Court Rejects TX Contractor’s Appeal


"Spit and sniff" are not adequate testing methods for confined-space work, an appellate court has informed a Texas contractor whose employee died during an industrial cleaning job.

The U.S. Fifth Circuit Court of Appeals has upheld two federal health and safety violations in the 2011 death of Jaime Godines, 31, an employee of Austin Industrial Specialty Services LP, of La Porte, TX.

Godines, who left a wife and two young children, was asphyxiated by hydrogen sulfide as he lowered himself into a railcar to clean it.

Austin Industrial, which provides industrial maintenance, painting, scaffolding and related services, was performing the cleaning under a contract at the Lubrizol plant in Deer Park, TX.

In a decision released Aug. 25, the court found that the contractor had failed to properly identify and evaluate respiratory hazards in the workplace and failed to train employees working with hazardous chemicals.

Testing Questioned

The case, filed in 2013, involves procedures that Austin used in cleaning chemical-containing railcars at the Lubrizol plant on Feb. 23, 2011.

The cleaning process always begins with opening the manway, the bolted hatch on top of the car, the court noted. Usually, a Lubrizol employee conducted this job, but an Austin employee handled it about five percent of the time, according to testimony in the case.

Austin's health and safety director told the court that he did not know if Lubrizol tested the environment when opening the cars. He said Austin conducted no testing, because employees would wear hydrogen sulfide monitors "that are going to be alarming before there's any significant exposure to the employees if it went off..."

Austin Industrial

Austin Industrial provides maintenance, scaffolding, insulation painting and abatement services.

Godines asphyxiated when he lowered himself without a confined-space permit into a car that had not been cleaned and contained dangerous levels of hydrogen sulfide, a highly hazardous chemical that falls under several OSHA standards.

Spit and Sniff

Before opening the manway, the director said, an Austin employee "would perform a 'spit test' to determine how much steam needed to be pumped into the rail car in order to properly clean it."

"We would spit on it," the director testified. "If it move, that mean it's like water. It doesn't need a lot of steam. But if it doesn't move, it means it's real thick, to put a lot of steam on it."

Using the results of the spit test, Austin employees would wash the car, which involved pumping steam in and draining the resulting liquid from the bottom.


Railcars at Lubrizol's plant (pictured) in Deer Park, TX, carried 200 types of chemicals in several months, the court said. Car cleaners were given code numbers, but not names, of the chemicals.

After cleaning, the court document said, "a Lubrizol employee would 'sniff' the rail car and, if there was no chemical exposure, would issue a 'confined space permit,' allowing the employees to enter the rail car and complete the drying process."

Codes, Not Names

Austin employees also met for a "toolbox talk" before each cleaning session where they reviewed a job safety checklist and a tank car wash record. The purpose of the record was to identify the chemicals the car had transported.

However, the court said, the chemicals were identified only by code numbers, not names. To decipher the code, Austin employees were told to obtain Material Safety Data Sheets from Lubrizol. Austin did not provide the MSDSs at the meeting.

"The employees were never provided any training regarding specific chemicals with which they might come into contact," the ruling said.

"On one particular day, as evidenced in the record in this case, the tank car wash record reflected the codes for at least 11 different chemicals contained in the rail cars to be washed."

Enclosed railcar

Tank cars, covered hoppers and other enclosed railcars are considered permit-required confined space and require respiratory protection.

Over several months, the court found, about 200 different chemicals were moved through the facility in rail cars.

(OSHA also cited Lubrizol for one serious violation related to respiratory protection in the case; the fine was $7,000.)

Analysis and Respirators

Austin also produced, but did not distribute or review with employees, a job safety analysis that included a list of potential hazards associated with the task, the court said.

The list included "Overcome by fumes of smell inside tank car."

Employees were required to wear hydrogen sulfide monitors but not respiratory protection.

4 Challenges

In its appeal, Austin contended that:

  • Only rail regulators, not OSHA, had jurisdiction in the case;
  • Austin did not receive "fair notice" of its violations;
  • The violations fell outside the statute of limitations; and
  • OSHA had insufficient evidence to support the violations.

The court rejected all four arguments.

First, it noted that rail authorities regulate transportation matters, not occupational safety, which is OSHA's statutory purview.

Austin Industrial

As a participant in OSHA's Voluntary Protection Program, Austin Industrial said it did not have "fair notice" of the violations. The court disagreed.

The company also said it deserved more notice of the violations as a participant in OSHA's Voluntary Protection Program. The court noted that such participants are entitled to additional notice if OSHA previously approved the procedures in question.

That was not the case here, the court found. OSHA never approved the process for which it cited Austin. In fact, the court said, OSHA had not even inspected the area before its most recent VPP report in 2007.

The citations were issued within six months of the triggering incident, as required, the court found.

And the evidence, it said, "amply supports" the citations issued.

The total penalty: $10,800.


Tagged categories: Austin Industrial; Confined space; Fatalities; Health & Safety; Health and safety; Laws and litigation; Maintenance programs; North America; OSHA; Respiratory Protection Standard

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