There was no showing that the use of wipes is the equivalent of the procedures contained in Appendix B-2 or recommended by the manufacturer. The inconsistencies in the testimony of the op’s manager and the Lead Fuel Technician belie the company’s contention it verbally instructed its employee to clean their respirators consistent with Appendix B-2, the manufacturer’s instructions, or any other procedure. That is provided employees with only wipes to clean the respirators establishes the company’s procedures were inadequate. I find the preponderance of the evidence establishes the company did not have procedures to ensure respirators were maintained in a clean condition consistent with the requirements of 29 C.F.R. § 1910.134(h)(1).
Employee Exposure to a Hazard
Procedures for proper cleaning and storage of respirators ensures respirators remain effective for employee protection. Allowing the use of respirators that have not been properly cleaned resulted in the company’s employees being exposed to the hazards associated with inhalation of gasoline vapors previously discussed. The company required its employees to wear respirators despite having failed to ensure those respirators were appropriately maintained. The Secretary has established employee exposure.
Employer Knowledge of the Violation
The Operations Manager was aware of the contents of the company’s respiratory protection program. He should have been aware it did not contain documentation of respirator cleaning procedures. I find the company’s contention employees were verbally instructed on proper cleaning procedures not credible. The company had knowledge of the inadequacy of its respirator cleaning procedures.
Item 2f: Alleged Violation of 29 C.F.R. § 1910.134(k)(1)
Item 2f alleges:
On or about December 29, 2014, employees required to wear respirators when exposed to gasoline vapors while performing fuel tank filtration had not been trained on proper respirator cleaning, storage, filter replacement, and all chemical inhalation exposure hazards.
The standard at 29 C.F.R. § 1910.134(k) requires an employer to provide training to employees required to wear respirators on, among other things, the capabilities, proper fit, and maintenance of respirators. The standard at 29 C.F.R. 1910.134(k)(1) specifically requires the employee be able to demonstrate knowledge of the information required to be covered in the training.
Applicability of the Standard
The training requirements of 29 C.F.R. § 1910.134(k) apply whenever employees are required to wear respirators. It is undisputed the company required its employees to use respirators. The standard applies.
Failure to Comply with the Terms of the Standard
The Secretary contends the company violated the standard based on statements made by the company auditor (and former Lead), the Lead Fuel Technician, and the documentation provided during the inspection. CSHO Lincoln testified at the time of the inspection, the auditor had a growth of facial hair. When asked, he told CSHO Lincoln he believed he could use a respirator with facial hair as long as he could obtain an adequate seal. CSHO Lincoln testified when asked, he did not appear to understand what a medical screening was. CSHO Lincoln testified the answers given by the Lead Fuel Technician regarding the cartridge change schedule led him to conclude he had not been properly instructed on that component of a respiratory protection program. Because the company had not done air sampling for all the components of gasoline, CSHO Lincoln concluded it could not have provided training to employees on their potential exposure.
I find the evidence establishes the company did not train its employees consistent with the requirements of the standard. The cited standard requires not only that an employer provide training, but that it ensure that the employees to whom the training is provided can demonstrate knowledge of the components of that training. The Lead Fuel Technician could not provide a definitive answer as to when the company required respirators be used. In response to the question “How do you know when you need to use a respirator?” he responded, “Common sense mostly.” He provided incorrect information regarding the requirements for cleaning his respirator. The company’s auditor testimony regarding the use of respirators with facial hair directly contradicted the company’s program which reads: “Respirators with tight-fitting facepieces must not be worn by employees who have facial hair.” Neither employee had the demonstrated understanding of the components of the company’s respiratory protection program mandated by the standard. I find it particularly telling the auditor and former Lead, who is responsible for auditing worksites for proper respirator use, was unable to state definitively whether company rules regarding respirator use were in the written program or only verbally explained to employees:
Q: And is that –is that a rule that is communicated verbally to XXXXXXXXX technicians?
A: It is both verbally – and I believe it’s in our –it’s in our training manual.
Q: Okay. And when you say, “it’s in our training,” would that be in Exhibit R-14?
A: It might be. Or it might just have been something we covered verbally. I’m not an expert on the safety program.
The Operations Manager testified he provided training to employees on the contents of the company’s respiratory protection program. He testified he goes through the contents of Exhibit R-14 with the employees and allows them to ask questions. He initially testified he goes through “several PowerPoints” at the time individuals are hired. He did not testify he covers the respiratory protection program during this initial training. The company training records indicate the Lead Fuel Technician and Side Technician were not trained on the contents of the respiratory protection program until November 14, 2014 – several months after being hired. The Lead Fuel Technician was unable to recall whether there was a written respiratory protection program at the worksite. When pressed, he admitted he did not know what a written respiratory protection program was and that he had only received onsite training on respirator use. The Lead Fuel Technician’s testimony contradicts the Ops manager’s testimony about training of employees on the respiratory protection program.
