OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
P.O. Box 3232
Anaheim, CA 92803
Anaheim, CA 92803
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 Disneyland (Employer) makes the following decision after reconsideration.
On June 19, 1997, the Division of Occupational Safety and Health (the Division), through associate industrial hygienist Samuel Richardson, conducted an inspection at a place of employment maintained by Employer at 1313 Harbor Boulevard, Anaheim, California. On July 11, 1997, the Division issued to Employer a citation alleging a general violation of section1 5155(e)(1) [failure to test for airborne contaminants], with a proposed civil penalty of $1,250.
Employer filed a timely appeal from the citation contesting the existence of the violation.
At the hearing before James Wolpman, administrative law judge (ALJ) of the
Board, Samuel Richardson represented the Division, and Robert D. Peterson, attorney,
represented Employer. The ALJ issued a decision on September 25, 1998, finding
that a general violation of section 5155(e)(1) had been established, and assessing
a civil penalty of $1,250.
On October 30, 1998, Employer filed a petition for reconsideration. On December 3, 1998, the Division filed an answer. On December 8, 1998, the Board granted Employer's petition, and on December 22, 1998, granted Employer's motion to file a supplemental petition. On March 11, 1999, Employer filed its supplemental petition for reconsideration.2 The Division did not file an answer to Employer's supplemental petition for reconsideration.
On June 19, 1997, from approximately 4:30 to 5:30 a.m., Employer's maintenance employees used a resin compound containing a material known as styrene to apply a grit-covered finish to about 80 square feet of a small dock known as a catwalk at Employer's Jungle Cruise ride.
Employer had used the compound for almost 20 years without incident. Employer had conducted tests to measure the amount of styrene released into the atmosphere by the compound from 1988 through 1990. The tests showed a maximum styrene concentration of 3.6 parts per million (ppm) in outdoor locations and a maximum of 10 ppm in indoor locations. Styrene has a vapor density of 2.9, indicating that it is almost three times as dense as the earth's atmosphere. It therefore collects in low-lying areas, in the same way that water does.
Bruce Kimbrell was the supervisor in charge of the Jungle Cruise on June 19,
1997. When he arrived at the Jungle Cruise at 6:30 a.m., he saw that the resin
had been applied and noticed a smell. Employees, known as cast members, began
to arrive for work at 7:50 a.m. Cast members began to complain about the odor
at about 8 a.m. From 9 a.m. until noon Kimbrell doused the catwalk with water
every 30 minutes to suppress the smell. Kimbrell told any cast members who complained
of reactions to the odor that they could go to Employer's central first aid
facility if they wished.
Kimbrell advised Employer's safety director Chuck Easterly of the incident at approximately 9 a.m. Easterly was conducting a class at that time, but referred the matter to Employer's senior industrial hygienist Maureen Alvarez. Alvarez called Kimbrell between 9:15 and 9:30 a.m. Kimbrell advised Alvarez that the resin had been applied that morning, and that Kimbrell had noticed a slight odor. Alvarez offered to come to the Jungle Cruise. Kimbrell said the situation was under control.
Deanna Gould, an employee, testified that she smelled a strong odor at 8:15,
and by 9:30 a.m., experienced a burning sensation, sore throat, a severe headache,
and slight nausea. She did not leave for central first aid until after noon,
and by that time was experiencing extreme nausea, running eyes, difficulty in
focusing, and problems with her coordination. The nurses in central first aid
detected a wheeze in her lungs, and put her on oxygen.
Another employee, Michelle Douglas, had a headache by 10 a.m., and told Kimbrell about her symptoms. Michelle Douglas testified that by noon, she had to have assistance to reach the ambulance to be taken to central first aid. Douglas testified that Kimbrell told her that he had a slight headache.
Employee Robert Boyd, who smelled a strong odor and spoke to Kimbrell between 10:30 and 11 a.m. testified that Kimbrell told him that Kimbrell felt like he was going to "barf." Boyd testified that by noon, he experienced extreme nausea, a severe headache with red flashes, difficulty walking, and an inability to answer a nurse's questions.
Kimbrell denied telling Boyd that he was going to throw up. Kimbrell also testified at the hearing that he did not experience any irritation from the smell.
In all, nine of the 18 cast members originally assigned to the Jungle Cruise had elected to go to Employer's central first aid station by approximately noon. They were replaced by nine other employees. None of the other 18 employees who finished the shift nor any of the guests on the ride complained of any adverse reaction. The Jungle Cruise ride was not shut down.
