McGraw Construction Co.

Plain-English summary

McGraw Construction employees performed welding work in the regulated area of an operating coke oven battery at an Armco steel facility. Their clothing and bodies were exposed to ash, soot, grease, tar, coal dust, and other potentially carcinogenic contaminants, but McGraw provided only a water barrel and access to lavatories. The Commission held that 29 C.F.R. § 1926.51(f) required washing facilities adequate to remove the contaminants from employees' hair, skin, and bodies before they left the site. Under these conditions, hand-and-face washing was not enough, and showers were required. The Commission found that the standard gave fair notice when read according to its ordinary meaning and the hazards present. It affirmed the serious violation and assessed an $800 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.51(f).
• Outcome: The serious sanitation violation was affirmed, with an $800 penalty.
• Key point: The adequacy of washing facilities depends on the contaminants and exposure; pervasive coke-oven contamination required full-body shower facilities.

Full text (OSHRC public release)

                                    UNITED STATES OF AMERICA
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                      1825 K STREET N.W.
                                          4TH FLOOR
                                   WASHINGTON D.C. 20006-I 246


                                                                                       FAX:
                                                   .                                   CobA (202) 634-4008
                                                   .
                                                                                       m    634-4008

SECRETARY OF LABOR, ..

                    Complainant,

             v.                                            OSHRC Docket No. 89-2220
                                                   .

MCGRAW CONSTRUCTION COMPANY, :
.
Respondent. ..

                                        DE&ION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
The primary issue in this case is whether the Administrative Law Judge (the “judge”)
erred in determining that McGraw Construction Co. (“McGraw,” or the “company”) failed
to comply with 29 C.F.R. 8 1926.51(f) by not providing “adequate washing facilities” for
those of its employees who worked in the regulated area of a coke oven battery owned by
another company. We find that the judge did not err and affirm his finding of a serious
violation and $800 penalty assessment.
Facts
For the past sixty years, McGraw, a Middletown, Ohio-based company, has regularly
performed construction and maintenance work at the Middletown (Ohio) Works of Armco
Steel Company (“Armco”). McGraw maintains shops and an employee trailer near Armco’s
coke oven battery. Its employees worked throughout the Armco facility, and -- for at least
16 years prior to the commencement of this case -- it was not unusual for McGraw’s
employees to work in the area of the coke oven battery. Posted in the coke oven battery
were signs that read “Danger,” “Regulated Area,” “Respirator Required,” and signs that
warned of a potential health hazard that may be present. McGraw General Superintendent
 .2

for Maintenance Calvin Wayne Campbell testified on cross-examination that the meamng
of the signs was explained to him by members of Armco’s safety department and by ,
members of upper management of the coke oven plzint.
In April 1989, McGraw had five employees working at the Armco coke oven
batteries. Two of these employees worked within the regulated area’ of the coke oven
batteries welding supports for the gas main on coke oven battery #2. McGraw employees
had been working at that job on-and-off for at least two months.
Testimony reveals that two to three inches of spilled coal had accumulated atop the
ovens where the employees worked. On windy days, the accumulated debris was carried into
the air. Employees working in the area wore coveralls that generally became
, covered with
ash, soot, grease, tar, and coal dust during the workday.
The trailer McGraw maintained at the Armco plant site was located about. 100 yards
outside the regulated area of the coke ovens. One of the trailer’s functions was to serve as
a place for employees to wash. A water barrel was supplied to provide for that puqke.
The employees also had the opportunity to wash at lavatory facilities located in Armco’s
restrooms. Although Armco had shower facilities on the site and Armco employees working
in regulated areas of the coke oven battery were required to take showers at the end of each
shift,2 McGraw employees were not allowed to use the Armco shower facilities.
.

1 The regulated area of a coke oven battery includes “topside and its machinery, pushside and its machinery,
coke side and its machinery, and the battery ends . . . .” 29 C.F.R. 8 1910.1029(d)(2)(i). According to OSHA
supervisory industrial hygienist Richard Gilgrist, the regulated area is the area of greatest exposure to coke
oven emissions.

2 The requirement appears in the coke oven emissions standard at 29 C.F.R. 8 1910.1029(i)(2):

     9 1910.1029 Colce oven emissions.
     ....
     (i) Hjgiene facilities and practices-

     ii)@showers. (i) The employer shall assure that employees working in the regulated area
     shower at the end of the work shift.
     (ii) The employer shall provide shower facilities in accordance with 9 1910.141(d)(3) of this
     part .

     Armco employ-       were also required to wear respirators and coveralls while working in regulated

areas of the coke oven battery.
 3

    On April 3 and 4, 1989, senior industrial hygienist William John Wilkerson of the

Occupational Safety and Health Administration (“OSHA”) conducted an inspection of
McGraw’s jobsite at Armco’s Middletown Works coke oven batteries. OSHA subsequently
issued citations to McGraw alleging violations of the Occupational Safety and Health Act
of 1970, 29 U.S.C. 08 651-678 (the “Act”) for its failure to comply with various provisions
of the coke oven emissions standard at 29 C.F.R. 8 1910.1029. Those citations were
withdrawn after OSHA determined that the coke oven standard was not applicable to
construction industry employers like McGraw. OSHA then issued a citation alleging
violations of the construction standards in 29 C.F.R. Part 1926, including the allegation that
McGraw failed to comply with section 1926.51(f).3 The citation stated:
Adequate washing facilities were not provided for employees engaged in the
application of paints, coating, herbicides, or insecticides, or in other operations
where contaminants might have been harmful to the employees:
(a) McGraw employees working in regulated areas as defined in 29
CFR 1910.1029 on Armco’s Middletown Coke Oven Battery No. 2 were not
provided shower facilities in order to wash the coke oven emissions,
substances known to cause cancer, off their bodies.

                                        Judge’s Decision4
    Based on testimony from OSHA supervisory industrial hygienist Richard T. Gilgrist

and the language of the coke oven emissions standard at section 1910.1029(i)(2), the judge
found that the Secretary had established a violation of section 1926.51(f). He found that,
for employees working within the regulated area of a coke oven facility, section 1926.51(f)‘s
requirement for “adequate washing facilities” would include showers that .would prevent
contaminated particulate mattei from being carried out of the workplace in the hair or on

3 Section 1926.51(f) provides:

    9 1926.51 Sanitation.

