Safeway Store No. 914
Commission affirms hazard-communication violations without penalty
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA cited a Safeway grocery store in Loveland, Colorado, for hazard-communication deficiencies involving a windshield washer used to clean checkout scanners and a sanitizer used in the meat department. The Commission held that the citations were timely because OSHA issued them within six months after discovering the continuing violations during a later inspection. It found the windshield washer exempt as a consumer product because employee use and exposure were comparable to reasonably predictable consumer use, even though employees used it differently from the manufacturer's stated purpose. The sanitizer was not exempt because Safeway did not show comparable consumer use. The Commission affirmed other-than-serious violations for inadequate training, omission of the sanitizer from the hazardous-chemical inventory, and failure to make its safety data sheet readily accessible during every work shift. No penalties were assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(g)(8); 29 C.F.R. § 1910.1200(h).
- Outcome: Affirmed. Three other-than-serious hazard-communication violations were affirmed without penalty.
- Key point: A consumer product may be exempt when workplace use and exposure are comparable to reasonably predictable consumer use, while safety data sheets must remain readily accessible during every work shift.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 60&5050
ns (202) 606-5050
..
SECRETARY OF LABOR, ..
..
Complainant, ..
-
..
v. : OSHRC Docket No. 91-373
..
. SAFEWAY STORE NO. 914, ..
..
Respondent. ..
.mDECISIONBEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.
BY THE COMMISSION:
At issue in this case is whether a retail grocery store in Loveland, Colorado operatedby the Safeway food store chain (“Safeway”) complied with the Secretary’s hazard
communication standard, 29 C.F.R. 0 1910.1200 (“HCS”). The purpose of the HCS is to
make employees aware of the hazards arising from chemicals used in the workplace and
ensure that they have access to information regarding means of protecting themselves from
such hazards. To this end, the standard requires that the employer establish a written
“hazard communication program.” This program must include an inventory of hazardous
substances present in the workplace and must provide for product labels and material safety
data sheets (“MSDS’s”) as well as means for training employees in the various components
of the program. The Secretary alleges that Safeway failed to comply with these require-
ments with respect to two specific products used by its employees--a windshield washer
manufactured by the Custom Chemical Company of Denver, Colorado under the trade name
“Regal@ ” and a disinfectant, “3,8Om Sanitizer,” produced by S.C. Johnson and Son of Racine,
Wisconsin.
2After inspecting the store on October 17, 1990, the Secretary on January 4, 1991,issued two citations alleging one serious and two willful violations of the Occupational Safety
and Health Act of 1970, 29 U.S.C. $5 651-678 (“the Act”). In his complaint the Secretary
amended the citations to recharacterize the willful violations as serious violations, and subse-
quently, at the hearing, the Secretary moved to further recharacterize the violations as other
than serious. The complaint also modified the citations with minor language changes which
are not relevant to our disposition. As amended in the complaint, the citations charged that
(1) employees were not given the information and training required by section
1910.1200(h)’ (citation no. 1, item 1), (2) Safeway had not maintained a hazard communica-
tions program meeting the requirements of section 1910.12OO(e)(1)2 (citation no. 2, item l),
and (3) Safeway did not have MSDS’s for hazardous chemicals used in the workplace,
contrary to section 1910.1200(g)(l)3 (citation no. 2, item 2).
Administrative Law Judge James A. Cronin, Jr. rejected Safeway’s contention that
citation no. 2 was untimely under 29 U.S.C. 0 658(c), section 9(c) of the Act. Section 9(c)
is a statute of limitations which provides that “[n]o citation may be issued . . . after the
expiration of six months following the occurrence of any violation.” Although the judge
‘Section 1910.1200(h), entitled “Employee information and training,” requires that employees be informed
of the requirements of the HCS and told of any hazardous chemicals in their work area. They must also be
trained in how to detect those chemicals and protect themselves from the hazards.
2Section 1910.1200(e)(l) states that the employer must develop a written hazard communication program
which describes how the employer intends to comply with the specific requirements set forth elsewhere in the
standard dealing with product labels or other forms of hazard warnings (section 1910.1200(f)), MSDS’s (section
1910.1200(g)), and employee training. In addition, section 1910.1200(e)(l) requires a list of the hazardous
chemicals known to be present in the workplace.
In his complaint the Secretary also amended this citation item to allege in the alternative that Safeway failed
to comply with section 1910.1200(e)(4), which requires that the employer make its program available on
request to employees or their representatives and to the Secretary. Since the judge found a violation of section
1910.12OO(e)( l), he declined to consider the alternative allegation. The Secretary does not contend that the
judge erred by failing to affirm the alternative allegation. Therefore, it is not before the Commission for
review.
3Section 1910.120()(g)(l) provides that the employer must have in its possession an MSDS, supplied by the
manufacturer or importer, for each hazardous chemical used in the workplace. The WDS must include,
among other things, scientific and common names of the hazardous chemicals contained in the product,
physical characteristics of those chemicals, the nature of the hazards presented and their effect on the human
body, permissible exposure limits, safety precautions, and emergency and first aid procedures.
