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C.
Health Standard Violations.
1. General. The classification of health
violations involves the exercise of maximum professional judgment.
All relevant factors must be carefully considered when making
classification decisions.
2. Citation of Ventilation Standards. In cases
where a citation of a ventilation standard may be appropriate,
consideration shall be given to standards intended to control
exposure to recognized hazardous levels of air contaminants, to
prevent fire or explosions, or to regulate operations which may
involve confined space or specific hazardous conditions. In applying
these standards, the following guidelines shall be observed:
a. Health-Related Ventilation Standards. An employer
is considered in compliance with a health-related airflow ventilation
standard when the employee exposure does not exceed appropriate airborne
contaminant standards (e.g., the PELs prescribed in 29 CFR 1910.1000).
(1) Where an overexposure to an airborne
contaminant is detected, the appropriate air contaminant
engineering control requirement will be cited (e.g., 29 CFR
1910.1000(e)). In no case shall citations of this standard
be issued for the purpose of requiring specific volumes of
air to ventilate such exposures.
(2) Other requirements contained in
health-related ventilation standards shall be evaluated
without regard to the concentration of airborne
contaminants. Where a specific standard has been violated and
an actual or potential hazard has been documented, a
citation shall be issued.
b. Fire- and Explosion-Related Ventilation Standards.
Although they are not technically health violations, the following
guidelines shall be observed when citing fire- and explosion-related
ventilation standards:
(1) Adequate Ventilation. In the
application of fire- and explosion-related ventilation
standards, MOSH considers that an operation has adequate
ventilation when both of the following criteria are met:
(a)
The requirement of the specific
standard has been met.
(b)
The concentration of flammable vapors
is 25 percent or less of the lower explosive limit (LEL).
EXCEPTION:
Certain standards specify violations when 10
percent of the LEL is exceeded. These standards
are found in construction exposures.
(2) Citation Policy. If 25 percent (10
percent when specified for construction operations) of the
LEL has been exceeded and:
(a)
The standard requirements have not
been met, the standard violation shall be cited as
serious; otherwise, as other-than-serious.
(b)
There is no applicable specific
ventilation standard. Section 5-104(a) of the Act shall
be cited in accordance with the guidelines given in this
chapter.
c. Special Conditions Ventilation Standards. The
primary hazards in this category are those resulting from confined space
operations and welding.
(1) Overexposure need not be shown to cite
ventilation requirements found in the standards themselves.
(2) Other hazards associated with confined
space operations, such as potential oxygen deficiency or
toxic overexposure, must be adequately documented before a
citation may be issued.
3. Violations of the Noise Standard. Current
enforcement policy regarding 29 CFR 1910.95(b)(1) allows employers
to rely on personal protective equipment and a hearing conservation
program rather than engineering and/or administrative controls when
hearing protectors will effectively attenuate the noise to which the
employee is exposed to acceptable levels as specified in Tables G-16
or G-16a of the standard. Professional judgment is necessary to
execute properly the guidelines provided in MOSH Standards Notice
88-17.
a. Citations for violations of 29 CFR 1910.95(b)(1) shall
be issued when engineering and/or administrative controls are feasible,
both technically and economically; and
(1) Employee exposure levels are so high that
hearing protectors alone may not reliably reduce noise
levels received by the employee's ear to the levels
specified in Tables G-16 or G-16a of the standard. Given the
present state of the art, hearing protectors which offer the
greatest attenuation may not reliably be used when employee
exposure levels border on 100 dBA (See MOSH Standards Notice
88-17); or
(2) The costs of engineering and/or
administrative controls are less than the cost of an
effective hearing conservation program.
b. A control is not reasonably necessary when an employer
has an ongoing hearing conservation program and the results of audiometric
testing indicate that existing controls and hearing protectors are
adequately protecting employees. (In making this decision such factors as
the exposure levels in question, the number of employees tested, and the
duration of the testing program shall be taken into consideration.)
c. When employee noise exposures are less than 100 dBA but
the employer does not have an ongoing hearing conservation program or the
results of audiometric testing indicate that the employer's existing
program is not working, the CO/IH shall consider whether:
(1) Reliance on an effective hearing
conservation program would be less costly than engineering
and/or administrative controls.
