Super Excavators, Inc.

Plain-English summary

Super Excavators had an effective written hazard-communication program, but kept the written program and material safety data sheets at its main office rather than at a sewer-construction worksite 22 miles away. The Commission converted the written-program item to a de minimis notice because the company had trained its employees and the missing copy had no direct or immediate relationship to safety. It affirmed the safety-data-sheet item because employees stayed at the worksite during their shifts and needed the sheets themselves to be readily accessible there. Given the low-volatility materials and effective training, the Commission reduced that item from serious to other-than-serious and assessed $60. The judge's separate vacation of a repeat chain-sling item was not at issue on Commission review.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.59(e)(1); 29 C.F.R. § 1926.59(g)(8); 29 C.F.R. § 1926.251(b)(1)
• Outcome: The written-program item became a de minimis notice with no penalty, and the safety-data-sheet item became other-than-serious with a $60 penalty.
• Key point: A de minimis notice has no penalty, abatement duty, or legal consequence, while material safety data sheets must be readily accessible at a fixed worksite.

Full text (OSHRC public release)

Docket No. 89-2253

SECRETARY OF LABOR,

Complainant,

v.

SUPER EXCAVATORS, INC.,

Respondent.

OSHRC Docket No. 89-2253

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

Super Excavators, Inc., ("Super") is a construction
company specializing in public works construction, particularly excavating trenches for
sewer and water lines. Its headquarters is in Menomonee Falls, Wisconsin. A compliance
officer ("CO") of the Occupational Safety and Health Administration
("OSHA") inspected a worksite in Milwaukee where Super was laying sewer pipe. As
a result of that inspection, OSHA issued a citation alleging that Super had committed
serious violations of two different sections of the Hazard Communication Standard for the
construction industry.

Super contested that citation, and a hearing was held before an
administrative law judge of the Review Commission, who found that Super had committed two
serious violations. The judge's decision has been directed for review pursuant to section
12(j) of the Occupational Safety & Health Act of 1970 ("the Act"), 29 U.S.C.
� 661(j).

I.

Item 1 of the citation alleged that Super had violated the
standard at 29 C.F.R. � 1926.59(e)(1) [[1/]]. The citation alleged that Super had not
developed or implemented a written hazard communication program describing how it would
meet the requirements set out in the Hazard Communication Standard. The record shows that
Super had, in fact, developed a written hazard communication program, as required by
section 1926.59(e)(1) and had implemented it, but that Super did not have a written copy
of the program at the worksite during the inspection. The administrative law judge found
that this failure constituted a serious violation.

On review, the Secretary has filed a document captioned
"Secretary's Notice To Amend Citation," in which the Secretary states,
"[T]he Secretary hereby amends the classification of the 1926.59(e)(1) citation to
allege a de minimis violation of the standard." In her brief, the Secretary states
that Super had implemented an effective overall hazard communication program, that the
failure to have a copy of the written program at a transient worksite may have no direct
or immediate relationship to employee safety and health, and that this amendment would be
consistent with OSHA's current enforcement policy for the Hazard Communication Standard,
as set out in CPL 2-2.38C (Oct. 22, 1990). Super, on the other hand, opposes this
amendment, arguing that there was no violation and that the citation should be vacated.

In section 12(g) of the Act, 29 U.S.C. � 661(g), Congress
provided that Federal Rules of Civil Procedure shall govern Commission proceedings unless
the Commission has adopted a different rule. Rule 35(f) of the Commission's Rules of
Procedure, 29 C.F.R. � 2200.35(f), provides:

� 2200.35 Complaints.

(f) Amendment of the citation and complaint. A contested
citation, notification of proposed penalty, or notification of failure to abate may be
amended once as a matter of course in the complaint before an answer is served if: (1) the
amended allegation arises out of the same conduct, occurrence or hazard described in the
citation; (2) the amendment does not result in incurable harm to the employer in the
preparation or presentation of its case; and (3) the complaint clearly identifies the
change that is being made in the allegation. All other amendments of the Secretary's
allegations, as well as any amendments of the employer's responses, are governed by
Federal Rule of Civil Procedure 15.

