Thomas Lindstrom Company

Plain-English summary

Thomas Lindstrom Company was a structural steel erector whose foreman used oxygen and acetylene at a construction site. When OSHA requested the material safety data sheets for those chemicals, the foreman could not produce them because the sheets were kept at the company's central office, between 10 and 45 minutes away by car. The Commission held that the sheets were not "readily accessible" to employees at the worksite, even if the company could deliver them during the same shift. Hazard information must be available quickly because employees may need it immediately after a spill, leak, or exposure. The Commission affirmed the other-than-serious violation, with no penalty assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.59(g)(8)
• Outcome: The other-than-serious material-safety-data-sheet violation was affirmed with no penalty.
• Key point: Keeping chemical safety data sheets at a central office does not make them readily accessible to employees who need the information at a worksite.

Full text (OSHRC public release)

Docket No. 90-1084

SECRETARY OF LABOR,

Complainant,

v.

THOMAS LINDSTROM COMPANY,

Respondent.

OSHRC Docket No. 90-1084

DECISION

Before: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

At issue in this case is whether Administrative Law Judge
Michael H. Schoenfeld erred in affirming a citation issued to Thomas Lindstrom Co.
("Lindstrom") alleging a violation of 29 C.F.R. � 1926.59(g)(8), [[1]] which
requires that material safety data sheets ("MSDSs") for hazardous chemicals be
"readily accessible" to employees.

Lindstrom, a structural steel erector, was building an addition
to an existing department store at a construction site in Cherry Hill, New Jersey. During
an inspection of the worksite, a compliance officer of the Occupational Safety and Health
Administration ("OSHA") asked Lindstrom's onsite foreman -- who had been using
oxygen and acetylene while welding -- for the MSDSs for oxygen and acetylene. The foreman
could not produce the MSDSs at that time because they were not at the worksite. The MSDSs
were at Lindstrom's central office, variously estimated to be between 10 and 45 minutes
away by car.

Lindstrom argues that MSDSs are "readily accessible"
within the meaning of the standard if they can be supplied at any time during the work
shift in which a request for them is made. It contends that it operated a communications
program and delivery system by which foremen in the field could telephone Lindstrom's
coordinator for the MSDSs and have them delivered to the jobsite, which in this case was
only about 10 minutes from the office where the MSDSs were kept.

The Secretary argues that "readily accessible" as
used in the cited standard means that the hazard information contained in MSDSs must be
"quickly available to employees at each worksite where they are exposed to hazardous
chemicals." (Emphasis in original).[[2]] She contends that the judge correctly
discerned the sense of immediacy underlying the cited standard when he stated in his
decision:

Under the standard cited, employees on the worksite faced with
a hazardous chemical are entitled to have access to a material safety data sheet which
spells out not only the potential hazards but, more importantly, the safety precautions to
be taken and the procedures to be used in the event of a spill or leak. Employee safety is
diminished to the extent that employees have to wait for delivery of the information
needed to protect them. Time could well be of the essence should there he a spill or leak.

The Secretary points out that both oxygen and acetylene are
hazardous chemicals as defined by the Hazard Communication Standard. Oxygen can promote
combustion in other material, thereby increasing the severity of fires: acetylene is a
highly flammable acid explosive chemical that should not be stored near oxygen.

Our resolution of this question is governed by our recent
decision in Super Excavators Inc., OSHRC Docket No. 89-2253 (Oct. 18, 1991). In affirming
a violation of section 1926.59 (g) (8) in that case, we held that an employer who did not
have the MSDSs on the worksite but claimed that it could get them "within a
reasonable period of time" was not in compliance. We conclude that because
Lindstrom's MSDSs were located only at its central office the MSDSs were not "readily
accessible" at the worksite and the company was not In compliance with the standard.

Accordingly, we affirm the judge's decision.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: November 20,1991

SECRETARY OF LABOR,

Complainant,

v.

THOMAS LINDSTROM COMPANY, INC.,

Respondent.

Docket No: 90-1084

APPEARANCES:

For Complainant

Alan L. Kammerman, Esq.

