Alexander G. McLaren

Plain-English summary

Alexander G. McLaren employed workers to convert two former Canadian naval vessels into pleasure craft in Washington. The judge upheld OSHA's inspection warrant and rejected McLaren's challenge to agency jurisdiction. He vacated three atmosphere-testing allegations because the fuel tank's top had been removed, so the Secretary did not show it was an enclosed space or that the competent person lacked the required testing ability. He affirmed serious violations for hot work near fuel tanks without a Marine Chemist's certificate, the absence of a properly located life ring, and four hazard-communication failures. The assessed penalties totaled $1,800.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1915.7(c)(5), 1915.12(a)(1)(ii), 1915.13(b)(2), 1915.14(a)(1)(ii), 1915.158(b)(2), and 1915.1200(e)(1), (f)(5)(ii), (g)(1), and (h)(1)
• Outcome: Three testing allegations were vacated; hot-work, life-ring, and grouped hazard-communication violations were affirmed with $1,800 in total penalties.
• Key point: Ship-repair employers must control hot work near former fuel tanks and provide required rescue and hazard-communication protections, but confined-space testing rules apply only when the cited space meets the standard's definition.

Full text (OSHRC public release)

                                               United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                       1244 North Speer Boulevard, Room 250
                                            Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Compla inant,

                          v.                               OSHRC DOCKET NO. 03-0574
                                                                           03-0758
                                                                           (Consolidated)

ALEXANDER G. MCLAREN, and its
successors,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

      For the Re spondent:
               Alexander G. McLaren, Tacoma, Washington

Before: Administrative Law Judge: Robert A. Yetman

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
On October 1, 2002, the Occupational Safety and Health Administration (OSHA) conducted an
inspection of the Alexander G. McLaren (McLaren) worksite at the Shannon Point Cannery, 1904 7th
Street, Anacortes, Washington pursuant to a warrant issued by a magistrate of the U. S. District Court (Exh
C-1). As a result of that inspection, McLaren was issued citations alleging violations of the Act together
with proposed penalties. By filing a timely notice of contest McLaren brought this proceeding before the
Occupational Safety and Health Review Commission (Commission). On December 3, 2003, a hearing was
held in Seattle, Washington. At that hearing McLaren argued that his operation did not fall under OSHA’s
jurisdiction, renewing his motion for reconsideration of this judge’s order of October 15, 2003 granting
Complainant’s motion to deem admitted its unanswered requests for admissions (Tr. ; Exh. R-1). McLaren
further moved to exclude evidence obtained during the execution of the warrant, claiming that the warrant
was obtained through misrepresentation (Tr. 21).
 Exclusion of the Evidence
On September 16, 2002 OSHA learned from the Washington Industrial Safety and Health
Administration (WISHA) that an employee had lodged a complaint, alleging that welding operations at
McLaren’s worksite were being conducted in the vicinity of toxic and combustible materials with little
ventilation and no personal protective equipment (Tr. 136-37; Declaration of Joy Flack, Exh. C-13, p. 2-3).
On September 19, 2002, OSHA Compliance Officer (CO) Michael Bonkowski visited the Anacortes
worksite (Tr. 39). Bonkowski was accompanied by another OSHA CO and a representative from WISHA
(Tr. 40). McLaren refused to allow the inspection, but did allow Bonkowski to speak with the “shipyard
competent person” on site, Gary Blakey (Tr. 43-44). Bonkowski learned that McLaren was engaged in
converting two Canadian naval vessels into charter pleasure craft (Tr. 38; see also, testimony of CO Nicole
Flessman, Tr. 155).1 Blakey confirmed that some welding, cutting and grinding was taking place at the
site, and that no testing for hot work on a vessel had been performed on the site (Tr. 44).
Blakey, who claimed to be an independent contractor, told Bonkowski that he had no employees
(Tr. 46-47). According to Blakey, the three other workers on the site were employed by McLaren, and
directed by either Blakey, who relayed instructions from McLaren, or by McLaren himself (Tr. 44-45, 47).
McLaren originally claimed that all the workers were independent contractors, but admitted that at least
one of the workers, sixteen-year-old Billy Gross, could not be an independent contractor as he was under
age (Tr. 47). After the September 19, 2002 visit, Bonkowski phoned one of the other workers at the
Anacortes site, Alex McLean (Tr. 49). McLean believed he was McLaren’s employee, as McLaren not
only paid him, but had the right to assign him additional projects (Tr. 49).
Bonkowski set forth the foregoing information in an affidavit to a magistrate of the U.S. District
Court, Western District of Washington (Tr. 92-93, 134-35; Exh. R-2). Based on Bonkowski and Flack’s
affidavits, the magistrate issued the warrant for inspection, which was executed on October 1, 2003 (Tr. 52;
Exh. C-1). McLaren argues that the affidavits on which the warrant was based improperly suggested that
he was an employer engaged in a business, and so were insufficient to establish OSHA’s probable
jurisdiction over his work place. There was no probable cause, therefore, for the issuance of the warrant.
When reviewing warrants, the magistrate’s determination of probable cause is entitled to great
deference. Sterling Plumbing Group, Inc., 17 BNA OSHC 1914, 1997 CCH OSHD ¶31,274 (No. 95-580,