Here, an answer has been served, a hearing held, and a decision
issued, so the citation may not be amended under Rule 35(f). Rule 15(a) of the Federal
Rules of Civil Procedure [[2]], which applies to the situation here, provides that a party
may amend its pleading only if it has either the written consent of the opposing party or
leave of court (in this case, the Commission). Therefore, the Secretary may not
unilaterally amend the citation and the "Notice to Amend" is ineffective.

However, section 10(c) of the Act provides for the Review
Commission to issue an order affirming, modifying, or vacating the Secretary's citation or
directing other appropriate relief.[[3]] Accordingly, the Review Commission has the
authority to determine that a violation is de minimis , Illinois Bell
Telephone Co. , 5 BNA OSHC 1884, 1977-78 CCH OSHD � 22,209 (No. 2097, 1977); Donovan
v. Daniel Constr. Co. , 692 2.2d 818, 821 (1st Cir. 1982); so we will treat the
Secretary's filing as a motion to amend the citation to a de minimis notice.

After reviewing the record, we conclude that amendment of the
citation is warranted. Although the citation alleged that Super had not developed or
implemented a written hazard communication program, the Secretary's complaint amended the
citation by alleging that Super had violated 29 C.F.R. � 1926.59(e)(1) because the
written hazard communication program was not available at the work site. The issue
litigated by the parties at the hearing was whether Super's written program was
"maintain(ed) at the workplace."

To a large extent, the written program is a plan and a training
document, to be used in familiarizing employees with the hazardous chemicals present in
their workplace, with the hazards posed by these chemicals, with methods of avoiding
exposure, and with treatment in the case of exposure. The Secretary has stated that Super
had implemented an effective program, which we interpret to mean that the company's
employees had been given the requisite training. Further, although the parties stipulated
that the four substances at Super's worksite, concrete, concrete pipe, PVC pipe, and
waterplug, fell within the standard's definition of "hazardous chemical," none
of these substances appears to be unduly volatile or to have posed a significant danger to
Super's employees. We consider the Secretary's representations to be an admission that
Super's failure to have a copy of its written program at its Milwaukee worksite had no
direct or immediate relationship to employee safety and health. We therefore find that
amendment of the citation to a de minimis notice is appropriate. Accordingly, we grant the
Secretary's motion to amend. Having granted the Secretary's motion, we must consider the
legal significance of such an amendment.

Section 9(a) of the Act, 29 U.S.C. � 658(a), which authorizes
the Secretary to issue citations, provides:

If, upon inspection or investigation, the Secretary or his
authorized representative believes that an employer has violated a requirement of section
5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this
Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable
promptness issue a citation to the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation, including a reference to the
provision of the Act, standard, rule, regulation, or order alleged to have been violated.
in addition, the citation shall fix a reasonable time for the abatement of the violation.
The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation
with respect to de minimis violations which have no direct or immediate relationship to
safety or health.

The last sentence of section 9(a) makes it clear that a de
minimis notice is not a citation. Because it is not a citation, a de minimis
notice carries no penalty and no abatement requirement. Dravo Corp., 7 BNA OSHC
2095, 2100, 1980 CCH OSHD 24,158, � 29,368 (No. 16317, 1980), pet. for review denied ,
639 F. 2d 772 (3rd Cir. 1980); National Rolling Mills, Co. , 4 BNA OSHC 1719,
1976-77 CCH OSHD � 21, 114 (No. 7987, 1976). A de minimis notice does not
become part of an employer's history of previous violations, which is one of the factors
to be considered in assessing a penalty under section 17(j) of the Act, 29 U.S.C. �
666(j). Westburne Drilling, Inc. , 5 BNA OSHC 1457, 1977-78 CCH OSHD � 21, 814 (No.
15,631, 1977). It is not proof that there was a violation; it is evidence only that the
Secretary believed that there was a violation. Cf. , Secretary of Labor v. OSHRC
(Goltra Castings, Inc.) , 938 F.2d 1116, 1118 (10th Cir. 1991) (uncontested citation
and settlement of citation establish only Secretary's opinion that there was a violation,
it cannot be used as the basis for alleging a repeated violation in the future. Stone
Container Corp. , 14 BNA OSHC 1757, 1762, 1987-90 CCH OSHD � 29.064, p. 38,819 (No.
88-310, 1990).

