Archived - Decision: 96-016 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.: 96-016

Applicant: Air Canada

Thunder Bay Airport

Thunder Bay, Ontario

Represented by: Louise-Hélène Sénécal, Attorney

Respondent:International Association of Machinists

& Aerospace Workers (IAMAW)

Airline Lodge 714

Winnipeg, Manitoba

Represented by: Rick Vezina

Mis en cause: Helen Kosola

Safety officer #275

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

This case proceeded by way of written submissions. The safety

officer's investigation report and the written submissions entered into

evidence by Air Canada were deemed sufficient by Mr. Rick Vezina of the

International Association of Machinists & Aerospace Workers (IAMAW).

Background

In her narrative report, the safety officer explained that her visit to

the Thunder Bay Airport on January 21, 1996 was part of a national

program to check procedures for aircraft de-icing. She had discussions

on that topic with employees of Air Canada. She also obtained from Mr.

René Gauthier, Manager, Customer Service Operation Control, Prairies,

copies of the company's aircraft de-icing procedures and training

program. The safety officer was made aware, by Mr. Gauthier, that at

Thunder Bay, the employees have two choices for respirators; a

disposable mask or a half-face mask with cartridge. She advised Mr.

Gauthier that to her knowledge, the disposable dust/mist respirator may

not be acceptable protection.

On March 7, 1996 the safety officer received confirmation from her

Technical Advisor, occupational safety and health, that on the basis of

a material safety data sheet (MSDS) from "Meakin MGR-EMP Safety" for

ethylene glycol, the use of a disposable dust/mist face mask is not

recognized and only the half-face mask cartridge-type respirator

referenced in the MSDS should be used. On a subsequent visit to Air

Canada's work site at Thunder Bay airport, the safety officer confirmed

that employees preferred to use and were using the disposable dust/mist

respirator (3M 9925) although the Scott half-face cartridge-type

respirator was available.

In a conversation with Mr. Gauthier, the safety officer was informed

that Air Canada had finally obtained the supplier's MSDS for the de-

de-icing fluid used by employees. On May 20, 1996, the safety officer

met with company and union representatives and had discussions about

the type of respirators used and the concern that half-face mask

respirators may affect radio communications between de-icing crew

members. A review of some sections of the MSDS also took place. The

group reviewed the sections dealing with INHALATION, EFFECTS OF

REPEATED OVEREXPOSURE, and the section about RESPIRATORY PROTECTION.

That latter section specified the type of breathing apparatus

recommended for exposure to ethylene glycol:

NIOSH or MSHA approved breathing air equipment or face mask with

organic vapour cartridge and dust or mist pre-filter.

In a further section of the MSDS, under Special Precautions, the

following could be read:

Prolonged or repeated breathing of mist or vapour is harmful.

Causes irritation. Causes birth defect in laboratory animals. May

cause kidney and nervous system damage.

On the basis of the above information and the fact that employees were

using disposable masks during de-icing operations with ethylene glycol,

the safety officer concluded that Air Canada was in violation of

section 12.7 of Part XII (Safety Materials, Equipment, Devices and

Clothing) of the Canada Occupational Safety and Health Regulations

(hereafter the Regulations). According to the safety officer, the

disposable dust/mist respirators identified as "3M Dust Fume Mist Mask

TC RK 348 No. 9925" were not specified in the MSDS for ethylene glycol,

and therefore did not meet the intent of the Regulations. A direction

(see Appendix) was issued under subsection 145(1) of the Canada Labour

Code, Part II (hereafter the Code) to Air Canada. Air Canada was

directed to terminate the contravention no later than March 22, 1996.

Submission for the Employer

The detailed submission of Air Canada is on record. In the written

submission sent to the Regional Safety Officer, Ms. Sénécal adopted the

following position:

"Air Canada considers that it does not contravene any of the

dispositions of the Canada Labour Code, Part II or of its regulations

and that the Safety Officer's order should be reviewed for the

following reasons:

1.- There are no hazards of an airborne hazardous substance or an

oxygen deficient atmosphere in the work place in question.

2.- A survey entitled "Assessment of Ethylene Glycol Exposure Among

Aviation Workers, Montréal International Airport, conducted by

France de Repentigny, CIHT for Human Resources Development Canada

for January to March 1995 revealed there are no dangers of exposure

to hazardous substances for de-icing workers, performing the same

tasks as those accomplished at the Thunder Bay work place.

3.- A research requested by Air Canada and prepared by the

"Département de médecine du travail et d'hygiéne du milieu, Faculté

de médecine, de l'Université de Montréal" in December of 1993 came

to the same conclusions.