    ;i’ kizshing faciritties.The employer shall provide adequate washing facilitks for employees
    engaged in the application of paints, coating, herbicides, or insecticides, or in other opera-
    tions where contaminants may be harmful to the employees. Such facilities shall be in neai
    proximity to the worksite and shall be so equipped as to enable employees to remove such
    substances.

4 The hearing in the case was conducted on January 23, 1989, before JudgeJoeD. Sparks. Due to his illness,
however, and without objection from the parties, the case was decided by Judge
Edwin G. Salyers.
 4

the skin. Although the judge noted that section 1910.1029 may be inapplicable to non-coke
oven employers under the terms of the decision. by the Third .Circuit in American Iron &

Steel Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978), ceti. dismissed, 448 U.S. 917
(198O)(“ALS’f’), he found that “the provisions of the standard are indicative of accepted
hygiene practices where employees are exposed to coke oven emissions.”
In characterizing the violation as serious, the judge relied on the uncontroverted
testimony of industrial hygienist Gilgrist that coke oven emissions are a carcinogen and that
exposure to such emissions is known to cause lung and kidney cancer. The judge found the
gravity of the violation to be high because five employees had been exposed to such cancer
hazards while working in the regulated area of the battery for approximately two months.
He affirmed the $800 penalty proposed by the Secretary.
Argument of McGraw
McGraw argues that the terms “adequate washing facilities” in the cited standard
reasonably involve the ability of employees to wash their hands and faces. It claims that
employees could do this by using the water barrel it provided for them at the trailer or by
using the washing facilities in Armco’s restrooms. McGraw contends that the failure of
OSHA’s industrial hygienist Wilkerson to shower or wash on the site after the inspection
supports its argument that its washing facilities were adequate.
McGraw argues that in finding that it had inadequate washing facilities under section
1926.51(f), the judge wrongly relied on the coke oven emission standard at section
1910.1029(i)(2), which requires showers, even though he acknowledged that underAIS1 the
standard is inapplicable to non-coke-oven employers like McGraw. McGraw relies on AISl
and J.L. Manta Plant Serv., 10 BNA OSHC 2162, 2163 n.2, 1982 CCH OSHD ll 26,303,
p. 33,266 n.2 (No. 78-4923, 1982), to support its claim that section 1910.1029 does not apply
to employers in construction. It contends that the Secretary is attempting to do indirectly
what he cannot do directly, that is, cite a non-coke oven employer under the coke oven
standard. McGraw points out that where
. the Secretary has chosen to require showers, he
has stated so expressly, as at 29 C.F.R. 88 1910.1001(i)(2), 191O.lOll(c)(4)(vii),
1910.1015(c)(4)(vii) and (5)(iii), 1910.1018(m)(2), and 1910.1029(i)(2).
 5

     M&raw        contends that the judge also erred in finding that there were “harmful

contaminants” present at the jobsite and points out that industrial hygienist Wilkerson did
not conduct a sampling to measure coke oven emissions? The company argues that the
judge based his finding of a violation upon “the hazards presented by coke dust,” even
though coke dust is not a coke oven emission, and its unmeasured presence is not sufficient
to sustain the citation. McGraw also points out that the judge specifically found, in vacating
item 2 of the citation, that the Secretary had failed to prove that coke dust is a “toxic
material.” That being the case, the company argues, it should not have been cited for the
presence of coke dust. McGraw contends that a similar citation was vacated in Keco Indus.,
13 BNA OSHC 1161, 1987 CCH OSHD li 27,860 (No. 81-263, 1987), because the Secretary
failed to prove the effects of exposure, even though he had proven employee exposure.
Here, McGraw claims that the Secretary failed to establish either exposure to harmful
contaminants or the effects of the alleged exposure.
Argument of the Secretary
The Secretary contends that in light of the Act’s broad remedial purpose, the Act and
regulations issued pursuant to it should be liberally construed to afford the broadest possible
protection to workers, citing WtirZ’ooZ Cop. v. Manhall, 445 U.S. 1, 12 (1980) and section
2 of the Act, 29 U.S.C. 9 651. The Secretary argues that the “adequate washing facilities”
requiredsby the cited standard in this case are showers that would enable an employee to
wash his entire body so that harmful contaminants from the coke ovens may be removed.
The Secretary points out that industrial hygienist Wilkerson testified that coke oven
emissions potentially contaminate “not just the hands and face but also the entire body” and
that it is important for employees to thoroughly cleanse themselves before leaving the jobsite
“because l . . material can be taken home and transmitted to other clothing or perhaps
furniture, car seats, and so forth, and the material is, in fact, a cancer-causing substance.“6

5 Coke oven emissions are defined at 29 C.F.R. 8 1910.1029(b) as “the benzene-soluble fraction of total
particulate matter present during the destructive distillation or carbonizationof coal for production of coke.”

6 The Secretary disputes McGraw’s claim that industrial hygienist Wilkerson’s failure to shower after the
inspection suggested that he thought McGraw’s washing facilities were adequate; the Secretary contends that
Wilkerson’s testimony only establishes that McGraw treated him as it did its own employees by not providing
a shower.
 6

   me Secretary also relies on the testimony of industrial hygienist Gilgrist that it was