Because the Secretary's citation to Super has been amended to a
de minimis notice, there is no penalty or order that Super abate the practice cited.
  Because there are no legal consequences flowing from such a notice, we conclude
that there is no legal controversy before us.  We therefore will not address Super's
arguments going to the merits of whether there was a violation.

II.

Item 2 of the citation alleged that Super had violated 29
C.F.R. � 1926.59(g)(8), which provides:

(8) The employer shall maintain copies of the required material
safety data sheets for each hazardous chemical in the workplace, and shall ensure that
they are readily accessible during each work shift to employees when they are in their
work area(s).

The parties stipulated that Super did have material safety data
sheets ("MSDSs") for the four substances at its main office, approximately 22
miles away, but did not have them anywhere on the Milwaukee worksite. The Secretary argues
that the standard requires the MSDSs to be physically present at the worksite. The
Secretary also states that the standard may be complied with if the MSDSs are immediately
available through a facsimile transmitting machine or other device. Super argues that the
standard does not require that the MSDSs be physically present at the worksite, only that
they be readily available, and that the facts here satisfy that requirement because the
MSDSs could be made available within a reasonable time. The company also argues that its
worksite is not governed by section 1926.59(g)(8) because it fell within the provisions of
1926.59(g)(9).

The standard Super relies on states:

(9) Where employees must travel between workplaces during a
workshift, i.e., their work is carried out at more than one geographical location, the
material safety data sheets may be kept at a central location at the primary workplace
facility. In this situation, the employer shall ensure that employees can immediately
obtain the required information in an emergency.

We conclude that Super's worksite was governed by section
(g)(8), not section (g)(9). There is no evidence in the record that Super's employees
traveled between workplaces within the meaning of (g)(9). That section was intended to
cover situations in which employees had to perform an activity at more than one location,
for example, employees who install or repair machinery on various premises and must travel
between these sites to get to the equipment they repair or install. Telephone linemen and
those in similar activities are an example of employees who perform this type of activity.
Here, there is no indication that Super's employees worked anywhere else during the day or
that they reported to the main office first and traveled to the Milwaukee site on company
time. Absent evidence to the contrary, we cannot say that Super's employees followed any
course but the usual construction industry practice of reporting directly to the jobsite
and leaving from there at the end of the workday. While we recognize that some of the
company's supervisory personnel may have traveled between the cited worksite and the main
office during the workday, there is no indication in the record that the laborers and
foremen left the site during working hours, and we do not believe that the activity of a
few of the company's managerial personnel brought this worksite within the ambit of
section (g)(9). [[4]] We therefore find that Super's worksite was governed by the
requirements of section 1926.59(g)(8).

An important requirement of section (g)(8) is that the MSDSs be
readily accessible. Although Super argues that they could be produced within a reasonable
period of time, we do not believe that this satisfies the intent of the standard. One of
the primary pieces of information contained in an MSDS is emergency medical treatment for
exposure or overexposure to the hazardous chemical. Super's MSDSs would not have been
readily available in an emergency.

