Turner Industries Group, LLC

Plain-English summary

Turner employees replaced chemical-processing equipment during a plant turnaround in an area containing Tris, ethylene dichloride, and other hazardous substances. The company's special meeting focused mainly on Tris, did not cover all chemical hazards, and missed at least one employee who was sent into the area without makeup training. Turner also failed to document how it verified employee understanding, prepare a turnaround-specific hazard assessment, or evaluate respiratory exposures. Material safety data sheets were not immediately accessible because workers needed another company's passwords, key cards, or management assistance. The judge affirmed those serious items with penalties totaling $8,000. Respirator-defect and storage items were vacated for lack of proof, and two other items were withdrawn.

Decision snapshot

• Cited standard(s): Process-safety contractor training, PPE assessment, respiratory evaluation and maintenance, hazard communication, and recordkeeping provisions.
• Outcome: Five serious subitems were affirmed for $8,000 total; two respirator items were vacated and two items were withdrawn.
• Key point: A contract employer must assess and document the actual hazards of a nonroutine turnaround instead of relying on general training and the host employer's ordinary operating procedures.

Full text (OSHRC public release)

                                         UNITED STATES OF AMERICA
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1924 Building – Room 2R90, 100 Alabama Street, S.W.
                                            Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 10-2001
Turner Industries Group, LLC,
Respondent.

Appearances:

      Josh Bernstein, Esquire, Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
              For Complainant

      Patrick Veters, Esquire & Jane Heidingsfelder, Esquire, Jones Walker, L.L.P., New Orleans, Louisiana
               For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

      Turner Industries Group, LLC, is a resident service contractor at a chemical plant owned

by Georgia Gulf Chemicals and Vinyls, LLC, in Plaquemine, Louisiana. In February 2010,
Turner worked with Georgia Gulf to replace equipment at the plant, in a procedure known as a
"turnaround." After the equipment was replaced, the Occupational Safety and Health
Administration (OSHA) received a complaint about potential chemical exposure during the
turnaround. On May 12, 2010, OSHA compliance officer Dawn Galpion arrived at the Georgia
Gulf plant and conducted an inspection of the worksite. As a result of her inspection, the
Secretary issued two citations to Turner on August 31, 2010.

      Item la of Citation No.1 alleges a serious violation of 29 C. F. R § 1910.119(h)(3)(ii), for

failing to train its employees in the known potential fire, explosion or toxic release hazards
related to his job and the process. Item 1b of Citation No.1 alleges a serious violation of 29 C. F.
R. § 1910.119(h)(3)(iii), for failing to prepare a record which contained the identity of the
contract employee, the date of the training, and the means used to verify that the employee
understood the training. The Secretary proposed a grouped penalty of $ 5,000.00 for Items la
and lb.
Item 2a of the Citation No.1 alleges a serious violation of 29 C. F. R § 1910.132(d)(2),
for failing to verify that the required workplace hazard assessment had been performed through a
written certification that identifies the workplace evaluated, the person certifying that the
evaluation had been performed, and the date of the assessment. Item 2b of Citation No.1 alleges
a serious violation of 29 C. F. R. § 1910.134(d)(1)(iii), for failing to identify and evaluate the
respiratory hazards in the workplace. The Secretary proposed a grouped penalty of $ 7,000.00
for Items 2a and 2b.
The Secretary withdrew Item 3 of Citation No.1 at the start of the hearing (Tr. 7). Item 4
of Citation No.1 alleges a serious violation of 29 C. F. R. § 1910.l34(h)(4), for failing to ensure
that respirators found to be defective were removed from service. The Secretary proposed a
penalty of $ 5,000.00 for Item 4.
Item 5 of Citation No.1 alleges a serious violation of 29 C. F. R. § 1910.l200(g)(8), for
failing to ensure that material safety data sheets were readily accessible to the employees in their
work area during each work shift. The Secretary proposed a penalty of $ 5,000.00 for Item 5.
Prior to the hearing, the Secretary withdrew Item 1 of Citation No. 2 (Tr. 7). Item 2 of
Citation No. 2 alleges an other than serious violation of 29 C. F. R. § 1910.134(h)(2)(1), for
failing to store respirators to protect them from damage, contamination, dust, sunlight, extreme
temperature, excessive moisture, and damaging chemicals. The Secretary proposed a penalty of
$ 0.00 for Item 2. Turner timely contested the citations. A hearing was held in this matter on
August 10 and 11, 2011, in Baton Rouge, Louisiana. Turner stipulates the Commission has
jurisdiction over the proceeding under § 10(c) of the Occupational Safety and Health Act of 1970
(Act), and that it is a covered business under § 3(5) of the Act (Tr. 9). The parties have filed
post-hearing briefs.
Turner disputes the alleged violations and proposed penalties. The company argues the
OSHA compliance officer relied upon factual misrepresentations made by several Turner
employees when she recommended that citations be issued. Turner claims these were
disgruntled employees who had met with private attorneys to explore a claim for damages
against Turner. Turner also contends there was no employee exposure to a chemical release that
warranted significant medical treatment.
For the reasons discussed below, the court affirms Items la and 1b of Citation No.1, and
assesses a grouped penalty of $ 3,000.00 for the items. The court affirms Items 2a and 2b of
Citation No.1, and assesses a grouped penalty of $ 3,000.00 for the items. Item 5 of Citation No.
1 is affirmed, and a penalty of $ 2,000.00 is assessed. Item 4 of Citation No. 1 and Item 2 of
Citation No. 2 are vacated.
Background

   Turner is a resident contract employer providing services for Georgia Gulf Chemical

