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

 

In the Matter of the Appeal of:

SWEETHEART CUP COMPANY, INC.
800 Iowa Avenue
Riverside, CA 92507

                                            Employer

Docket No. 95-R3D3-979

 

 

                   DECISION AFTER
                   RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, having granted the petition for reconsideration filed in the above-entitled proceeding by the Division of Occupational Safety and Health (Division), makes the following decision after reconsideration.

JURISDICTION

On and after August 23, 1994, a representative of the Division conducted a complaint inspection at a place of employment maintained by Sweetheart Cup Company, Inc. (Employer) at 800 Iowa Street, Riverside, California.

On February 21, 1995, the Division issued to Employer citations with proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. With the exception of Citation No.1, Item 24, alleging a general violation of section 5194(f)(4)(B) [labeling containers of hazardous substances] for which a $500 penalty was proposed, Employer's appeals from the citations, items and penalties issued were resolved by agreement of the parties. Neither party petitioned for reconsideration of the settled matters. Therefore, they are not addressed herein.

Employer filed a timely appeal from Citation No. 1, Item 24, contesting the reasonableness of the abatement requirements and the proposed penalties. At prehearing conferences and the hearing, the appeal was expanded to include the existence of the violation.

An administrative law judge (ALJ) of the Board conducted a hearing in this matter on April 12, 1996, and issued a decision dated June 4, 1996, granting Employer's appeal.

The Division petitioned for reconsideration of the ALJ's decision on July 9, 1996. Employer filed an answer on August 6, 1996. The Board granted the petition and stayed the ALJ's decision on August 6, 1996.

Docket No. 95-R3D3-979
Citation No. 1, Item 24
General
5194(f)(4)(B)

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 and the exhibits admitted into evidence. The Board has taken no additional evidence.

Employer manufactures drinking cups and straws at the inspection site. The Division's inspector observed and photographed a five-gallon plastic container (the container) on a table in the paint shop. There were three different labels on the side of the container. One, a yellow hand-written label, stated, "Water 80% [and] Amine 20%." Another, a "generic" label, had boxes where check marks or other entries could be made to warn employees of hazards and necessary safety precautions associated with the hazardous substance in the container.

"Amine" is short for a chemical family that includes N,N-Dimethylethanolamine (DMEA). The DMEA in the container had been drawn from a 55-gallon steel drum bearing a manufacturer's label describing DMEA as a flammable and corrosive liquid that is "harmful or fatal if swallowed" and that can cause, among other things, "eye and skin burns." The Material Safety Data Sheet (MSDS) for DMEA provides more detailed information about the hazards of DMEA consistent with the manufacturer's warning label.

Under section 5194(f)(4)(B) an employer must label, tag, or mark "each container of hazardous substances in the workplace . . . [with] . . . appropriate hazard warnings." The Division issued the citation because the labels on the container did not warn of "the target organs affected [by DMEA] and the symptoms of exposure."

ISSUES

1. Did the Division prove the container was not labeled with DMEA target organ and exposure symptom warnings?

2. Did Employer prove that it was not required by section 5194(f)(4)(B) to label the container with target organ and exposure symptom warnings because it complied with the exception provided by section 5194(f)(5)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Proved the Container Was Not Labeled with DMEA Target Organ and Exposure Symptom Warnings.

The Division’s petition alleges numerous defects in the ALJ's decision. The Board agrees with the result reached by the ALJ. However, the ALJ's Findings and Reasons for Decision are not entirely clear. As provided in Labor Code section 6620, the Board has elected to replace the ALJ's findings and reasons for decision.

Employer was cited under section 5194 (f)(4)(B) which reads as follows:

(4) Except as provided in sections 5194(f)(5) [alternative warning methods exception for stationary process containers] and (f)(6) [exception for portable containers, if contents are to be used immediately] the employer shall ensure that each container of hazardous substances in the workplace is labeled, tagged, or marked with the following information:

(A) Identity of the hazardous substance(s) contained therein; and,

(B) Appropriate hazard warnings.

A photograph of the container and labels was introduced at the hearing. During direct examination, Division counsel asked the inspector, "What was it about the label on the 5-gallon container that led you to issue this citation?" and the inspector replied, "The information contained on the label did not contain target organs and symptoms of exposure as required." Shortly thereafter, Division counsel asked the inspector for "[a]ny observations about that label that in your recollection or, if you would like to refer to the photograph, that you felt indicated a violation of this regulation?" The inspector answered, "According to what's shown in the photograph, it would appear that a box is checked on the label that says 'no health hazards' associated with this particular (unintelligible)."

This testimony did not pertain to the labeling defects alleged in the citation and the Division did not move to amend the citation to add the alleged "no health hazards" entry to the description of the violation. Nonetheless, it became part of the record and led to cross and re-direct examination of the inspector that produced answers raising credibility issues the Board needs to resolve to explain the Board’s decision.

