0802-01-HS Trans-Cycle Industries Inc., Appellant v. Marc Cousineau (Inspector), Nelson Neville (Worker Co-Chair) and Ministry of Labour, Responding Parties.

BEFORE: Harry Freedman, Vice-Chair

DECISION OF THE BOARD; July 3, 2001

1. The appellant filed an appeal under section 61 of the Occupational Health and Safety Act, R.S.O. 1990, c. O. 1, (the "Act") on June 12, 2001 in which it appeals from the order issued by Inspector Marc Cousineau on May 30, 2001 in F.V. No. 984780 to stop using the Torit Davidson Baghouse (the "Baghouse") in its operations (Board File No. 0801-01-HS). This is a request by the appellant under section 61(7) of the Act to suspend the operation of the Inspector's stop work order that was filed with the Board at the same time as the appeal.

2. The Ministry of Labour and the Inspector oppose the suspension request. Nelson Neville, the worker co-chair of the appellant's joint health and safety committee supports the appellant's request for a suspension of the stop work order.

3. The appellant operates a PCB waste disposal, metal recycling and metal manufacturing facility in Kirkland Lake. One of the recycling processes it undertakes is the salvage of copper and aluminium from transformers. The copper windings and aluminium wire and sheets in the transformers are often covered in paper insulation containing 1,2,4-Trichlorobenzene ("TCB"). The paper containing TCB must be removed or cleaned from the copper and aluminium so that the metal can be recovered. The aluminium and copper wire with paper attached to it is processed by a granulator (a piece of equipment containing high speed rotors and knives that chop wire into small pieces or granules) so that the wire can be more easily cleaned, or to put it another way, so that the paper containing TCB can be removed more easily from the metal. The Baghouse is an integral part of the appellant's operations as it must be operational when the granulator is functioning because the Baghouse is used to control particulate emissions from the granulator. The exhaust air from the Baghouse is vented into the workplace rather than outside.

4. TCB is a chemical agent on the schedule of biological and chemical agents listed in Regulation 833 under the Act. The exposure limit for the presence of TCB is a ceiling exposure value ("CEV") of 5 ppm.

5. The appellant was required by an Inspector's order issued under the Act in late 2000 to conduct air sampling for TCB. That air sampling was carried out in early 2001 as a result of which the appellant determined that more frequent maintenance cleaning of the Baghouse and installation of a new air duct would improve ventilation and reduce the CEV of TCB in the vicinity of the Baghouse to the prescribed limit. A subsequent investigation by the Inspector resulted in concerns over the methodology used by the appellant to carry out the air sampling (one door of the Baghouse had been open during some of the sampling contrary to the order that had been issued) and despite the improved ventilation, on occasion the CEV limit had been exceeded.

6. The appellant submits that the stop work order imposed will result in very serious economic harm to it and will likely cause the layoff of employees because the appellant cannot carry on its business without the Baghouse in operation. It also submits that the suspension of the stop work order pending the disposition of its appeal would not jeopardize the safety of workers because workers in the vicinity of the Baghouse must always wear and use personal respirators and because the appellant can operate the Baghouse with the doors open at all times, thus increasing fresh air ventilation and reducing the CEV of the TCB in the areas where workers are engaged in carrying out their day to day activities. Most importantly, the appellant submits that following the more frequent maintenance cleaning of the Baghouse and the installation of a new air duct the TCB levels measured in the areas where workers are actually working have been consistently below the CEV limits prescribed in the regulations.

7. Mr. Nelson supports the appellant's position. He submits that the appellant is very safety conscious, having taken steps to ensure that the CEV for TCB does not exceed the prescribed limits where employees carry out their work. He also submits that as all workers wear respirators, there would be no risk to a worker's health if the order was suspended. He expressed concern about the lay-offs and the loss of income that would result from the Inspector's stop work order.

8. The appellant submitted that the Inspector did not take the use of personal respirators by its workers into account. The appellant referred to sections 5 and 7 of the Regulation 883 to argue that in the circumstances, despite the CEV limit being exceeded, section 7 of the Regulation creates an exception that allows workplaces to operate and workers to perform their work where the prescribed limits for hazardous chemical agents are exceeded if workers are provided with and use appropriate personal protective equipment. Regulation 883 provides in part:

3.(1) Every employer shall take all measures reasonably necessary in the circumstances to protect workers from exposure to a hazardous biological or chemical agent because of the storage, handling, processing or use of such agent in the workplace.

3.(2) The measures referred to in subsection (1) shall include the provision and use of engineering controls, work practices, hygiene facilities and practices and, subject to section 6, personal protective equipment.

4. Without limiting the generality of section 3, but subject to section 9, every employer shall take the measures prescribed in that section to limit the daily and weekly exposure of workers to a biological or chemical agent listed in the Schedule to the concentration limit expressed as a time-weighted average exposure value, a short-term exposure value or a ceiling exposure value set out for the agent in the Schedule as determined in accordance with the methods set out in the Schedule.

5. In determining the exposure of workers to a hazardous biological or chemical agent under section 3 or 4, no regard shall be had to the wearing and use of personal protective equipment.

6. Except in the circumstances set out in sections 7 and 9, an employer shall protect workers from exposure to a hazardous biological or chemical agent without requiring the workers to wear and use personal protective equipment.