hazardous for McGraw employees not to shower at the end of the work day “[blecause of
the potential for particulate being implanted, impinged on the skin surface of the employees,
skin and/or hair, and then unnecessary exposure continuing until such time as it was either
knocked off or washed off in some shape or form.”
The Secretary argues that no distinction need be made in this case between exposure
to coal dust or to coke oven emissions. He contends that it is widely recognized that “the
ambient atmosphere of coke ovens is a carcinogen+]rich environment” and that employees
working in the vicinity of a coke oven battery ‘are exposed to a mixture of particulates,
vapors, and gases emitted by the coke ovens which cause multiple types of cancer. See AISI,
577 F.2d at 831; 41 Fed. Reg. 46,744, 46,756, 46,760.61, 46,765.66 (1976). McGraw’s argu-
ment that its employees working in the coke oven area were not exposed to harmful
particulates is contrary to the record, the Secretary argues. He contends that uncontroverted
testimony establishes that coke oven emissions contain carcinogens and that the working
conditions on top of the ovens were dirty and smoky as a result of coke oven operations.
Indeed, the Secretary points out, “ signs posted on top of the battery warned of the presence
of a cancer hazard and stated ‘Danger -- Respirator Required.“’
The Secretary rejects McGraw’s argument that showers are purposely excluded from
the cited standard because they are not specifically mentioned in it. He claims that a
standard may be interpreted by referring to other relevant standards or codes within the
industry and that a construction standard like the cited standard may be interpreted by
reference to the general industry standards in 29 C.F.R. Part 1910, citing Pace Constr., 14
BNA OSHC 2216, 2221-22, 1991 CCH OSHD ll 29,333, p. 39,431 (No. 86-758,
1991)(Commission may look to OSHA’s general industry standards to interpret a term found
in OSHA’s construction industry standard), and other Commission cases. The use of the
general industry coke oven standard is appropriate in interpreting cited section 1926.51(f),
the Secretary argues, because section 1910.1029 specifically deals with the substance to which
McGraw employees were exposed. Section 1910.1029 requires that employers provide
employees with showers because of the pervasive and carcinogenic nature of coke oven
emissions. McGraw employees, the Secretary argues, should have been provided with the
 7

same protection afforded &-mco’s coke oven workers because they were exposed to much
of the same hazards. In addition, the Secretary contends that the coke oven standard may
be used to define an employer’s duty under section 1926.51(f) because on October 17, 1978,
he published in the Federal Register a list of general industry standards, including section
1910.1029, that he deemed applicable to construction work. 44 Fed. Reg. 85.77 (1978). See
ALU’, 577 F.2d at 840. The Secretary claims that a “reasonably prudent employer would
have known . . . that it should look to that standard to determine the appropriate standard
of conduct.”
The Secretary points out that it would not have been unreasonable for McGraw to
provide showers for its employees at the Armco location in light of its long-time presence
of at least 60 years at Armco’s mill, its established on-site trailer and shop areas there, and
the fact that its employees routinely worked on the coke oven batteries.
.
Analjsii
The resolution of this case is dependent upon how two sets of terms in the cited
standard are construed: (1) “contaminants [that] may be harmful” and (2) “adequate
washing facilities.”
(1) “Contaminants [that] May Be Harmful”
In. arguing that the Secretary failed to show that harmful contaminants were present
at the worksite, the company relies on the Secretary’s failure to establish that the coke oven
emissions levels in the coke oven battery were higher than those permitted by the coke oven
emissions standard and on the judge’s finding that the Secretary did not establish that coke
dust is a “toxic material” under section 1926.14l(a)(2)(viii). McGraw’s argument is
misplaced. The cited standard refers to neither “toxic materials” nor “coke oven emissions,”
butto “contaminants [that] may be harmful”. There is ample evidence of record to establish
that the contaminants in the regulated area of the coke oven battery may have been hannfil
within the meaning of the standard. It is undisputed that employees working in the vicinity .
of coke ovens are exposed to a mixture of gases, vapors, and particulates that are
carcinogenic. 41 Fed. Reg. 46,744. Here, there was testimony that on windy days the
emissions escaping from Armco’s coke ovens “hung around” in the form of thick smoke and
“gritty dirt.” The tops of the ovens themselves were covered with two or three inches of
 8

material hke coke breeze or spilled coke. McGraw’s employees were welding in this area,
Based on the hazards associated with regulated areas and the presence here of an
accumulation of coke oven debris, we conclude that. the Secretary has established the
existence of contaminants that may be harmful to employees.
We next consider whether the washing facilities provided by McGraw were adequate
within. the meaning of the cited standard.
(2) “Adequate Washing Facilities”
That the cited standard does not explicitly require showers, while other standards do,
does not dispose of our issue of interpretation. Under Commission case law, we may
reasonably determine what washing facilities are “adequate” for employees working in the
carcinogen-containing, atmosphere surrounding coke ovens by looking to the circumstances
of this particular case. See Onnet Corp., 14 BNA OSHC 2134, 2136, 1991 CCH OSHD
ll 29,254, p. 39,200 (No. 85-531, 199l)(standard using “near” not vague, since word’s
meaning can reasonably be determined based on language and purpose of standard and
applicable physical conditions). See also FaultlessDiv., Bliss and Laughlin Ikdus. v. Secretary
of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982); PBR, Inc. v. Secretaryof Labor, 643 F.2d 890,
897 (1st Cir. 1981); Brennan v. OSHRC (Santa Fe nail Transp. Co.), 505 F.2d&9,872 (10th
cir. 1974).
OSHA supervisory industrial hygienist Gilgrist and senior industrial hy@enist
Wilkerson both testified what “adequate washing facilities” were required to cleanse
McGraw’s employees of harmful contaminants. Gilgrist testified that McGraw’s employees
who do not shower after each workday in the coke oven area could have the potential skin-
cancer-producing agents contained in coke oven emissions implanted on their skin or in their
hair. This could subject the employees to continued exposure to the particulates until they
were either knocked off or washed off. Wilkerson testified that coke oven emissions have
the potential to contaminate not just the hands and faces of employees but their entire
bodies; it was, therefore, important for employees to thoroughly clean themselves before
leaving the facility because otherwise it was possible that contaminants could be taken home
and transmitted to family members or objects there. Wilkerson also testified that the
hazards of working in the regulated area of the coke ovens were the same to McGraw’s con-
 9