On cross-examination Employer's counsel asked the inspector, "[h]ow . . . [he was] able to determine what the label states on it as far as no health effects," and the inspector answered:

I was provided with a copy of a label that was used on this particular container. And the question was asked of Mr. LaForge, 'Are these two labels similar?' and his response was 'Yes,' based upon comparing the physical label that we have in the case file with this photograph and using this little magnifying instrument, Your Honor, to look in the boxes under the green horizontal bars, it appears to the Division clear that what boxes are checked in relationship to the physical label that we have in our possession.

Later, on re-direct examination, Division counsel asked the inspector if he "recall[ed] independently of the photograph that a box saying 'no health hazards' was checked," and the inspector replied "yes." He added, in response to additional questions, that he remembered seeing the box at the time he took his photograph.

The cross-examination question was clear and direct: How had the inspector determined what the label said about "no health effects." His answer was responsive, demonstrating that he understood the question. And he described how the determination had been made by using a magnifying glass to compare the label in the photograph with a full-sized blank label. His redirect testimony indicates that he made the determination by another means; direct observation of the label on the date of the inspection.

In this regard, the Board notes that labeling a container that holds a known hazardous substance as one that presents "no health hazards" is completely at odds with an employer's duty to label the container with "appropriate hazard warnings." The Division's failure to allege in the citation that the container was labeled as presenting no health hazards, a clear-cut violation of section 5194(f)(4)(B), is inconsistent with the inspector's testimony that he saw the entry the day of the inspection. It is consistent with his testimony that he made the determination by the comparative method he described, sometime later, after the photograph had been developed.

The Board has examined the label in the photograph. The container is cylindrical. The inspector was directly in front of and aiming the camera at the yellow label left of the generic label when he took the picture. The generic label is shown in oblique view, wrapping around the right side of the container. The resolution or focus of the photograph is not optimal. The Board cannot read, unaided or with use of an ordinary magnifying glass, any of the blurred and indistinct lettering on the green bars or in the spaces below each bar where there appear to be boxes. The Board concludes that if the inspector relied on examination of the photograph with a magnifying glass to determine what the label said, as he testified on direct and cross-examination, he had to use the blank label as a reference. The validity and reliability of the procedure described by the inspector could not be ascertained because the Division did not have the blank label at the hearing.

The inspector's testimony about how he determined that the label was marked "no health hazards" was internally inconsistent, and the Division failed to prove the accuracy and reliability of the photo/label comparison method he twice said he used. The Division's evidence on this point is not the sort of clear and certain evidence that a trier-of-fact must, or even should, accept as proof of an allegation. For these reasons, the Board finds that the Division failed to prove that the container label was marked "no health hazards."

However, the reasons for discounting the inspector's credibility concerning the alleged "no health hazards" entry on the label do not apply with equal force to his testimony that the generic container label did not include warnings about organs targeted by DMEA and the symptoms of exposure.

On this point, the Board sees no reason to doubt the inspector's clear and consistent testimony that he examined the label at the time of the inspection and found those warnings to be missing. Employer's safety manager did not contradict him by testifying that the label contained those warnings, Employer did not prove that it was not required by section 5194(f)(4)(B) to label the container with those warnings, and Employer failed to produce the label at the hearing, as one would expect it to do if the warnings were there. The Board also notes that Employer did not contest the existence of the violation in the written appeal it filed shortly after the citation was issued. And, when Employer did elect to add that ground to its appeal, it relied principally on the legal issues of interpretation of section 5194(f)(4)(B) and the section 5194(f)(5) exception to it. Thus, the Board finds that the Division proved that the label on the container did not include target organ and symptoms warnings.

2. Employer Proved That It Was Not Required by Section 5194(f)(4)(B) to Label the Container with Target Organ Warnings Because It Complied with the Exception Provided by Section 5194(f)(5).

Next to be answered is the question of whether the absence of that specific information from the label on the container is proof of a violation of section 5194(f)(4)(B). Employer argued that employers, as opposed to chemical manufacturers who ship chemical to others, are not obligated to identify target organs and exposure symptoms on containers of hazardous substances which employees use or are exposed to at places of employment provided by their employers.

Employer cited a federal OSHA case, Secretary of Labor v. American Cyanamid Co., as authority for that proposition. In that case, the court found reasonable the Secretary of Labor's interpretation of federal hazard warning provisions to require more comprehensive warnings on manufacturers' or shippers' labels than on the labels employers must provide to warn their own employees. The court's rationale was that containers leaving a chemical manufacturer's place of business and entering commerce may expose to a hazard employees who are wholly dependent on the label as a means of being appropriately warned, whereas, employees who use chemicals regularly in their work and, thus, have the additional protections of their employers' hazard communication programs, may need less detailed label information to be appropriately warned of the hazards.

The Board finds it unnecessary to attempt to determine the applicability and impact of the Secretary of Labor's interpretation of the federal regulations on Employer's labeling duties in this case. The Board does so because it has concluded that Employer proved the container was a "stationary process container" and that Employer provided "appropriate hazard warnings" by alternative means authorized for such containers by sections 5194(f)(4) and (5).