Vinyls plant in Plaquemine, Louisiana. Georgia Gulf has contracted Turner's services since
October 2006 (Tr. 419). Turner employs approximately 350 employees at the plant (Tr. 334).
In February and March of 2010, Turner worked with Georgia Gulf to perform a
"turnaround," during which they replaced a reactor vessel (designated as the R-201 Ethyl
Dichloride (EDC) reactor vessel) in the Vinyl Chloride Monomer (VCM) Unit (Tr. 324-326).
Georgia Gulf and Turner referred to the replacement of the R-201 reactor vessel as the "Red
Zone" turnaround. Before the turnaround began, Georgia Gulf and Turner held a meeting on
February 16, 2010, which was, according to Turner's turnaround supervisor, "a specialized safety
review for a major job that was going to take place in a specialized area of the plant that is
encompassed by this red zone" (Tr. 340). Approximately 100 employees attended the meeting.
The Red Zone turnaround began on February 23, 2010, and ended on March 18, 2010.
The companies worked around the clock on the project, with the day shift operating from 7:00
a.m. to 7:00 p.m., and the night shift operating from 7:00 p.m. to 7:00 a.m. Approximately 40
Turner employees worked the night shift (Tr. 106).
The Red Zone area around the R-201 reactor vessel was marked by a red chain at ground
level. The Red Zone extended vertically from the red chain, to encompass upper levels that
employees worked on from scaffolding (Exhs. C-1a and C-1b). Work in the Red Zone triggered
the requirement for employees to wear Level 2 personal protective equipment (PPE), which
meant wearing “chemical suit, face shield and goggles and rubber boots and rubber gloves, taped
legs and taped wrists any time you do any job across that chain, either up or down” (Tr. 56).
Level 2 PPE did not include the use of a respirator.
In order to replace the R-201 reactor vessel, Turner employees performed “line-
breaking,” during which they would unbolt or break away pipe lines connected to the vessel (Tr.
38-39). Line-breaking was designated as Level 3 work. Level 3 PPE included all the PPE worn
for Level 2, with the additional requirement of a respirator providing self-contained positive
pressure fresh air (referred to as “fresh air”). Work in Level 3 PPE required management
approval and supervision (Exhs. C-8 and C-9; Tr. 57, 76). Only employees wearing Level 3 PPE
were permitted to engage in line-breaking. It was company policy to forbid Level 2 employees
and Level 3 employees to work in the same area when Level 3 work was being performed (Tr.
292).
In 1996 (before Turner began working at the Georgia Gulf plant), Georgia Gulf
experienced the unexpected release of the chemical Tris during a turnaround. Tris (which was
equated with mustard gas at the hearing) combined with EDC, Ethyl Chloride, and
Trichloroethane to create a mixture found in the R-201 Reactor bottom. The material safety data
sheet (MSDS) for this mixture identifies “inhalation, skin and eye contact” as the primary routes
of entry for potential adverse health effects (Exh. C-4). OSHA inspected the Georgia Gulf plant
and issued citations for violations resulting from the release of Tris. Georgia Gulf abated the
violations and agreed to eliminate future hazards by replacing the R-201 reactor vessel with one
that produced lower quantities of Tris. Georgia Gulf also agreed to implement new safety
precautions and increase its use of PPE when employees were potentially exposed to Tris.
After the 2010 turnaround was completed, an employee filed a complaint with OSHA
claiming employees were exposed to hazardous chemicals while working in the Red Zone. On
May 12, 2010, compliance officer Dawn Galpion began an inspection of the Red Zone site,
focusing on Turner (Georgia Gulf was not a subject of inspection). Galpion held an opening
conference, toured the site, took photographs, and interviewed employees. She requested
documentation for some items (Tr. 219-220). Based upon her inspection, the Secretary issued
the instant citations to Turner on August 31, 2010.
Citation No.1

    The Secretary has the burden of establishing the employer violated the cited standard.

To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) the
employer failed to comply with the terms of the cited standard; (3) employees
had access to the violative condition; and (4) the cited employer either knew or
could have known with the exercise of reasonable diligence of the violative
condition.
JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).
Turner stipulates that the standard cited in each item applies to the cited conditions (Tr.
216). Turner disputes the Secretary's charge that it failed to comply with the terms of any of the
standards, and therefore disputes that its employees had access to any violative conditions or
that it knew of violative conditions.
Item la: Alleged Serious Violation of § 1910.119(h)(3)(ii)
Item 1a of Citation No. 1 alleges:

   The compliance officer became aware on or about July 9,2010, that the employer
   (at the Georgia Gulf Chemicals and Vinyls, LLC, facility in Plaquemine, LA) did
   not ensure that all of the employees who were assigned to remove reactor vessels
   R-201 and V-207 were trained in the known potential toxic release hazards
   related to his/her job and the process. The reactor vessels R-201 and V-207 were
   part of the Vinyl Chloride Monomer Unit. This exposed employees to the hazard
   of being exposed to highly hazardous chemicals and chemical bums.
   Section 1910.119(h)(3)(ii) provides:
   The contract employer shall assure that each contract employee is instructed in the
   known potential fire, explosion, or toxic release hazards related to his/her job and
   the process, and the applicable provisions of the emergency action plan to the
   employee's job tasks.

                      Noncompliance with the Terms of the Standard
   Compliance officer Galpion explained the reason she recommended the Secretary cite

Turner for a violation § 1910.119(h)(3)(ii):

   Turner did not instruct employees of all the possible hazards that they
   encountered during the actual removal of the vessel from service and replacing it.
   They addressed mainly just the Tris, mustard gas, that we've been talking about,
   in one big meeting. ... OSHA believed that Turner did not actually educate the
   employees on all of the hazards that they were likely to encounter during this
   turnaround.

(Tr. 221-222).