7. Where engineering controls required by this Regulation,

(a) are not in existence or are not obtainable;

(b) are not reasonable or not practical to adopt, install or provide because of the duration or frequency of the exposures or because of the nature of the process, operation or work;

the employer shall provide, and workers shall wear and use, personal protective equipment appropriate in the circumstances to protect the workers from exposure to a hazardous biological or chemical agent.

The Inspector and the Ministry of Labour submit that section 5 of Regulation 883 makes clear that regard cannot be had to the use of personal protective respirators when determining the exposure of workers to a hazardous chemical agent unless the circumstances described in section 7 of the Regulation exist. The appellant made reference to section 7(a) of the Regulation, but does not provide any factual basis for the assertion that the "engineering controls" required by section 3(1) of the Regulation are either "not in existence or are not obtainable". The Inspector and the Ministry submit that other engineering options do exist, including installing an exhaust from the Baghouse to the outside or installing absorbent equipment to remove the contaminated vapour from the air exhausted into the workplace from the Baghouse.

9. There are some factual differences between the parties, particularly with respect to the degree of exposure of workers to TCB levels exceeding the CEV limit of 5 ppm. The appellant submits that the air sampling in the vicinity of where its workers are actually working was always less than 5 ppm after it had undertaken more frequent cleaning of the Baghouse and installed another air duct for increased ventilation. It is, however, undisputed, that on occasion, the air sampling carried out near the exhaust from the Baghouse in the workplace with the doors closed revealed TCB levels in excess of the prescribed CEV limit.

10. The appellant does not, quite properly, suggest that worker safety would not be jeopardized if workers were exposed to levels of TCB exceeding the prescribed limits. Rather, it submits that workers are not exposed to TCB levels in excess of the prescribed limits in the areas where they work and furthermore, by keeping the doors open and using personal respirators, there is no risk that workers will be exposed to levels of TCB over a CEV of 5 ppm at any time. I am not persuaded that the use of respirators is a relevant consideration in assessing the jeopardy to worker safety should the inspector's order be suspended. Section 5 of Regulation 883 is quite clear. It provides that one cannot have regard to personal respirators in determining whether an employer has taken measures to protect workers from exposure to hazardous chemical agents. It appears to me that there is certainly a good argument for concluding that section 7 of Regulation 883 relates to an employer's obligations under section 6 of that Regulation, not to the measures that an employer must take under sections 3 or 4 of the Regulation. Whether my first impression is correct can only be determined after full argument on the issue at the hearing of the appeal.

11. The Board discussed its approach to determining whether to grant an application to suspend the operation of an inspector's order in R. J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at 87:

...although the inspector's order is under appeal there is, in my opinion, a rebuttable presumption that an inspector's order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector's decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to the hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so.

The test a party must satisfy in order to obtain suspension of an order issued by an inspector emphasizes that worker safety is the predominant consideration. In Upper Grand District School Board, [2000] OLRB Rep. Nov./Dec. 1253 the Board wrote at page 1256:

I accept that in assessing whether to suspend the operation of an inspector's order, the paramount consideration is whether a suspension would place the health and safety of workers in jeopardy. That is so even if the appellant does establish a strong prima facie case for success on the appeal and also establishes that it would be prejudiced by the order under appeal. Worker safety has the highest priority in assessing whether to suspend the operation of an inspector's order issued under the Act. Nevertheless, in my view, where worker safety is not likely to be jeopardized by the suspension of an order, it is still incumbent upon the appellant to satisfy the Board that its appeal has considerable merit in order to obtain a suspension of the order under appeal.

12. The appellant has failed to persuade me that worker safety would not be jeopardized by the suspension of the order under appeal. Although the CEV of TCB in the vicinity of workers carrying out their duties has not been above the prescribed level since February 2001, when the Baghouse is operating and the air quality is measured near the Baghouse with the doors closed there were three occasions in March of 2001, after new ventilation was added and more frequent maintenance cleaning had been ongoing for several weeks, when the levels of TCB did exceed the prescribed limits. Counsel for the Ministry and the Inspector submit that although the work stations of the appellant's workers are not immediately proximate to the exhaust port from the Baghouse, the exhaust air from the Baghouse is vented directly into the building where workers are present and there is nothing that prevents workers from coming near the venting port exhausting air from the Baghouse.

13. I also accept that keeping the doors open will increase ventilation and thus minimize the risk of workers being exposed to unacceptable levels of TCB, but as the counsel for the Inspector and Ministry points out, "... it cannot be predicted what weather conditions may prevail at any given time. In times of high wind or rain, it may be necessary that doors be closed." I am not persuaded that a stopgap measure such as keeping the doors open when the granulator and Baghouse are operating is an appropriate method of maintaining an acceptable level of TCB in the workplace.

14. While I do accept that there is a serious economic impact to both the appellant and the workers it employs resulting from the Inspector's order to stop the operation of the Baghouse until appropriate steps are taken to ensure that workers will not be exposed to levels of TCB that exceed the prescribed limits, it is not, in my opinion, appropriate to jeopardize the health and safety of workers by risking their exposure to levels of TCB that are greater than the prescribed limits under Regulation 833. Where there is a serious risk to workers' health and safety, the economic loss occasioned by an Inspector's order cannot, in my opinion, justify suspension of that order.

Disposition

15. This application by the appellant to suspend the Inspector's order dated May 30, 2001 in Field Visit No. 984780 is dismissed.

"Harry Freedman"

for the Board