4.- A decision by Serge Cadieux, Regional Safety Officer, on October

21, 1991 in the matter of the review under section 146 of the Canada

Labour Code of a directive by safety officer Ron Thibault pursuant

to similar circumstances as the one at hand concluded that "the

direction given to Air Canada was not substantiated by the safety

officer in this case" and that "Air Canada employees working with

ethylene glycol de-icing products are not in a situation of danger".

5.- Air Canada reserves its rights to present additional arguments

at the hearing and/or in its written submission;

Decision

The direction is issued under the authority of subsection 145(1) of the

Code. The direction was issued in the context of "a national program to

check procedures for aircraft de-icing" and not as a result of a

complaint of one or several employees alleging that their safety and

health is being affected by exposure to the de-icing fluid. The issue

to be decided in this case is therefore whether Air Canada is in

contravention of section 12.7 of the Regulations for allowing its

employees to use disposable dust/mist respirators during de-icing

operations. The description of the contravention given by the safety

officer in the direction reads as follows:

1. Paragraph 125(v) of the Canada Labour Code, Part II, and section

12.7 of the Canada Occupational Safety and Health Regulations.

Information provided by Air Canada to Human Resources Development

Canada Labour Program regarding de-icing procedures indicates that

employees engaged in aircraft de-icing may use disposable dust/mist

respirators. This is contrary to the Material Safety Data Sheet

for the de-icing fluid ethylene glycol.

The provisions of interest are paragraph 125(v) of the Code which

provides:

125 Without restricting the generality of section 124, every

employer shall, in respect of every work place controlled by the

employer,

(v) ensure that every person granted access to the work place by

the employer is familiar with and uses in the prescribed

circumstances and manner all prescribed safety materials,

equipment, devices and clothing;

and subsection 12.7(1) of the Regulations which provides:

12.7(1) Where there is a hazard of an airborne hazardous substance

or an oxygen deficient atmosphere in a work place, the employer

shall provide a respiratory protective device that is listed in the

NIOSH Certified Equipment List as of October 1, 1984, dated

February, 1985, published by the National Institute for Occupational

Safety and Health.

The definition of "hazardous substance" as well as sections 10.2, 10.21

and 12.1 of the Regulations will be considered in the decision since

they impact on the issue to be decided in this case. The reason for

this is that paragraph 125(v) of the Code establishes the obligation on

the employer to determine, in the context of this case, the

circumstances where respiratory protection equipment is required.

Subsection 10.21(1) and section 12.1 of the Regulations prescribe the

circumstances where personal protective equipment must be used. That

is, if a hazard of an airborne hazardous substance or an oxygen

deficient atmosphere in a work place exists that cannot be controlled

within safe limits, then the employer must ensure the appropriate

respiratory protection is used. Section 12.7 of the Regulations, on

the other hand, prescribes the type of respiratory protection equipment

to be used and how they are to be fitted, cared for, used and

maintained. The presence of an oxygen deficient atmosphere is not an

issue in this case and will be set aside for the purpose of deciding

this case.

The expression "hazardous substance" is defined at subsection 122(1) of

the Code. It reads as follows:

"hazardous substance" includes a controlled product and a

chemical, biological or physical agent that, by reason of a property

that the agent possesses, is hazardous to the safety or health of a

person exposed to it;

There is no doubt that ethylene glycol is both a controlled product and

a substance that can be hazardous to the safety and health of a person

exposed to it. By virtue of its properties, ethylene glycol is subject

to the requirements of Part X (Hazardous Substances) of the

Regulations. In order to assert that subsection 12.7(1) of the

Regulations does not apply to the situation under consideration, the

employer must show that the hazardous substance used i.e. ethylene

glycol, will not or is not likely to endanger the safety and health of

his/her employees during de-icing operations. This can only be

achieved by carrying out the hazard investigation under section 10.2 of

the Regulations to determine whether the safety and health of employees

working with the substance is or is likely to be endangered by exposure

to the substance. Section 10.2(2);10.2 of the Regulations specify the

criteria that must be taken into consideration to make that

determination. Section 10.2 of the Regulations provides the following:

10.2(1) Where there is a likelihood that the safety or health of an

employee in a work place is or may be endangered by exposure to a

hazardous substance, the employer shall, without delay,

(a) appoint a qualified person to carry out an investigation;

and

(b) notify the safety and health committee or safety and health

representative, if either exists, of the proposed investigation

and of the name of the qualified person appointed to carry out

that investigation.