Safety Manager Easterly visited the employees at the first aid station at 10:30. The employees had requested a copy of the material safety data sheet (MSDS) for the resin compound. Easterly gave them a copy and advised them that they would be assigned to other duties away from the Jungle Cruise. After reading the MSDS, the employees told him that they wanted further treatment, and were referred to St. Joseph's Hospital.
Alvarez, Employers senior industrial hygienist, decided to visit the ride for the first time at about 12:30 on June 19 after hearing that two more employees had arrived at the first aid location. Alvarez monitored the atmosphere for various chemicals between 12:30 and 1 p.m., but never monitored the atmosphere for styrene that day. Both industrial hygienists Richardson and Alvarez testified that a tube designed to test exclusively for styrene is readily available to industrial hygienists. Alvarez admitted that the tubes that she used to monitor the air for various irritants would not have detected the presence of styrene.
Section 5155(e)(1) requires employers to conduct atmospheric monitoring whenever they have reasonable cause to believe that chemicals listed in a table3 included in section 5155(e)(1) are present at levels listed in that table. Styrene is a listed substance, with a personal exposure limit of 50 ppm.
The MSDS for the resin compound listed the symptoms of an overexposure as nasal
and respiratory irritation, weakness, fatigue, nausea, and headache. An excerpt
from a standard text in the field of industrial hygiene, Pattys,4
introduced by the Division, states that styrene was not an irritant below 60
ppm, but at 100 ppm, styrene produces a strong odor. It also produces a strong
objectionable odor at 200 to 400 ppm, and produces neurological impairment at
376 ppm. The Pattys excerpt further states that at 600 ppm, styrene has
a very strong odor and is a strong nasal and eye irritant. At 800 ppm after
three hours, the reactions included immediate eye and throat irritation, vertigo,
and slight muscular weakness.
Kimbrell called central first aid late in the morning. The nurse in charge advised him that the employees were on the floor, but were in a jovial mood. In her testimony, the nurse attributed the cast members' jovial conduct to the personality traits required for their job, which included entertaining the public, and they were telling jokes and laughing even though they complained of slight nausea and headaches.
Alvarez' primary reason for not testing for styrene was her awareness of Employer's tests with styrene in 1988-1990, in which the highest level reached by styrene was 3.6 ppm at any outdoor location. Alvarez otherwise relied on Kimbrell's reports of a slight odor and what Easterly had told her about the situation. Alvarez was also aware that the compound had been applied to a larger area (240 square feet) of the Jungle Cruise two days before this incident. Alvarez testified that no employees or guests had complained about an odor or symptoms on June 17. Michelle Douglas testified that on June 17, employee Colleen Christensen reported a reaction to a smell and was sent to central first aid. Employer's Log 200 for June 17 shows that Christensen reported an injury or illness resulting from inhalation affecting her lungs.
After the citation issued, the manufacturer of the resin compound advised Alvarez that the resin stops releasing styrene vapor an hour after its application. Alvarez concluded from this information that the styrene would have been gone from the atmosphere an hour after the painter had applied it, or by about 6:15 a.m. Alvarez also testified that Employer later recreated the conditions that existed on the morning of June 19, 1997 and monitored the atmosphere for styrene. That atmospheric monitoring for 140 minutes showed styrene concentrations of .21 to .28 ppm.
Did the evidence establish a reasonable suspicion of possible exposure to styrene above the personal exposure limit?
Is section 5155(e)(1) too vague to be enforceable?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
The issue in this case is not whether the Division proved Employer's employees were exposed to styrene, but whether the information available to Employer on the morning of June 19 was sufficient to give rise to a reasonable suspicion that employees had possibly been exposed to styrene at or above the personal exposure limit. If a suspicion of possible exposure existed, Employer was required to monitor the atmosphere for the possible presence of styrene. Employer does not dispute that it was aware that styrene had been released in the Jungle Cruise area that morning and that employees were reporting symptoms consistent with overexposure to styrene.
Section 5155(e)(1) requires workplace atmospheric monitoring as follows:
Whenever it is reasonable to suspect that employees may be exposed to concentrations of airborne contaminants in excess of levels permitted in section 5155(c), the employer shall monitor (or cause to have monitored) the work environment so that exposures to employees can be measured or calculated.
Section 5155(c) provides in relevant part:
Permissible Exposure Limits (PELs).
An employee exposure to an airborne contaminant in a workday, expressed as an 8-hour TWA [time weighted average] concentration, shall not exceed the PEL specified for the substance in Table AC-1.