Section 5194(f)(5) is an exception to section 5194(f)(4) that authorizes employers to use, "signs, placards, process sheets, batch tickets, operating procedures or other such written materials in lieu of affixing labels to individual stationary process containers, as long as the alternative method identifies the containers to which it is applicable and conveys the information required by section 5194(f)(4) to be on a label." A party asserting that it falls within an exception to a regulation bears the burden of proving that the exception applies in its case. (Gal Concrete Construction Co.) Employer has done so here.

The container had a spigot at the bottom for dispensing the DMEA solution into smaller receptacles or bottles used to apply the solution as an ink solvent in Employer's printing processes. The safety manager testified that the container was not moved from the location at which it was photographed except when it had to be taken to the storage drum for refilling. On cross-examination she testified that she believed the container would never be refilled more than once a day.

Obviously, it was physically possible for an employee to carry a 5-gallon plastic container to the locations at the site where the DMEA was used, but that was not done. The 5-gallon container remained "stationary" or at rest on the bench, serving as an intermediate storage container. In the Board’s view, a container that remains at a fixed location while its contents are drawn, transported, and used elsewhere, is stationary, within the meaning of section 5194(f)(5), because at all times the container is in use it remains at the fixed location. The Board also finds that taking the container out of service and moving it briefly once a day, or less frequently, to refill it and return it to the fixed location did not change the stationary character of its use. The Board concludes that the 5-gallon container was a "stationary process container." Thus, pursuant to section 5194(f)(5), Employer could provide its employees with "appropriate hazard warnings" by alternative methods including "operating procedures, or other such written materials . . . ."

The container was labeled to indicate that the liquid inside was 10% "Amine." Employer's safety manager testified that "Amine" is commonly understood by employees to mean DMEA and similar, related chemicals, and that the label adequately identified MDEA as one of the substances in the container. The Division did not cite Employer under section 5194(f)(4)(A) for failing to identify MDEA on the label. Moreover, while the inspector may have had some reservations, he did not testify that the identification was inadequate for the employees working with or around the container.

The safety manager also testified that, the generic label had entries in boxes pertaining to "health, flammability, reactivity [and] protective equipment" and referred employees to the MSDS. Further, she described alternative methods Employer used to supplement the label warnings. In this regard, she testified that Employer had the MSDSs for DMEA and other substances in her office and at work areas throughout the plant where the substances were used. She also testified that Employer had a comprehensive hazard communication program of instruction and training for new employees and annual training for existing employees. Among other things, the training informed employees of the hazards of the various chemicals in their work areas, taught them how to read and use MSDSs, told them where the MSDSs were located within their work areas, and directed them to consult the applicable MSDSs as needed.

The Board notes, as well, that employees had to refill the container periodically from the manufacturer's 55-gallon drum of DMEA, which was labeled prominently with target organ and exposure symptom information.

In the Board’s view, this evidence was sufficient to establish, as a prima facie matter, that Employer had, by the labels on the container and supplementary alternative methods, provided adequate hazard warnings concerning the organs targeted by DMEA and the symptoms of exposure. The Division presented little evidence tending to rebut the safety engineer's that the label adequately identified MDEA as one of the substances in the container. The Division did not cite Employer under section 5194(f)4)(A) for failing to identify MDEA on the label. Moreover, while the inspector may have had some reservations, he did not testify that the identification was inadequate for the employees working with or around the container.

The safety manager also testified that the generic label had entries in boxes pertaining to "health, flammability, reactivity, [and] protective equipment" and referred employees to the MSDSs. Further, Employer used the described alternative methods to supplement the label warnings. In this regard, the safety manager testified that Employer had the MSDSs for DMEA and other substances in her office and at work areas throughout the plant where the substances were used. She also testified that Employer had a comprehensive hazard communications program that included instruction and training of new employees and annual training of continuing employees. Among other things, the training informed employees of the hazards of the various chemicals in their work areas, taught them how to read and use the MSDSs, told them where the MSDSs were located within their work areas, and directed them to consult the applicable MSDSs as needed.

The Board notes, as well, that employees had to refill the container periodically from the manufacturer’s 55-gallon drum of DMEA, which was labeled prominently with target organ and exposure symptoms information.

In the Board’s view, the evidence was sufficient to establish, as a prima facie matter, that, by the labels on the container and supplementary alternative methods, Employer provided adequate hazard warnings concerning the organs targeted by DMEA and the symptoms of exposure. The Division presented little evidence tending to rebut the safety manager’s testimony. Accordingly, the Board finds that Employer proved by a preponderance of the evidence that it was in compliance with the section 5194(f)(5) "alternative methods" exception. For these reasons, the Division must be denied the relief sought by the petition for reconsideration.

DECISION AFTER RECONSIDERATION

The petition for reconsideration is denied. The ALJ’s decision is affirmed and Employer’s appeal is granted.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – November 5, 1999