3
found that. the Secretary’s allegations were not time-barred, he concluded that the windshield
washer was not subject to the HCS because it is a consumer product and therefore exempt
from the standard. Accordingly, he found that Safeway had failed to comply with the HCS
only with respect to the sanitizer. He also amended item 2 of citation no. 2 to allege
noncompliance with section 1910.1200(g)(8), which requires that the employer maintain and
make available to employees copies of MSDS’s. He held that the parties had tried this issue
by consent rather than the more general requirement of section 1910.1200(g)(l) that the
employer have the relevant MSDS’s in its possession.
Safeway excepted to the judge’s disposition of the statute of limitations issue and to
the judge’s conclusion that the sanitizer is not exempt from the HCS as a consumer product.
It also excepted to the judge’s findings that it had failed to comply with the HCS and to his
amendment of the Secretary’s pleadings. The Secretary filed a cross-petition arguing that the
judge improperly determined that Regal Windshield Washer was not covered under the
standard. Review was directed on the issues both parties raised.4 For the reasons that
follow, we affirm the judge’s decision.
SECTION 9(C) ISSUE
Safeway’s position that citation no. 2 is barred under section 9(c) is based on an
earlier citation issued on September 28, 1989 alleging that it failed to comply with section
1910.12OO(e)(1) and (g)( 1) following an inspection on August 23,1989 at the same store that
is involved in this case. The Secretary withdrew the prior citation on April 23, 1990, shortly
after Safeway sent the Secretary’s counsel a copy of its hazard communication program.
The Secretary’s compliance officer, Peter Dailey, who had also conducted the earlier
inspection, was asked to elaborate on the basis for the allegations resulting from that
inspection. He testified that he was not provided with a written program and that he re-
?he Secretary divided his arguments and in his initial brief presented his arguments on the issue on which
he sought review while arguing the remaining issues, those on which the opposing party sought review, in his
reply brief. Subsequent to the filing of the Secretary’s briefs, the Commission held that presenting initial
arguments in a reply brief is contrary to Commission Rule 93. JAI Jones Constr. Co., 15 BNA OSHC 2201,
2203, 1993 CCH OSHD ¶ 29,964, pp. 41,021-22 (No. 87-2059, 1993). Thereafter, the COrnmission explicitly
stated that it would no longer accept such briefs. Beta Constr. Co., *I6 BNA OSHC 1435, 1436 n.1, 1993 CCH
OSHD lI 30,239, p. 41,643 n.1 (No. 91-102, W3),petition for reviewflt~&NO.93-1817 (D.C cir. Dec. 3,lm).
Accordingly, if the Secretary’s reply brief here had been filed after the Commission’s decision in Beta, it would
have been rejected and returned to the Secretary.
.
4
ceived no information indicating that Safeway had any type of unwritten program; that is,
the charge in 1989 was not that Safeway’s program was inadequate under section
1910.12OO(e)(1) but that there was no program to begin with. As to the alleged noncompli-
ance with section 1910.1200(g)(l)), he determined during the earlier inspection that there
were no MSDS’s whatever at the worksite; the allegation did not concern the provision of
MSDS’s for particular substances.
Safeway contends that because the 1989 and current citations both allege that Safeway
did not have a hazard communication program meeting the requirements of the HCS and
because both allege that MSDS’s were not available, the violations were known to and
charged by the Secretary in 1989, more than six months before the Secretary issued the
citation which is now before us. Safeway also argues that the Secretary was already on notice
of the deficiencies it subsequently alleged in the hazard communication program because it
had received a copy of that program in April 1990, and it contends that the Secretary knew
or reasonably should have known as of the 1989 inspection that Safeway did not have copies
of MSDS’s for the Regal and Johnson products at Store 914.
Judge Cronin interpreted section 9(c) of the Act to preclude the Secretary from
issuing a citation more than six months after a violation has been abated or has ceased to
exist. The judge also cited two cases in which the Commission held that the 6month statute
of limitations begins to run once the Secretary becomes aware or reasonably should have
become aware of the violation’s existence, Kaspur Wke Works, Inc., 13 BNA OSHC 1261,
1986-87 CCH OSHD II 27,882 (No. 8%1060,1987) and Sun Ship, Inc., 12 BNA OSHC 1185,
1186, 1984-85 CCH OSHD II 27,175, p. 35,078 (No. 80-3192, 1985). The judge concluded
that under this precedent, the Secretary would be barred from citing Safeway for not having
had a hazard communication program prior to April 1990, which the judge considered to be
the basis for the prior citation. The judge also concluded that the statute of limitations had
run on any deficiencies in Safeway’s program that were “facially apparent” in April 1990,
but only for such deficiencies. As the judge put it, “[section] 9(c) does not impose an affir-
mative duty on the Secretary to conduct her investigations so as to ascertain that all possible
violations relating to a general set of circumstances have been discovered, or forever forfeit
her ability to regulate in that area.”