(2) In the investigation referred to in subsection (1), the

following criteria shall be taken into consideration:

(a) the chemical, biological and physical properties of the

hazardous substance;

(b) the routes of exposure of the hazardous substance;

(c) the effects to health of exposure to the hazardous

substance;

(d) the quantity of the hazardous substance handled;

(e) the manner in which the hazardous substance is handled;

(f) the control methods used to eliminate or reduce exposure;

(g) the value, percentage or level of the hazardous substance to

which an employee is likely to be exposed; and

(h) whether the value, percentage or level referred to in

paragraph (g) is likely to

(i) exceed that prescribed in section 10.21 or 10.22 or Part

VII, or

(ii) be less than that prescribed in Part VI.

The above criteria should be read as a whole and in the context of the

de-icing operation. A decision as to whether exposure to ethylene

glycol vapours and mists will or will not endanger the safety and

health of employees engaged in de-icing operations can then be reached.

However, the decision can only be reached after determining whether the

concentration of ethylene glycol prescribed by section 10.21 of the

Regulations, as specified by subparagraph 10.2(2)(h)(i) above, is or is

likely to be exceeded. Of particular relevance in this case is the

concentration prescribed by paragraph 10.21(1)(a) of the Regulations.

It provides:

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 publication

entitled Threshold Limit Values and Biological Exposure Indices

for 1985-86;

The American Conference of Governmental Industrial Hygienists (ACGIH)

explains in its publication noted above that Threshold Limit Values

(TLVs) refer to airborne concentrations of substances and represent

conditions under which it is believed that nearly all workers may be

repeatedly exposed day after day without adverse health effects

(emphasis added). Since the situation under consideration applies to

all Air Canada de-icing crews, given that the investigation of the

safety officer was carried out as part of a national program, the above

explanation is quite pertinent in this case. By adopting the TLVs, the

legislator recognizes that the health of employees working with a

hazardous substance suffers no adverse effects or, to put it in other

words, is not endangered by exposure to that substance as long as the

concentration of that substance in the air does not exceed the

concentration prescribed.

In 1985-86, the threshold limit value (TLV) for ethylene glycol was 50

ppm (parts per million) or 125 mg/m3 (milligrams per cubic meter).

The TLV for this substance is followed by a ceiling notation and reads

TLV-C which means "Threshold Limit Value-Ceiling -- the concentration

that should not be exceeded during any part of the working exposure."

The rationale given by the American Conference of Governmental

Industrial Hygienists (ACGIH) for the ceiling notation is that ethylene

glycol is an irritant. ACGIH states that "a TLV-Ceiling of 50 ppm, for

mist and vapour combined, is recommended to minimize irritation of the

respiratory passages." Therefore, excursions above the concentration

of 50 ppm (or 125 mg/m3) of ethylene glycol are not allowed under any

working conditions.

Two surveys were introduced by Air Canada as evidence that it was not

endangering the safety and health of its employees engaged in de-icing

operations. The first survey entitled "Assessment of Ethylene Glycol

Exposure Among Aviation Workers, Montreal International Airport", which

was carried out by officials of this Department, covered the criteria

specified by subsection 10.2(2) of the Regulations. In conclusion, the

study finds that employees carrying out de-icing operations with

ethylene glycol were not overexposed to the substance. The results

show that all samples taken under specific conditions prevailing at the

time of the survey "indicate values below the prescribed TLV-C of 125

mg/m3". A second survey entitled "Projet de recherche sur

l'exposition des travailleurs de l'aviation à l'éthyléne glycol", which

was carried out on behalf of Air Canada by the "Département de médecine

du travail et d'hygiéne du milieu, Faculté de médecine, de l'Université

de Montréal in December of 1993, essentially came to the same

conclusion. Employees carrying out de-icing operations are not exposed

to an excessive amount of ethylene glycol. Evidently, the safety and

health of Air Canada de-icing crews was not being endangered by

exposure to ethylene glycol under the conditions prevailing at the time

of the surveys.

Although it has been established that exposure to ethylene glycol does

not exceed safe limits during de-icing operations, both studies

nonetheless recommend some form of respiratory protection to protect

employees against ethylene glycol mists and vapours. I believe that

such a recommendation is appropriate in the circumstances of this case

given that ethylene glycol is a known irritant. Furthermore, the

recommendation satisfies the criterion found at paragraph 10.2(2)(f) of

the Regulations above.

The study conducted by this Department concludes the following:

"In conclusion, exposure to ethylene glycol was below the threshold

limit value-ceiling of 127 mg/m3. As a preventive measure,

however, since variables such as wind direction, temperature and

type of de-icing liquid may influence basket operator exposure,

these employees should continue to wear NIOSH certified respiratory

protective devices with a 5X safety factor as a preventive measure."