The company argues that there were telephones available in Milwaukee and that the
necessary information could be obtained very quickly. If Super's worksite were covered by
section (g)(9), that would be sufficient, for that standard requires only that
"employees can immediately obtain the required information in an emergency." A
comparison of the language of the two standards, however, shows that, under section
(g)(8), a copy of the MSDS itself, not just the information contained in the MSDS, must be
readily available. Accordingly, we reject Super's contention that telephone communication
is adequate to comply with the requirements of section (g)(8).

Super also asserts that the worksite where it was installing
sewer pipe is not covered by section (g)(8) because it is not a "workplace" or a
"work area" as those terms are defined in 29 C.F.R. � 1926.509(c). [[5]] The
essence of this argument is that the site is not a "workplace" because it does
not contain one or more "work areas" and that it is not a "work area"
because it does not contain a "defined space" where the hazardous chemicals are
used. The Secretary argues that the two trailers at the worksite are defined spaces.

Both arguments are too literal. A "defined space"
does not have to have walls enclosing it or be demarcated by lines on the ground. For
example, it is likely that Super's worksite was separated from vehicular traffic and that
pedestrians were not allowed to pass through it. In other words, it was
"defined" as an area people not involved in the construction work could not
enter. The open trench, where the pipes were being laid, was a defined space where the
hazardous chemicals were used. The fact that it would be located in a different place in
the afternoon than it had been in the morning makes it no less "defined."
Because there was at least one "defined space" at the worksite, it constituted a
"work area," and Super's site was a "workplace" governed by 29 C.F.R.
1926.59(g)(8), because it did contain one or more work areas.

For these reasons, we reject the argument that the worksite was
covered by section 1926.59(g)(9). Because we find that Super did not have MSDSs readily
accessible at the site, we hold that Super violated the standard at 29 C.F.R. �
1926.59(g)(8).

The Secretary alleged that the violation was serious and
proposed a penalty of $120.00. Under section 17(k) of the Act, 29 U.S.C. � 666(k), a
violation is serious if there is a substantial probability that death or serious physical
harm could result. This does not mean that the occurrence of an accident must be a
substantially probable result of the violative condition but, rather, that a serious
injury is the likely result if an accident does occur. Natkin & Co., 1 BNA OSHC
1204, 1205, 1971-73 CCH OSHD � 15,679, pp. 20,967-68 (No. 401, 1973). The likelihood of
an accident's occurring and the likelihood of an injury resulting from that accident are
factors to be considered in evaluating the gravity of a violation for purposes of
assessing a penalty. Baltz Bros. Packing Co. , 1 BNA OSHC 1118, 1119, 1971-73 CCH
OSHD � 15,464, 20,728 (No. 91, 1979).

Here, determining the seriousness of the violation is more
difficult because the absence of an MSDS, alone, would not cause physical harm. We must
therefore look to other factors. An MSDS is not like the written program, which is
essentially a general plan covering all hazardous chemicals in a workplace. An MSDS
contains a great deal of very specific information about one hazardous chemical, including
safe handling precautions, procedures for cleaning up spills, emergency first aid
procedures, and the telephone number of the party who can provide additional information
about emergency procedures. The lack of an MSDS could result in an employee's being given
inadequate or improper treatment for exposure to a hazardous substance. Here, however, the
four substances found in Super's workplace were not particularly volatile. It is likely
that any harm they caused would be of a superficial nature, such as dermatitis from
exposure to the cement. Because the secretary has stipulated that Super had implemented an
effective overall hazard communication program, we conclude that Super's employees had
been trained not only in the recognition and avoidance of the hazards posed by these
substances but also in the proper treatment in case of exposure. Under these
circumstances, it is not likely that the physical harm caused by exposure to any of these
substances would be so exacerbated by the absence of an MSDS as to cause serious injury.
We therefore find that serious physical harm was not likely to result from the lack of an
MSDS at this satellite worksite and that this violation was not serious but was, instead,
other-than-serious.