   Turner counters that its February 16, 2010, meeting was held specifically to instruct its

employees in the hazards related to the turnaround. The meeting lasted 60 to 75 minutes (Tr.
341). Turner’s turnaround supervisor testified:

   We had an informational meeting, kickoff meeting, we called it, prior to the
   shutdown of the reactor. We had it all planned out, everything laid out. Invited
   everyone that was going to be involved in it all the way from clientele, outside
   personnel, all of our personnel on-site that were on the list to work the project.
            We gathered up at the central maintenance lunchroom. It was the biggest
   facility we had at the time. We all came in and, you know, basically told them
   what we were going to do. When we were planning on taking it out of service.
   Pretty much laid out the job scope and details of, you know, how we were going
   to do it. Gave an opportunity for anyone and everyone to ask questions that may
   be of some concerns and expressed the way were going to handle business.

(Tr. 424-425).

   Although the supervisor focused more on the logistics of the turnaround, Georgia Gulf’s

manufacturing manager over the VCM Unit, testified safety training was an aspect of the
meeting:

   We treat that [Red Zone] area more conservatively than any other area in the
   entire complex. So we wanted to have the workers who were going to be
   performing that job understand why we take those specific and very detailed
   precautions. Then we covered what those precautions are, the specialized
   permitting that we have. That area itself is completely barricaded with clearly
   marked signs. No one enters that area of the plant without specialized permitting.
   There are specifically higher levels of personal protective equipment, PPE,
   required to do any work in that area of the plant. We talked about how we
   deconned just about anything and anyone that goes in and out of that area that
   does the work. There are stringent decontamination procedures associated with it.
            We also talked about the symptoms that-and let me go back one step. The
   whole purpose of the extreme precautions that we take are due to this contaminant
   that is in our EDC process. That contaminant is referred to as Tris. It's a very
   unusual chemical that was actually discovered when an incident occurred in our
   plant. It was a discovery to our industry, and we shared what that component-that
   contaminant is and the hazards associated with it.

(Tr. 343).
 The Secretary acknowledges Turner focused on Tris during the February 16 meeting, but
contends it did not instruct its employees in all the possible hazards related to their work on the
turnaround. She argues Turner violated § 1910.119(h)(3)(ii) because its training did not address
the other chemical hazards present besides Tris, and because it did not address the hazards posed
by having multiple process openings happening at one time, unlike normal operations.
As part of its safety training, Turner administered true/false quizzes to its employees.
These quizzes were part of the periodic testing given at Turner's weekly safety meetings and
were not specific to the turnaround. The quizzes each contained ten general true/false questions,
and none of them addressed the particular hazards presented by the turnaround (Exh. C-7; Tr. 45-
47,418).
At the February 16 meeting, Turner warned its employees to watch out for a black syrupy
liquid, because it most likely would be Tris, which was dangerous (Tr. 51, 93). Turner provided
no information regarding other chemicals that posed respiratory hazards they might be exposed
to in the Red Zone (Tr. 52-53, 113, 126).
During the turnaround, Turner's employees worked with Ethylene Dioxide (EDC), a
chemical that poses a respiratory hazard (Tr. 329). Georgia Gulf's MSDS for the R-201 reactor
describes the hazards created by exposure to EDC:

   Carcinogen Status

   Ethylene Dichloride (EDC)-NIOSH recommends that EDC (1,2-dichloroethane) be

handled in the workplace as if it were a carcinogen in man. Chlorinated organics in general are
carcinogenic suspects. Oral, inhalation and dermal studies with rats and mice have indicated
EDC is carcinogenic, neoplastic and an equivocal tumorigenic agent by RTECS criteria.
(Exh. C-4, p.2).
Turner did not provide any information on February 16 regarding the hazards associated
with EDC (Tr. 53, 136). The turnaround supervisor stated that "the whole purpose of the
precautions we take are due to this contaminant…referred to as Tris" (Tr. 343). The record
establishes Turner did not provide adequate instructions to its employees regarding potential
hazards other than Tris.
Furthermore, not all of Turner's employees who worked in the Red Zone attended the
February 16 meeting. One employee who worked for Turner until August 2010, when he was let
go during a reduction in force, testified Turner posted lists in each unit naming the employees
who were assigned to the Red Zone (Tr. 172). The unit the former employee was working in did
not post a list. The former employee stated:
I knew that another unit had posted a list, and I wanted to go look at it and see. It
was just before lunchtime. I went to the PVC unit and saw the list, saw my name
on it, working nights in the Red Zone turnaround. The meeting had already
happened, and I had missed it and no one told me.