U.S. Department of Labor

Office of the Solicitor

For Respondent

James F. Sassaman

Director of Safety

General Building Contractors Association

BEFORE: MICHAEL H. SCHOENFELD

JUDGE, OSHRC

DECISION AND ORDER

Background and Procedural History

This case arises under the Occupational Safety and Health Act
of 1970, 29 U.S.C. � 651-678 (1970) ("the Act").

On March 8, 1990, pursuant to a general inspection schedule,
Bernard F. DeZalia, a Compliance Officer ("CO") of the U.S. Occupational Safety
and Health Administration conducted an inspection of a construction site on Route 38 in
Cherry Hill, New Jersey (Tr. 10-11) [[1]]. As a result of that inspection, on March 30,
1990, a citation was issued to Respondent alleging that it had committed an other than
serious violation of the Act. Respondent timely filed a notice of contest. A complaint and
answer were duly filed and the case came on to be heard in Camden, New Jersey. No affected
employees or representatives thereof entered an appearance. Both parties have filed
posthearing briefs.

Jurisdiction

The Complaint alleges and Respondent does not deny that it is a
corporation doing business in the State of New Jersey engaged in steel erection work and
that it uses materials and equipment originating in other states.

I thus find that Respondent is engaged in a business affecting
commerce within the meaning of � 3(3) of the Act and conclude that it is an employer
within the meaning of � 3(5) of the Act.

Accordingly, the Occupational Safety and Health Review
Commission has jurisdiction over the parties and subject matter.

Citation No. 1 Item 1

Alleged violation of 29 C.F.R. � 1926.59 (g) (8)

The cited standard provides:

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 operative facts are undisputed. Upon the CO's request, an
employee of Respondent who had been using oxygen and acetylene for welding at the
inspected work site could not produce a material safety data sheet at the site for either
chemical. (Tr. 13) Material safety data sheets ("MSDS") were kept at
Respondent's office and could have been delivered to the site within an hour. Although
Respondent had an employee safety training program, it never specifically informed its
employees that material safety data sheets would be delivered to the work sites (as were
other supplies, materials and equipment). (Tr. 39-40)

The sole issue in this case is whether the material safety data
sheets must be physically located at each work site or may they be maintained at a central
location from where they are easily deliverable to the worksite.

The requirement of the cited standard is one of "readily
accessible." Similar phrases have been interpreted as they are used in other
standards. For example, copies of the OSHA injury log must "be available" at
each of a Respondent's establishments. See, 29 C.F.R. � 1904.2 (b) (2) (1990). Noting
that "available" could mean either present and ready for immediate use or
accessible or obtainable, this Administrative Law Judge held there to he no violation of
the standard where an employer with a chain of supermarkets maintained the records
centrally but had an established system, of which the employees were specifically
informed, for delivery of a requested log within 48 hours. Price Chopper Supermarkets, A
Golub Corporation, BNA OSHC (No. 90-0552, December 21, 1990). On the other hand, a
violation of 29 C.F.R. � 1926.352(d) (1990), requiring fire extinguishing equipment to be
"immediately available" was found where the evidence raised the inference that
the nearest fire extinguisher known to the welder was on the floor below his workplace.
Cornell and Company, 14 BNA OSHC 1887 (No. 89-2127, 1990). Judge Burroughs has held that
logs of tests made on equipment were not "available for inspection in the immediate
vicinity of the affected operation" as required by 29 C.F.R. � 1915.7(c)(2) (1990),
where a company safety director kept the log with him when he left the work site. Oil
Recovery Co. of Alabama, Inc., 14 BNA OSHC 2013 (No. 89-3445, 1990).

Respondent essentially asserts two arguments: first, their
policy of maintaining the MSDS at its office was adequate because of their method of
delivery to the field; second, the cited standard "establishes the applicable
duration [of delivering the MSDS] as "each work shift" and not a matter of
minutes." (Respondent's Brief pp. 7-8) Respondent is mistaken.