        1
           Respondent argues that, by statute, any vessel whose keel was not laid in the United States is prohibited

from being used for commercial purposes in this country. When asked for a citation to the statute, Mr. McLaren
stated that he would provide the citation in his post hearing brief (Tr. 186-87). Although, in his brief, Respondent
repeated the point that foreign vessels may not be used for commercial purposes, he failed to provide any support for
his position, or to cite the supporting statute or regulation (See Resp ond ent po st hearing brief, p . 3).

                                                         2

1997). Moreover, probable cause is determined solely on the basis of evidence presented to the issuing
magistrate. Sarasota Concrete Company, 9 BNA OSHC 1608, 1981 CCH OSHD ¶26,061 (No. 78-5264,
1981), affd. 693 F.2d 1061 (11th Cir. 1981). A review of Bronkowski and Flack’s affidavits shows that
there were sufficient facts presented to warrant both the conclusion that McLean was in the business of
refitting ships and that he had employees. No further review of the issue is required, or permitted under
Commission precedent.
Respondent may adduce additional facts2 to attack the probable cause finding only if it can carry
its burden of showing that the Secretary's application either contained deliberate falsehoods or showed
reckless disregard for the truth regarding allegations essential to the probable cause finding, see, Tri-State
Steel Construction, Inc. 15 BNA OSHC 1903, 1991-93 OSHD ¶29,852 (1992), pet. den. 26 F.3d 173 (D.C.
Cir. 1994), or was prompted by an improper motive or bad faith on the part of the Secretary or her infor­
mant, see e.g. SEC v. Wheeling-Pittsburgh Steel Corp., 648 F.2d 118, 123-128 (3rd Cir. 1981). McLaren
has made no such showing.
Finally, the record fails to establish that the OSHA inspection as it was conducted on October 1,
2002, exceeded the scope authorized by the warrant.
McLaren’s motion to suppress the evidence obtained pursuant to the warrant is DENIED.
Jurisdiction
McLaren claims not to be engaged in business or to have employees. However, pursuant to this
judge’s Order of October 15, 2003, the Secretary’s June 19, 2003 request for admissions were deemed
admitted after McLaren failed to respond to them. In support of his motion for reconsideration (Exh. R-1),
McLaren claimed to have been too ill to respond, or, conversely, to have been overseas (Tr. 30-32).3
McLaren, however, also claimed to be an attorney, and so should have been aware of the consequences of
ignoring legal documents (Tr. 12-15, 231). Moreover, despite his physical condition, McLaren was able
to file a prehearing submission on July 9, 2003, and a motion for continuance on August 29, 2003.