(Tr. 173-174).
The former employee told a Turner foreman that he had missed the meeting. The
foreman apologized and told the employee he had not noticed his name on the turnaround list.
The foreman told the employee to report for work in the Red Zone (Tr. 174).
The former employee reported to another Turner foreman. He told the other foreman he
had missed the February 16 meeting. The foreman's response was, "Pretty much, 'Oh, well,' and
'Get to work'" (Tr. 75). Turner did not provide any Red Zone training to the former employee
(Tr. 75).
Section 1910.119(h)(3)(ii) requires that the employer assure "that each contract employee
is instructed" in the known hazards (emphasis added). The court counts 97 names on the "Red
Zone Meeting" sign-in sheets (Exh. C-6), none of which is the former employee's. Turner does
not dispute that the former employee missed the February 16 meeting, and was provided with no
make-up safety instruction specific to the turnaround.
The Secretary has established Turner failed to comply with the requirements of Section
1910.119(h)(3)(ii).
Exposure
The record establishes that employees were exposed to chemical hazards on several
occasions during the turnaround. Turner employee #1 worked in the Red Zone turnaround. At
the time of the hearing, he was still working for Turner (Tr. 35). Employee #1 testified that
every time he broke a line during the turnaround, "black syrupy stuff' would fall out (Tr. 39).
Employee #1 stated, "I was under the impression the whole time that the chemicals were dead, so
I didn't-anything that did come out, I thought it was neutralized" (Tr. 68).
Employee #2 also worked in the Red Zone turnaround, and he was also a current
employee at the time of the hearing (Tr. 123). He described an incident when he was on a
scaffold, breaking a line, when "a lot of black tarry stuff" started coming out (Tr. 129).
Employee #2 stated Turner had not explained the risks of the chemicals to which the Red Zone
employees were exposed before the turnaround (Tr. 136).
The former employee testified that, while working in the Red Zone, he and some other
employees "caught a whiff of something that made our eyes water, noses run, throat scratching,
started coughing" (Tr. 179). On another occasion, a line break exposed them to a chemical
substance. The former employee testified, “The guy working with me, he took off, kind of went
around the corner and threw up. I caught a whiff of it, and it put me on my knees. And, I mean,
it knocked me to my knees” (Tr. 181).
The Secretary has established Turner employees working in the Red Zone had access to
the hazardous chemicals, but did not have adequate instructions on how to proceed when
working around these chemicals.
Employer Knowledge
As the facilitator of the February 16 meeting, Turner was aware that it did not instruct its
employees in all of the potential hazards to which they would be exposed in the Red Zone.
Turner supervisors were present and observing work in the Red Zone the duration of the
turnaround. Employee #1 testified:
Any time we would do any type of line-breaking, our supervisors would be
standing in eyesight of us just to make sure that we didn’t need anything, any
extra tools or anything of that sort. They would be standing outside the Red
Zone, outside the red chain, keeping in constant contact, eye contact with us,
because it’s hard to communicate with a mask.
(Tr. 40).

    Supervisors were present when the line breaks released chemical substances that

adversely affected the employees. The former employee told two Turner foremen that he had
missed the February 16 meeting, yet neither of them attempted to provide safety instructions to
the former employee.
The Secretary has established Turner had actual knowledge it was in noncompliance with
1910.119(h)(3)(ii). The Secretary charges the violation as serious. An employee exposed to a
hazardous chemical for which he had not received adequate training would not know the
appropriate precautions to take. The employee could sustain serious injuries due to his lack of
training. The violation is serious.

              Item 1b: Alleged Serious Violation of § 1910.119(h)(3)(iii)

   Item 1b of Citation No. 1 alleges:

   The compliance officer became aware on or about May 12, 2010, that employer
   (at the Georgia Gulf Chemicals and Vinyls, LLC, facility in Plaquemine, LA) did
   not verify that employees understood the safety training related toxic release
   hazards while removing reactor vessels containing various highly hazardous
   chemicals. The reactor vessels R-201 and V-207 were part of the Vinyl Chloride
   Monomer Unit. This exposed employees to the hazard of being exposed to highly
   hazardous chemicals and chemical burns.
   Section 1910.119(h)(3)(iii) provides:

   The contract employer shall document that each contract employee has received
   and understood the training required by this paragraph. The contract employer
   shall prepare a record which contains the identity of the contract employee, the
   date of training, and the means used to verify that the employee understood the
   training.

   Turner argues Item 1b is duplicative of Item la, and should therefore be vacated. The

court disagrees that the items are duplicative. Violations may be found duplicative where the
standards cited require the same abatement measures, or where abatement of one citation item
will necessarily result in abatement of the other item as well. Flint Eng. & Const. Co., 15 BNA
OSHC 2052, 2056-2057 (No. 90-2873, 1997). Section 1910.119(h)(3)(ii) requires the employer
to instruct each employee in the known potential hazards of the job. Section 1910.119(h)(3)(iii)
requires the employer to prepare a record that documents the training, and asks for specific
information to be included in the record. An employer could be in compliance with subsection
(ii), but fail to record the information required by subsection (iii). Items la and 1b are not
duplicative.
 Noncompliance with the Terms of the Standard
Section 1910.119(h)(3)(iii) requires the employer to prepare a document that contains
"the identity of the contract employee, the date of training, and the means to verify that the
employee understood the training." The only documentation Turner provided were copies of the
sign-in sheets from the February 16 meeting and of the true/false quizzes (Exhs. C-6 and C-7).
These documents do not constitute a prepared record as contemplated by the cited standard. The
quizzes are general in nature and fail to address all of the hazards potentially present in the Red
Zone. In addition, there is no documentation for the former employee, who did not attend the
meeting but who worked in the Red Zone.
The Secretary has established Turner failed to comply with § 1910.119(h)(3)(iii).
Exposure
Turner's failure to verify its employees understood the training resulted in the company's
lack of awareness that its employees did not grasp the extent of the hazards in the Red Zone.
Employee #1 could not explain specific information regarding the harmful effects of EDC or any
other chemicals (Tr. 112-113). Employee #2 did not understand the potential hazards presented
by chemicals in the Red Zone. He stated he was unaware of the symptoms associated with
exposure to Tris (Tr. 132-133, 16). Employees were exposed to chemical hazards they did not
understand and were not equipped to protect against.
Employee access to the chemical hazards is established.
Employer Knowledge
Turner was aware that it did not prepare a record containing the required information.
Through its foremen, Turner knew it had not provided the former employee with any Red Zone
training. The Secretary has established Turner had actual knowledge of the violative condition.

   The Secretary has established Turner committed a serious violation of §

1910.119(h)(3)(iii).