Air Canada provides its employees with NIOSH certified disposable

half-mask with a 5X safety factor to protect against dust and mist.

However, the MSDS referred to by the safety officer recommends the use

of NIOSH-approved "breathing air equipment or face mask with organic

vapour cartridge and dust or mist pre-filter" regardless that exposure

to the hazardous substance is excessive or not. In my opinion, that

ladder recommendation would only be mandatory, where a large population

of workers is considered as in the instant case, if it has not been

established that exposure to the hazardous substance does not exceed

the prescribed exposure limits. This was not the case before the

safety officer at the time of her investigation given the studies that

had been carried out by both the employer and by this Department, not

to mention the decision I had rendered in a similar case and which was

submitted as evidence by Air Canada. In my opinion, Air Canada is

complying with both the spirit and the letter of the law.

I would add the following comment in this case. There are a number of

variables which may influence the exposure of employees to ethylene

glycol. For example, the study conducted by officials of this

Department mentioned wind direction, temperature and type of de-icing

liquid as such variables. There may be other variables as well. The

criteria considered in the context of the study conducted by this

Department were specific to the Montreal International Airport at

Dorval, Québec. It is quite possible that the conditions or procedures

prevailing at the Toronto airport, or any other airport for that

matter, are significantly different. However, to claim that employees

using de-icing fluid are overexposed to vapours and mists of ethylene

glycol and that, as a consequence, their health is being adversely

affected would require that the claim be substantiated since there now

exists abundant evidence to support the opposite.

In light of the evidence adduced in this case, I find that the

direction given by the safety officer is not justified. It has been

established that Air Canada employees engaged in de-icing operations

are not overexposed to ethylene glycol and, as such, are not likely to

be endangered by exposure to that substance. I also find that Air

Canada is supplying its employees, as a preventive measure, with

appropriate respiratory protection that reduces exposure to ethylene

glycol, a known irritant. For all the above reasons, I HEREBY

RESCIND the direction given under subsection 145(1) of the Code on

March 22, 1996 by safety officer Helen Kosola to Air Canada.

Decision rendered on August 30, 1996

Serge Cadieux

Regional Safety Officer

APPENDIX

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

On March 22, 1996, the undersigned safety officer conducted an inquiry

in the workplace operated by Air Canada, being an employer subject to

the Canada Labour Code, Part II, at 100 Princess Street, Thunder Bay

Airport, Thunder Bay, Ontario, the said workplace being sometimes known

as Air Canada.

The said safety officer is of the opinion that the following provision

of the Canada Labour Code, Part II, is being contravened:

1. Paragraph 125(v) of the Canada Labour Code, Part II, and section

12.7 of the Canada Occupational Safety and Health Regulations.

Information provided by Air Canada to Human Resources Development

Canada Labour Program regarding de-icing procedures indicates that

employees engaged in aircraft de-icing may use disposable dust/mist

respirators. This is contrary to the Material Safety Data Sheet

for the de-icing fluid ethylene glycol.

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1)

of the Canada Labour Code, Part II, to terminate the contravention

no later than March 22, 1996.

Issued at Thunder Bay, this 22nd day of March 1996.

Helen Kosola, Safety Officer #275

To: Air Canada

2000 Wellington Avenue

Box 768

Winnipeg, Manitoba R3C 2N2

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 96-016

Applicant: Air Canada

Respondent:International Association of Machinists and Aerospace Workers

KEYWORDS:

Ethylene glycol, de-icing, material safety data sheet (MSDS), surveys,

hazardous substance, ACGIH TLV.

PROVISIONS:

Code: 122(1), 125(v), 145(1)

COSH Regs: 10.2, 10.21, 12.1, 12.7(1)

SUMMARY

A safety officer gave a direction to Air Canada because the company was

allowing its employees to use disposable dust/mist respirators during

de-icing operations. The safety officer was of the view that this was

contrary to the MSDS for the de-icing fluid ethylene glycol. The

employer was found to be in contravention of subsection 12.7(1) of the

Regs which require the use of NIOSH approved air breathing equipment.

The Regional Safety Officer disagreed with the safety officer. Surveys

had been conducted by Air Canada and by Human Resources Development

Canada officials which indicated that de-icing crews were not exposed

to an excessive amount of ethylene glycol. Therefore, the Regional

Safety Officer concluded that Air Canada was not in contravention of

the Regulations since there was evidence which established that the

health of employees was not being endangered. The Regional Safety

Officer further agreed with the use of the disposable masks because

ethylene glycol was an irritant and the masks would further reduce

exposure to that substance. The Regional Safety Officer RESCINDED

the direction.