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Squeaky Clean or Clean Enough? Lead Accumulation in the Workplace

Jan. 10, 2020
Secretary of Labor v. Mahle Engine Components, U.S.A., Inc. provides critical lessons and insight to employers regarding how to comply with the housekeeping section of the lead standard.

Numerous safety and health standards under the Occupational Safety and Health Act (the “Act”) require that employers ensure that the work surfaces at their facilities, including employee break rooms and locker rooms, are maintained as “free as practicable” of accumulations of certain hazardous material.[1] For example, the Act’s General Industry standard for lead provides that “[a]ll surfaces shall be maintained as free as practicable of accumulations of lead.”[2] The Act’s requirement may seem simple, but plant managers and safety professionals often ask: “How clean does my facility have to be to ensure that I am in compliance with the Act?” The answer – to the chagrin of employers – is that it depends on the circumstances of each facility.

Although there is no bright-line answer to this question, Administrative Law Judge Keith Bell’s May 20, 2015 decision in Secretary of Labor v. Mahle Engine Components, U.S.A., Inc. provides insight regarding what conduct the Occupational Safety and Health Review Commission considers when evaluating whether an employer maintained its workplace as free as practicable of hazardous material and a roadmap for employers to defend alleged housekeeping violations of the Act.

Sec’y of Labor v. Mahle Engine Components, U.S.A., Inc.

MAHLE produces coils of coated steel used to make components for the automotive industry. Its McConnelsville, Ohio facility consists of two facilities: the south building which includes a finishing department where employees modify lead-coated steel coils and a north building that housed a lead casting department that had two casting lines. At the time of the inspection, MAHLE operated the casting lines for three shifts each day. Employees in the casting line cleaned a steel strip, preheated it, and then cast it with molten bronze alloy. The bronze alley consisted of 20% lead. The coated steel was then sent either to other plants or to the finishing department in the south building. Lead fumes were released during the casting process.

Because MAHLE employees routinely worked around lead, MAHLE had an exposure control plan that included extensive decontamination procedures that employees had to follow at the end of each shift and when they took breaks. In addition to an extensive decontamination process, MAHLE contracted with a third-party to conduct general cleaning services throughout the facility, including areas where lead accumulation could occur.

OSHA opened an investigation of the facility on October 12, 2012. On December 10, 2012, the Compliance Officer took six wipe samples from various areas in the break room and locker room to obtain a representative sample of lead exposure at the facility. Based on the laboratory report of the December 2012 samples, the Compliance Officer determined that four of the sampled surface areas had excessive lead levels. Also, during the inspection, the Compliance Officer allegedly observed the third-party responsible for cleaning the break rooms using an improper cleaning method; third-party employees allegedly used a “dry” method to clean the areas rather than wet rags and a rinsing bucket.

At the end of the inspection, OSHA issued a Citation to MAHLE which included, among other things, a Serious violation of the housekeeping requirement of the lead standard which requires employers to ensure “[a]ll surfaces shall be maintained as free as practicable of accumulations of lead.” More specifically, the Citation alleged that, based on the results of the wipe samples, MAHLE failed to keep its break room adequately free of lead accumulation.

After a two-day hearing, Judge Bell vacated the alleged Serious violation of the housekeeping requirement of the lead standard because the Secretary of Labor (“Secretary”) failed to establish that (1) MAHLE violated the cited standard and; (2) MAHLE knew or should have known of the alleged excessive accumulations of lead.

As an initial matter, the Judge found that the wipe sample data and results were not credible. First, the sampling date and shipping date in the Secretary’s lab report did not correspond to the Compliance Officer’s collection date. That is, the report listed the sampling date of October 15, not December 10. Second, the sample numbers in the lab report did not match the sampling numbers in the Compliance Officer’s inspection worksheet. Third, the Secretary failed to verify or otherwise put the lab report’s results in the record or explain the results. Indeed, the Secretary put on no evidence explaining the unit of measurement the lead results were based on (i.e., per square foot, per cubic foot, etc.). Fourth, the Secretary failed to establish the chain-of-custody procedures when the lab received the samples, nobody from the lab confirmed the results on the lab report were from the samples collected on December 10. All told, the Judge found that the “report and resulting calculations are not credible and cannot support the Secretary’s allegation of lead contamination at MAHLE.”

Next, the Judge made three critical findings regarding the allowable level of lead accumulation under the lead standard:

· the allowable level of lead accumulation needed to violate the standard depends on the conditions at a particular facility;

· wipe samples that show a lead accumulation greater than 200 ug/ft2, the Department of Housing and Urban Development’s (“HUD”) hazard threshold for a violative condition, does not establish a violation of the lead standard and cannot be used as a basis to establish a violation; and

· a practicable level of lead at lead facilities is not a wipe sample that shows no detection of lead.