                   Item 2a: Alleged Serious Violation of § 1910.132(d)(2)

                              Item 2a of Citation No. 1 alleges:
   The compliance officer became aware on or about May 12, 2010, that employer
   (at the Georgia Gulf Chemicals and Vinyls, LLC, facility in Plaquemine, LA) did

not ensure that a workplace hazard assessment was performed and verified with a
written certification prior to removing the R-201 Ethylene dichloride reactor
vessel and associated vessels and piping, which considered the unique hazards
associated with the vessel opening and removal. This exposed employees to the
hazard of exposure to highly hazardous chemicals and chemical bums and /or
blisters.
Section 1910.132(d)(2) provides:
The employer shall verify that the required workplace hazard assessment has been
performed through a written certification that identifies the workplace evaluated;
the person certifying that the evaluation has been performed; the date(s) of the
hazard assessment; and, which identifies the document as a certificate of hazard
assessment.

                      Noncompliance with the Terms of the Standard
   During her inspection, Galpion asked for a copy of Turner's written certification of the

required workplace hazard assessment. Turner provided her with a document created by Georgia
Gulf entitled "VCM Liquid Phase Direct Chlorination Area Safe Work Program," dated August
4, 2005 (Exh. C-9). This program is Georgia Gulf's normal operating procedure in its VCM
Unit. Nothing in the program addresses working in the Red Zone. Turner's safety supervisor at
the Georgia Gulf plant conceded that Turner did not complete a written hazard assessment for
the Red Zone turnaround (Tr. 380, 411).
Turner argues it relied on the expertise of Georgia Gulf to make the appropriate
workplace hazard assessment. It contends it consulted Georgia Gulf's Safe Work Program when
performing the turnaround because Georgia Gulf "knew better than Turner the job task hazards
which required appropriate PPE" (Turner's brief, p. 10).
Turner's argument that it relied on Georgia Gulf's work program is a post hoc attempt to
excuse its failure to comply with § 1910.132(d)(2). The standard requires that the assessment be
documented as a written certification, which identifies itself as a certificate of hazard assessment.
Georgia Gulf's program outlines its general operational procedure, and was created five years
before the Red Zone turnaround took place.
Turner's own employee handbook provides:

   27.2

The workplace must be assessed for hazards present, or likely to be
present, to determine what type of PPE is required to safely perform each job.
This is accomplished by completing the written Hazard Assessment Form. The
assessment must be dated, must include the area or job task being evaluated, and
must be signed by a designated company representative (a superintendent,
supervisor, or safety representative who has attended Hazard Assessment
Training.) The Job Safety Analysis must be used in conjunction with the
assessment in order to provide the most effective hazard control possible.

(Exh. C-2, p. 127).

    When confronted with his company's employee handbook at the hearing, the safety

supervisor was asked if Turner failed to comply with its own policy on hazard assessment.
Fuentes replied, "I guess so" (Tr. 413).
The Secretary has established Turner violated the terms of 1910.132(d)(2).
Exposure
Turner's failure to perform a hazard assessment resulted in its employees' exposure to
chemicals in the Red Zone without the appropriate PPE. Employees dressed in Level 2 PPE
(without fresh air) worked in proximity to employees engaged in Level 3 work (Tr. 146, 155,
179). Employee access to chemical hazards is established.
Employer Knowledge
Turner's employee handbook explicitly sets out the requirements for a workplace hazard
assessment. It even refers to a written Hazard Assessment Form that must be signed by a
supervisor. Turner was in the best position to know that it had not made the required assessment.
Actual knowledge is established.
Employees working in the Red Zone were not wearing appropriate PPE at all times.
Exposure to the chemicals in the Red Zone could have potentially injurious effects. The
violation is serious.

               Item 2b: Alleged Serious Violation of § 1910.134(d)(1)(iii)

    Item 2b of Citation No. 1 alleges:
    The compliance officer became aware on or about May 12, 2010, that employer
    (at the Georgia Gulf Chemicals and Vinyls, LLC, facility in Plaquemine, LA) did
    not evaluate the respiratory hazards associated with working near areas where line

and vessel openings were being performed on an Ethylene Dichloride reactor (R-
201) and knockout vessel (V-207). The vessels were located in the Vinyl
Chloride Monomer Unit. This condition exposed employees to the inhalation of
highly hazardous chemicals.
Section 1910.134(d)(1)(iii) provides:
The employer shall identify and evaluate the respiratory hazard(s) in the
workplace; this evaluation shall include a reasonable estimate of employee
exposures to respiratory hazard(s) and an identification of the contaminant's
chemical state and physical form. Where the employer cannot identify or
reasonably estimate the employee exposure, the employer shall consider the
atmosphere to be IDLH.
Noncompliance with the Terms of the Standard

    Galpion requested copies of the results of sampling conducted by Turner to evaluate

respiratory hazards in the Red Zone. Turner did not provide any sampling results to OSHA (Tr.
226).

    Turner argues it did not need to comply with the standard because Georgia Gulf had

placed passive monitors throughout the Red Zone to detect levels of various chemicals. Georgia
Gulf’s safety supervisor described the monitoring Georgia Gulf had in place:

    We do a daily-on a shift basis, the first thing that's done is there's what we call an
    area sniff, and it's a walkthrough of the plant with a meter to determine if there is
    anything unusual in the air throughout the plant.

           In addition to that, we have what we call area monitors that will pick up
    any hydrocarbons of which essentially all of or chemicals in the VCM process are
    called hydrocarbons. They're flammable hydrocarbons. So these fixed-point
    monitors are located throughout the plant and will alarm if they detect any
    hydrocarbons.

(Tr. 361).