Table AC-1 is a part of section 5155. The personal exposure limit specified in Table AC-1 for styrene is 50 ppm.
Labor Code sections 6380-6382 require the Director of Industrial Relations to promulgate a list of hazardous materials. That list is set forth in section 339 of Title 8, California Code of Regulations. Section 339 states that one of its sources is section 5155, which lists hazardous substances in Table AC-1. Styrene is listed in Section 339 as a hazardous material as well as in Table AC-1.
Labor Code section 6391 requires that the MSDS describe in lay terms the symptoms of exposure and other information. Section 5194 of Title 8 requires that MSDS be available in the work place to employees who may be exposed to any listed materials.
The MSDS is the linchpin of the system of hazardous material control, providing warnings to both employers and employees of the symptoms of exposure to hazardous substances and safety procedures to be followed both to prevent and react to such exposure.
1. The Evidence Established a Reasonable Suspicion of Possible Exposure to Styrene above the Personal Exposure Limit.
In Hussman Corporation, OSHAB 90-235, DAR (Nov. 15, 1990), we held that:
To comply with [section 5155(e)(1)], an employer must consider such things as the nature of the site at which work is being performed, the materials and equipment being used, the nature of the work, and information received from those working there, to determine if exposure to an airborne contaminant exceeding a PEL might reasonably be suspected.
In Hussman, the employees were working in a large warehouse with two open doors. Inside, several kinds of internal combustion-powered equipment were in use. Two employees complained to their leadman of headaches, dizziness and nausea. The Board found that the known presence of sources of a hazardous contaminant, carbon monoxide, and the symptoms reported by the employees consistent with possible overexposure to carbon monoxide were sufficient to establish a reasonable suspicion of possible overexposure and to require monitoring. We found that the leadman had sufficient information to raise a reasonable suspicion and that this information was imputed to Hussman, the employer.
In this case, it was undisputed that Employer was aware that styrene had been released during the painting of the catwalk. It was also undisputed that employees reported an offensive odor and that Kimbrell recognized the resin compound as its source. The employees reported their symptoms to Kimbrell and to the supervisor of Employer's first aid staff. Kimbrell spoke to the supervisor of Employer's central first aid station about the employees' condition. The symptoms reported were specifically listed in the MSDS for the resin compound, pointing to styrene as the potential contaminant. We find the evidence established Kimbrell had information raising a reasonable suspicion of exposure to styrene exceeding the personal exposure limit and that this knowledge was imputed to Employer.
Employer contends that the ALJ improperly credited the Division's employee witnesses' testimony over Kimbrell's. The ALJ found the employees' testimony as to their symptoms to be credible based in part on their demeanor. This was a credibility resolution based on substantial evidence and on the ALJ's "opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand." It is not to be overruled on the basis of conjectural evidence. (Garza v. Workmen's Compensation Appeals Bd. (1970) 3 Cal.3d 312, 319.) Employer's contention that the employees' symptoms may have been feigned on a conspiratorial group basis is conjectural, and therefore provides no basis for overruling the ALJ's credibility resolution.
Our independent review of the record supports the ALJ's credibility resolution. During his testimony, Kimbrell repeatedly expressed doubt about his ability to recall the order and timing of events that day, while the other employees, as the ALJ found, showed a detailed and positive recollection.
Employer contends the ALJ held it to a stricter standard than the "reasonable suspicion" stated in section 5155(e)(1). We find no support for this assertion. In all of its prior decisions regarding the duty to monitor under section 5155(e)(1),5 the Board has assessed the existence of reasonable suspicion based primarily on the release of a known contaminant and the symptoms reported by employees.
Employer contends that it never had grounds for a reasonable suspicion of the presence of styrene, based on more than 20 years experience with the resin compound and air monitoring that it conducted with the compound both before and after the June 19 incident. In Kaiser Steel Corporation, OSHAB 83-1069, DAR (Oct. 9, 1986), the Board stated "Employer defends on the ground that it was never reasonable for it to suspect that its employees were exposed to airborne contaminants in excess of the permissible exposure levels (PELs) contained within subsection (c) of Section 5155."
Kaiser employees, while welding plates covered with a primer containing four potential contaminants, experienced symptoms in some ways resembling "heavy metal fume fever," a condition resulting from exposure to the contaminants contained in the material they were welding. Kaiser's manager of industrial hygiene testified that Kaiser had performed welding on similar primer-coated materials in the past without any problems. He further testified that Kaiser had performed atmospheric monitoring of welding on the same materials after the alleged exposure, and that the monitoring showed none of the potential contaminants present at levels above the PEL.