Section 17(j) of the Act, 29 U.S.C. � 666(j), sets out four
factors to be considered in assessing a penalty: the employer's size, the gravity of the
violation, the good faith of the employer, and the employer's history of previous
violations. The Secretary proposed a penalty of $120. We have considered the evidence in
the record on the statutory factors. Because we find that this violation was of low
gravity, we assess a penalty of $60.00.

III.

Accordingly, we amend item 1 of the citation to a de minimis
notice, for which there is no penalty. We affirm item 2 of the citation as an
other-than-serious violation of 29 C.F.R. � 1926.59(g)(8) and assess a penalty of $60.00.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Date: October 18, 1991

SECRETARY OF LABOR,

Complainant,

v.

SUPER EXCAVATORS, INC.,

Respondent.

OSHRC DOCKET NO. 89-2253

APPEARANCES:

For the Complainant:

Rafael Alvarez, Esq., Office of the Solicitor,

U.S. Department of Labor, Chicago, IL

For the Respondent:

Mark M. Camp, Esq., Thomas G. Kreul, Esq.,

Pfannerstill and Camp, Milwaukee, WI

DECISION AND ORDER

Loye, Judge:

This proceeding arises under the Occupational Safety and Health
Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

Respondent Super Excavators, Inc. is a construction operation
with its principal place of business in Menomonee Falls, Wisconsin (Answer, � II).
Respondent admits it is engaged in a business affecting commerce and is, therefore, an
employer within the meaning of the Act and subject to the Act's requirements (Answer �
III).

As a result of an inspection on June 20, 1989 (Tr. 39) by an
Occupational Safety and Health Administration (OSHA) Compliance Officer (CO) respondent
was issued citations and proposed penalties pursuant to the Act alleging Serious
violations of 29 C.F.R. �1926.59(e)(1) and (g)(1) and a Repeat violation of �
1926.251(b)(1). By filing a timely notice of contest respondent brought this proceeding
before the Occupational Safety and Health Review Commission contesting the citations and
the proposed penalties. On January 9, 1990 a hearing was held in Milwaukee, Wisconsin.

With its Post-trial Brief, Complainant submits a Motion to
amend item 2 of Serious citation No. 1, to allege violation of $1926.59(g)(8) in lieu of
1926.59(g)(1). Complainant claims that (g)(8) governs the facts as they were tried in this
case and that amendment is necessary to conform to the evidence. As there is no objection
from the respondent, the Motion will be Granted.

Alleged Violations

29 C.F.R. 1926.59(e)(1) and (g)(8)

The relevant portions of � 1926.59(e)(1) state:

Employers shall develop, implement, and maintain at the
workplace, a written hazard communication program for their workplaces 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. . . .

Section 2926.59(9) (8) requires:

The employer shall maintain copies of the required material
safety data sheets for each hazardous chemical in the workplace, and shall ensure that
they are readily accessible during each work shift to employees when they are in their
work areas(s).

Facts

OSHA's June 20, 1989 inspection took place at respondent's
worksite at South Clement and East Oklahoma Avenue, Milwaukee, Wisconsin, where respondent
was engaged in excavating a trench (Tr. 39-41). The work area might advance up to 200 feet
a day depending upon excavating conditions (Tr. 86-87). A convenience trailer was located
one city block east of the excavation (Tr. 54).

At the excavation the CO observed the crew laying cut concrete
pipe and using cement (Tr. 42). He also noted waterplug on the worksite and PVC pipe near
the trailer (Tr. 42). In response to the CO's questions, respondent's superintendent
indicated that the latter items were used on the job (Tr. 42, 104).  Respondent
stipulates that cement, PVC pipe, water plug and concrete pipe are hazardous chemicals
within the definition of 1926.59(c) (Stipulation of Facts No. 5). Respondent further
stipulates that neither the Material Safety Data Sheets (MSDS) nor a copy of respondent's
hazard communication program were physically present at the Milwaukee worksite
(Stipulation of Facts No. 3 and 4). Hazard information was kept rather at respondent's
main office 22 miles and approximately 30 minutes away (Tr. 56-57).