The Secretary correctly points to another section of the
standard, 29 C.F.R. � 1926.59 (g) (9), which addresses the issue of allowing an employer
to keep MSDS at a central location. That situation is not present in this case. Lindstrom
employees do not travel between workplaces during a workshift. Moreover, even if the
centrally located MSDS policy was correct, the delivery system was inadequate to ensure
availability immediately in an emergency. The record evidence indicates that Lindstrom did
not have a specific program for delivering the MSDS to its employees in the field. No
express instructions were given its employees regarding the MSDS delivery system, they
were merely implied based on their "corporate culture". (Respondent's Brief, p.
5) This is not sufficient to establish compliance with the standard.

Respondent's second argument establishes that it has failed to
see the purpose of maintaining pertinent MSDS at the worksite. While Respondent would
allow delivery as "each work shift" and not a matter of minutes, it fails to
recognize the need for accessibility in ensuring the safety of its employees. "The
purpose of the standard is to have MSDS's available for employees who must work with
hazardous chemicals. MSDS's provide emergency first-aid procedures in the event of
overexposure to the chemicals, and, in an emergency, a delay of five to ten minutes could
be fatal." Voss-Jorgensen- Schueler Co., 14 BNA OSHC 1987, 1988 (1990) (affirming a
violation of 29 C.F.R. � 1926.59(g)(1)).

In Brice Chopper no particular urgency could be reasonably read
into the requirement to make available information about injuries which had already
occurred. In both Cornell and Oil Recovery, however, the speed with which the equipment or
log could be retrieved was important to the safety of the employees involved. Such is the
case here. Under the standard cited employees on the worksite faced with a hazardous
chemical are entitled to have access to a material safety data sheet which spells out not
only the potential hazards but, more importantly, the safety precautions to be taken and
the procedures to be used in the event of a spill or leak. [[2]] Employee safety is
diminished to the extent that employees have to wait for delivery of the information
needed to protect them. Time could well be of the essence should there be a spill or leak.

Reading the standard's requirement in the context of the nature
of the hazards sought to be prevented, I conclude that delivery of material safety data
sheets to a worksite within an hour of the time requested does not constitute having the
sheets "readily accessible" as required by the cited standard. Accordingly,
Citation No. 1, Item 1 is AFFIRMED.

Considering the size or Respondent, its good faith, history and
the gravity of the violation under � 17 (j) of the Act, 29 U. S. C. � 666 (i), I find
that the imposition of no penalty is appropriate.

FINDINGS OF FACT

Findings of fact relevant and necessary for a determination of
all issues have been made above. Fed. R. Civ. P. 52 (a). All proposed findings of fact and
conclusions of law inconsistent with this decision are hereby denied.

CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer
   within the meaning of � 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
   � 651-678 (1970).

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties
   and the subject matter.

3. Respondent failed to comply with the standard at 29 C.F.R. � 1926.59(g)(8) (1990) as
   alleged.

4. Respondent's failure to comply with the standard at 29 C.F.R. � 1926.59(g)(3) (1990)
   constituted an other than serious violation of section 5(a)(2) of the Occupational Safety
   and Health Act of 1970, 29 U.S.C. � 651-678 (1970).

5. Pursuant to � 17(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
   651-678 (1970) a monetary penalty of $ 0 for the above violation is appropriate.

ORDER

1. Citation No. 1, Item 1 is AFFIRMED. No penalty is assessed.

Michael H. Schoenfeld

Judge, OSHRC

Dated: APR 09, 1991 Washington, D.C.

FOOTNOTES:

[[1]] Section 1926.59(g)(8) provides:

� 1926 .59 Hazard communication.

(g) Material safety data sheets.

(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).

[[2]] The Secretary points out in her brief that an enforcement
directive she published as OSHA Instruction CPL 2-2.38C (Oct. 22, 1990). provides that
MSDSs or electronically accessible MSDS(s) must be available at each worksite. She
observes that the record here is devoid of evidence that Lindstrom's jobsite was equipped
with any means of receiving electronicalIy transmitted copies of MSDSs (such as by
computers with printers, microfiche machines or telefax machines), so as to trigger the
administrative exception created in Instruction CPL 2-2.38C.

[[1]]  Reference to the official record in this case are
as follows.  TR, Transcript of Proceedings; CX, Complainant's Exhibit, RX,
Respondent's Exhibit.

[[2]] Requirements for the contents of material safety data
sheets are found at 29 C.F.R. � 1926.50 (g) (2) (1990).