struction workers as they were to Armco’s general industry employees. However, he pointed
out that because Armco’s employees worked in a regulated area, they were required by
section 1910.1029(i)(2)(i) of the coke oven emissions standard to shower after each shift,
independent of whether they were exposed to any particular level of emissions. Yet, to
clean themselves off after their shifts, McGraw emplovees
d had access only to a barrel of
water and lavatory sinks. Based on the fact that McGraw’s employees were exposed to
harmful contaminants, we conclude that the cited standard requires more than M&raw
provided here. The barrel of water and lavatory sinks were not “adequate washing facilities”
within the meaning of section 1926.51(f). The iecord shows that one way McGraw could
have complied with the standard was by providing its employees with shower facilities.
McGraw does not claim that it was unaware of the hazards of working in the
regulated area, and indeed the evidence shows that the companvd knew of the extent of the
hazards and knew that its employees were exposed to those hazards. Nevertheless, McGraw
*.
argues that “adequate washing facilities” “ reasonably involves the ability of employees to
wash their hands and faces.” This takes too narrow a view of the requirements of the cited
standard. The adequacy of McGraw’s washing facilities is judged under cited section
192&51(f) by determining whether those washing facilities are “so equipped as to enable
employees to remove” the contaminants to which the employees are exposed. Based on the
testimony of OSHA’s supervisory industrial hygienist, Gilgrist, we find that washing facilities
that are equipped only with a barrel of water and lavatory sinks would not enable McGraw’s
employees to knock imbedded particulate matter off their bodies and out of their hair.’
McGraw should have known this because it knew that the Armco employees working in the
regulated area had showers with which to clean themselves and were required to use those
showers at the end of each workday. The McGraw employees worked in the same general
area of the coke oven battery as the Armco employees and were subjected to the same dirty,

’ We categorically reject McGraw’s argument that their washing facilities were adequate because the
compliance officer failed to shower after the inspection. McGraw did not provide its own employees with
shower facilities and therefore had none to offer the compliance officer. Besides, we see no need for any strict
parallelism in the protective measures adopted by the complianceofficer during the limited time that he was
at the worksite for his inspection and those required by McGraw employees to protect themselves while
working there on an ongoing basis.
smoky atmospheric conditions that resulted in substantial accumulations of particulate matter
on the coke ovens and on the employees’ bodies and clothing.
Order

     For the reasons given above, we affirm the judge’s finding that McGraw violated

section 1926.51(f) and that the violation was serious.’ After a consideration of the penalty
factors in section 17(j) of the Act, 29 U.S.C. 0 666u), we assess a penalty of $800.

                                                            Y&AM&
                                                          Edwin G. Foulke, Jr.
                                                          Chairman



                                                         &-AL-
                                                          Donald G. Wlseman               .
                                                          Commissi&er




                                                          Velma Montoya
                                                          Commissioner

Dated: February L 1993

8 We need not address McGraw’s argument that the Secretary’sreliance on the coke oven standard here is
improper; we have not relied on the requirements of the coke oven standard in deciding this case.
 UNITED STATES OF AMERICA

                       _ __._
               OCCUPATIONAL       SAFETY       AND      HEALTH
                                               K STREET NW
                                            1825
                                                                         REVIEW   COMMISSION
                                             4TH FLOOR
                                    WASHINGTON,    DC 20006- 1246




                                     .

SECRETARY OF LABOR, ..
.
Complainant, l
.

    v.                               ..            Docket No. 89-2220

MCGRAW CONSTRUCTION CO., :
INC., ..

         Respondent.                 .. -
                                     ..




                        NOTICE OF COMMISSION                     DECISION

The attached decision by the Occupational Safety and Health Review Commission’ was issued on
February l-1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION, See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.

                                                   FOR THE COMMISSION

February 1, 1993 4, UG,)
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 89-2220

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 851
1240 East Ninth Street
Cleveland, OH 44199 *

Robert A. Dimling, Esq.
Frost & Jacobs
2500 Central Trust Center
201 East Fifth Street
Cincinnati, OH 45202

Edwin G. Salyers
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
 UNlTEO STATES OF AMEmcA
OCCUPATIONAL SAFETYANo HEALTH REVIEWCO~U!~I~~~~~
1625 K STREET, NW.

                               wASHINGfoN.      0.c. 2OOOW246
                                    FAX 81 (202) 6344008
                                     December 12, 1990

IN REFERENCE TO SECRETARY OF LABOR v.

                                                                    OSHRC

McGraw Construction Co.. Inc- DOCKET NO. 89-2220

NOTICEIS GIVENTO THOSE LISTED BELOW:
NOTICEOF DOCKETING

Daniel 3. Mick, Esq. Notice is given that the above case was
Counsel for Regional Trial Litigation docketed with the Comnission on
Office of the Solicitor, USDOL December 12, 1990 The decision of the
200 Constitution Ave., N. W., Room S-4004 Judge will become a tinal order of the
Washington, 0. C. 20210 Comission on January 11, 1991 unless a
Comission member directs review of the
decision on or before that date.
William S. Kloepfer Petitions for discretionary review should be
Associate Regional Solicitor received on or before January 2, 1991 i
Offfce of the Solicitor, USDOL order to permit sufffciienttlaY for thefr
Federal Office Bldg., RI4881 review. see Comission Rule 91, 29 C.F.R.
1240 East Ninth Street sec. 2200.91. Under Rule 91(h) petitfonfng
Cleveland, Ohio 44199 corporations must also file a declaratfon of
parents, subsidiaries, and affilfates.