    Georgia Gulf’s routine monitoring focuses on the lower explosive limits of chemicals in

the VCM, and not on respiratory hazards to which employees in the Red Zone were exposed
during the turnaround. Galpion testified regarding the difference:

           [Georgia Gulf was performing] air monitoring by passive monitors
    throughout the unit looking for levels of vinyl chloride monomer, mostly
    explosive levels. There were-before permitting for people to do work in the area,

they would check to see if it was up at the explosive level of that chemical, the
lower explosive limit or some percentage of the limit. ... Just checking the area,
walking through with the monitor for explosives doesn't assess how much
someone is actually breathing. And also, even if they were just looking for a
really low threshold of explosives, that's magnitudes higher than the permissible
exposure levels for many of the chemicals that they were working with or
exposed to.

(Tr. 227-228).

   Turner cannot rely on Georgia Gulfs monitoring for lower explosive limits as a substitute

for its obligation to evaluate the respiratory hazards to which its employees are exposed. The
cited standard also requires that the employer's evaluation "include a reasonable estimate of
employee exposures to respiratory hazard(s) and an identification of the contaminant’s chemical
state and physical form.” None of this information is provided by Georgia Gulf’s monitoring.
Noncompliance with the terms of the standard is established.
Exposure
Turner's employees working in the Red Zone were exposed to chemicals released when
lines were broken while switching out the R-201 reactor vessel. None of the employees who
testified wore personal monitors during the process (Tr. 61-62, 131-132, 186). Employee access
to hazardous chemicals is established.
Employer Knowledge
Turner was aware it was not evaluating the respiratory hazards to which its employees
were exposed during the turnaround. Actual knowledge is established.
Employees were not using fresh air respirators while working near Tris and other
hazardous chemicals. The potential adverse health effects of chemical exposure are serious.
Item 2b was properly classified as serious.

                 Item 4: Alleged Serious Violation of § 1910.134(h)(4)
   Item 4 of Citation No. 1 alleges:

   The compliance officer became aware on or about July 7, 2010, that the employer
   (at the Georgia Gulf Chemicals and Vinyls, LLC, facility in Plaquemine, LA) did
   not ensure that the regulators for air-line respirators that were being used during
   the removal of the R-201 and V-207 vessels in the Vinyl Chloride Monomer Unit

were removed from service when they proved to be sticking and preventing air
flow. This exposed employees to the hazard of exposure to highly hazardous
chemicals through inhalation and skin absorption.
Section 1910.134(h)(4) alleges in pertinent part:

    The employer shall ensure that respirators that fail an inspection or are otherwise
    found to be defective are removed from service, and are discarded or repaired or
    adjusted [.]
                     Noncompliance with the terms of the Standard

    For Level 3 jobs in the Red Zone, Turner's employees were required to wear respirators.

Turner provided pressure-demand respirators, which do not provide a continuous flow of air. All
of the testifying employees who worked in the Red Zone said the respirators were difficult to
use, and they sometimes turned a respirator in for another one in hopes it would work better (Tr.
77-78, 153, 187).

    Galpion asked Turner about their procedure for removing defective respirators from

service. She testified, "I was told there was a process that’s supposed to happen but that in the
Red Zone it had not happened that way, that they weren't actually tagged out and brought to the
tool room and repaired or taken out of service" (Tr. 229). Galpion testified safety supervisor
Fuentes told her that Turner’s policy was to “remove malfunctioning respirators, put them in a
special bag, tag them so they would not be used, and then moved into a tool room” (Tr. 267).

    Turner’s safety supervisor described Turner’s procedure for handling defective

respirators:
[If employees] were having an issue with a respirator, they were to report
it to their supervisor that they were having issues. They also, if they did
encounter an issue, the decon person would take and wrap it in a bag, tag it, and
bring it to the tool room.

(Tr. 385-386).
Galpion asked Turner for documentation showing repairs made to respirators taken out of
service, but the company did not provide any (Tr. 230). She determined the company was in
violation of § 1910.134(h)(4):
I talked to several employees that talked about how they would be
 returned to the same area and they would continuously get regulators that were
still malfunctioning. And so during the walkaround, I had pulled aside the tool
attendant because I was told that’s who they would go to if they were going to be
taken out of service. And I learned that none had been returned to the tool room
form the Red Zone during that turnaround for him to send off for any repairs.
(Tr. 268).
In order to establish a violation of the cited standard, the Secretary must prove that a
respirator that failed an inspection or was “otherwise found to be defective” was not removed
from service. After reviewing the testimony of the three witnesses who used respirators during
the turnaround, the court concludes that the Secretary failed to establish any of the respirators
was defective.
It is clear that the three employees who testified disliked the type of respirator (pressure-
demand) that Turner provided, and would have preferred to use constant-flow respirators. It is
not clear, however, that the pressure-demand respirators were, in fact, defective. Rather, the
employees found the respirators were uncomfortable and required more effort to use than
constant-flow respirators. Their testimony demonstrates the respirators were not ideal, but were
not actually defective:
Employee #1: I think there was a time or two on that particular respirator,
that I would give it back to the foreman and he would give me another one
because I didn’t like the way that that was working, the way that particular one
was working.
Q. And when you gave it back to the foreman, what would you explain to
the foreman about why you were giving it back?
Employee #1: Because it—maybe it wasn’t supplying a sufficient amount
of air that I would like if I was taking a breath and it would feed the oxygen to
me, and I’d say, “Let me try another one and we’ll see how this was working,”
because Level 3 jobs, you want to be as comfortable as you can be inside these
masks.”

   (Tr, 78-79).

           Employee #2: It’s like there was no positive flow. It was like whatever
   you take in, that’s what you get. And if you get overheated, it wasn’t letting a lot
   of air come to you. So pretty much it was miserable, you know.
           Q. And, did you complain about this at all to any of your supervisors?
           Employee #2: I don’t recall.

(Tr. 133-134).

