BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

BIG VALLEY DENTAL CENTER
7707 North West Lane
Stockton, CA 95210

                                         Employer

Docket Nos. 94-R2D4-288
                     and 289

 

    DECISION    AFTER
  RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above entitled matter by Big Valley Dental Center (Employer), makes the following decision after reconsideration.

JURISDICTION

From September 23 through October 7, 1993, the Division of Occupational Safety and Health (Division) conducted an investigation pursuant to a complaint at a place of employment maintained by Employer at 7707 North West Lane in Stockton, California (the site). On January 12, 1994, the Division issued to Employer Citation No. 4, alleging a serious violation of section 5193(d)(4)(C)2.a. [closable container for regulated waste] with a proposed civil penalty of $100.

Employer filed a timely appeal, contesting the existence of the violation and the reasonableness of the proposed penalty. After a hearing on the matter, an administrative law judge (ALJ) of the Board issued a decision on February 27, 1995, finding a general violation and reducing the penalty to $30.

On March 24, 1995, Employer filed a timely petition for reconsideration contesting Citation No. 4. The Board granted the petition on April 19, 1995. The Division filed an answer to the petition on May 11, 1995.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 22 through 24 of the decision of the ALJ.

The Division’s compliance officer, William Estakhri, observed dental hygienists discard gauze taken from patients’ mouths into containers that did not have closable tops and were not marked as biohazard containers. Some of the containers were unlined, others lined with plastic bags that did not have the red color and markings of a biohazard container which section 5193(d)(4)(C)2.a. requires for the disposal of regulated waste. In one case, Estakhri observed a hygienist discard a piece of gauze that had been white before being used in the patient’s mouth, but had a red spot the size of a dime when removed. Estakhri did not chemically test the gauze to positively determine that the red material was blood, nor did he squeeze it to see if it would produce a liquid. Estakhri also observed the hygienist discard plastic gloves into the same container which she had worn during a dental procedure while she put her fingers into patients’ mouths.

For most patients, Employer disposed of cotton, gauze, or gloves that had just been used in dental procedures into open containers, treating materials from dental procedures as regulated waste only if it was determined that the material dripped liquid without compression.

Based on this evidence, the ALJ concluded that Employer violated section 5193(d)(4)(c)2.a. by discarding gauze and gloves into a container that was not closable and lined with a bio-hazard marked bag.

ISSUE

Has the Division established that contaminated waste produced in dental procedures is regulated waste if the contaminated waste appears to be able to release blood or other potentially infectious material?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division Established that Contaminated Waste Produced in Dental Procedures Is Regulated Waste Because the Contaminated Waste Appeared to Be Capable of Releasing Blood or Other Potentially Infectious Material.

It is undisputed that the gauze, cotton, and gloves were contaminated waste. The cited section, 5193(d)(4)(C)2.a., does not require special handling of all contaminated waste but only of regulated waste. This case turns on determining whether the gauze, cotton, and gloves discarded into the containers were "regulated waste."

Section 5193(b) defines regulated waste as follows:

"Regulated Waste" means liquid or semi liquid blood or other potentially infectious materials; contaminated items that would release blood or other potentially infectious materials [OPIM] in a liquid or semi-liquid state if compressed; items that are caked with dried blood or other potentially infectious materials and are capable of releasing these materials during handling; contaminated sharps; and pathological and microbiological wastes containing blood or other potentially infectious materials. Regulated Waste includes "medical waste" regulated by Health and Safety Code Chapter 6.1."

Section 5193(d)(4)(C)2.a. requires that regulated waste shall be placed in containers which are:

i. Closable;

ii. Constructed to contain all contents and prevent leakage of fluids during handling, storage, transport or shipping;

iii. Labeled and color-coded in accordance with subsection (g)(1)(A). . .; and

iv. Closed prior to removal to prevent spillage or protrusion of contents during handling, storage, transport, or shipping.

