Archived - Decision: 96-015 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II,

of a direction issued by a safety officer

Decision No.96-015

Applicant: Bruce Scott& Charles R. Parlee

230 Sweeney Lane 129 Babcock Street

Newcastle, N. B. Campbellton, N. B.

Respondent: Canadian National Railway Company

1234 Main Street

Moncton, N. B.

Mis en cause: Marcel Pelletier

Safety Officer #3129

Transport Canada, Surface

Moncton

N. B.

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in Bathurst, New Brunswick, on May 22, 1996. In

attendance were:

Roland Leblanc Co-chairman, H & S committee

Bruce Scott Trainman

Daniel Mann M.T.E.S., Campbellton

M.P. Leblanc M.T.E.S., Campbellton

Leo P. Hickey Superintendent Transportation - CN

W. D. Hanson CN, Moncton

Marcel Pelletier Transport Canada

Dale Hicks Transport Canada

Robert Reid HRDC - Labour

Background

On May 15, 1995, there was a work refusal by two CN North America

employees at the loading facilities of Brunswick Mining and Smelting

near Bathurst, New Brunswick. The two employees, Bruce Scott and

Charles R. Parlee refused to operate a crane because of excessive lead

dust in the cab of the crane. The safety officer, Marcel Pelletier,

was called on the scene following the refusal to work and, after

conducting an investigation, he decided that danger existed and upheld

the refusal to work. Subsequently, the safety officer issued a

direction to CN North America (appendix 1).

On May 20, 1995, the two employees appealed the direction to the

regional safety officer under subsection 129(5) of the Canada Labour

Code on the basis of the safety officer's decision that "work as crane

operator for said train crew does not constitute a danger to an

employee or that a condition does not exist in a place that constitutes

a danger to an employee, and an employee is not entitled under section

128 or this section to continue to refuse". The regional safety

officer replied that first by, he was not the proper venue for an

appeal under this subsection of the Code: such an appeal must be

directed to the Canada Labour Relations Board; secondly, there could be

no appeal under the referenced subsection because in fact, the safety

officer had decided that danger did exist and had upheld the refusal to

work.

At this point, there was a breakdown in correspondence and the next

communication was received in March 1996. Through the safety officer,

the two employees, Bruce Scott and Charles R. Parlee indicated that

they wished to pursue their appeal of the safety officer's direction.

In consequence, a hearing was set for May 22, 1996.

The situation which gave rise to the direction is as follows: CN North

America sends a train five days a week to Brunswick Mining & Smelting,

Bathurst, N. B., to be loaded with ore. During the loading operation,

CN employees operate the crane used to lift and put the covers back on

the rail cars. Ore dust containing lead and zinc enters the cab of

this crane and concerns about possible high concentrations of lead in

the air were at the root of the refusal to work.

The cab of the crane features a ventilation system with high efficiency

particulate air (HEPA) filters; however, due to a lack of maintenance,

the filters do not operate as they should and dust levels inside the

cab are higher than they should be. Air quality testing was carried

out in February 1995 followed by additional testing in April 1995. I

was not provided with the results of the tests done during February

1995. However, the tests done in April 1995 by Chris Wood, an

industrial hygienist working for CN North America, show that airborne

lead concentration in the cab of the crane measured over a period of

3 hours was 0.239 mg/m3 (personal sample); an area sample taken in

the cab over a period of roughly two hours yielded a concentration of

0.151 mg/m3. In order to estimate an employee's average exposure

over eight hours, these results must be adjusted for time. According

to Chris Wood's report, the eight hour average exposure for an

exposition of three hours to a concentration of 0.239 mg/m3 of

airborne lead (the personal sample value), is 0.09 mg/m3. This can

then be compared with the TLV-TWA to determine whether the exposure is

excessive or not.

Robert Reid of Human Resources Development Canada - Labour also took

some measurements at Brunswick Mines on April 17, 1995. Three personal

samples were obtained: on the conductor, on the brakeman and on an

observer. The results, corrected for an average exposure over eight

hours, were respectively 0.38, 0.019 and 0.057 mg/m3 for lead and

0.46, 0.023 and 0.041 mg/m3 for zinc.

Following these investigations, the employer decided to issue NIOSH

approved respirators to the employees until modifications to the crane

cab ventilation system could be made to bring the airborne lead

concentration to an acceptable value. A few days later, on May 15,

1995, the employees refused to work because the filter masks did not

fit properly and they had not been trained on how to use them. At this

time, the safety officer conducted his investigation. As a result, he

accepted the refusal to work and he issued a direction to the employer

(appendix 1).