        2
           In any event, the evidence introduced at the hearing would not dictate a different result. McLaren set

forth no rational non-business purpose for his conversion of two 24 x 125 foot ice-breakers (Tr. 184, 187, 216,
237-38). The workers at the Anacortes site believed they were employees (Tr. 49, 123). Charney Lane, a welder,
told the CO that M cLaren not only pa id her, b ut set her hours (T r. 54, 8 1, 12 4). She and Alex M cLea n refused to
sign independent contractor agreements, desp ite M cLaren’s insistence on them (T r. 243 -47, 1 91; E xh. R-5 , R-6).
McLaren agreed that Billy Gross, who was sixteen, could no t be an indep endent contracto r, and must be his
emp loyee (Tr. 47, 1 23).

        3
           Mr. McLaren relies upon Exhibit E attached to his motion for reconsideration as support for his claim of

med ical disability (chro nic fatigue) which prevented him from answering discovery in a tim ely manner. Exhibit E is
an almost entirely redacted document entitled “Psychiatry Emergency Services” purporting to be signed by Linda K.
McKendry, clinical so cial worker. T here is no other intelligible inform ation o n the document.

                                                           3

Respondent’s motion to vacate the October 15, 2003 order was denied at the hearing (Tr. 20, 25, 34). For
purposes of this action, therefore, Respondent, at all times relevant to this action, is deemed to have
maintained a place of business at 1904 7th Street, Anacortes, Washington, where he was engaged in the
business of refurbishing, repairing and reconfiguring ships (Exh. C-11, C-12; Admissions Nos. 2, 5).
McLaren is also deemed to have admitted he is an employer engaged in a business affecting commerce and
is subject to the requirements of the Act (Exh. C-11, Admissions Nos. 1, 3, 6, 7, 18, 19, 20, 21, 22, 23;
Exh. C-12, Admissions Nos. 1, 3, 6, 7). Jurisdiction has been established.
Alleged Violations, Docket No. 03-0758
Serious citation 1, item 1 alleges:
29 CFR 1915.7(c)(5): The employer did not ensure that each designated competent person had the ability
to perform all required tests and inspection which are or may be performed by a competent person as set
forth in subparts B, C, D, and H of this part:

    a) The shipyard competent person did not have the instruments to be able to perform the
    tests required for entry into confined and enclosed spaces aboard the vessels.

    The cited standard provides:

    (c) Criteria. The employer shall ensure that each designated competent person has the
    following skills and knowledge:
                                                * * *
    (5) Ability to perform all required tests and inspections which are or may be performed by
    a competent person as set forth in Subparts B, C, D and H of this part.4

Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that: 1) the cited standard applies; 2) there was a failure to comply with the
cited standard; 3) employees had access to the violative condition; and 4) the cited employer either knew
or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker Towing
Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991).
The provisions of Part 1915 apply to all ship repairing, including conversions. See 29 C.F.R.
§¶1915.2(a), 1915.4(j). It is undisputed that McLaren was engaged in converting the cited icebreakers to
pleasure craft. The cited standard clearly applies. However, it is not clear that Respondent failed to
comply with the standard. Gary Blakey was identified as the supervisor, and shipyard competent person

       4
            Subpart B sets forth the requirements for work in confined and enclosed spaces and areas with dangerous

atmospheres. Subpart C includes provisions regarding toxic cleaning solvents. Subpart D pertains to welding,
cutting an d hea ting. Sub part H addresses requirements for tools and related equip ment.