The company admits it did not train employees on its respiratory protection program upon hire and prior to starting work. In an attempt to explain away this shortcoming, the Ops Manager testified neither the Lead Fuel Technician nor the Side Technician would have used a respirator prior to the November 2014 training and fit testing. This statement is so implausible as to lack credibility. The Lead Fuel Technician testified he had been hired in June of 2014. He testified he worked with the company auditor/former Lead as a side technician before being promoted to a lead fuel technician sometime in August or September of 2014. During that period of time, he testified he did “everything” including changing filters – a task for which employees were required to wear respirators. The auditor testified the Lead Fuel Technician would have undergone extensive training in Indiana before being promoted. To suggest the Lead Fuel Technician would not have worn a respirator during this period is disingenuous. His willingness to tell such an obvious falsehood draws into question all of his testimony regarding the training he purportedly provided.
The preponderance of the credible evidence establishes the company did not adequately train its employees in respirator fit and maintenance. The company was in violation of the standard.
Employee Exposure to a Hazard
Effective training is necessary to ensure employees use respirators properly and the respirators are providing protection. The Lead Fuel Technician testified he used a respirator on the day of the accident. His testimony indicated he did so without the sufficient understanding of its proper use. The evidence establishes employees at the worksite were exposed to hazardous levels of gasoline vapors. The Secretary has established employee exposure.
Employer Knowledge of the Violation
The Operations Manager was responsible for training employees on the company’s respiratory protection program. He would have been aware whether the training was provided and of the contents of that training. As previously discussed, I find incredible his claim he was unaware the Lead Fuel Technician would have worn a respirator prior to being trained. Given the nature of the work and the company’s policy regarding when respirators are to be worn, he should have been aware employees would be using respirators. The Secretary has established employer knowledge of the violation.
Item 2g: Alleged Violation of 29 C.F.R. § 1910.134(l)(1)
Item 2g alleges:
On or about December 29, 2014, the employer had not performed an evaluation to determine the effectiveness of the 3M 6200 half-face respirators with organic cartridge filters that employees were required to wear when exposed to gasoline vapors while performing fuel tank filtration at store number 2367.
The standard at 29 C.F.R. § 1910.134(l)(1) requires the employer to “conduct evaluations of the workplace as necessary to ensure that the provisions of the current written program are being effectively implemented and that it continues to be effective.”
Applicability of the Standard
The company provided respirators to its fuel technicians and required their use whenever an employee was performing “a task that could generate vapors,” such as changing filters on the equipment in the truck, or any time an employee smelled gasoline vapors. The company was required to establish and implement a written respiratory protection program. The standard applies and the company was required to perform an evaluation of that program.
Failure to Comply with the Terms of the Standard
The Secretary contends the company did not comply with the terms of the standard because the company’s program did not contain procedures for reviewing the effectiveness of its respirator selection or training. CSHO Lincoln testified to comply with the standard the company could have conducted sampling or used a questionnaire. As previously noted, the company’s respiratory protection program does not contain such procedures and there is no evidence such procedures were undertaken by the company. The Operations Manager admitted the company had done no job hazard analysis at the sited worksite. He testified the company would become aware of overexposure of its employees through employee “feedback.” The company auditor testified he does audits of worksites in his new position to ensure compliance.
Section 1910.134(l) requires the evaluation contain two components – an evaluation of the worksite and consultation with employees – both with the purpose of ensuring the respiratory protection program is being effectively implemented. The cited standard at § 1910.134(l)(1) addresses the worksite evaluation. It does not prescribe the manner in which such evaluations are to be conducted and does not require air sampling. In adopting the final rule, the Secretary determined a more “performance-oriented” standard was appropriate and eliminated from the proposed rule specific references to annual evaluations and random worksite audits. 63 Fed. Reg. 1152-01, 1263.
Under the final rule, such evaluations must be conducted “as necessary.” The standard does not define “as necessary.” The preamble indicates factors to consider include,
… the nature and extent of workplace hazards, types of respirators in use, variability of workplace processes and operations, number of respirator users, and worker experience in the use of respirators.
63 Fed. Reg. 1152-01, 1263
The Secretary appears to argue because the company did not perform a jobsite hazard analysis specific to each worksite, it failed to comply with the terms of the standard. The Secretary did not explain how the factors discussed in the preamble necessitate an evaluation of every worksite to which the company crews may be dispatched. Because the cited standard is a performance standard, the Secretary has the burden to prove not only what a reasonable evaluation of a respiratory protection program would include, but also when one is necessary under the particular circumstances of the worksite and work activities. The Secretary did not present such evidence. For that reason, I find the Secretary has not met his burden to establish the company violated the standard.
Item 2g of Citation 1 is vacated.
Classification of Items 2a – 2f
The Secretary contends the violations alleged in Items 2a through 2f are serious. As previously noted, the MSDS for gasoline indicates exposure from inhalation can result in irritation to the respiratory and central nervous system. Effects to the central nervous system “may include headache, dizziness, loss of balance and coordination, unconsciousness, coma, respiratory failure, and death.” Based on the evidence discussed herein, I find the Secretary has established a serious injury could result from failure to use, or improper use of, respiratory protection. The inadequacies in the company’s respiratory protection program discussed herein exposed its employees to a serious hazard. In addition, failure to ensure employees are physically capable of using a respirator can pose a serious hazard to employees due to the increased physiological load associated with respirator use. The Secretary has met his burden to establish Items 2a through 2f are serious violations.
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