(2) An effective hearing conservation program
can be established or improvements can be made in an
existing hearing conservation program which could bring the
employer into compliance with Tables G-16 or G-16a.
(3) Engineering and/or administrative
controls are both technically and economically feasible,
according to the guidelines in MOSH Standards Notice 88-17.
d. If noise levels received by the employee's ear can be
reduced to the levels specified in Tables G-16 or G-16a by means of
hearing protectors and an effective hearing conservation program,
citations under the hearing conservation standard shall normally be issued
rather than citations requiring engineering controls.
(1) If improvements in the hearing
conservation program cannot be made or if made, cannot be
expected to reduce exposure sufficiently and feasible
controls exist, a citation under 1910.95(b)(1) shall
normally be issued.
(2) Such cases shall be discussed with the
Assistant Commissioner/Authorized Representative.
e. When hearing protection is required but not used and
employee exposure exceeds the limits of Table G-16, 29 CFR
1910.95(i)(2)(i) shall be cited and classified as serious (See C.3.h.
below) whether or not the employer has instituted a hearing conservation
program. 29 CFR 1910.95(a) shall no longer be cited except in the case of
the oil and gas drilling industry.
NOTE: Citations of 29 CFR 1910.95(i)(2)(ii)(b) shall be classified as serious.
f. If an employer has instituted a hearing conservation
program and a violation of the hearing conservation amendment (other than
1910.95(i)(2)(i) or (i)(2)(ii)(b)) is found, a citation shall be issued if
employee noise exposures equal or exceed an 8-hour time-weighted average
of 85 dB. Such a citation shall be classified as other-than-serious.
g. If the employer has not instituted a hearing
conservation program and employee noise exposures equal or exceed an
8-hour time-weighted average of 85 dB, a citation for 1910.95(c) only
shall be issued and classified as other-than-serious. If the 8-hour
time-weighted average equals or exceeds 90 dB, it shall be cited as
serious.
h. Violations of 1910.95(i)(2)(i) from the hearing
conservation amendment shall be grouped with violations of 29 CFR
1910.95(b)(1) and classified as serious when an employee is exposed to
noise levels above the limits of Table G-16 and:
(1) Hearing protection is not utilized or is
not adequate to prevent over-exposure to an employee; or
(2) There is evidence of hearing loss which
could reasonably be considered:
(a)
To be work-related, and
(b)
To have been preventable, at least to
some degree, if the employer had been in compliance with
the cited provisions.
When an employee is overexposed but
effective hearing protection is being provided and used,
an effective hearing conservation program has been
implemented and no feasible engineering or
administrative controls exist, a citation shall not be
issued.
4. Violations of the Respirator Standard. The
respirator standard covers respirator use where respirators are
being worn to protect employees from exposure to air contaminants
above an exposure limit or are otherwise necessary to protect
employee health, where respirators are otherwise required to be worn
by the employer, and where respirators are voluntarily worn by
employees for comfort or other reasons. When
considering a citation for respirator violations, the following
guidelines shall be observed:
a. In Situations Where Overexposure Does Not Occur or Has
Not Been Established.
(1) If the employer requires that a respirator be worn (regardless
of the respirator type), and no written program or program
element(s) have been implemented, the CO/IH should cite 29 CFR
1910.134(c)(1) and the specific element(s) that are missing. For
instance, no written program and the lack of medical
surveillance and fit testing would result in citations for
1910.134(c)(1), (e)(1) and (f)(1). These should normally be
cited as other-than-serious, unless the CO/IH can adequately
document a serious hazard created by the use of the respirator;
(a)
An employee's health could be seriously jeopardized
due to:
1 a cardio-pulmonary problem
which could be aggravated by respirator use
2 wearing a dirty respirator
that can cause dermatitis or ingestion of a hazardous
chemical
3 sharing a respirator that
leads to transmittal of disease.
(b)
If the employer permits the voluntary
use of elastomeric facepiece respirators and the CO/IH
determines that elements of a written program which
provide for medical surveillance and respirator
maintenance are absent, section (c)(1), (c)(2)(I) and
the applicable subsection of (e) and (h) should be cited
as other-than-serious;
(c)
If the employer permits the voluntary
use of filtering facepieces (dust masks) section
(c)(2)(I), only (for the failure to provide the
information found in Appendix D) should be cited as
other-than-serious. There are no other requirements for
the voluntary use of filtering facepieces.
b. In Situations Where Overexposure Does Occur or Has Been
Established. In cases where an overexposure to an air contaminant has
been established, the following principles apply to citations of 1910.134:
(1) Failure to Provide Respirators.