5
Applying these principles, the judge held that the Secretary was foreclosed from citing
Safeway under section 1910.12OO(e)(l), as alleged in citation no. 2, item 1, for failing to
describe what labeling method was being used and failing to provide a means for acquiring
MSDS’s as chemicals are introduced into the workplace. The judge reasoned that the
Secretary knew or should have known of these two deficiencies when he reviewed Safeway’s
hazard communication program following the 1989 inspection. On the other hand, the judge
concluded that because Safeway presented no evidence to show that the windshield washer
and sanitizer were being used in April 1990 and prior thereto, the Secretary was not barred
from now alleging that Safeway was in noncompliance with section 1910.12OO(e)( 1) by failing
to include these substances on its list of hazardous chemicals. Similarly, the judge concluded
that the Secretary could not reasonably have been aware of a lack of MSDS’s specifically
for the windshield washer and sanitizer during the earlier inspection. The judge also
reasoned that the Secretary had no cause to investigate into the absence of MSDS’s for
particular substances once he determined that there were no MSDS’s at all. Since item 2 of
citation no. 2 alleging noncompliance with section 1910.1200(g)(l) is based on the absence
of MSDS’s for only the windshield washer and sanitizer, the judge concluded that it also is
not time-barred by the prior inspection and citation.
Before us on review, the parties dispute whether the judge erred in his determination
that the allegations at issue here are partially distinguishable from the charges resulting from
the 1989 inspection. The Secretary argues that the judge properly decided the statute of
limitations issue. Safeway, on the other hand, contends that there are no substantial
differences between the two sets of charges and that the allegations at issue here are entirely
time-barred under section 9(c).’
‘Although the judge’s decision addresses the allegation in item 2 of citation no. 2 that Safeway did not comply
with section 1910.1200(g)(l), rather than section 1910.1200(g)(8), to which the judge amended, Safeway
contends that neither the charge as set forth in the current citation and complaint nor the amended allegation
are timely under section 9(c). We note that the basis for the amended charge, fkilure of Safeway to have
MSDS’s readily accessible at the worksite, is identical to the citation and complaint in the original proceeding,
which allege that MSDS’s were not maintained at the workplace and that safeway could have abated the viola-
tion by having MSDS’s “readily available” to employees.
However, while the Secretary argues in support of the judge’s reasoning, he also
contends that the citations are not time-barred for a reason different than that advanced by
. the judge. The Secretary does not dispute that the alleged violation of section
1910.12OO(e)(1) occurred when Safeway’s employees first began using Regale Windshield
Washer and Johnson J-8Om Sanitizer in the store in question. Nevertheless, because section
1910.12OO(e)(1) re q uires the employer to “maintain” as well as “develop” and “implement”
a hazard communication program, that same violation recurred on each day thereafter that
these products were present in the workplace but were not addressed in an adequate
program. Similarly, in the Secretary’s view a violation of section 1910.1200(g)(8) first
occurred and then recurred on each day that those two substances were present without the
appropriate MSDS’s. Thus, the Secretary concludes that the situation here is one of
individual causes of action which may be the subject of separate and subsequent citations.
The Secretary cites Central of Georgia RR, 5 BNA OSHC 1209, 1977-78 CCH OSHD
ll 21,688 (No. 11742, 1977), in which the Commission rejected an employer’s argument that
for purposes of section 9(c), a violation is said to have “occurred” only when the violative
conditions jkst come into existence.
Safeway concedes that it has a continuing obligation to comply with the HCS, and it
does not dispute that the allegedly violative conditions existed during the inspection in
October 1990. Safeway contends, however, that the Secretary cannot issue a citation for a
subsequent occurrence of a violation unless the violation had been previously abated.
Analpis
A violation of the Act for failure to comply with a standard is established whenever
the following four elements exist: (1) the standard applies to the cited conditions, (2) the
employer’s conduct does not conform to the requirements of the standard, (3) employees
are exposed to the cited conditions, and (4) the employer knew or could have known of
those conditions. Ki-aftFood Ingredients Cop., 16 BNA OSHC 1393,1399,1993 CCH OSHD
lI 30,213, pp. 41,586.87 (No. 88-1736, 1993). As the Secretary correctly notes, the Commis-
sion has previously held that the Act does not preclude the Secretary from alleging any
violation when each of these factors is present, so long as the citation is issued within six
months of when the Secretary discovers, or reasonably should have discovered,
) that violative
0
7
conduct which is being cited. The Commission expresslv so stated in Central of Georyia, on
u A d d
which the Secretary relies: .
For section 9(c) purposes, a violation of section 5(a)(2) of the Act “occurs”
whenever an applicable occupational safety and health standard is not
complied with and an employee has access to the resulting zone of danger.
Therefore, it is of no moment that a violation fint occurred more than six
months before issuance of a citation, so long as the instances of noncompliance
and employee access providing the basis for the contested citation occurred
within six months of the citation’s issuance.
5 BNA OSHC at 1211, 1977-78 CCH OSHD at p. 26,035 (emphasis in original).
More recently, the Commission applied this principle in GeneralDynamics Cop., Elec.