            Q. [The pressure-demand respirators] are the ones generally used during
    the time period of the turnaround?
            Employee #2: They need to take them out completely.
            Q. Yeah. And I think [Employee #1] testified, in a perfect world, I think
    you and Chad and most of the folks prefer what I call free-flow.
            Employee #2: Exactly.
            Q. Okay. Notwithstanding your preference, were you able to do the work
    that you were expected to do in the Red Zone with that respirator that you used?
            Employee #2: You can, but you were uncomfortable because of what you
    had on.

    (Tr. 153).

    The former employee: "[A]t times it was a struggle to get air into my lungs. I
    just would pull it through into the mask, but sometimes it would clog up while we
    were working. They weren't reliable.

    (Tr. 187).

    The former employee stated when he complained to his foreman about a respirator, the

foreman said, "See if you can find a better one" (Tr. 188). Employees raised the issue of the
respirators at a safety meeting, where they were told, "Turner spent a lot of money on these.
This is what we have. This is what we're going to use" (Tr. 188).
There is no evidence any of the respirators used was defective. Employees tried the
respirators before entering the Red Zone, and were able to switch to a more comfortable one if
they found their first choice difficult to use.
The Secretary has failed to show that Turner was in violation of the cited standard. Item
4 is vacated.

                 Item 5: Alleged Serious Violation of § 1910.1200(g)(8)

    Item 5 of Citation No. 1 alleges:
    The compliance officer became aware on or about July 7, 2010, that the employer (at the
    Georgia Gulf Chemicals and Vinyls, LLC, facility in Plaquemine, LA) did not ensure that
    material safety data sheets were made accessible to employees on all shifts without them
    having to ask a management official.
    Section 1910.1200(g)(8) provides:

The employer shall maintain in the workplace copies of the required material
safety data sheets for each hazardous chemical, and shall ensure that they are
readily accessible during each work shift to employees when they are in their
work area(s). (Electronic access, microfiche, and other alternatives to
maintaining paper copies of the material safety data sheets are permitted as long
as no barriers to immediate employee access in each workplace are created by
such options.)
Noncompliance with the Terms of the Standard
It is undisputed that Georgia Gulf kept copies of the applicable MSDSs in its control
room, in its safety office, and in the guard shack (Tr. 253). Turner argues this is sufficient to
meet the requirement that the MSDSs be “readily accessible during each work shift to employees
when they are in their work area.”
Galpion testified that at some locations, the MSDSs were only available electronically, on
Georgia Gulf’s (not Turner’s) computer system:
[The MSDSs] were located in the control room on the computer system. I
had asked during the walkaround for a Georgia Gulf employee to show me how to
pull these MSDSs. It required logging into a Georgia Gulf computer with a
Georgia Gulf ID, finding the program, opening it, searching for the MSDS, and so
forth, and then printing it out. So Turner employees don’t have access to them
without a password, so they would have to ask someone else.
They were also locatd—paper copies were located in the Health and
Safety Office which required a card—key card to get in and out of, which Turner
employees don’t have. And also the guard shack, behind the counter in the back
there is a counter top where they sign for things[.]

(Tr. 231).
Employee #1 testified that the one time he requested an MSDS, a supervisor provided it
for him that same day (Tr. 86). Employee #2, however, had a different experience. He testified
that, shortly before the turnaround began, he asked for the MSDS for Tris because he was
concerned about exposure to it (Tr. 160). Employee #2 stated, “[Turner] didn’t know if they had
to go on the computer and find out what were the symptoms for it. I didn’t make no big deal
once they sort of explained it. But they couldn’t find it, you know” (Tr. 137-138).
The MSDSs were not readily available and were not located in the area where employees
worked. Employees wanting to consult an MSDS were required to leave their work area and go
to either Georgia Gulf’s control room or its safety office (the employees were unaware MSDSs
were located in the guard shack, which was remote from the Red Zone area). Turner employees
did not possess either key cards or computer passwords to enable them to find the MSDSs on
their own. An employee could request an MSDS from a supervisor, but there could be a delay in
obtaining the MSDS or, as in Employee #2’s case, the supervisor might fail altogether to provide
it.
Turner’s procedure for locating MSDSs does not meet the standard’s requirement that
they be readily accessible to employees. An employee seeking an MSDS must negotiate several
steps to consult the document. This procedure unnecessarily delays the employees’ access to the
information.
The Secretary has established Turner failed to comply with the terms of the standard.

                                        Exposure
   Turner employees working in the Red Zone were exposed to hazardous chemicals. As

established under Item 1a, their training in the hazards presented by these chemicals was
inadequate. Without access to the MSDSs for the chemicals, the employees were not equipped
to take appropriate action. Access to employee exposure is established.
Employer Knowledge
As the employer, Turner was aware of the procedure it had in place for employees to
consult MSDS. Actual exposure is established.
The Secretary has proven a serious violation of § 1910.1200(g)(8). Item 5 is affirmed.
Citation No. 2
Item 2: Alleged Other Violation of § 1910.134(h)(2)(i)
Item 2 of Citation No.2 alleges:

   The compliance officer became aware on or about July 23, 2010, that the
   employer (at the Georgia Gulf Chemicals and Vinyls, LLC, facility in
   Plaquemine, LA) did not ensure that the MSA facemasks for air-line respirators
   that were being used in the Vinyl Chloride Monomer Unit were stored in a
   manner to protect them from contamination, dust, and other damage. This
   exposed employees to the hazard of exposure to highly hazardous chemicals
   through inhalation and skin absorption as a result of using un-maintained face
   masks.

Section 1910.134(h)(2)(i) provides:

    All respirators shall be stored to protect them from damage, contamination, dust,
    sunlight, extreme temperatures, excessive moisture, and damaging chemicals and
    they shall be packed or stored to prevent deformation of the facepiece and
    exhalation valve.