                                                        4

on the Anacortes site (Tr. 189-90, 211). Blakey did not have the instruments necessary to perform the tests
required under Subpart B; no tests were performed (Tr. 57-58, 70, 88, 211-12; Exh. C-11, Admissions Nos.
10, 11). Complainant failed to prove, however, that Blakey did not have the ability, i.e., skills and
knowledge to perform the testing. To the contrary, at hearing, Blakey testified that he did have the
necessary knowledge (Tr. 211-12). Blakey did not believe that such testing was necessary in this case
because the port tank was not an enclosed space (Tr. 212). On September 12, 2002, McLaren’s employees,
Billy Gross and Charney Lane, entered the port fuel tank of the vessel that was tied up at the Anacortes pier
(Tr. 58-60, 64, 67, 71-72, 203, 211-12, Exh. C-11, Admissions Nos. 12, 13). CO Bonkowski did not enter
the tanks, estimating from the interior of the ship that the tanks were about two feet wide, ten feet athwart
the ship and 20 feet high (Tr. 69). However, according to Blakey, the top of the port fuel tank had been
cut off, leaving an enclosure six to eight feet deep which was open to the air (Tr. 203, 212-13). On this
record, Complainant failed to show that the port tank was an enclosed space, which is defined at
§1915.4(q) as “any space, other than a confined space, which is enclosed by bulkheads and overhead.” The
space cited at citation 1, item 2a and 2b was not shown to require testing under Subpart B, Confined and
Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment. Therefore,
Respondent’s failure to test, or to have testing equipment on site cannot be construed as being attributable
to a lack of knowledge or skill. The Secretary failed to show a violation of §1915.7 by a preponderance
of the evidence and citation 1, item 1 is vacated.
Serious citation 1, item 2a alleges:
29 CFR 1915. 12(a)(1)(ii): The employer did not ensure that spaces and adjacent spaces that contain or
have contained combustible or flammable liquids or gases were visually inspected and tested by a
competent person to determine the atmosphere’s oxygen content prior to initial entry in to space by an
employee:

   a) Employees entered the diesel fuel tank spaces before testing for oxygen content of the
   atmosphere.
   The cited standard provides:
   §1915.12 Precautions and the order of testing before entering confined and enclosed
   spaces and other dangerous atmospheres.

                                                * * *
   (a) Oxygen content. (1) The employer shall ensure that the following spaces are visually
   inspected, and tested by a competent person to determine the atmosphere’s oxygen content
   prior to initial entry into the space by an employee. . . . (ii) Spaces and adjacent spaces that
   contain or have contained combustible or flammable liquids or gases;




                                                  5

Serious citation 1, item 2b alleges:

29 CFR 1915.13(b)(2): Testing was not conducted by a competent person to determine the concentration
of flammable, combustible, toxic, corrosive, or irritant vapors within the space prior to the beginning of
cleaning or cold work:

    a) Testing for explosive, toxic, corrosive or irritant vapors was not done prior to employees entering

the tanks to remove residual diesel fuel with a bucket.
The cited standard provides:
Testing shall be conducted by a competent person to determine the concentration of
flammable, combustible, toxic, corrosive, or irritant vapors within the space prior to the
beginning of cleaning or cold work.
Discussion
As noted above, CO Bonkowski learned from employee interviews that on September 12, 2002,
McLaren’s employee Billy Gross entered the port fuel tank of the vessel that was tied up at the Anacortes
pier to bring out buckets of diesel fuel sludge (Tr. 58-60, 64, 67, 71, 203). CO Bonkowski did not enter
the tanks (Tr. 69), however, and Blakey’s undisputed testimony establishes that the top of the port fuel tank
had been cut off (Tr. 203). The port tank was not, therefore, an enclosed space subject to the testing
requirements of §§1915.12 and 1915.13. Citation 1, items 2a and 2b are vacated.
Serious citation 1, item 3 alleges:
29 CFR 1915.14(a)(1)(ii): Employees were permitted to engage in hot work or the use of powder actuated
fastening tools on tank vessels, within or on the boundaries of fuel tanks, before a certificate was issued
setting forth that such work could be done in safety:

    a) Welding and cutting and grinding was done directly on the bulkheads of the diesel fuel
    tanks and in spaces adjacent to the fuel tanks without obtaining a Marine Chemist’s or
    equivalent certificate that the spaces were safe for hot work.
    The cited standard provides:
    (a) Hot work requiring testing by a Marine Chemist or Coast Guard authorized person. (1)
    The employer shall ensure that hot work is not performed in or on any of the following
    confined and enclosed spaces and other dangerous atmospheres, boundaries of spaces or
    pipelines until the work area has been tested and certified by a Marine Chemist or a U.S.
    Coast Guard authorized person as “Safe for Hot Work.”

    (ii) Within, on, or immediately adjacent to fuel tanks that contain or have last contained fuel; . . .