Boat Div., 15 BNA OSHC 2122, 1993 CCH OSHD ll 29,952 (No. 874195, 1993), which
involved numerous allegations of incomplete or missing logs and supplementary reports of
injuries and illnesses that employers are required to maintain under the Secretary’s
recordkeeping regulations in 29 C.F.R. Part 1904. The injuries and illnesses in question
occurred in 1985, 1986, and January 1987. The Secretary conducted his inspection from
January 29, 1987 to February 3, 1987 and issued his citation on July 29, 1987. The employer
contended that it had been cited for specific, discrete errors in its recordkeeping, each of
which occurred more than six months before the citations, and that the Secretary had failed
to show that any violative act took place within the 6-month period. The Commission dis-
agreed. Citing Central of Georgia, the Commission observed that it “has generally upheld the
Secretary’s authority to issue a citation for an unsafe condition that an OSHA compliance
officer first discovers during an inspection made more than six months after the unsafe
condition’s creation.” Because the recordkeeping standard requires that each log entry be
retained for five years, the Commission concluded that the violations were in existence at
the time of the inspection. Id. at 2127-28, 1993 CCH OSHD at p. 40,956.57. See Johnson
Control& Inc., 15 BNA OSHC 2132, 2135, 1993 CCH OSHD ll 29,953, p. 40,965 (No.
89-2614, 1993) ( recordkeeping infractions are not substantively different than other
noncomplying conditions which must be abated and constitute ongoing violations until they
are abated).
8
In General Dynamics, the Commission held that the Secretary acted in compliance
with section 9(c) because he issued his citations within six months of when he became aware
of the violations. As the Commission concluded, “[t]he obligation to correct any error or
omission in . . injury records runs until the error or omission is either corrected by the
l
employer, or discovered or reasonably should have been discovered by the Secretary.” 15 4
BNA OSHC at 2128, 1993 CCH OSHD at p. 40,956.57. The Commission had previously
held that the 6-month period prescribed by section 9(c) begins to run from when the
Secretary knew or should have known of the violative conditions. For example, in Yelvington
Wekhg Serv., 6 BNA OSHC 2013, 1978 CCH OSHD ll 23,092 (No. 15958, 1978), the
Secretary conducted an inspection and issued a citation more than six months after an
employee was fatally injured while making welding repairs under a fertilizer hopper that was
not secured or blocked against movement. The Commission concluded that a citation
alleging a violation of section 1904.8, which requires employers to report fatalities within 48
hours, was not time-barred because it was issued no more than two weeks after the Secre-
tary learned of the fatality from state authorities.
Yelvingtonwas cited in Sun Ship, one of the two cases on which Judge Cronin relied.
In Sun Ship the employer refused to give its union and the Secretary copies of its injury and
illness records which divulged the identity of individual employees. More than six months
after the refusal occurred, the Secretary cited the employer for violations of the disclosure
provisions of the recordkeeping regulation, 29 C.F.R. 8 1904.7. Applying Yelvington, the
Commission concluded that the statute of limitations began to run from when the Secretary
became aware of the relevant facts, that is, from when it investigated the union’s complaint
and from when the employer informed the Secretary that it would not furnish the documents
if the employees’ names were revealed. The Commission applied the same reasoning in
Kaspar Wre Worlds, the other case cited by Judge Cronin, which also involved the employer’s
failure to report an injury.
The cases on which Safeway and the judge rely, however, do not address the question
of whether conditions which existed and could have been detected during a prior inspection
may be the subject of citations issued more than six months later if the Secretary conducts a
subsequent ikspection. It is well-settled that failure to issue a citation does not establish that
the Secretary considers the employer to be in compliance and does not preclude the
Secretary from citing the employer for the same or similar conditions in a subsequent
enforcement proceeding. Erie Coke Corp., 15 BNA OSHC 1561, 1569, 1992 CCH OSHD
ll 29,653, p. 40,155 (No. 88.611,1992), afd, 998 F.2d 134 (3d Cir. 1993); Seibel hhdem Mfg.
& Welding Cop, 15 BNA OSHC 1218, 1223-24, 1991 CCH OSHD II 29,442, pp. 39,679.81
(No. 88-821, 1991). See Miami Iizdus., 15 BNA OSHC 1258, 1264, 1991 CCH OSHD
lf 29,465, p. 39,742 (No. 880671,199l) (distinguishing a simple failure to issue a citation from
affirmative representations by OSHA that it considers the employer in compliance), afld in
part withoutpublkhed opinion, 983 F.2d 1067 (6th Cir. 1992). It would therefore be anoma-
lous to conclude that if the Secretary conducts an inspection from which he could have
ascertained the existence of violations, section 9(c) precludes him from conducting another
inspection at a later time and alleging equivalent violations based on hisfirzdngs at the subse-
quent inspection. On the contrary, the purpose of a statute of limitations is simply to ensure
that claims are prosecuted while the events are still fresh, and witnesses and evidence can
be obtained. YeZvington,6 BNA OSHC at 2016, 1978 CCH OSHD at p. 27,907. Indeed, the
Commission suggested in General Dynamics that section 9(c) would not bar the Secretary
in a situation such as that which is present in this case:
We assume that the Secretary would not use his resources to inspect the same
records repeatedly for different violations. Multiple citations of essentially the
same conditions, even in different plants, have resulted in vacation of those
citations on the ground of harassment. . . . A second citation regarding the
same records could also be questioned on grounds of res judicata or collateral
estoppel.