                                                   All pleadings or other documents that may be

Robert Ai Dimling, Esq. filed shall be addressed as follows:
Frost & Jacobs
2500 Central Trust Center Executive Secretary
201 East Fifth Street Occupational Safety and Health
Cincinnati, Ohio 45202 Review Conmission
1825 K St., N.W., Room 401
Washington, D. C. 20006-1246

                                                   A copy of any petition for discretionary
                                                   review must be served on the Counsel for
                                                   Regional Trial Litigation, Offfce of the

Judge Edwin G. Salyers Soficitor, USDOL, 200 Constitution Ave.,
OSHRC N.W., Room S4004, Washington, 0. C. 20210.
1365 Peachtree Street, N.E. If a Direction for Review is filed the Counse
Suite 240 for Regional Trial Litigation will represent
Atlanta, GA 30309 the Department of Labor;

                                                                  FOR THE CUMISSION




                                                                  Ray H. Darling, Jr.
                                                                  Executive Secretary

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E.. SUITE 240
ATLANTA, GEORGIA 30309-31 I 9

PWNE:
COM 1404) 3474197
f=E 257-4086

    SECRETARY OF LABOR,           1
                                  1
              Complainant,        1
                                  1
              v.                  ) OSHRC Docket No. 89-2220
                                  1
    MCGRAW CONSTRUCTION CO., INC.,)
                                  1
              Respondent.         1



    APPEARANCES:
                    Bruce Scott Goldstein, Esquire, Office of
                    the Solicitor, U. So Department of Labor,
                    Cleveland, Ohio, on behalf of complainant.
                    Robert A. Dimling, Esquire, Frost and
                    Jacobs, Cincinnati, Ohio, on behalf of
                    respondent.

                                     DECISION AND ORDER

                SALYERS, Judge?              This proceeding arises under the
    Occupational Safety and Health Act of 1970 (29 U.S.C. S 651,
    et seq., hereafter referred to as the "ACct").



         This case was originally assigned to Judge Joe D. Sparks who
    heard the case on January 23, 1990. Judge Sparks suffered a heart
    attack/stroke before a decision could be rendered and is presently
    incapacitated.     The parties were advised by order dated
    September 21, 1990, that this case had been reassigned for
    decision and were afforded an opportunity to request a-de novo
    hearing with respect to any factual dispute which involved
    credibility determination. Since no request has been received
    from the parties, the case will be decided upon the record
    developed at the hearing.

Respondent, McGraw ConStrUCtion Company (q'McGrawlf),
is a
maintenance and construction firm with its principal offices on
Canal Street in Middletown, Ohio. At'all times relevant to this
action, McGraw maintained a work site at the Middletown Works of
Armco Steel Company, L.P., where it provided general
construction services. McGraw admits it is engaged in a
business affecting commerce and is an employer subject to the
requirements of the Act.
On April 3-4, 1989, the Occupational Safety and Health
Administration (*VOSHA'q)
conducted an inspection of respondent's
Armco workplace. As a result of that inspection, respondent was
issued a number of citations with penalties pursuant to the Act.
By filing a timely notice of contest, respondent brought this
proceeding before the Occupational Safety and Health Review
Commission.
On January 23, 1990, a hearing was held in Cincinnati,
Ohio. At the hearing, the Secretary withdrew serious citations

1, 3, and 4(b). The parties have submitted briefs on those
matters remaining at issue, and this matter is now ready for
decision.

                  ALLEGED VIOLATIONS

 Citation 1, item 2 states:

2
29 CFR 1910,141(g)(2): Employees were permitted to
consume food or beverage in area(s) exposed to toxic
materials:

                               2

(a) Employees were permitted to eat their
lunches in the McGraw job trailer located south of the
NO. 2 battery at Armco In&s Coke Oven p,lantjob where
work coveralls worn on the Coke oven and contaminated
with coke oven emissions, a known carcinogen, were
stored in open piles within the trailer.

Citation 1, item 4(a), states:

4
29 CFR 1926.21(b)(2): The employer did not instruct
each employee in the recognition and avoidance of
unsafe condition(s) and the regulation(s) applicable
to his work environment to control or eliminate any
hazard(s) or other exposure to illness or injury:
(a) The ironworker crew, including the foreman
were not trained or instructed in the recognition of
the hazard of a lack of constant communication with
the operator of a door machine at Armco' Middletown
Coke Plant Stille, Battery 2 during the time employees,
were welding above the door machine. The door machine
was permitted to pass under the employee doing the
welding and so exposed the employee to contact with
the moving machine and stationary rails and support
structures.

          item

Citation l,'O 5, states:

5
29 CFR 1926.28(a): Appropriate personal protective

• equipment was not worn by employees in all operations
  where there was exposure to hazardous conditions:
  (a) Protective clothing contaminated with coke
  oven emissions was stored in the open at the McGraw
  Job trailer at Armco's No. 2 Stille Battery and
  appropriate personal protective equipment or other
  equivalentmeans were not utilized to prevent contact
  of employeeswith the contaminant, a known carcinogen,
  during employee breaks or clothes changes.

Citation 1, item 6, states:

                             3

6
29 CE'R1926.51(f): Adequate washing facilities were
not provided for employees engaged in the application
of paints, coating, herbicides, or insecticides, or in
other operations where contaminants might have been
harmful to the employees:
(a) McGraw employees working in regulated areas
as defined by 29 CFR 1910.1029 on ArmcoVs Middletown
Coke Oven Battery No. 2 were not provided shower
facilities in order to wash the coke oven emissions,
substances known to cause cancer, off their bodies. .

Citation 1, item 7, states:

7
29 cm 1926.59(h): Employees were not provided
information and training as specified in 29 CFR
1926.59(h)(l) and (2)- on the hazard communication
regulation, the company's program of compliance with.
such@ and hazardous chemicals encountered in their
work area at the time of initial assignmentand when
new hazards are introduced into the work area:
(a) Information and training on the hazard
conanunicationstandard, 1926.59, the company's hazard
communication program and the hazards of chemicals in
the employees' work area such as welding fumes,
benzene and coke oven emissions.

Citation 1, item 8, states:

8
29 CFR 1926,451(a)(4): Standard guardrails and
toeboards were not installed on all open sides and
ends of platforms more than 10 feet above the ground
or floor:
(a) On March 24, 1989 and for the previous six
months, employees were working at Armco's Middletown
Coke Plant on Stille Battery No. 2 off of a 2" X 12"
wood plank without proper guardrails and were exposed
to a fall of twenty seven feet, ten inches to the coke
side bench level below.
 STATEMENT OF FACTS

    On the date of the inspection,'Compliance Officer William

Wilkerson viewed and photographed the Number 2 Stille Battery at
Armco (Exs. C-4 through C-9; Tr. 88). The coke battery houses
a row of coke ovens 27 to 28 feet high separated by gas heaters
(Tr. 89). The ovens are loaded with coal from Yarry cars" or
"charge cars" which run along the top of the battery (Tr. 90).
A horizontal tbbench,q'
approximately eight feet wide, runs the
length of the battery on the "push side" of the ovens. The
bench is electronically operated and rides back and forth
perpendicular to the battery (Tr. 90). The bench is used to
push a "leveler bar" over the top of the coal prior to baking or
distillation and to operate a ram which is used to force
converted coal, now coke, out of the oven. A '*doormachine"
runs along a second bench on the opposite side of the battery
(Tr. 92). The door machine is 27 feetI 10 inches, hiih' and
approximately 50 feet long (Tr. 92). Following distillation, an
operator maneuvers the door machine to the oven door. The
machine removes the door and positions a chute in its place (Tr.