Submission by the employees' representative

- Dust masks are not a satisfactory solution to the problem of air

contamination by airborne lead in the cab of the crane; the positive

pressure air supply system should be repaired and properly

maintained with regularly scheduled replacement of air filters. The

whole crane cab must also be cleaned of lead dust, not only the

windows. Presently, filters are changed every five weeks or so.

- The conductor must communicate with the rail traffic controller;

the dust mask prevents clear communications; it must be removed when

talking to ensure good communications. Furthermore, the dust mask

is uncomfortable.

- The airborne lead concentration is ten times higher than it should

be; employees suffer from headaches due to lead dust levels.

- Bruce Scott's blood lead test done by his physician while he was

working at Brunswick Mines indicated a level of 14.2 µg/100 ml; mine

employees are taken off work when their blood lead level reaches 20

µg/100 ml. Six months after leaving the job at Brunswick Mines, his

blood lead level was down to 0.04 µg/100 ml.

- Mine employees shower and put on clean clothing when they leave

the facility, leaving the soiled clothing at the mine to be cleaned;

they do not have to go through the loading facility after showering.

Outside contractors do not have to shower when they leave the

facility, but showers are available.

Submission by the employer's representative

- The trains go to Brunswick Mines five nights a week. Loading

takes three to four hours, but sometimes can last up to five hours.

- The employer has made arrangements with Brunswick Mines so that

its employees can use the shower facilities located in the Boiler

Room; also arrangements have been made with a nearby motel for

coveralls to be washed.

- The employer is supplying face mask respirators to employees until

the cab of the crane can be modified to ensure interior conditions

acceptable.

- The employer has issued gloves to the employees and is looking to

find the most suitable glove as a replacement; disposable coveralls

should also be available shortly.

- The employer has also made arrangements with Brunswick Mines to

provide its employees with instruction regarding the health hazards

of lead and in personal hygiene measures to reduce their exposure.

- Discussions have been held with Brunswick Mines regarding repair

and maintenance of the crane cab ventilation system. Brunswick

Mines has made a commitment that the filter would be changed every

two weeks, on time.

Discussion

Part X of the Canada Occupational Safety and Health Regulations

contains the provisions that deal with the exposure of employees to

airborne contaminants. Section 10.21, subsection (1) provides that:

10.21(1) "No employee shall be exposed to a concentration of

(a) an airborne chemical agent, other than grain dust, in excess

of the value for that chemical agent adopted by the American

Conference of Governmental Industrial Hygienists in its

publication entitled Threshold Limit Values and Biological

Exposure Indices for 1985-86; or

(b)airborne grain dust, respirable and non-respirable, in excess

of 10 mg per 1 m3."

The referenced publication gives for Lead, inorganic dusts and fumes

a TLV - TWA (Threshold Limit Value - Time Weighted Average) of 0.15

mg/m3; the TLV - STEL (Threshold Limit Value - Short Term Exposure

Limit) is given as 0.45 mg/m3. In the latest edition of this

document (1995-96), the TLV - TWA for lead has been reduced to 0.05

mg/m3; the TLV - STEL has been deleted (it is expected that Part X of

the Canada Occupational Safety and Health Regulations will be amended

in the very near future; the revised text will reference the latest

edition of the ACGIH document).

As a result of his investigation and based on a personal sample, Chris

Wood estimated the employees' average exposure to airborne lead as 0.09

mg/m3 for an eight-hour shift; an area sample taken in the crane cab

during the same period indicated an airborne concentration of about

0.06 mg/m3. In Robert Reid's report, the results obtained from the

brakeman and the observer also indicate fairly low values, about 0.02

and 0.06 mg/m3 of airborne lead; however, in the case of the

conductor, the exposure is estimated to be 0.38 mg/m3, a value four

to six times higher than the other results. No explanation is given

for the discrepancy. As a result of these investigations, the

employees are required to use disposable dust masks, which dust masks

give a protection factor of 10: exposure is reduced by a factor of 10.

Using the highest result, the exposure is then reduced to 0.038

mg/m3, which more than satisfies the regulatory requirements and also

meets the present day standard. The direction was issued to ensure

that employees were trained to use and fit properly the respiratory

protective devices so that the intended protection be effectively

provided.