Discussion
CO Bonkowski’s photographs confirmed that Charney Lane was engaged in welding and cutting
in the spaces adjacent to the diesel fuel tanks in both the inshore and the offshore vessels (Tr. 72; Exh. C-7,
C-8, C-9). Ms. Lane told Bonkowski that the welding took place from May through September of 2002

                                                  6

(Tr. 79-80). It is undisputed that no Marine Chemist’s certificate or the equivalent was obtained prior to
Ms. Lane’s activities (Tr. 219; Exh. C-11, Admissions No. 14). The violation, therefore, is affirmed.
Penalty
In determining the penalty the Commission is required to give due consideration to the size of the
employer, the gravity of the violation and the employer's good faith and history of previous violations. The
gravity of the offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC
1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). The gravity of a violation depends on, 1) the number of
employees exposed to the risk of injury, 2) the duration of exposure, 3) the precautions taken against
injury, if any, and 4) the degree of probability of occurrence of injury. Kus-Tum Builders, Inc. 10 BNA
OSHC 1049, 1981 CCH OSHD ¶25,738 (No. 76-2644, 1981).
CO Bonkowski testified that if heated, flammable vapors in a tank may explode (Tr. 68).
Bonkowski testified that diesel fuel is not easily ignited and that the probability of a fire was low given the
activity in the area of the tanks (Tr. 89). McLaren is a small employer, with only three employees (Tr. 87).
McLaren had no safety program, but had no prior history of OSHA violations (Tr. 87-88). No injuries
were sustained on the work site (Tr. 252).
Charney Lane was exposed to the cited hazard for the approximately five months that she worked
aboard McLaren’s vessels. If a fire had ignited, it is likely she would have sustained burns, a serious
injury. The proposed penalty of $750.00 is deemed appropriate and will be assessed.
Serious citation 1, item 4 alleges:
29 CFR 1915.158(b)(2): On floating vessels under 200 feet (61m) in length at least one 30 inch (0.76m)
U.S. Coast Guard approved ring life buoy with line attached was not located at the gangway.

    a) There was no life ring on the pier or gangway adjacent to the two vessels undergoing
    repair.
    The cited standard provides:
    On floating vessels under 200 feet (61 m) in length, at least one 30-inch (0.76 m) U.S.
    Coast Guard approved ring life buoy with line attached shall be located at the gangway.

Discussion
At the time of the inspection, there was no life ring on the pier or gangway accessing the cited
vessels (Tr. 82; Exh. C-11, Admissions No. 15). Blakey testified that there were life rings on the vessel,
but admitted that they were not where they were supposed to be (Tr. 209-10). The violation is established.

                                                  7

Penalty
Bonkowski testified that because there were no means of immediately rescuing an employee who
might fall into the water, he or she might suffer severe hypothermia in the cold waters of Puget Sound
(Tr. 82, 89). The chance of an accident occurring was low, as a substantial metal gangway provided access
between the vessel and the pier (Tr. 83-84).
All of McLaren’s employees were exposed to the cited hazard for the three years work has been
ongoing (Tr. 183). As hypothermia can cause serious physical harm, the violation is serious. The proposed
penalty of $450.00 is assessed.
Alleged Violations, Docket No. 03-0574
The alleged health violations were grouped for purposes of assessing a penalty.
Serious citation 1a alleges:
29 CFR 1915.1200 (e)(1): Employer did not develop, implement, and maintain at each workplace, a written
hazard communication program which at least describes how the criteria specified in paragraphs (f), (g),
and (h) of this section for labels and other forms of warning, material safety data sheets, and employee
information and training will be met.

   Location: Vessels docked at 1907 7th Street, Anacortes, Washington. Employer did not
   have a hazard communication program for employees working with hazardous substances
   including but not limited to paint thinner, diesel fuel, acetone, paint, and primer/sealer.
   The cited standard provides:
   Employers shall develop, implement, and maintain at each workplace, a written hazard
   communication program which at least describes how the criteria specified in paragraphs
   (f), (g), and (h) of this section for labels and other forms of warning, material safety data
   sheets, and employee information and training will be met. . . .