The Complainant maintains that � 1926.59(g)(8) requires that
hazard materials be available at each worksite, not maintained at a centralized location.
The CO testified that the MSDS tells employees how to recognize and protect against
over-exposure and how to take care of an accidental spill. It provides information vital
to medical personnel, and should, in the CO's opinion go along to the hospital with any
contaminated personnel (Tr. 57, 60).

Discussion

As a threshold matter, respondent contends that the cited
standards are inapplicable because on the date of the inspection, employees were not using
cement or waterplug and were not cutting PVC or concrete pipe. Respondent maintains that
the "mere presence" of the hazardous materials did not create a hazard to
employees.

This judge finds that respondent's argument is without merit.
Section 1926.59(b) S cope and Application , makes the cited standard applicable to
any chemical which is known to be present in the workplace in such a manner that employees
may be exposed under normal conditions of use or in a foreseeable emergency."
Respondent's superintendent admitted the hazardous materials present were used on site.
Employee exposure to those chemicals is clearly foreseeable. [[1]] See , General
Carbon Co. v. OSHRC , 860 F.2d 479, 13 BHA OSHC 1949 (D.C. Cir. 1988) (Hazard
Communication Standard applicable and enforceable without proof of individual existence of
significant risk of harm).

Respondent also argues that, if applicable, the standard
requires only that hazard information be immediately available to employees and allows the
information to be maintained in a central location. In support, respondent points to
1926.59(g)(9) which states that:

Where employees must travel between workplaces during a
workshift, i.e., their work is carried out in more than one geographical location, the
material safety data sheets may be kept at a central facility. In this situation, the
employer shall ensure that employees can immediately obtain the required information in an
emergency.

This judge finds that the plain language of the regulation
requires that the subject hazard information be made available at geographically distant
work sites. Section 1926.59(c) defines "workplace" as "an establishment,
job site, or project, at one geographical location containing one or more work
areas." The standard plainly contemplates provision of such information at each
location where employees work with hazardous chemicals.

Moreover, this judge finds that respondent's reliance on the
exemption stated in � 1926.59(9) is misplaced. Exemptions to the sweep of remedial
legislation must be narrowly construed and limited to effect only the remedy intended.
Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1379 (No. 15462, 1980).  The cited
exemption was intended to apply where, during a single shift, employees "must travel
between" distinct and distant workplaces, not where, as here, workers remain at a
relatively fixed workplace which might daily extend a few hundred feet further from a
stationary job trailer where hazard information might easily be maintained.

The standards cited here are intended to provide employees with
comprehensive information regarding possible workplace dangers. Such information must be
immediately available to guide clean up and medical efforts. Failure to provide such
information is properly classified as Serious.

Citation 1, items 1 and 2 will be affirmed as a Serious
violation of the Act.

Penalty

The Secretary has proposed a combined penalty of $240.00.

The determination of what constitutes an appropriate penalty is
within the discretion of the Review commission. Long Manufacturing Co. v. OSHRC ,
F.2d 902 (8th Cir. 1977). 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 (No.
4, 1972).

Respondent is a large employer, with over 100 employees (Tr.
61). There is nothing in the record to indicate bad faith or past history of violations of
the hazard communication provisions (Tr. 62).  Although the cited violation at its
central location approximately 30 minutes from the work site.  Therefore, the gravity
of the violation is deemed to be low. 

For the reasons set forth above, the proposed penalties are
deemed to be appropriate.

Section 1926.251(b)(l)

The cited standard requires that "welded alloy steel chain
slings shall have permanently affixed durable identification stating size, grade, rated
capacity and sling manufacturer."