Judge Bell began his analysis by explaining that the housekeeping requirement of the lead standard does not establish a “maximum acceptable concentration of lead for surfaces” but rather requires employers to keep their facilities “as free as practicable of accumulations of lead.” Based on the history of the lead standard, OSHA’s compliance directives, and a January 2003 OSHA Letter of Interpretation, the acceptable concentration of surface lead depends on the conditions of a facility. As such, the standard merely requires employers to implement a regular housekeeping schedule based on exposure conditions and therefore the standard does not define how “clean is clean.”

Next, the Judge rejected the Secretary’s argument that samples showing a lead concentration of more than 200 ug/ft2, the HUD hazard threshold, established a violation of the lead standard. He explained that the HUD hazard threshold is not a maximum level of surface lead for compliance with the standard; rather “it was set forth as the level that OSH does not expect a surface to be cleaner than.” In any event, the Secretary could not rely on the HUD hazard threshold as a basis to establish a violation of the lead standard because it is not incorporated in the standard and does not take into considerations what is practicable at MAHLE’s facility.

Third, he rejected the Secretary’s argument that a practicable lead level for MAHLE were samples that detected no lead at all. This bright-line rule did not take into consideration the operations at the facility, which produced lead emissions, or MAHLE’s efforts to mitigate the accumulation of lead in its facility, including utilizing a third-party to lean certain areas of the facility three times a day. In other words, the Secretary failed to establish that MAHLE’s mitigation efforts were deficient such that MAHLE failed to maintain surface lead at a practicable level.

As for MAHLE’s knowledge of the allegedly excessive accumulation of lead, the record was devoid of any evidence that MAHLE had actual knowledge of excessive lead accumulation or that the break room was not maintain as free as practicable of lead. With respect to whether MAHLE could have known or should have known (i.e., constructive knowledge) of the allegedly excessive lead accumulation, MAHLE made reasonable efforts to have effective cleaning for the break room. This included, among other things, (1) reviewing the third-party’s cleaning reports to ensure it was following the cleaning schedule; (2) addressing issues regarding the third-party’s cleaning methods; (3) providing lead cleaning solutions and training to the third-party that outlined the proper cleaning techniques and information about MAHLE’s exposure control plan; and (4) monitoring the effectiveness of the cleaning by using a “quick-test stick” to determine surface lead in areas of the facility. Accordingly, the Judge found that MAHLE made reasonable efforts to have effective cleaning for the break room and did not know that the cleaning was inadequate.

Lessons from MAHLE

MAHLE provides employers important lessons regarding how to ensure its facilities are as clean as practicable from accumulations of hazardous material. Indeed, MAHLE reminds employers that they should:

· Evaluate potential employer exposure to hazardous material like lead, chromium, or cadmium and create an exposure control plan based on this evaluation. And, follow it!

· Implement a regular cleaning schedule in areas of the facility where hazardous material could accumulate: break rooms, lunch rooms, and locker rooms.

· Train employees or third-party employees who perform the cleaning on your exposure control plan, hazardous associated with the material, appropriate way to clean the hazardous material.

· Document when the cleanings occur, who performed the cleaning, and the results of any testing of the presence of hazardous material before, during, or after the regularly scheduled cleaning.

· Routinely monitor the effectiveness of the cleaning schedule and raise deficiencies the employer identifies and modify the cleaning schedule accordingly.

It is important for an employer to have documentation regarding the conduct above as it will be critical in establishing that the employer maintained its workplace as free as practicable of accumulation of hazardous material.

Perhaps more importantly – especially for safety professionals and OSHA practitioners – MAHLE provides a roadmap and key arguments to defend against a Citation that alleges the employer failed to maintain its facility as free as practicable of lead. Specifically, employers should:

· Scrutinize the Secretary’s sampling data and sampling results, do not just accept the Secretary’s lab’s findings. Information regarding the sampling data that the Compliance Officer submits to the lab should match the information in the lab report. For example, if the sampling data is numbered S1, S2, and S3, the lab report should not identify the sampling data as S4, S5, and S6.

· Make the Secretary prove its work. In other words, make the Secretary explain the results of the wipe samples the Compliance Officer takes during the inspection. This is especially true if the Secretary’s lab report does not reflect the unit of measurement that the sampling results are based on.

· Challenge the Secretary’s arguments that (1) lead accumulation greater than 200 ug/ft2 (the HUD threshold for a violative condition) is a violation of the Act’s lead standard; and (2) unless wipe samples detect no lead at all the employer violates the lead standard. Although Judge Bell specifically rejected these arguments in MAHLE, the Secretary has continued to try to assert these arguments in other cases.

In sum, MAHLE provides critical lessons and insight to employers regarding how to comply with the housekeeping section of the lead standard (and the housekeeping section of similar standards of the Act) and defend against an OSHA Citation alleging that the employer violated the housekeeping section of the lead standard.

Safety and health professionals along with employer’s inside and outside counsel would be wise to heed the lessons from MAHLE to ensure employer’s facilities are complying with the housekeeping requirement of OSHA’s lead standard as well as similar OSHA housekeeping requirements.

[1] See 29 C.F.R. §§ 1910.1025 (Lead); 1026 (Chromium); 1027 (Cadmium);

[2] 29 C.F.R. §§ 1910.1025(h)(1).

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