271 0 The ram pushes the coke through the chute and into a
waiting rail car, or "hot quench car" below (Tr. 90-91).
At the time of the inspection, five McGraw employees had
been working on the coke oven for about two months on welding
projects (Tr. 9, 49). McGraw employees were provided with a
daily schedule listing the order of oven door removals and

                               5

approximatetimes; however, doors were not actually removed at
the scheduled times. Moreover, McGraw employees had no visual
or audio communication with the door machine operator (although
larry car operators did have radio communicatian) (Tr. 31-31,
34, 54). A Qafety man," therefore, was assigned to watch for
the door machine and let the welder know when to move out of the
way (Tr. 31).
On March 24, 1989, two of McGraw's employees, Tom Reid and
David Hicks, were working from the top of the stille -battery,
adding weld to the support members of gas mains above Oven B-34
(Tr. 25, 101). According to Mr. Reid, the safety man, Hicks was
welding on a 2-x-12-inch plank which spanned a 330inch space
between the edge of the oven and a metal *'cleat"ox Viser"
which was welded to the top side of the "guide bar" for the door
machine. The door machine was directly below him and stationary
(Tr. 101, 104). Reid stated that he became ill from the heat
and fumes and stepped back between the standpipes to get ‘some
air. From there he saw the door machine start to move. He '
pulled his respirator down and called to Hicks. The door
machine I1
grabbed" Hicks' leg and he fell backwards between the
. machine and the ovens (Tr. 102).
The plank was not guarded, and Mr. Hicks was not wearing a
safety belt. The use of safety belts and the hazards presented
by moving machinery, specifically the door machine, had both
been topics of weekly safety meetings (Tr. 24-27, 34). After
discussing the best way to perform the welding job on the

                              6

collector mains, the McGraw employees had decided that the
welding job was not accessible from any location capable of
being guarded (Tr. 179) and could best be performed using the '
plank (Tr. 182). They further determined that using safety
belts on the door side of the battery would create a greater
hazard, since a fallen employee suspended by a safety harness
could be caught and mangled in the door machine (Tr. 30, 53-54,
60, 189). At the hearing, Compliance Officer Wilkerson admitted
that it would be infeasible to guard the 2-x-120inch plank (Tr.
126).
Mr. Wilkerson also observed McGraw's job trailer located
across the road approximately 100 yards from the coke plant (Tr.
11 8 89 , 176). McGraw's employees used the job trailer f'or
storing tools and taking breaks, including lunch breaks (Tr. ll-
12, 175476). Employees also used the job trailer to change
into coveralls provided by McGraw (Tr. 12-13).
Employees had enough coveralls to change into a clean-one
every few days though on some days the coverall could be covered
with ash, soot, grease, and tar (Tr. 13, 21, 52). Soiled
coveralls were left in the trailer and gathered up once a week
for laundering (Tr. 14). At the time of the inspection, used
coveralls were tossed on benches and hung from pegs in the
trailer (Tr. 107). Clean coveralls were bundled, half out of a
plastic bag, on a bench (Ex. C-2; Tr. 17-18, 51). Compliance
Officer Wilkerson stated that benches were coated with coal or
coke dust, tar and grease (Exs. C-2, C-3; Tr. 107). Both Hicks

                            7

and Arndts testified that, although the trailer was swept once
a week, it was nonetheless dirty and covered with soot and coke
dust (Tr. 12-13, 50).
Shower facilities were available to Armco Steel employees
but not to the employees of outside contractors 'suchas McGraw
(Tr. 35, 57). McGraw employees used the lavatory sinks and a
water barrel in the job trailer to wash up (Tr. 55, 176477).
David Hicks testified that McGraw held weekly safety
meetings during which employees discussed, among other things,
the proper use of respirators (respirators were supposed to be
worn whenever working where coke was being pushed but in
actuality were not); however, McGraw provided no training
identifying chemical hazards peculiar to the coke plant (Tr. 240
25, 35, 37-39, 52). It had no hazard communication program at
this point (Tr. 113, 209). Material safety data sheets (V!SDSt~)
were not provided (Tr. 36). The only information provided to
McGraw workers were signs posted by Armco Steel stating that the
battery is a "regulated area," that cancer causing agents may be
present, and that respirators are required (Tr. 59, 98, 164,
205-206).
Richard Gilgrist, an industrial hygienist with the
Department of Labor trained in air pollutants (Tr. 153-l%),
testified that coke oven emissions are a known carcinogen
primarily affecting the lung and kidneys (Tr. 156). The route
of entry is inhalation and/or ingestion (Tr. 156). Mr. Gilgrist
testified that, in a regulated area, the hands, face, and neck

                            8

should be washed prior to leaving the area and prior to eating
(Tr. 157). Clothing coming out of a regulated area should be
changed daily, put in a sealed container, and laundered by
people who are aware of the potential for contamination (Tr.
1597160, 162). Because particulate matter may cling to the skin
or hair and be carried out of the workplace contaminating the
employees other clothing, car, and home; employees working in a
regulated area should shower at the end of each work day (Tr.
122, 162-163). Armco employees working in the regulated area of
the battery were required to follow all the procedures listed by
Mr. Gilgrist (Tr. 74775).
The established permissible exposure level (llPELtt)
for.coke
oven emissions is 150 micrograms of total particulate (Tr. 1560
157). The inspecting compliance officer noted puffs of
emissions from the coke ovens during his inspection but took no
air or wipe samples of the work area or of the job trailer (Tr.
95, 131-132).

