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Barge building facility’s citation for pollutants vacated

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Barge building facility’s citation for pollutants vacated

An administrative law judge of the Occupational Safety and Health Review Commission vacated a safety citation and $5,000 in penalties issued against a Tennessee barge building facility after determining that regulators failed to prove the technological and economic feasibility of engineering and administrative controls of airborne pollutants.

In October 2015, the U.S. Occupational Safety and Health Administration inspected a barge building facility in Ashland City, Tennessee, operated by Trinity Marine Products Inc. and conducted personnel monitoring for noise and welding fumes, according to commission documents. The agency issued two citations to Trinity, one alleging violations of OSHA’s safety standards and the other alleging violations of OSHA’s health standards, which Trinity contested.

The company and the Department of Labor settled all the violations, except for the serious violations of exposing employees to an accumulation of air contaminants in excess of the exposure limits. But the judge vacated the remaining citations and proposed penalties after determining that the department failed to establish that the controls they suggested would achieve the desired exposure reduction because the expert witness did not quantify any reductions that could result from his proposed controls.

“While there is no ‘magic percentage of reduction’ required, it is still the secretary’s burden to demonstrate a significant reduction would result,” the judge said in her ruling. “Here, the secretary failed to address this element of his burden.”

“The secretary has similarly failed to present evidence establishing the amount of reduction to airborne contaminants that could be expected in this case,” the judge continued. “I find the secretary has failed to meet his burden of proof on the issue (of) technological feasibility of either engineering or administrative controls.”

The Court of Appeals for the Sixth Circuit, to which this case may be appealed, has held that, while there is no “rigid formula” by which economic feasibility is analyzed, regulators must “weigh the costs of compliance against the benefits expected to be achieved” by proposed engineering and administrative controls, the judge stated.

“Here, the secretary failed to conduct even a rudimentary analysis of the economic burden of the proposed engineering and administrative controls,” the judge said. “I find the secretary failed to establish his proposed engineering and administrative controls are economically feasible.”

The department presented no evidence establishing the respirators used by Trinity employees were inadequate to protect them from the air contaminants to which they were exposed, the judge noted. To the contrary, the OSHA compliance officer testified the respirators were adequate and nothing in the language of the cited standards prohibits an employer from using respirators to meet its compliance obligations to protect its employees from air contaminants, she said.

Even if the department had proven that Trinity violated the cited standards, the judge said she still would have vacated the citations because the department failed to establish that the company had knowledge of the violative conditions.

The administrative law judge’s decision became a final order of the commission on Wednesday.

An attorney for the company could not be immediately reached for comment.

 

 

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