Respondent admits that at the time of the inspection there was
no tag on the subject sling (Tr. 16).  Respondent's superintendent indicated to the
co that the sling had been used but did not say when or for what purpose (Tr. 69, 104).
  The co assumed that pipe was being lowered into the trench by means of the sling
since it was attached to the crane and ready for use (Tr. 50).  The co testified that
chains should be inspected on a yearly basis and visually checked daily (Tr. 49).  He
did not know and made no attempt to ascertain how long the tag had been missing (Tr. 85).

The Commission has held that:

In order to prove a violation of section 5(a) (2) of the Act,
29 U.S.C. �654(a)(2), 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.

Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 78
6247, 1981).

The Secretary's prima facie case fails to demonstrate employer
knowledge of the cited standard. Even assuming that reasonable diligence requires daily
inspection of chain slings, as is urged by the Secretary, this judge cannot conclude that
respondent failed to exercise same. The record is devoid of any evidence establishing that
respondent's inspection schedule was deficient or that daily inspection would have
resulted in discovery of the missing tag.

Repeat citation 2 will, therefore, be dismissed.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and
necessary to a determination of the contested issues have been found specially and appear
in the decision above.

ORDER

Based upon the findings of fact and conclusions of law set
forth herein it is ORDERED:

1. Citation 1, items I and 2 are AFFIRMED as Serious violations
   and a penalty of $240.00 is hereby ASSESSED.

2. Citation 2, item 1 together with the proposed penalty is
   hereby VACATED.

Benjamin R. Loye

Judge, OSHRC

Dated: May 25, 1990

FOOTNOTES:

[[1/]] That standard provides:

(e) Written hazard communication program. (1) Employers shall
develop, implement, and maintain at the workplace, a written hazard communication program
for their workplaces 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, and which also includes
the following:

(i) A list of the hazardous chemicals known to be present using an identity that is
referenced on the appropriate material safety data sheet (the list may be compiled for the
workplace as a whole or for individual work areas); and,

(ii) The methods the employer will use to inform employees of the hazards of non-routine
tasks (for example, the cleaning of reactor vessels), and the hazards associated with
chemicals contained in unlabeled pipes in their work areas.

[[2]] Rule 15(a) provides:

Rule 15. Amended and Supplemental Pleadings

(a) Amendments. A party may amend the party's pleading once as
a matter of course at any time before a responsive pleading is served or, if the pleading
is one to which no responsive pleading is permitted and the action has not been placed
upon the trial calendar, the party may so amend it at any time within 20 days after it is
served. Otherwise a party may amend the party's pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely given when justice so
requires. A party shall plead in response to an amended pleading within the time remaining
for response to the original pleading or within 10 days after service of the amended
pleading, whichever period may be the longer, unless the court otherwise orders.

[[3]] Section 10(c), 29 U.S.C. � 659(c), states in pertinent
part:

(c) If an employer notifies the Secretary that he intends to
contest a citation issued under section 9(a) . . . the Secretary shall immediately advise
the Commission of such notification, and the Commission shall afford an opportunity for a
hearing (in accordance with section 554 of title 5, United States Code, but without regard
to subsection (a)(3) of such section). The Commission shall thereafter issue an order
based on findings of fact, affirming, modifying, or vacating the Secretary's citation or
proposed penalty, or directing other appropriate relief, and such order shall become final
thirty days after its issuance....

[[4]] The company suggests that it comes within the purview of
section (g)(9) because its worksite was not fixed but moved as the trenching progressed.
As the standard speaks of employees traveling, not worksites traveling, we reject this
suggestion.

[[5]] According to those definitions, "Workplace"
means an establishment, job site, or project, at one geographical location containing one
or more work areas. "Work area" means a room or defined space in a workplace
where hazardous chemicals are produced or used, and where employees are present.

[[1]] In any event, respondent's reliance on this argument is
misplaced. The issues in this case were stipulated for trial. � 1926.59's applicability
was not among them. Respondent may not now take advantage of the Secretary's
understandable failure to put on evidence or present argument on the issue.