15 BNA OSHC at 2128 n.12, 1993 CCH OSHD at p. 40,957 n.12 (citing Continental Can
Co., USA v. Marshall, 603 F.2d 590, 596 (7th Cir. 1979) (relitigating an issue over , and over
again in multiple proceedings constitutes harassment)). In other words, section 9(c) merely
requires that the Secretary act with reasonable diligence once the facts pertaining to the
conduct in question come to the Secretary’s attention through an inspection or investigation.
The fact that the Secretary may have had the opportunity to become aware of similar
violative conduct and issue a citation during an earlier inspection does not prohibit future
10
citations issued within six months after conduct constituting a violation is discovered during
a subsequent inspection or within six months after the Secretary knew or should have known
of the violative conditions as a result of a subsequent inspection. Although issuance of such
a citation might be improper for other reasons such as estoppel or harassment, Safeway does
not advance such arguments here!
Since citation no. 2 at issue here was issued within six months of the violative conduct
which was discovered during the inspection on October 17, 1990, this case does not present
a situation in which the Secretary acted in a dilatory manner by failing to cite the employer
within six months after acquiring facts sufficient to support a citation. We therefore conclude
that citation no. 2 is not untimely under section 9(c) regardless of whether the conditions set
forth in that citation are identical or substantially similar to the conditions which were cited
following the 1989 inspection. Accordingly, while the judge properly rejected Safeway’s
argument, we conclude that he erred in the reasons he gave for his decision.
CONSUMER PRODUCTS EXEMPTION
e
The WindshieldWasher,
Section 1910.12OO(b)(6)(vii) provides that the HCS does not apply to
[a]ny consumer product or hazardous substance, as those terms are defined in ’
the Consumer Product Safety Act (IS USC. 2051 vet ieq.) and Federal
Hazardous Substances Act (15 U.S.C. 1261‘et se@) respectively, where the
employer can demonstrate it is used in the workplace in the same manner as
normal consumer use, and which use results in a duration and frequency of
exposure which is not greater than exposures experienced by consumers[.]
The Secretary contends that the judge erred in concluding that the windshield washer met
the requirements of this exception. Safeway contends that the judge erred in holding that it
failed to show that the sanitizer was available to or used by consumers. We affirm the judge.
Regal* Windshield Washer is sold in the store, and Safeway permits its employees
,
to take items off the shelf for use in their work duties. Although the container label and
%Ve note parenthetically that an estoppel argument would be difficult to sustain on the facts in this case.
Safeway represents that it had asked that the earlier citations be dismissed with prejudice. In his notice of
withdrawal, however, the Secretary stated that the withdrawal was without prejudice. The judge’s order
approving the withdrawal does not state that the withdrawal is with prejudice. Under Commission Rule 102,
governingwithdrawal of citation items, withdrawal is without prejudice unless otherwise specified. sz@e-A-
zone, Inc., 9 BNA OSHC 1040, 1980 CCH OSHD S 24,912 (No. 79-2380, 1980).
MSDS introduced into evidence indicate that it is intended to be used in the windshield
washer reservoirs of automobiles, there is no dispute that Safeway’s employees use the
product to clean the glass on scanners at the checkout counters. The scanner glass is about
the size of a large book and is cleaned as often as four times a day. Two employees,
however, also testified for Safeway that they used the windshield washer to clean windows
at their homes. William Allison stated that he would clean about eight windows, each
approximately 30 inches by 30 inches in size, all taking about 15 to 20 minutes, while
Rebecca Chambers testified that she would clean about twelve windows, including a large
living room window, all requiring about one and a half to two hours. Two other employees
stated that they used the windshield washer at home only in the reservoirs of their
automobiles.
There is no dispute that the windshield washer contains methyl alcohol. This chemical
is listed as a toxic or hazardous substance under Subpart Z of Part 1910, which regulates
employee exposure limits for toxic and hazardous substances. Safeway’s expert witness, a
physician, Dr. Gary Krieger, stated that methyl alcohol, or methanol, is found in antifreeze,
paints, and varnishes, and is commonly used as a window cleaner and paint remover. He was
familiar with the scanners in the store and testified that cleaning an area of that size would
not be likely to cause any “significant” harm and would result in lesser exposure to methvl
A 4
alcohol than using the product as a window cleaner at home because windows tend to be
larger than the store scanners.
On these facts, the judge found that the windshield washer is a hazardous chemical
to which the HCS applies because it contains a substance which the Secretary regulates
under Subpart Z. The judge noted that section 1910.1200(d), entitled “Hazard determina-
tion,” provides in paragraph (3)(i) that the chemicals listed in Subpart Z shall be treated as
hazardous for purposes of the HCS. However, he concluded that the windshield
- washer
came within the consumer products exception despite the fact that it is marketed for use
only in automobiles. He reasoned that “consumers do not always use products solely in the
intended manner and for the intended purpose” and that use of the windshield washer as
a window cleaner in the home “is reasonably predictable given its primary function as a glass
cleaner.” The judge also observed that there was no evidence to show that Allison ‘and
12
Chambers, the two employees who used the windshield washer to clean windows in their
homes, were not “normal consumers” or that their use of the windshield washer was
“idiosyncratic.” He also relied on Dr. Krieger’s testimony that Safeway’s use of the
windshield washer did not result in exposure any greater than that experienced by
consumers.
