Sep 18, 2019
In a ruling issued Sept. 11, the U.S. Court of Appeals for the Ninth Circuit ruled that the Occupational Safety and Health Administration (OSHA) Respiratory Protection Standard orders that employers appropriately assess all relevant respiratory hazards before deciding if a respirator is needed as well as to select a proper respirator.
The lawsuit began in 2009 when workers’ grievances drew OSHA safety inspectors to the marine vessel repair plants operated in Seward, Alaska, by Seward Ship's Drydock Inc., which at that time performed both drydock and dockside safety repairs and support on ships and barges.
The organization was in the process of completing welding within a ship’s voids (empty compartments designed to add to the vessel’s buoyancy). Respirators had been suggested to the welders voluntarily, but only one had wished to do so.
The site supervisor, who also was the designated “shipyard competent person” and held a marine chemist certification, handled atmospheric examination where production would take place. Before welding began, he tested the voids using a “grab sample,” which gives an immediate analysis from a gas meter.
The tests concluded whether gas levels in the voids were “safe for entry” at the time the inspection was conducted. However, he did not examine for the metals found in welding fumes. The welding fumes present carried iron oxide, manganese, fluorides and barium compounds. Overexposure to them can cause respiratory problems, and overexposure to iron oxide can induce siderosis, commonly known as “iron lung.”
Two of the welders later testified that the air quality in the voids was very poor and reported it as being hazy. The welders registered complaints with OSHA and safety compliance officers discovered there were improper ventilation and visible fumes. They took grab samples to examine for carbon monoxide and assigned personal exposure monitoring devices to two welders.
The inspectors then issued charges for 13 violations for neglecting to sufficiently test the air in the voids, exposing workers to inhalation risks. They concluded that the testing conducted by Seward did not address permissible exposure limits (PELs) for numerous chemicals.
OSHA appealed to the Occupational Safety and Health Review Commission (OSHRC), which after leading briefings from each of the parties concerned, decided to uphold the ALJ’s decision against the agency. OSHA then appealed that judgment to the federal appeals court, which reversed OSHRC and found that OSHA’s understanding of the law and its regulations were true.
The court reasoned that OSHA’s Respiratory Protection Standard orders employers to evaluate potentially dangerous atmospheres to determine whether respirators are needed and in selecting the proper respirator, rather than completing this evaluation after a decision has been made that respirators are required.
In short, the court reversed the commission’s position that evaluation of respiratory risks was needed only after a decision had been made that respirators were required and supported OSHA’s contention that an evaluation of respiratory dangers was needed to resolve whether a respirator was required and then to select the appropriate respirator.
In light of this opinion, employers should re-evaluate their methods for determining when it is reasonable to suspect that an employee may be exposed to harmful densities of airborne contaminants.
David Sparkman | Sep 18, 2019 - In a decision published Sept. 11, the U.S. Court of Appeals for the Ninth Circuit ruled that the Occupational Safety and Health Administration (OSHA) Respiratory Protection Standard requires that employers adequately evaluate all appropriate respiratory hazards before determining if a respirator is required as well as to select an appropriate respirator.
The case began in 2009 when workers’ complaints drew OSHA inspectors to the marine vessel repair facilities operated in Seward, Alaska, by Seward Ship's Drydock Inc., which at that time performed both drydock and dockside repairs and maintenance on ships and barges.