             ALLEGED VIOLATION OF S 1910.141(g)(2)

   The cited standard provides that I'[
                                      n]o employee shall be

. allowed to consume food or beverages in a toilet room nor in any
area exposed to a toxic materialY ttToxicmaterial" is defined
by S 1910,141(a)(2)(viii) as:

   [A] material in concentration or amount which exceeds
   the applicable limit established by a standard, such
   as S 1910.1000 and S 1910.1001 or, in the absence of
   an applicable standard, which is of such toxicity so

                              9

as to constitutea recognized hazard that is causing
or is likely to cause death or seriousphysical harm.

 It is clear from the record that employees were permitted

to eat and drink in McGraw's job trailer, which was exposed to
and contaminated with coke dust and soot. It is not clear,
however, that coke dust, in the amount present in the job
trailer, constitutes Yoxic material" as defined by the cited
standard.
Section 1910.1029(c) establishes a PEL for coke oven
emissions of 150 micrograms per cubic meter of air averagedover
an eight-hour period. Coke oven emissions is a defined term,
i.e., "the benzene-soluble fraction of total particulatematter
present during the destructive distillation or carbonizationof
coal for the production of coke.l* See S 1910.1029(b). The
Secretary admits that her compliance officer conducted no
sambling of the particulate matter in the job trailer but argues
the presence of coke dust and soot constitutes a recognized
hazard, because there is no recognized %afett level of exposure
to carcinogens.2
Section 1910.141 clearly limits the application of the
cited standard to circumstances where a material's established
PEL is exceeded. Only "in the absence of an applicable

 The Secretary produced no evidence on this issue but relies

on findings by the third circuit in AmericanIron & Steel Inst. v.
OSHA, 577 F.2d 825 (3rd Cir. 1978), cert. dismissed, 448 U. S. 917
(1980).

                           10

standard" is additional inquiry into the hazardous nature of a
material warranted.
The Secretary failed to establish by a preponderance of the
evidence the applicability of the cited standard. Serious
citation 1, item 2, is, therefore, vacated. See Astra
Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126,
1981 CCH OSHD g 25,578 (No. 78-6247, 1981).

          ALLEGED VIOLATION OF S 1926.21(b)(2)-

 Citation 1, item      4(a),    states    that the movement of the door

machine presented a hazard to McGraw's welding crew working
directly over the machine's guiderail. The citation alleges
that the crew should have been instructed that the lack 'of
constant communication with the door machine operator
constituted a hazard.
. Section 1926.21(b)(2) requires only that the employer
inform its employees of safety hazards, specifically it states
that:

     The employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and the
regulations applicable to his work environment to
control or eliminate any hazards or other exposure to
illness or injury.

The cited standard does not require a formalized safety

program. Rather employers need only provide instructions that
are reasonable under the circumstances. See Pratt 6rWhitney
Aircraft Group, Div. of United Technologies Corp., 86 OSAHRC

                                   11

16/A3, 12 BNAOSHC 1770, 1986-87 CCH OSHD g 27,564 (No. 80-5830,

19861, (vacating a citation based on a similar standard, the
Commission adopted Chairman Buckley's view of § 1926.21(b)(2)'

set forth in Rochester Products Div., General Motors Corp., 85
osAHRC 23/A3, 12 BNA OSHC 1324, 1984-85 CCH OSHD.q 27,257 [No.
80-5439, 19851).
It is clear from the record that McGraw's welding crew had
discussed the door machine in safety meetings and were aware
that its possible sudden movement was hazardous. Moreover, they
were aware that they had no direct communication with the door
operator. Together with their on-site foreman, Mr. Arndts, the
crew decided, therefore, to assign Mr. Reid to act as safety
man, to warn Mr. Hicks of any movement of the door machine.
This judge is satisfied that McGraw's supervisory personnel
on site, Mr. Arndts, provided the welding crew with-instructions
that were adequate under the circumstances to apprise the crew
of the hazards involved in working near the door machine and of
the methods selected to minimize those hazards.
In her brief, however, complainant argues that the methods
chosen to control the hazard were inadequate, stating that, if
Hicks and Reid had been provided with a radio receiver,the door
operator could have warned them when the door was about to move
and the incident leading to this citation could have been
avoided. While her contention may have some merit, citation of
the respondent on that basis clearly goes beyond the scope of
the cited standard. Section 1926.21(b)(2) was not intended to

                            12

provide the Secretary with unlimited authority to establish and

enforce safety rules not promulgated pursuant to formal

rulemaking procedures.
Citation 1, item 4(a) must, therefore, be vacated.

           ALLEGED VIOLATION OF S 1926.28(a)

 The cited standard provides that:

      The employer is responsible for requiring the
 wearing of appropriate personal protective equipment
 in all operations where there is an exposure to
 hazardous conditions or where this part indicates the
 need for using such equipment to reduce the hazards to
 the employees.

 Serious citation 1, item 5, alleges that McGraw violated

the cited standard in that it failed to provide personal
protective equipment for employees exposed to coke dust and soot
in the McGraw job
. trailer while changing or on breaks. .In her
brief, the Secretary acknowledges that McGraw did provide
protective clothing, and does not advocate any additional
equipment. Instead, she argues that McGraw has an additional
duty under the standard to establish and enforce proper storage
and laundering practices to ensure the effectiveness of the
equipment provided.
That S 1926.28(a) was not intended to address the care and

maintenance ofpersonalprotective equipment required thereunder
is clearly demonstrated by 5 1926.28(b)I which states that
"[rlegulations governing the use, selection, and maintenance of

                            13

personal protective and lifesaving equi@nent are described under
subpart E of this part."
The Secretary has failed to demonstrate the applicability
of the cited standard. Citation 1, item 5, will, therefore, be

dismissed.