The Secretary concedes that a product on sale at the store is a consumer product
under section 1910.1200. The Secretary contends, however, that employees did not use the
windshield washer in the same manner as would the normal consumer. The Secretary notes
that when he amended the consumer products exception set forth in the HCS, he stated
that:
The key elements of concern to OSHA are . . . that the consumer product be
used in the same manner as a consumer would use it (and therefore as intended
by the manufacturer when preparing the label information), and that the duration
and frequency of exposure be essentially the same as would be experienced by
a consumer (and thus the label warnings would provide adequate protection.)
A broader exemption . . . would not be appropriate to protect workers from
occupational exposures that were not anticiDated bv the manufacturer when the
d
labels, and thus the protective measures, wire developed.
52 Fed. Reg. 31,863 (1987) (emphasis added). He also points out that two other employees
testified that they used the windshield washer only for its intended purpose. Furthermore,
the Secretary contends that the judge erred in Ending from Dr. Krieger’s testimony that the
exposure to Safeway’s employees was not greater than that experienced by consumers. The
Secretary asserts that the relevant factor under the exemption is not the quantity of the sub-
stance being used but the duration and frequency of the exposure. Since Safeway’s
employees use the Regal cleaner in the store on a daily basis, but only clean their windows
at home infrequently, according to the Secretary, the frequency of use by a normal consumer
is clearly less than that of a Safeway employee.
Anarysis
We adopt the judge’s finding that while methyl alcohol is a hazardous substance *
subject to the HCS, the consumer product exception applies to the windshield washer at
issue here. Contrary to the Secretary’s argument, we do not construe the exception to be
necessarily limited by the manner or purpose for which a manufacturer markets a product.
13
Similarly, we do not agree that the “duration and frequency” provision of the exception
requires that the exposures of employees and consumers be quantified and equated to the
point of exact mathematical precision. When the portion of the preamble to the standard
.
on which the Secretary relies is read in the context of other remarks in the preamble, it is
clear that the exception is not as strict or as limited as the Secretary argues here. Although
*
the Secretary in the preamble did refer to the manufacturer’s intention, he also stated as fol-
lows:
OSHA has been interpreting the [HCS] as not being applicable to consumer
products when used as a consumer would use them. OSHA is now adding this
interpretation to the rule itself, stating that where such consumer products are
used in the workplace in a manner comparable to the normal conditions of
consumeruse. . . the chemical would not have to be included in the employer’s
hazard communication program. . . . “OSHA recognizes that there may be
situations where worker exposure is significantly greater than that of
consumers, and that under these circumstances, substances which are safe for
contemplated consumer use may pose unique hazards in the workplace.”
[Citation omitted]. However, to the extent that workers are exposed to the
substances in a manner similar to that of the generalpublic, there is no need for
any HCS requirements.
Where an employer is uncertain whether the duration and
frequency of exposure to these products is comparable to consumer use, an
employer should obtain or develop the material safety data sheet and make
it available to employees.
Id. at 31,862 (emphasis added).
Where a standard is susceptible to different interpretations, the Commission will
consider statements made in the preamble to the standard as the most authoritative guide
to the standard’s meaning. Ametican Sterilizer Co., 15 BNA OSHC 1476, 1478, 1992 CCH
OSHD ll 29,575, pp. 40,015-16 (No. 86-1179, 1992). Consistent with the statements in the
preamble to the amended HCS, the Commission in Ford Dev. Corp., 15 BNA OSHC 2003,
2006 n.7, 1992 CCH OSHD lI 29,900, p. 40,798 n.7 (No. 90-1505, 1992), petition for review
filed, No. 93-3090 (6th Cir. Jan. 29, 1993), held that in order to qualify for the exception, an
employer need only demonstrate that its employee’s use and exposure is “comparable” to
that of a consumer.
14
We therefore conclude that the judge did not err in his holding that the exception
may apply where the consumer use of a product is different from that intended by the
manufacturer, SO long as it is reasonably predictable that the product might be used in that
manner. We find no basis in the record to reject his finding that a consumer could
reasonably assume that a product meant for cleaning automobile windshields would be
suitable for other glass surfaces as well. We also conclude on the facts here that the
frequency with which Safeway’s employees used the windshield washer is sufficiently similar
to the frequency of consumer use to satisfy the terms of the exception. While we do not
assign dispositive weight to the opinion testimony of Safeway’s expert, Dr. Krieger, we find
that it supports the conclusion that Safeway’s use of the windshield washer is comparable
to consumer use.