                  Noncompliance with the Terms of the Standard
   During her walkaround, Galpion observed respirators on the ground in the shed where

Turner kept its PPE for the turnaround (Tr. 232). Exhibit C-1k shows a respirator on the floor
(Tr. 333). Galpion testified the respirator was not properly stored, and was subject to
contamination from dust and other contaminants (Tr. 232).
Galpion did not begin her inspection of the Red Zone area until May 2010. The
turnaround had been completed for several weeks by that time. There is no evidence that the
respirator Galpion observed in the tool shed was one that was used by Turner during the
turnaround. Turner’s safety supervisor testified that Turner was not storing PPE in the tool shed
at the time of the inspection, but that another contractor on the site was using it (Tr. 384).
Item 2 is vacated.

                                  Penalty Determination
   The Commission is the final arbiter of penalties in all contested cases. "In assessing

penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give
due consideration to the gravity of the violation and the employer's size, history of violation, and
good faith." Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007).
Turner employed approximately 350 employees at Georgia Gulf, and approximately
15,000 company-wide. There is no evidence OSHA had cited the company in the three years
prior to Galpion’s inspection. Turner has a good written safety program and demonstrated good
faith in this proceeding (Tr. 334-336). The remaining element to be considered is the gravity of
the violations. "Gravity is a principal factor in a penalty determination and is based on the
number of employees exposed, duration of exposure, likelihood of injury, and precautions taken
against injury." Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-
1052, 2005).
 Items 1a and 1b of Citation No 1-- §§ 1910.119(h)(3(ii) and (iii): The gravity of these
grouped items is high. Turner’s employees were working with hazardous chemicals during the
turnaround. Turner’s general safety training was not adequate to instruct the employees in the
hazards to which they were exposed in the Red Zone. The turnaround supervisor testified, “Tris
is not the type of chemical Turner normally expects to see during routine maintenance
operations” (Tr. 432).
Contrary to the opening statement by counsel for Turner, the three testifying employees
had not been working at Georgia Gulf during the 1996 Tris release, and they were not familiar
with its characteristics.1 Employee #1 began working for Turner in 2007 (Tr. 35), Employee #2
started in 2008 (Tr. 123). The former employee worked for Turner in 1993 and again in 1998,
but not at the Georgia Gulf plant. He started back with Turner in 2010, and stayed on past the
turnaround, until August of 2010 (after Galpion concluded her inspection) (Tr. 172-173, 190-
191).
Without proper training, Turner’s employees were exposed to hazardous chemicals
without adequate information. It is determined that a penalty of $ 3,000.00 is appropriate.
Items 2a and 2b of Citation No. 1--§1910.132(a)(2) and § 1910.134(d)(1)(iii): The
gravity of these grouped items is high. Meeting the requirements of the cited standards was
entirely in the control of Turner. The company chose to ignore its duties to conduct a workplace
hazard assessment and to evaluate respiratory hazards. This neglect put Turner’s employees at
risk from hazardous chemicals as they worked in the Red Zone. A penalty of $ 3,000.00 is
appropriate.

    1
       Turner’s counsel stated:
      The people who are being called today were working back at Georgia Gulf in 1996. They’re

aware there was a release of Tris. They were aware there were lawsuits. They were aware there was
recovery. They were aware there was an OSHA fine in excess of $ 100,000.00. And we’re claiming, Your
Honor, that in lieu of a lot of these individuals being let go at the end of the turnaround, that yes, they were
motivated by, you know, “Maybe there’s a check for us at the end of the day.” . . .We think the historical
context is absolutely a factor, given that most of these folks worked back in 1996.
(Tr. 20).
In addition to the false assertion that the three employees who testified were working at the Georgia Gulf
plant in 1996, the opening statement also incorrectly characterizes the employment status of the employees who
worked in the Red Zone. None of them was “let go at the end of the turnaround.” Two employees were still
employed by Turner at the time of the hearing. The former employee had continued working through August 2010,
six months after the turnaround was completed.
 Item 5 of Citation No. 1--§ 1910.1200(g)(8): The gravity of this violation is moderate.
Although MSDSs were not readily accessible, they were present at the plant, and employees
could access them, with some effort. It is determined that a penalty of $ 2,000.00 is appropriate.
 FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                        ORDER

    Based upon the foregoing decision, it is hereby ORDERED that:

1. Items la and 1b of Citation No. I, alleging serious violations of §§1910.119(h)(3)(ii) and
  (iii), are affirmed, and a grouped penalty of $ 3,000.00 is assessed;

2. Items 2a and 2b of Citation No. 1, alleging serious violations of §§ 1910.132(d)(2) and
  134(d)(1)(iii), are affirmed, and a grouped penalty of $ 3,000.00 is assessed;

3. Item 3 of Citation No. 1, alleging a serious violation of § 1910.134(g)(2)(ii)(B), was
  withdrawn by the Secretary. The item is vacated and no penalty is assessed;

4. Item 4 of Citation No.1, alleging a serious violation of § 1910.134(h)( 4), is vacated, and
  no penalty is assessed;

5. Item 5 of Citation No.1, alleging a serious violation of § 1910.1200(g)(8), is affirmed,
  and a penalty of $ 2,000.00 is assessed;

6. Item 1 of Citation No.2, alleging an other than serious violation of § 1910.1904.4(a), was
  withdrawn by the Secretary. The item is vacated and no penalty is assessed; and

7. Item 2 of Citation No.2, alleging an other than serious violation of § 1910.134(h)(2), is
  vacated, and no penalty is assessed.




                                                          /s/ Ken S. Welsch
                                                        KEN S. WELSCH
                                                        Administrative Law Judge

Date: February 6, 2011