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  4.  — Occupational Safety and Health Review Commission Decision Addresses Affirmative Defense and More in Chemical Exposure Accident

Occupational Safety and Health Review Commission Decision Addresses Affirmative Defense and More in Chemical Exposure Accident

by | Feb 1, 2021 | Firm News, Safety Sense

The Process Safety Management (PSM), Hazard Communication (HazCom) and Personal Protective Equipment (PPE) standards were implicated in a recent decision issued on December 31, 2020 by the Occupational Safety and Health Review Commission (OSHRC) in Secretary of Labor v Mansfield Industrial, Inc.  The facts reveal that the employer, Mansfield Industrial, provides services at a plant in Freeport, Texas operated by the Shin-Etsu company removing rust on the outside of pipes, bolts and flanges as well as painting the flanges.  The plant is located near seawater and the saltwater in the air causes corrosion and other imperfections in the paint on the carbon-based steel pipes, bolts, and flanges.  The company employs approximately 34 employees at the plant including sandblasters, painters, a site supervisor, and a safety representative.  The site supervisor conducts weekly job hazard risk assessments of work areas.  In addition, each day he obtains a work permit from Shin-Etsu for the task the work crew is to perform that day.

On October 19, 2016, while using power tools on pressurized pipes, a pipe ruptured and released more than 100 gallons of trichlorosilane into the air splashing on an employee’s hand, forearms and hips.   Two employees also inhaled the chemical while running away from the ruptured pipe.  Both employees suffered from inhalation exposure, and the employee splashed with trichlorosilane suffered chemical burns on parts of his body.  A Compliance Safety and Health Officer from OSHA initiated an inspection and issued Citations alleging violation of General Industry Sections 1910.119(h)(3)(ii), 1910.1200(h)(1).  These two standards involve the PSM standard and HazCom standard and were grouped together as Items 1a and 1b.  OSHA also alleged violation of General Industry Section 1910.132(d)(1) involving the PPE standard denoted as Item 2 in the Citation.  The total penalty assessed for the Citation involving all three standards was $25,350.00.

The Administrative Law Judge analyzed the facts and determined that the Secretary of Labor met its burden of proof for all three regulations establishing by a preponderance of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of the cited standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known with the exercise of reasonable diligence of the violative condition.  It is important to note that in the joint pre-hearing pleadings before the Judge, the parties stipulated that the cited standards applied to the work site as well as the work that the employees were performing at the time.  The Judge affirmed serious violations of the Citations and the imposed penalties.  The employer filed an appeal and the case was reviewed by the Occupational Safety and Health Review Commissioners.

In an assessment of procedural legal maneuverings, the Commissioners noted that in its “post-hearing brief” to the Judge, the employer argued for the first time that the PSM provision cited in Item 1a preempts the HazCom provision cited in Item 1b.  The Judge declined to address the employer’s preemption argument finding that the employer waived its right because the parties stipulated in the joint pre-hearing statement that the standards applied to both the work site and the work being performed at the time of the accident.  The Commissioners, however, rejected the Judge’s conclusion regarding the preemption defense finding that the employer did not concede that the cited standard applied but rather argued that another more specific applicable standard applied.  Well-settled law holds that an applicable specific standard prevails over any different general standard that may apply.  However, the Commissioners found that long-standing Commission precedent holds that preemption is an affirmative defense and must be pleaded in the Respondent’s Answer.  The Commissioners also noted that the employer failed to raise this affirmative defense “as soon as practicable” with enough time for the Secretary to meaningfully respond.  Therefore, the Commissioners affirmed the cited violations for the PSM standard and the HazCom standard in items 1a and 1b.  Finally, the Commissioners vacated the cited violation in Item 2 regarding the PPE standard.  Section 1910.132(d)(1) is a performance standard.  Therefore, the standard requires that the employer identify the hazards and determine steps necessary to abate them.  The standard does not specify exactly the steps and procedures required for compliance.  The Commissioners found the evidence revealed the employer did, in fact, assess the worksite for hazards and determined the appropriate PPE necessary for abatement of the hazard.  Therefore, Item 2 was vacated by the Commission.

This decision by the Review Commission establishes an important point to ponder.  Even though the COVID-19 pandemic places significant increased responsibility on employers to provide a workplace safe from exposure to the virus, all other safety standards and regulations still apply.  As such, employers must continue to perform Job Hazard Safety Analysis, Hazard Communication programs, training on Emergency Action Plans and HazCom programs, and otherwise comply with all safety regulations. Please contact a member of our Labor and Employment section with any questions.