The Sanitizer
According to its label, J-8Om Sanitizer, which contains ammonium chlorides, is used
for disinfecting food processing equipment and work areas in stores and commercial restau-
rants and kitchens. Maurice Berry, loss control manager for Safeway’s Denver division, stated
that the sanitizer is used in the meat department, and two employees, Paul Trinidad and
Patricia Williams, testified that they used or had used the sanitizer to clean or disinfect
displays or work areas.
Dr. Krieger was familiar with ammonium chlorides but not with the Johnson product
itself. He conceded that ammonium chlorides are irritants but testified that such compounds
are commonly used as disinfectants and antiseptics in medical facilities or in the home for
treating wounds and also appear in many products sold widely in pharmacies. The
concentration of chlorides shown on the label (1.29 percent for each of two types of
ammonium chlorides) is generally consistent with the range of concentration found in
consumer products, which is normally between .Ol and 1.5 percent.
As he did in the case of the windshield washer, the judge found that the sanitizer
contains chemicals which are hazardous within the meaning of the HCS. The judge noted
that chemicals which are irritants are expressly defined as hazardous chemicals within the
scope of the HCS under section 1910.1200(c). Unlike the windshield washer, however, the
judge held that Safeway had failed to establish “a normal consumer use” of the sanitizer or
15
any substantially similar product. He reasoned that because the sanitizer contained 1.29
percent of each of two types of ammonium chlorides, its actual concentration of hazardous
chemicals was 2.58 percent, which the judge considered to be “far higher” than the solutions
of those chemicals generally available to and used by consumers.
Arguing in support of the judge’s decision, the Secretary asserts that products
intended for medicinal or medical use clearly are not used for the same purposes as a
disinfectant for equipment or machinery used to handle food. On the other hand, Safeway
contends, based on Dr. Krieger’s testimony, that the consumer exposure is greater than that
of its employees. It also argues that it used the sanitizer only once every three years, al-
though the record does not show that to be the case.’
Analysis
Although we agree tith the judge that the sanitizer is not exempt from the HCS, we
conclude that the judge misinterpreted Dr. Krieger’s testimony. Contrary to the judge’s
factual findings, Dr. Krieger testified that ammonium chlorides generally are present in a
range of up to 1.5 percent. He did not say that the normal consumer concentration would
not exceed a total of 1.5 percent for all the types of chlorides in the product. In fact, he spe-
cifically stated that a weight of 1.29 percent for each of the active ingredients is “very
typical.” However, the product exception is not satisfied merely because the concentration
of hazardous chemicals in the sanitizer is similar to that in consumer products. While it is
clear that Safeway uses the sanitizer for the same purpose as other commercial enterprises,
as a disinfectant or antiseptic in food preparation areas, Safeway’s evidence does not show
that consumers use the sanitizer or analogous consumer products containing ammonium
‘Employee Trinidad, who had been working at the store for three years, used the sanitizer on one occasion
two or three months before the inspection. Employee Williams had used it less than six times during the 18
years she had been employed. Safeway’s evidence does not establish the actual frequency with which the
sanitizer was used.
16
chlorides’ for that or a similar purpose. Accordingly, the judge properly found that the
sanitizer is not exempt from the HCS.
EMPLOYEE INFORMAT’ION AND TRAINING (8 1910.1200(h))g
The parties stipulated that prior to the inspection, employees participated in a safety
training program consisting of a videotaped presentation and the distribution of an employee
handbook on chemical hazards. The videotape instructs employees that they are to read
MSDS’s for any product they use. Safeway’s Denver division office issued memos stating that
all employees are to: view the videotape, be instructed on MSDS’s and how to obtain them,
%e Secretary argues that Safeway did not show that the sanitizer is customarily sold to consumers or used
by consumers at their homes. The Secretary also contends that Dr. Krieger’s testimony that the chemicals con-
tained in the sanitizer are also found in products used in the home is irrelevant to the question of whether
the sanitizer itself is exempt.
In view of our disposition, we do not now decide whether the consumer products exception in section
1910.12OO(b)(6)(vii)requires a showing that the actual commercial product being used by the employer is also
used by consumers under the terms set forth in the exception or whether the exception can apply to any
product containing the same chemicals. We note, however, that by its plain-terms the exception includes both
a “consumer product” or a hazardous substance. Section 1910.1200(c) also defines the term “hazardous
chemical” to mean any chemical which is a physical or health hazard. Under the substantive provisions of the
HCS the employer is required to provide labels for the containers of “hazardous chemicals” (section
1910.1200(f)) or to have MSDS’s for the “hazardous chemical” (section 1910.1200(g)).
%e standard requires as follows:
6 1910.1200 Hazard Communication.
&i bmployee infomration and training. Employers shall 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.
(1) Information. Employees shall be informed of:
(i) The requirements of this section;
(ii) Any operations in their work area where hazardous chemicals are present; and,
(iii) The location and availability of the written hazard communication program, including the
required list(s) of hazardous chemicals, and material safety data sheets required by this
section.
(2) Training. Employee training shall include at least:
(i) Methods and observations that may be used to detect the presence or release of a
hazardous chemical in the work area. . . .[;I
(ii) The physical and health hazards of the chemicals in the work area;
(iii) The measures employees can take to protect themselves from these haz;rrds. . . .[;I and,
(iv) The details of the hazard communication program developed by the employer, including
an explanation of the labeling system and the material safety data sheet, and how employees
can obtain and use the appropriate hazard information.