Section 5193(d)(4)(C)2.a.iv. requires that regulated waste containers be closed prior to removal. The purpose of closing them is to prevent spillage or protrusion during "handling, storage, transport, or shipping." Subsection 5193(d)(4)(C)2.a.ii. requires that the containers be constructed to contain or prevent leakage of fluids during handling, storage, transport, or shipping. Finally, section 5193(d)(4)(C)2. is addressed to all regulated waste other than contaminated sharps.

The ALJ found that gauze, cotton, and gloves that had been in patients’ mouths were regulated wastes because all had been in contact with saliva in the course of dental procedures. The ALJ further drew the inference that the dime-sized red spot on the gauze was blood, and that the gauze was capable of releasing blood or OPIM if compressed. He therefore found a violation of section 5193(d)(4)(C)2.a.

In its petition, Employer does not contest the ALJ’s finding that the red spot on the gauze was blood, recognizing that under the ALJ’s analysis, there would have been a violation even if the red spot were not blood because the gauze was contaminated with other potentially infectious materials (OPIM). The ALJ interpreted the definition of OPIM in section 5193(b) as including saliva contacted in the course of dental procedures. He further found that the material on the gauze and gloves produced by dental procedures met the last part of the section 5193(b) definition of OPIM as "body fluids that would be difficult to distinguish from OPIM."

Employer argues that under the ALJ’s interpretation any waste produced in its office that might contain blood or OPIM, such as band aids, sanitary napkins and dental drapes, would become regulated waste, and would have to be disposed of in accordance with section 5193(d)(4)(C)2.a. Employer suggests that this interpretation might extend this obligation to any business.

Employees of dental offices were specifically found to be occupationally exposed when the federal bloodborne pathogen standard was issued. (56 Fed.Reg. 64093.) The Secretary of Labor’s finding of occupational exposure in dental offices was found to be reasonable. (American Dental Association v. Martin (7th Cir. 1993) 984 F.2d 823.)

Employer contends that the definition of regulated waste should be interpreted to include only contaminated items that (1) have absorbed blood or OPIM and (2) would release blood or OPIM if compressed. Employer argues that the citation must be set aside because the Division failed to demonstrate that any of the contaminated waste discarded into the open trash containers would release blood or OPIM if compressed. Employer notes that "[s]uch a test can be easily and safely performed to confirm if the waste items will release liquids by compressing the items by a hand protected by a rubber latex glove or with mechanical tongs both of which were readily available at the site."

The ALJ found that the Division’s evidence established that the gauze, cotton, and other material discarded into the non-biohazard containers was capable of releasing blood or OPIM. While the standard Employer would have the Board impose on the Division, as the exclusive means of proof would provide conclusive proof whether or not the waste would release blood or OPIM upon compression, the Board declines to adopt such a demonstration as the exclusive means of proof. The Division compliance officer could observe that gauze or cotton was saturated with blood or OPIM. Such an observation would constitute substantial evidence that the saturated contaminated items would release blood upon compression. The ALJ in this case found that even though the compliance officer did not compress the contaminated wastes, his testimony was sufficient to establish that the items would release liquid or semi-liquid blood or OPIM.

An ALJ’s findings of fact based on substantial evidence will not be set aside unless they are contradicted by evidence of considerable substantiality. (Lamb v. Workers’ Compensation Appeals Bd. (1974) 11 Cal.3d 274, 280-281.) The issue then becomes whether the compliance officer presented facts sufficient to constitute substantial evidence that the items would release blood upon compression.

Many waste items contaminated with blood or OPIM were observed being disposed of into waste containers not marked as biohazard containers. Employer treated contaminated waste from patients presenting a normal level of risk of carrying bloodborne pathogens as regulated waste only if the waste was dripping without compression. The definition of regulated waste applies not only when the material is dripping without compression, but also when it could produce liquid when compressed, as when the waste is wholly or partially saturated. Because many items could be saturated but not dripping without compression, it is more than likely that many items wholly or partially saturated with blood or OPIM were deposited in the ordinary trash. One such piece of waste described in detail in the record that the ALJ found to be capable of releasing blood or OPIM was the piece of gauze stained by a dime-sized spot of blood. The compliance officer said that it was soaked with blood, but when asked how much blood it had on it, stated that the dime-sized spot covered more than half the piece of gauze.

