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Office of Merit Systems Oversight and Effectiveness

Date: March 19, 2001
File Number: [OPM#]
Matter of: [Claimants]

OPM Contact: Melissa Drummond

This is a group claim from current employees of the [agency]. The employees, who serve as tree markers, have filed a claim for hazard pay based on their use of paint, which they believe contains "toxic chemicals". They also wish to be paid retroactively for the entire period that they used this paint. The agency denied the group's claim on the basis that the situation giving rise to the request is not covered under Appendix A in 5 CFR Part 550. We concur with the agency's decision. For the reasons stated below, the claim is denied.

Both the claimants and the agency provided a substantial amount of documentation concerning the tree-marking work and the materials that are used to perform the duties of the position, including Hazard Health Evaluation (HHE) Reports conducted by the National Institute for Occupational Safety and Health (NIOSH) and a agency video about the use of safety when marking trees. Based on the claimant's duty station and the claim period, we reference the first NIOSH report, # HETA 93-1035-2686, issued in April 1998, which states the following:

Symptoms of headache, dizziness, nausea, upper respiratory irritation, and loss of coordination were reported by employees during tree-marking operations. These types of central nervous system (CNS) symptoms are consistent with exposures to several of the solvents identified by the PBZ samples. However, for any individual solvent alone (i.e., toluene, MIBK, or TMB) the concentrations did not exceed any occupational exposure limits enforced by OSHA, recommended by NIOSH, or adopted by ACGIH. . . . . . . . The exposures measured in this study were also below criteria for mixtures with additive effects. However, health effects from most mixture exposures, including multiple solvent exposures, are not yet well understood. One explanation for the symptoms reported by the workers may be that a synergistic effect (i.e., the combined effect of the mixed solvent exposures is greater than the sum of the exposures to individual solvents alone, or to a solvent mixture for which additive effects would apply) is responsible for the reports of CNS symptoms which employees described when they used tree-marking paint. Symptoms reported by this group of workers could also be aggravated by the environmental conditions at the work site (temperatures in excess of 90F, and elevations greater than 4400 feet).

The report synopsis states the following:

Although exposures to individual solvents were below occupational criteria, the combined effect of mixed solvent exposure may be responsible for some of the acute symptoms experienced by employees when exposed to tree-marking paints. As a result of the Industrial Hygiene surveys, we recommended that the Forest Service investigate using alternative tree-marking paint. High solids, low solvent or water-based marking paints such as acrylic latex enamels should be selected and field tested. Low solvent or water-based paints that are found to be less irritating to employees and do not cause acute central nervous system health effects should be made available for employee use.

A later NIOSH report, # HETA 98-0111-2731, stated these findings:

An occupational health hazard was not determined for [agency] employees who marked timber during this investigation using waterborne paint. Employees did not report irritant or CNS effects and solvent exposures were mostly below the limit of detection for total hydrocarbons (referenced as stoddard solvent), toluene, trimethyl benzene, methyl isobutyl ketone, propylene glycol, 2-butoxyethanol, and methyl ethyl ketone. Biological monitoring results (urine) were all below the limits of detection for propylene glycol, methyl ethyl ketone, methyl isobutyl ketone, and 2-butoxyethanol. Substitution of stoddard solvent-based, alkyl enamel with a propylene glycol-based waterborne paint is the primary intervention identified in this HHE responsible for reduced solvent exposure and dose and reduced health complaints in Foresters using waterborne paint.

Although the following NIOSH report, # HETA 2000-0108-2818, was completed after the claim was filed, its findings are relevant to documenting the agency's regard for NIOSH compliance and safety:

Exposures to MEK and to toluene were below the analytical limits of detection. Exposures to metals, propylene glycol, and total hydrocarbons were generally several orders of magnitude below the most conservative occupational exposure criteria. These work conditions were not hazardous to the health of the workers. [Note: This most recent report does outline recommendations on what agency managers and employees can do to ensure safety when marking trees. Since the amount of paint used during tree-marking exercises appears to vary depending on the Forester, the report recommends to continue training Foresters to mark from the upwind side, to mark the stump dot first and then the breast blaze, and to use as little paint as possible. Based on the claimant's statements, these recommendations may not be feasible for them because they are required to make a "paint band" around the tree, rather than a dot and blaze. By making a band around the tree, the upwind side is not always avoidable. Marking the trees in this manner is also inconsistent with the guidance provided in the agency's safety video.]

Section 5545 of title 5, United States Code, provides for hazard pay differentials. OPM regulations at 5 CFR 550.904 authorize the employing agency to determine whether payment of a hazard pay differential is warranted. However, section 550.904 limits payment of hazard pay differentials to the situations described in Appendix A in 5 CFR Part 550. See William A. Lewis, B-216575, March 26, 1985; Joseph C. Schrage, B-181843, November 19, 1974. The claimants believe that their situation matches the description of "toxic chemical materials when there is a possibility of leakage or spillage" under the "Exposure to Hazardous Agents" heading within Appendix A. However, the determination of whether a particular work situation warrants a hazard pay differential is vested primarily in the employing agency whose officials are in a better position to investigate and resolve such matters. Nicholas P. Davis, B-246364, April 14, 1992; Joseph C. Schrage, supra. An agency determination concerning an employee's entitlement to a hazard pay differential will not be overturned unless there is clear and convincing evidence that the decision is arbitrary and capricious. Id.

Since the two latest NIOSH reports find no hazard to the claimants, we look to the April 1998 NIOSH report. The report states that "the combined effect of mixed solvent exposure may be responsible for some of the acute symptoms experienced by employees when exposed to tree-marking paints" and that "health effects from most mixture exposures, including multiple solvent exposures, are not yet well understood." Unfortunately, this is not clear and convincing evidence that the claimants have been exposed to above legal limits of toxic chemicals, as defined by NIOSH and the Occupational Safety and Health Administration.

In addition, 5 CFR 550.906 outlines conditions where the payment of hazard pay differential would be discontinued, including when:

(b) Safety precautions have reduced the element of hazard to a less than significant level of risk, consistent with generally accepted standards that may be applicable, such as those published by the Occupational Safety and Health Administration, Department of Labor

This paragraph contemplates that, if these safety precautions exist, then the payment of hazard pay differential is not allowable. Based on the submitted information, including the agency's safety video and the NIOSH reports, the element of hazard for this work is at less than a significant level of risk.

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Moreover, the burden of proof is on the claimant to prove the liability of the government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, B-205282, June 15, 1982. Thus, where the written record presents an irreconcilable dispute of fact between a government agency and an individual claimant, the factual dispute is settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027, November 5, 1992; Matter of Elias S. Frey, B-208911, March 6, 1984; Matter of Charles F. Callis, B-205118, March 8, 1982. Therefore, we must accept the agency's position that the NIOSH health hazard evaluations do not support the claimant's position that occupational health limits are above established legal limits and that tree-marking paint meets the criteria cited in Appendix A. The claim for hazard pay is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

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