          ALLEGED VIOLATION OF 29 C.F.R. s 1926,51(f)


   The cited standard requires employers to provide adequate

washing facilities for employees engaged in operations where
contaminants may be harmful to the employees. Such facilities
are required to enable employees to remove harmful substances
before leaving the workplace.
McGraw employees were provided with a water barrel in their
job trailer and had access to Armco lavatories, where they could
wash their hands and faces. However, the testimony of
Mr. Gilgrist, supported by the coke oven emissions standards at

§ 1910.1029(i)(2),3 establishes that "adequate washing
facilities" for employees working within a regulated area in a
coke facility would include showers, to prevent contaminated

   3

   Section 1910.1029(i)(2) states:
        Showers. (i) The employer shall assure that
   employees working in the regulated area shower at the
   end of the work shift.

Although S 1910.1029 may be inapplicable to non-coke oven
employers due to the Secretary's failure to provide adequate
notice, American Iron & Steel Institute v. OSHA, supra, the
provisions of the standard are indicative of accepted hygiene
practices where employees are exposed to coke oven emissions.
14
particulate matter from being carried out of the workplace in
the hair or on the skin.
The Secretary has established.the cited violation.
According to section 17(k) of the Act, a violation is
considered serious if the violative condition or practice gives
rise to a substantial probability of death or serious physical
harm. The uncontroverted testimony of Mr. Gilgrist establishes
that coke oven emissions are a carcinogen. Exposure to same is
known to cause lung and kidney cancer in humans. It is,
therefore, concluded that the violation was serious.
The Secretary has proposed a penalty of $800.00. Although
the Secretary was unable to sustain her burden of proof in
regards to a number of the citations in this case, the record is
replete with evidence of McGraw's complete lack of concern
towards the environmental hazards presented by coke dust; Coke
dust was present in quantity in areas where employees ate, clean
protective clothing was stored in contaminated areas, rekired
respirator usage was not enfarced, and employees were not
provided with toxic hazard training. McGraw may not ignore
known hazards relying on the inapplicability of the coke oven
emissions standard to exempt it from safe hygiene practices
employed by coke oven employees working side by side with its
own employees.
The gravity of this violation is high. Five employees had
been exposed to cancer hazards, working in the regulated area on
the battery for approximately two months.

                           15

A penalty of $800eob as proposed by the Secretary, is
found to be appropriate.

           ALLEGED VIOLATION OF'S 1926.59(h)

 The cited standard requires employers to provide employees

with information and training on hazardous chemicals in their
work area at the time of their initial assignment and whenever
a new hazard is introduced into their work area. Employees must
be provided with, inter alia, a list of the hazardous materials
in their area and MSDSs for those materials.
It is undisputed that, at the time of the inspection,
McGraw's employees were engaged in welding collector mains atop
coke ovens in operation. The conclusion is inescapable that the
welding crew was exposed to some level of coke oven emissions
and welding fume. The information relating to those chemicals

and required by the standard was not provided to respondent's
'.
employees. *
Respondent defends its failure to comply with the cited
standard on grounds that the cited standard only requires
training at the time of "initial assignment," The Hazard
Communication Standard ("HCS") was not enforced in the
construction industry until March 17, 1989, about two weeks
prior to McGraw's inspection. At that point, McGraw employees
had already been assigned to the coke oven battery for some
months.

                             16

Adoption of respondent's position would deny the protection

of the HCS to all construction workers with continuous
employment. Such interpretation contravenes the purpose of the '
Act and cannot be accepted.
Respondent's other defenses are equally without merit.
The Secretary has established the violation. For the
reasons discussed above, the violation was properly classified
as serious and the proposed penalty of $900.00 is appropriate.

           ALLEGED VIOLATION OF S 1926.451(a)(4)

 Section1926.451(a)(4) requires guardrails andtoeboards be

installed on all open sides and ends of platforms more than ten
feet above the ground.
It is uncontested that the 2-x-12 inch plank used by
respondent was 27 feet, 10 inches, above the ground and
unguarded. At the hearing, however, complainant's compliance
officer admitted that guarding the plank itself was infeasible.
Where compliance with a standard's literal requirements is not
possible or would preclude performance of the employer's work,
the burden shifts to the Secretary to show that practical and
realistic alternative means of protection were available to the
employer. Dun-Par Engineered Form Co., 86 OSAHRC 38/A3, 12 BNA
OSHC 1949, 1953, 1986-81 CCH OSHD 11 27,650 (No. 79-2553, 1986),
rev'd, 843 F.2d 1135 (8th Cir. 1988).'

 4


 On remand, the Commission specifically held that the rule

established in Dun-Par, supra, remained valid Commission
17
 The Secretary made no attempt to prove the availability of
alternative means of protection, and so has failed to carry her
burden of proof on this item. Citation 1, item 8, will,
therefore, be dismissed.

           FINDINGS OF FACT AND CONCLUSIONS OF LAW

 All findings of fact and conclusions of law relevant a&d

necessary to a determination of the contested issues have been
found specially and appear in the decision above. See Rule
52(a) of the Federal Rules of Civil Procedure. Proposed
findings of fact or conclusions of law that are inconsistent
with this decision are denied.

                               ORDER

 It is ORDERED:
 10      Serious citation 1, item 2, alleging violation of

§1910.141(g)(2), is VACATED.
20 Serious citation 1, item 4(a), alleging violation of
§1926.21(b)(2), is VACATED.
3 l Serious citation 1, item 5, alleging violation of
51926.28(a), is VACATED.
40 Serious citation 1, item 6, alleging violation of
§1926.51(f), is AFFIRMED and a penalty of $800.00 is ASSESSED.

precedent, adopting the eighth circuit ruling only as the Yaw of
the case? Dun-Par Engineered Form Co., 89 OSAHRC 16/A3, 13 BNA
OSHC 2147, 2150, 1988 CCH OSHD % 28,495 (No. 79-2553, 1988).

                                18

50 Serious citation 1, item 7, alleging violation of

§1926,59(h), is AFFIRMED and a penalty of $900.00 is ASSESSED,
60 Serious citation 1, item 8, alleging violation of

§1926.451(a)(4), is VACATED. .

Dated this 5th day of December, 1990.




                            Judge




                            19