The Board finds this testimony sufficient to constitute substantial evidence that Employer was disposing of regulated waste into wastebaskets not complying with the requirements for regulated waste containers.

In reaching this conclusion, we have considered the federal government’s interpretation of the same standard. The Board is not bound by the Secretary of Labor’s interpretation, but finds it helpful in this case in identifying the concerns that guided the extent of the inclusion of contaminated waste such as gauze and cotton in the definition of regulated waste.

The Board notes that in adopting substantially the same language in the California standard, the Secretary of Labor initially found that material like bandages had only limited ability to transmit disease. Quoting the testimony of the Center for Disease Control-National Institute of Occupational Safety and Health:

. . .[I]n terms of blood, we really feel that the only type of blood that you need to be concerned about, in terms of transmission of disease, is bulk blood, or bulk fluids that may contain blood which means essentially liquids . . . . In terms of items that are contaminated with blood that may be dry or may be wet, but are contained in a material such as gauze or a bandage, the risk of transmission of a pathogen to a susceptible host is extremely unlikely, and therefore, that type of waste can be handled like any other waste that is collected in the community, that may be contaminated in the same fashion. (56 Fed. Reg. 64004, 64105, (Dec. 6, 1991). Transcript citation omitted.)

The Secretary concluded that:

While an item which is freely dripping blood or other potentially infectious materials obviously falls into this category, some items may adequately contain these materials when in a static state yet liberate them when compressed. During accumulation of waste in a container, the weight of items toward the top of the container naturally compress those items beneath. Wastes may also be purposely compacted in order to increase the amount of waste which can be placed into a single container. This compression could generate potentially infectious liquids which would then accumulate at the bottom of the container. If the container’s barrier capability is compromised, these materials would be released, presenting an exposure and/or contamination hazard. (Id.)

Based on this discussion of the critical parts of the record, the Secretary concluded that only "items contaminated with blood or OPIM which would release these substances in a liquid or semi-liquid state if compressed should be considered Regulated Waste." (Id.)

The original Federal Register comments suggest that the exposure being assessed was the risk involved in bulk transport of regulated waste.

These comments have been superseded by a substantially different interpretation that the Secretary of Labor adopted in applying this language. The Department of Labor’s enforcement guidelines specifically state that while a spot consisting of 10 milliliters of blood in a disposable sheet would not be capable of releasing blood or OPIM in liquid form, the same amount of blood in a cotton ball would be. (Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard, 29 CFR 1910.1030 21 BNA Occ.Saf.&Hlth.Rptr. 8779, 8787 (March 6, 1992).) The compliance officer testified that the piece of gauze appeared to be saturated with liquid. His testimony was within the scope of what has been identified as regulated waste. The ALJ therefore properly found that it constituted regulated waste.

Nothing in the text of the regulation shows that it addresses only bulk hauling of regulated waste, rather than all phases of disposal and handling. The disposal and handling process begins with the removal of individual containers of regulated waste from the point where it was originally deposited in a dental office waste container and collected for refuse pick up. Employees performing these duties may be even more exposed to spillage or protrusion of contents than employees collecting bulk shipments in trucks for transportation to disposal points.

Because the material is regulated waste, it must be discarded into a container designed and marked to receive biohazardous material. The biohazard markings serve the purpose of warning employees in the office of the need to avoid contact with the contents. Office employees may reach into a container either to deposit more garbage, to redeposit items spilled from the trash, or to retrieve an item from the trash. The exposure of janitorial staff collecting and consolidating garbage cans into larger containers in the course of cleaning the office is even greater.

Therefore, the testimony of the compliance officer that the gauze appeared to be able to release these substances as liquid constituted substantial evidence in support of the Division’s contention that the items fall within the section 5193(b) definition of regulated waste. The Division therefore met its burden and established the existence of the violation.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s finding of a general violation and the assessment of a $30 civil penalty.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – July 14, 1999