Bricks as Chemical Substances: Secretary of Labor v. Holly Springs Brick & Tile, 16 OSHC (BNA) 1861

Date: Apr 01, 1995

The Occupational Safety and Health Review Commission (OSHRC) last Spring decided that bricks are "chemical substances" under the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (HCS), 29 C.F.R. 1910.1200. OSHA alleged that Holly Springs Brick & Tile Co. (Holly Spring) should have labeled each bundle or shipment of bricks with a warning label on the potential hazards of inhaling brick dust and should have prepared Material Safety Data Sheets (MSDS) for them as well. The Review Commission upheld OSHA's interpretation that bricks are hazardous chemical substances under the HCS because brick masons may be exposed to brick dust containing crystalline silica when dry cutting the bricks. The Commission rejected Holly Springs two contentions that there were no significant risks associated with cutting the bricks because OSHA produced no evidence of a specific, significant risk of harm to brick masons in using the bricks, and the use of wet cutting by brick masons eliminated any hazard that might have existed in the past. The Commission also rejected the Administrative Law Judge's (ALJ) characterization of the violation as de minimis, reclassifying the citation as other-than-serious.

The Commission rejected Holly Springs' challenge to the validity of the standard. The standard, the Commission said, was not invalid under the Supreme Court's Benzene decision (Industrial Union Department v. American Petroleum Institute, 1980) in which the Court interpreted the OSH Act as requiring a finding of significant risk before OSHA can adopt a permanent standard. OSHA argued that the risk addressed by the HCS is the risk that employees might fail to be adequately informed about the chemicals they use daily, not that any particular group of employees might suffer some specific harm. Because the HCS was adopted as a generic standard, a general finding of significant risk by OSHA that affects all covered industries satisfies the Supreme Court's Benzene mandate.

In the specific case of Holly Springs' bricks, the Commission said that an employer could challenge the applicability of a particular standard to its own circumstances. If Holly Springs could prove that its products created no significant risk to users under normal circumstances of use, the standard would be invlaid as it applied to its products. The burden of proof is that the employer must show by preponderance of the evidence -- meaning that it is more probably true than false, even though not certain or convincing -- that users are not exposed to a hazard. Holly Springs, the Commission said, failed to do so.

The Company had asserted, and the government's witnesses agreed, that there was no evidence in the scientific literature that a hazard to brick masons from exposure to brick dust existed. That, however, was insufficient. The burden is for the employer to affirmatively demonstrate the absence of a risk of harm when challenging the application of the standard's requirements to its products.

This illustrates the effect of OSHA adopting a standard under section 6 of the OSH Act compared to its enforcement requirements under the general duty clause of section 5(a)(1). In the latter case, the burden is on OSHA to demonstrate that (1) a hazard existed that created a risk of (2) serious injury or death, (3) the hazard was recognized by the employer, and that (4) feasible means of abatement exist. Under a section 6 standard, a presumption is raised that OSHA has satisfied all four elements in the context of the rulemaking, shifting the burden to the employer to show why the presumptions do not apply in the individual case. This is a great burden, indeed.

Holly Springs failed to provide evidence that dry cutting of bricks, resulting in exposure to the brick dust containing crystalline silica, was not a normal use of its products. Even though wet cutting methods were commonly used, dry cutting accounted for ten to twenty percent of work in the rick mason trade, according to OSHA's expert. This was common enough for the Commission to find that dry cutting was to be expected and taken into account when assessing the hazards of the brick products.

Finally, the Commission reversed the ALJ's determination that the violation was de minimis. De minimis violations are technical violations of a standard having no direct or immediate relation to health or safety. OSHA argued that a violation of the HCS may never be characterized as de minimis. The Commission did not accept OSHA's generalized argument; instead, it concluded that this specific case was not one which could be so characterized. The decision was based not on a conclusion that a risk of exposure to silica-laden brick dust was a threat to brick masons' health; rather, it was based on the failure of Holly Springs to show that no risk existed, or that the risk was not significant. De minimis violations are trifling, and do not compromise the protection of employees intended by the standard. Holly Springs failure to include the warnings, according to the Commission, failed to achieve the purpose of the HCS.

This article appeared in Compliance Magazine (April 1995) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.