Whether or not an employer has instituted required
engineering or work practice controls, the employer's
failure to provide respirators when employees are exposed to
hazardous levels of air contaminants if citable under
1910.134. In cases involving substance-specific standards
(i.e., lead, asbestos), where the employer has not provided
respirators, the section of the substance-specific standard
requiring respirators should be cited. If the substance is
listed only in Table Z of 1910.1000 or Appendix A of
1926.55, a citation for 1910.134(a)(2) should be issued. The
degree of severity should be based on the health effects of
the air contaminant(s). Grouping with the air-contaminated
overexposure may also be considered.
(2) Failure to Ensure the Use of Respirators.
Where respirators are needed to protect the health of
employees, the employer must not only provide respirators,
but must also ensure their use. In cases involving
substance-specific standards, the section of the standard
requiring respirator use should be cited. For substances
listed only in Table Z of 1910.1000 or Appendix A of
1926.55, sections 1910.1000(e) or 1926.55(b) should be cited
when the employer does not ensure the use of respirators.
For substances not listed in 1910.1000, 1926.55, or
substance-specific standards, 1910.134(a)(1) should be cited
when the employer fails to ensure respirator use. The degree
of severity should be based on the health effects of the air
contaminant(s). Grouping with the air contaminant
overexposure may also be considered.
(3) Failure to Have a Respirator Program.
Paragraph 1910.134(a)(2) requires the employer to establish
and maintain a respiratory protection program that includes
the requirements in 1910.134(c) whenever respirators are
required to protect the health of the employee. The program
must be in writing and contain all of the elements specified
in 1910.134(c). If the employer has no program at all (no
elements of a respirator program in place), 1910.134(a)(2)
should be cited. If respirators are used or other respirator
violations are found, and there is no written program, then
1910.134(c)(1) should be cited. If a written program exists,
but is deficient in its required elements, then the
subsection of 1910.134(c) requiring the missing element(s)
should be cited. The degree of severity should be based on
the health effects of the air contaminant(s). Grouping with
the air contaminant standard may also be considered.
The specific actions that the employer
must take are found in 1910.134(d)-(m). If the employer's
written program has all the required elements, but the
employer has not taken the required action(s) specified in
1910.134(d)-(m), cite the applicable action(s) in
1910.134(d)-(m). The degree of severity should be based on
the health effects of the air contaminant(s). If no written
program exists, but all other provisions of the standard
have been met, 1910.134(c)(1) should be cited. This will
normally be cited as other-than-serious.
5. Violations of Air Contaminant Standards (29 CFR
1910.1000 Series). The standard itself provides several
requirements.
a. 29 CFR 1910.1000(a) through (d) provide ceiling values
and 8-hour time-weighted averages (threshold limit values) applicable to
employee exposure to air contaminants.
b. 29 CFR 1910.1000(e) provides that to achieve compliance
with those exposure limits, administrative or engineering controls shall
first be identified and implemented to the extent feasible. When such
controls do not achieve full compliance, protective equipment shall be
used. Whenever respirators are used, their use shall comply with 29 CFR
1910.134.
c. 29 CFR 1910.134(a) provides that when effective
engineering controls are feasible, or while they are being instituted,
appropriate respirators shall be used. Their use shall comply with
requirements contained in 29 CFR 1910.134 which provide for the type of
respirator and the proper maintenance.
d. The situation may exist where an employer must provide
feasible engineering controls as well as feasible administrative controls
(including work practice controls) and personal protective equipment. 29
CFR 1910.1000(e) has been interpreted to allow employers to implement
feasible engineering controls and/or administrative and work practice
controls in any combination the employer chooses provided the abatement
means chosen eliminates the overexposure.
e. Where engineering and/or administrative controls are
feasible but do not or would not reduce the air contaminant levels below
the applicable ceiling value or threshold limit value, the employer,
nevertheless, must institute such controls. Only where the implementation
of all feasible engineering and administrative controls fails to reduce
the level of air contaminants below applicable levels will the use of
personal protective equipment constitute satisfactory abatement. In such
cases, usage of personal protective equipment shall be mandatory.