Discussion
OSHA CO Nicole Flessner testified that the safety rules Gary Blakey had drafted for the Anacortes
work site did not include a hazard communication program (Tr. 157-58; Exh. C-12; Admissions No. 9).
Flessner stated that employees had no way of knowing the danger associated with the chemicals they work
with, i.e., acetone and paint thinner (Tr. 157-59). Acetone and paint thinner are listed as hazardous
chemicals by the American Governmental Conference of Industrial Hygienists (Tr. 178). Employees
contacting the types of chemicals at the Anacortes work site could suffer central nervous system depression
or dermatitis from skin contact, headaches, nausea and/or respiratory irritation from inhalation (Tr. 158,
161-63). In addition, the chemicals on the work site were flammable and could ignite if in proximity to
the sparks or flame generated by welding (Tr. 160).

                                                8

McLaren admits that he had no Hazard communication program, but argues that the paint, paint
thinner, acetone and diesel fuel were exempt consumer products pursuant to 29 C.F.R.
§1910.1200(b)(6)(ix).5 When a standard contains an exception to its general requirement, the burden of
proving that the exception applies lies with the party claiming the benefit of the exception. Falcon Steel
Co., 16 BNA OSHC 1179, 1991-93 CCH OSHD ¶30,059 (No. 89-2883, 89-3444, 1993). McLaren failed
to introduce any evidence establishing that the cited products are used in his work place in the same
manner that they are used by other consumers of the products. The standard is applicable, therefore, and
the violation is established.
Serious citation 1, item 1b alleges:
29 CFR 1915.1200 (f)(5)(ii): Except as provided in paragraphs (f)(6) and (f)(7) of this section, the
employer did not ensure that each container of hazardous chemicals in the workplace is labeled, tagged or
marked with the following information:

Appropriate hazard warnings, or alternatively, words, pictures, symbols, or combination thereof, which
provide at least general information regarding the hazards of the chemicals, and which, in conjunction with
the other information immediately available to employees under the hazard communication program, will
provide employees with the specific information regarding the physical and health hazards of the hazardous
chemical.

    Location: Vessels docked at 1907 7th Street, Anacortes, Washington. Employer did not
    place hazard warnings on hazardous substances including but not limited to paint thinner,
    diesel fuel, acetone, paint, and primer/sealer.
    The cited standard provides:
    . . . [T]he employer shall ensure that each container of hazardous chemicals in the
    workplace is labeled, tagged or marked with the following information:
                                               * * *
    (ii) Appropriate hazard warnings, or alternatively, words, pictures, symbols, or combination
    thereof, which provide at least general information regarding the hazards of the chemicals,
    and which, in conjunction with the other information immediately available to employees
    under the hazard communication program, will provide employees with the specific
    information regarding the physical and health hazards of the hazardous chemical.

Discussion
McLaren did not ensure that each container of hazardous chemicals at the site was labeled, tagged
or marked with appropriate warnings (Tr. 159-60; Exh. C-12; Admissions No. 9). The Secretary has
established the cited violation.

        5
          §1910.1200(b)(6)(ix) exempts: “[a]ny consumer product or hazardous substance. . . where the employer

can show that it is used in the workplace for the purpose intended by the chemical manufacturer or importer of the
product, and the use results in a duration and frequency of exposure which is not greater than the range of exposures
that could rea sonably be expe rienced by consumers when used for the p urpo se intend ed.”

                                                         9

Serious citation 1, item 1c alleges:
29 CFR 1915. 1200(g)(1): Employer did not have a material safety data sheet in the workplace for each
hazardous chemical which they use.

   Location: Vessels docked at 1907 7th Street, Anacortes, Washington. Employer did not have a
   material safety data sheet for employees working with hazardous substances including but not
   limited to paint thinner, diesel fuel, acetone, paint, and primer/sealer.
   The cited standard provides:
   Employers shall have a material safety data sheet in the workplace for each hazardous
   chemical they use.

