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Citations stemming from chlorine leak vacated

Citations stemming from chlorine leak vacated

An administrative law judge of the Occupational Safety and Health Review Commission vacated two citations after a chlorine leak sickened six employee at a plastics and petrochemicals facility.

In October 2016, a chlorine leak occurred at the Formosa Plastics facility in Point Comfort, Texas, causing six employees of Mansfield Industrial Inc. to suffer respiratory injuries requiring hospitalization, which the company reported to the U.S. Occupational Safety and Health Administration as required, according to review commission documents in Secretary of Labor v. Mansfield Industrial Inc. released on Friday. After an inspection, OSHA issued a two-item citation alleging violations of workplace safety standards related to training on hazardous materials and documentation requirements for the use of respirators, including a proposed penalty of $12,675.

But the administrative law judge vacated the training citation after finding that the secretary failed to prove the standard was violated, according to the ruling. Company employees testified about the extensive nature of its training program during a February trial in Houston and the law judge determined that the company could not prove that the training was insufficient.

The secretary “has failed to carry his burden of proof in that he did not establish what ‘sort of training a reasonably prudent employer would provide’ under these circumstances nor did it show how (Mansfield’s) training regimen failed to meet that standard,” the law judge stated.

The regulators placed “undue emphasis” on two items in attempting to meet the burden of proof: the inspector’s “understanding that the evacuation was chaotic,” as highlighted by one employee’s diversion from the evacuation path to warn other employees of the leak, and a seeming disconnect between another employee’s ability to “pass a requisite test with flying colors when provided with translation help and his inability to do so when the same test is administered in English-only format and no additional help is provided,” the law judge continued. “When analyzed further, neither argument is convincing.”

The employees took an evacuation path away from where they thought was the source of the leak, but a post-accident investigation found the leak came from another location that was in the path of the otherwise proper evacuate route, which the law judge said should not be held against the company. In addition, the law judge determined that the employee who diverted from the evacuation path was motivated by concern for his coworkers, which was not indicative of a failure by the company to provide adequate training. The law judge determined that the fact that other employees followed the evacuation procedures indicated that they received the proper training.

Meanwhile, the employee who could not pass the exam was “an engaged learner who consistently asked questions and sought clarification” during training, according to the ruling.

“That he can no longer pass an English-only exam, which he is now required to take unassisted, that was previously translated to him in Spanish is hardly surprising and the court accords such evidence no weight,” the law judge said.

The inspector requested documentation of respirator fit tests, which showed that one employee was scheduled to receive his annual fit-test in February 2016, but did not complete one until a week or two after the chlorine leak, according to the ruling. Based on that failure to ensure he had an updated test performed, OSHA issued a citation, characterizing it as a paperwork violation and assessing no penalty. The company contested the citation, arguing that the annual fit test was not required because the employee was not using or not required to use a respirator since he was a gofer performing ancillary duties such as tool retrieval rather than rust or paint removal.

“Without proof (the employee) was wearing a respirator or that he was engaged in painting and removing rust from the equipment, (the secretary) cannot establish the cited standard applies or was violated,” the law judge said in vacating the documentation citation.

“The standard is clear: the annual fit-test is a required element of any compliant respiratory protection program,” the law judge continued. “But the court finds (the secretary) has unnecessarily expanded the standard’s scope to require an annual test irrespective of whether the employee is using a respirator and exposed to a hazard.”

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

An attorney for the employer could not immediately comment on the decision.


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