6. Classification of Violations of Air Contaminant
Standards. When it has been established that an employee is
exposed to a toxic substance in excess of the PEL established by
MOSH standards (without regard to the use of respirator protection),
a citation for exceeding the air contaminant standard shall be
issued. The violation shall be classified as serious or
other-than-serious on the basis of the requirements in the Chemical
Information Table and the use of respiratory protection at the time
of the violation.
a. Classification of Violations. Classification of
violations is dependent upon the determination that the illness is
reasonably predictable at that exposure level, whether the illness is
serious or other-than-serious and that the employer knew or could have
known through reasonable diligence that a hazardous condition existed.
b. Principles of Classification. Exposure to a
substance shall be considered serious if the exposure could cause
impairment to the body as described in B.1.b.(3).
(1) In general, substances having a single
health code of 13 or less shall be considered as serious at
any level above the PEL. Substances in categories 6, 8, and
12, however, are not considered serious at levels where only
mild, temporary effects would be expected to occur.
(2) Substances causing irritation (i.e.,
categories 4 and 15) shall be considered other-than-serious
up to levels at which "moderate" irritation could
be expected.
(3) For a substance (e.g., cyclohexanol),
having multiple health codes covering both serious and
other-than-serious effects, a classification of
other-than-serious shall be applied up to the level at which
a serious effect(s) could be expected to occur.
(4) For a substance having an ACGIH Threshold
Limit Value (TLV) or a NIOSH recommended value, but no MOSH
PEL, a citation for exposure in excess of the recommended
value shall be considered under Section 5-104(a) of the Act
in accordance with the guidelines given in A.2, if exposure
above that limit is recognized as hazardous by the employer
or the industry.
(5) If an employee is exposed to
concentrations of a substance below the PEL, but in excess
of a recommended value (e.g., ACGIH TLV or NIOSH recommended
value), a citation for inhalation cannot be issued. The CO/IH
shall advise the employer that a reduction of the PEL has
been recommended.
(6) For a substance having an 8-hour PEL with
no ceiling PEL but for which a ceiling ACGIH TLV or NIOSH
ceiling value has been recommended, the case shall be
referred to the MOSH Supervisor in accordance with A.2.d.(2)
of this chapter. If no citation is to be issued, the CO/IH
shall, nevertheless, advise the employer that a ceiling
value has been recommended.
c. Specific Guidance. For any substance falling within
a health code classified as serious in the Chemical Information Table, a
serious citation shall be issued for excessive exposure, for failure to
utilize feasible engineering and/or administrative controls, for failure
to follow the medical removal protection requirements and for failure to
use respirators and/or to have an adequate respirator program. If,
however, the employer is exhibiting good faith by having an adequate
respirator program in use which is effective in reducing actual employee
exposure to below the applicable standard (i.e., all the significant
elements of a respiratory program required in 29 CFR 1910.134 are being
met), an other-than-serious citation shall be issued for excessive
exposure and failure to utilize feasible engineering and/or administrative
controls.
d. Effect of Respirator Protection Factors. The CO/IH
shall consider protection factors for the type of respirator in use as
well as the possibility of overexposure if the respirator fails. If
protection factors are exceeded and if the potential for overexposure
exists, a citation for failure to control excessive exposure shall be
issued.
e. Additive and Synergistic Effects. Substances which
have a known additive effect and, therefore result in a greater
probability/severity of risk when found in combination shall be evaluated
using the formula found in 29 CFR 1910.1000(d)(2).
(1) The use of this effect requires that the
exposures have an additive effect on the same body organ or
system. Caution must be used in applying the additive
formula, and prior consultation with the MOSH Supervisor is
required.
(2) If the CO/IH suspects that synergistic
effects are possible, it shall be brought to the attention
of the MOSH Supervisor who shall refer the question to the
Assistant Commissioner/Authorized Representative. If it is
decided that there is a synergistic effect of the substances
found together, the violations shall be grouped, when
appropriate, for purposes of increasing the violation
classification severity and/or the penalty.