Discussion
CO Flessner testified that no Material Safety Data Sheets were provided for the hazardous chemical
groups on the Anacortes site (Tr. 162; Exh. C-12; Admissions No. 11). Employees had no access to
information on flammability and carcinogenicity, or to medical precautions to be taken in case of exposure
(Tr. 163). The citation has been established.
Serious citation 1, Item 1d alleges:
29 CFR 1915. 1200(h)(1): Employer did not provide employees with effective information and training
on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new
physical or health hazard the employees have not previously been trained about is introduced into their
work area. Information and training may be designed to cover categories of hazards (e.g., flammability,
carcinogenicity) or specific chemicals. Chemical-specific information must always be available through
labels and material safety data sheets.

   Location: Vessels docked at 1907 7th Street, Anacortes, Washington. Employer did not
   provide training for employees working with hazardous substances including but not
   limited to paint thinner, diesel fuel, acetone, paint and primer/sealer.
   The cited standard provides:
   Employers shall provide employees with effective information and training on hazardous
   chemicals in their work area at the time of their initial assignment, and whenever a new
   physical or health hazard the employees have not previously been trained about is
   introduced into their work area. . . .

Discussion
Though Gary Blakey took it upon himself to instruct the employees in some general safety issues
McLaren provided no hazard communication training for his employees (Tr. 165, 226-27). The Secretary
has proven this violation.
Penalty
As noted above, any of McClaren’s employees could have come into contact with the chemicals
at the Anacortes work site. In the absence of adequate hazard warnings and medical information, those

                                               10

employees could suffer central nervous system depression or dermatitis from skin contact, headaches,
nausea and/or respiratory irritation from inhalation (Tr. 158, 161-63). Specifically, Billy Gross was
exposed to diesel fuel, an irritant which can cause dermatitis (Tr. 160). In addition, the chemicals on the
work site were flammable and could ignite if in proximity to the sparks or flame generated by welding,
resulting in burns (Tr. 160). The violations are serious in nature.
Taking into account the relevant factors, the proposed combined penalty of $600.00 is appropriate
and will be assessed.

                                         Findings of Fact
   All findings of fact relevant and necessary to a determination of all issues have been made above.

Fed. R. Civ. P. 52(a). All proposed findings of fact inconsistent with this decision are hereby denied.

                                        Conclusions of Law

1. McLaren is engaged in a business affecting commerce and has employees within the meaning of
   Section 3(5) of the Act.
2. McLaren, at all times material to this proceeding, was subject to the requirements of the Act and
   the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the
   subject matter of this proceeding.
3. The United States Magistrate was presented with sufficient probable cause for issuing the
   inspection warrant for Respondent’s worksite.
4. At the time and place alleged, McLaren was not in violation of 29 CFR §1915.7(c)(5).
5. At the time and place alleged, McLaren was not in violation of 29 CFR §1915.12(a)(1)(ii) or
   §1915.13(b)(2).
6. At the time and place alleged, McLaren was in violation of 29 CFR §1915.14(a)(1)(ii), and said
   violation was serious within the meaning of the Act.
7. At the time and place alleged, McLaren was in violation of 29 CFR §1915.158(b)(2), and said
   violation was serious within the meaning of the Act.

8. At the time and place alleged, McLaren was in violation of 29 CFR §1915.1200(e)(1), (f)(5)(ii),
   (g)(1) and (h)(1) and said violations were serious within the meaning of the Act.

                                               11
   

   ORDER

9. Citation 1, item 1, alleging violation of 29 CFR §1915.7(c)(5) is VACATED.

10. Citation 1, items 2a and 2b, alleging violations of 29 CFR §§1915.12(a)(1)(ii) and 1915.13(b)(2)
    are VACATED.

11. Serious Citation 1, item 3, alleging violation of 29 CFR §1915.14(a)(1)(ii) is AFFIRMED, and
    a penalty of $750.00 is ASSESSED.

12. Serious Citation 1, item 4, alleging violation of 29 CFR §1915.158(b)(2) is AFFIRMED, and a
    penalty of $450.00 is ASSESSED.

13. Serious Citation 1, item 5, alleging violation of 29 CFR §1915.1200(e)(1), (f)(5)(ii), (g)(1) and
    (h)(1) is AFFIRMED, and a penalty of $600.00 is ASSESSED.

                                                         /s/
                                                        Robert A. Yetman
                                                        Judge, OSHRC
    

    Dated: April 16, 2004

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