We reject, as we did in Kaiser, Employer's reliance on the absence of symptoms in prior usage and atmospheric monitoring performed at times when employees were not experiencing symptoms. In Kaiser Steel, we interpreted section 5155(e)(1) to require that once reasonable suspicion of exposure to a contaminant arises, particularly symptoms of possible exposure, that the suspicion be dispelled by prompt atmospheric monitoring. We held that:
Had [Kaiser] air sampled for exposure to potential contaminants contained within the steel plates or its coating in an effort early on to rule them out as possible causes, it would have met the duty imposed under Section 5155(e)(1). (Emphasis added.)
Employer contends that under the standard applied in this case, an employer
could be cited whenever employees experience any illness. This suggestion is
without merit. Section 5155(e)(1) demands prompt monitoring where employees
are experiencing symptoms that may be consistent with exposure to a contaminant
known to have been released in their work area. Employer could have satisfied
its duty to monitor under section 5155(e)(1) by simply placing a tube designed
specifically to test for styrene in the area of the Jungle Cruise.
Section 5155(e)(1) does not provide an exception excusing employers who believe they have reason to doubt that the suspected contaminant is present at a level approaching the personal exposure limit.
Employer argues that it had a sufficient basis to exclude styrene as a source of the employees' reactions. Much of the evidence relied on by Employer was not available to Employer until after June 19, the date of the alleged violation. Employer did not have the information that the compound stops releasing styrene into the atmosphere an hour after the compound is applied when it decided that no testing was needed. As the ALJ found, the fact that additional styrene is no longer being released into the atmosphere does not address the question of how long it remains in the area after it has been released.
Employer's prior monitoring of the resin compound's generation of styrene did not provide an acceptable basis for ruling styrene out as a source of the employee symptoms in this case. Alvarez testified that Employer's prior atmospheric monitoring of styrene in outside locations was performed on a "tree-like structure." The June 19 release of styrene occurred on a waterway with little or no slope whose banks provided a natural basin where styrene, because of its density, could be expected to collect. The 1988-1990 monitoring did not provide Employer with assurance that there was no exposure to styrene.
Employer contends that if the employees' symptoms were really the result of exposure to styrene, it should be excused from monitoring because the exposure would already have taken place. We reject this argument. This analysis would be to negate section 5155(e)(1). Employer would always be excused from monitoring whenever employees are experiencing symptoms, the time monitoring is most acutely required. The Board's interpretation promotes the goal the Standards Board plainly had in mind in adopting section 5155(e)(1).
We find that the evidence established a reasonable suspicion of the presence of styrene at a level exceeding the personal exposure limit.
2. Section 5155(e)(1) Is Sufficiently Certain to Be Enforceable.
Employer contends that section 5155(e) is too vague to be enforceable. Employer also contends that the section does not indicate what contaminant to test for, and finally, with what frequency it must test.
The Board will not find a safety order to be unenforceably vague unless no
practical meaning can be given to its terms. (Novo-Rados Enterprises,
OSHAB 75-1170, DAR (May 29, 1981); Crosby & Overton, Inc., OSHAB
86-339, DAR (Dec. 2, 1987).) The Board finds that section 5155(e) can be given
a practicable meaning, and that it is not unenforceably vague.
Employer had sufficient time to inform itself of the circumstances and to have considered its course of action. Based on what Employer knew in this case, monitoring should have been undertaken as soon as employees reported symptoms.
DECISION AFTER RECONSIDERATION
The ALJ's decision is affirmed. Employers appeal is denied. A general violation of section 5155(e)(1) is established and a civil penalty of $1,250 is assessed.
MARCY V. SAUNDERS, Member
GERALD P. O'HARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 8, 2001
1 Unless otherwise specified, all references are to sections of Title 8, California Code of Regulations. The Board's decisions after reconsideration are abbreviated "DAR."
2 Employer's time to file its supplemental petition was extended because of difficulties in obtaining an audible hearing tape.
3 Table AC-1 contains about 800 airborne contaminants.
4 2B Pattys Industrial Hygiene and Toxicology, 3d rev. ed.
5 Hussman, supra; Kaiser Steel Corporation, OSHAB 83-1069, DAR (Oct. 9, 1986); Acme Felt Works, OSHAB 83-607, DAR (Dec. 31, 1986).