7. Guidelines for Issuing Citations of Air
Contaminant Violations. No violation of 29 CFR 1910.1000 series
would exist and no citation would be issued in the following
circumstances:
a. Where no identified employee exposure level is above
that specified in the standard, whether or not engineering controls,
administrative controls or personal protective equipment are utilized.
b. Where the exposure level of an identified employee is
above that specified in the standard, but all feasible engineering and
administrative controls are utilized and personal protective equipment is
provided, worn and maintained in accordance with the provisions of 29 CFR
1910.134.
8. Citing Improper Personal Hygiene Practices.
The following guidelines apply when citing personal hygiene
violations:
a. Ingestion Hazards. A citation under 29 CFR
1910.141(g)(2) and (4) shall be issued where there is reasonable
probability that, in areas where employees consume food or beverages
(including drinking fountains), a significant quantity of a toxic material
may be ingested and subsequently absorbed.
(1) For citations under 29 CFR 1910.141(g)(2)
or (4) wipe sampling results shall be adequately documented
to establish a serious hazard.
(2) Where, for any substance, a serious
hazard is determined to exist due to the potential of
ingestion or absorption of the substance for reasons other
than the consumption of contaminated food or drink (e.g.,
smoking materials contaminated with the toxic substance), a
serious citation shall be considered under Section 5-104(a)
of the Act.
(3) Such citations do
not depend on
measurements of airborne concentrations.
b. Absorption Hazards. A citation for exposure to
materials which can be absorbed through the skin or which can cause a skin
effect (e.g., dermatitis) shall be issued where appropriate personal
protective equipment (clothing) is necessary but not worn. (See Table Z-1,
substances marked "skin".) The citation shall be issued under 29
CFR 1910.132(a) as either a serious or other-than-serious citation
according to the hazard.
(1) Such citations do
not depend on
measurements of airborne concentrations.
(2) If a serious skin absorption or
dermatitis hazard exists which cannot be eliminated with
protective clothing, a Section 5-104(a) citation may be
considered. Engineering or administrative (including work
practice) controls shall be required in these cases to
prevent the hazard.
c. Wipe Sampling. In general, wipe sampling (not air
sampling) will be necessary to establish the presence of a toxic material
posing a potential absorption or ingestion hazard (See IH Technical Manual
for sampling procedures.).
d. Issuing Citation. There are two primary
considerations when issuing a citation of an ingestion or absorption
hazard, such as a citation for lack of protective clothing:
(1) A health risk exists as demonstrated by
one of the following:
(a)
A potential for an illness, such as
dermatitis, and/or
(b)
The presence of a toxic material that
can be ingested or absorbed through the skin or in some
other manner. (See the Chemical Information Table.)
(2) The potential that the toxic material can
be ingested or absorbed, e.g., that it can be present on the
skin of the employee, can be established by evaluating the
conditions of use and determining the possibility that a
health hazard exists.
(3) The conditions of use can be documented
by taking both qualitative and quantitative results of wipe
sampling into consideration when evaluating the hazard.
e. Supporting Citation. There are four primary
considerations which must be met to support a citation:
(1) The potential for ingestion or absorption
of the toxic material must exist.
(2) The ingestion or absorption of the
material must represent a health hazard.
(3) The toxic substance must be of such a
nature and exist in such quantities as to pose a serious
hazard. The substance must be present on surfaces which have
hand contact (such as lunch tables, cigarettes, etc.) or on
other surfaces which, if contaminated, present the potential
for ingestion or absorption of the toxic material (e.g., a
water fountain)
(4) The protective clothing or other
abatement means would be effective in eliminating or
significantly reducing exposure.
f. Biological Monitoring. If the employer has been
conducting biological monitoring, the CO/IH shall evaluate the results of
such testing. The results may assist in determining whether a significant
quantity of the toxic material is being ingested or absorbed through the
skin.
g. Determination of Source. Prior to the issuance of a
citation, the CO/IH shall carefully investigate the source or cause of the
observed hazards to determine if some type of engineering, administrative
or work practice control, or combination thereof, may be applied which
would reduce employee exposure.
9. Classification of Violations for the New Health Standards. In
general, classification decisions regarding violations of the exposure
limits of the new health standards shall be governed by the Chemical
Information Table classifications. (For specific guidance with regard to
grouping violations under the extended health standards refer to the
summary in Chapter V.)
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