One of the employees, Mr. Scott, asked his doctor to test his blood for

lead while he was working at Brunswick Mines. The result obtained,

14.2 µg/100 ml, is below the reference value of 50 µg/ 100 ml

recommended by the ACGIH in its Biological Exposure Indices for 1985-86

(this value has been reduced to 30 µg/100 ml in the 1995-96

publication). In the instant case, these values are not legal

requirements, but they are used for information purposes only. Mr.

Scott also explained that he changed job some time ago and since then,

he does not go to Brunswick Mines. Six months after changing

assignment, he was retested by his doctor and his blood lead level was

down to 0.04 µg/100 ml. This would demonstrate that he was exposed to

lead, but the concentration and time of exposure did not reach a

critical level.

Zinc dust is considered a nuisance dust and as such, the TLV-TWA is 10

mg/m3. The measured levels are much lower than this value and

consequently, zinc dust is not an issue here.

Regarding the question of communication while wearing a respirator, I

do not have enough information to make a decision . It is agreed that

for efficient communications, the employee must remove the respirator,

however, whether this increases the exposure significantly or not

depends on the time spent without a respirator and the airborne lead

concentration and this information is not available.

Finally, regarding the issue of clothing and cleaning, the employer has

made arrangements with Brunswick Mines to allow employees the use of

showers; arrangements have also been made to have their clothing

cleaned at a nearby motel. The employer is also attempting to find

suitable disposable coveralls.

It is agreed that the ideal solution is to have a clean crane cab, with

a functional air filtration and ventilation system maintaining a

positive pressure in the cab. The employer has strived to obtain from

Brunswick Mines that the crane cab be cleaned and that the cab

ventilation system be satisfactorily maintained. As an interim

measure, the employer is supplying employees with disposable

respiratory protection devices. I believe the employer has fulfilled

his obligations to ensure that the safety and health at work of his

employees are protected.

Decision

For the reasons outlined above, I HEREBY CONFIRM the direction issued

by safety officer Marcel Pelletier CN North America at Moncton, New

Brunswick, on the sixteenth day of May 1995.

Decision given on June 18, 1996.

Bertrand Southière

Regional Safety Officer

APPENDIX

IN THE MATTER OF THE CANADA LABOUR CODE,

PART II (OCCUPATIONAL SAFETY AND HEALTH)

Direction to employer under paragraph 145(2)(a)

On May 15, 1995, the undersigned safety officer conducted an inquiry in

the work place operated by CN North America, being an employer subject

to the Canada Labour Code, Part II, at 1234 Main Street, Moncton,

N.B., E1C 1H7, the said work place being in the Brunswick Mining

loading facility Bathurst, N.B.

An inspection at the said work place revealed that while an employee is

performing assigned duties a condition exists that constitutes a danger

while the employee is in the said work place:

an employee working in the said location is not properly trained in

the wearing of a respiratory protective device and the respiratory

protective device supplied to him has not been properly fitted, this

constitutes a danger while at work.

Therefore, you are hereby directed, pursuant to paragraph 145(2)(a) of

the Canada Labour Code, Part II, to take measures immediately for

guarding the source of danger.

Issued at Moncton, 16th day of May 195.

Marcel R. Pelletier

Safety Officer

#3129

To: M. Leblanc

Manager Train & Eng. Service

1234 Main Street

Moncton, N.B.

E1C 1H7

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 96-015

Applicant: Bruce Scott, Newcastle, N. B., conductor

Charles R. Parlee, Campbellton, N. B., trainman

KEYWORDS:

Respiratory protection; airborne lead concentration

PROVISIONS:

Code: 145(2)(a)

Canada Occupational Safety and Health Regulations: subsection 10.21(1)

SUMMARY:

Further to a work refusal, a safety officer issued a direction to CN

North America, at Brunswick Mines, near Bathurst, N.B., directing the

employer to provide training to employees regarding the fitting and use

of disposable respiratory protection devices. Two employees appealed

the direction, alleging that airborne lead levels exceeded the

regulatory requirements and that safe levels had to be maintained

through engineering controls rather than by the use of respiratory

protection. The workplace at issue is the cab of a crane owned by

Brunswick Mines and operated by CN employees. Two investigations by

industrial hygienists have shown that, except for one personal sample,

airborne lead levels averaged over eight hours are below the regulatory

requirements. When taking into account the protection afforded by the

respiratory protection device (10X), all exposures averaged over eight

hours, not only meet the regulatory requirements of 0.15 mg/m3 but

also meet the revised requirements of 0.05 mg/m3 of the American

Conference of Governmental Industrial Hygienists.

The regional safety officer CONFIRMED the direction