17
and receive training in other aspects of hazard communication. Attached to the employee
handbook is a form which certifies that the employee has “participated in a training safety
program about hazardous chemicals.” Safeway introduced into evidence a number of these
forms signed by various employees. Dailey agreed that the videotape essentially parallels
Safeway’s employee handbook and that the handbook “does address training requirements.”
Dailey’s inspection report from his earlier inspection in August 1989 states that Safewav had
conducted training “in the past.”
The two employees who had used the sanitizer testified regarding their training.
Trinidad stated that when he was initially hired, he had been given material to read and had
seen the videotape, although he considered the instruction “boring.” He thought that he had
been given the employee handbook but was not sure. There was a question and answer
session after the videotape. Trinidad felt that the employees already “pretty much
understood” what they were being told in training. However, he had not been given any
training specifically regarding the sanitizer or any information regarding possible health
hazards from that product. When he used the sanitizer, he followed the directions on the
label that the sanitizer must be diluted one ounce per gallon of water. While Trinidad knew
what an MSDS is, he stated that he didn’t need an MSDS. Williams testified that she had
received hazard communication training but could not remember whether she had been
given any information regarding the sanitizer. Williams did say, however, that she did not
think that management was aware that she had used the sanitizer. Another employee,
Madeline Pape, was not sure what an MSDS is and had never seen one in the store. On the
other hand, Maurice Berry, loss control manager for Safeway’s Denver division, stated that
Safeway provides training on the sanitizer and that instructions on how to use it are posted
in the meat department where it is used.
The judge noted that section 1910.1200(h) specifically requires that employees be
trained with respect to the chemicals they use in their work area. The judge weighed the
testimony of Trinidad and Williams against that of Berry and found it more likely than not
that Safeway failed to provide information and training on the sanitizer to its employees who
used it. In weighing the testimony, the judge faulted Berry for not having “first-hand”
knowledge of the training and for not providing details regarding the training provided. The
18
judge also concluded that since Safeway had not introduced the instructions posted in the
meat department, he was unable to conclude that they contained the information required
by the standard.
While the Secretary argues in support of the judge’s decision, Safeway asserts that it
provided training to all employees, pointing out that all employees testified to that effect and
that Dailey had been given written materials comprising the hazard communication program.
Safeway also asserts that Berry’s testimony is sufficient to show training specifically with
regard to the sanitizer, and it argues that Williams and Trinidad stated that they “did
examine manufacturer’s data” before using the sanitizer.
The test on review of a judge’s factual findings is whether a preponderance of the
evidence supports those findings. Worcester Steel Erectors, Inc., 16 BNA OSHC 1409,1417- 18,
1993 CCH OSHD ll 30,232, p. 41,634 (No. 89-1206, 1993). We conclude that the evidence
preponderates in favor of the judge’s finding that Safeway did not provide the requisite
information and training to its employees handling or using the sanitizer. We also note that
the record does not support Safeway’s contention that Williams and Trinidad were given
sufficient written documentation to comply with the information and training provisions of
the standard. Williams’ testimony does not show that she reviewed any written material
regarding the sanitizer, and Trinidad only looked at the mixing instructions on the product
label, and not the MSDS. Indeed, the fact that Trinidad evidently was under the
misimpression that MSDS’s are not needed supports a finding that he was not properly
trained. CJ ARA Living Centers of Texas, Inc., 15 BNA OSHC 1417, 1992 CCH OSHD
li 29,552 (No. 89-1894, 1991) (access to product information alone does not satisfy the
training requirements of section 1910.1200(h)).
19
DEVELOPMENT AND IMPLEMENTATION OF THE
HAZARD COMMUNICATION PROGRAM (8 1910.1200(e)
(1))"
Dailey testified that there were three deficiencies in Safeway’s program under section
1910.12OO(e)(1). First, upon reviewing Safeway’s hazard communication program consisting
of all the written materials he had received, Dailey determined that the list of hazardous
chemicals was incomplete because it did not include the windshield washer and the sanitizer.
Second, because Safeway did not maintain an inventory of products in use, its program did
not set forth a means by which Safeway could ensure that it had acquired the MSDS for a
particular chemical before it put that chemical into use. He conceded that the employee
handbook informs employees that they may obtain copy of an MSDS “simply by asking for
one” and that if Safeway does not have one, it will ask the supplier or manufacturer to
provide one. He did not consider Safeway’s program deficient for failing to describe how
employees could obtain MSDS’s. However, he criticized Safeway for having no mechanism
for taking an inventory or any other means to identify those products it used so that it could
ensure that it had an MSDS for each such product. Lastly, Safeway had not identified the
system of labeling on which it intended to rely. Dailey conceded that the handbook states
that chemicals must have labels indicating the nature of the hazard and giving instructions
for handling the material, and he agreed that the labels on the sanitizer satisfied the labeling
loThe standard provides:
(3 1910.1200 Hazard communication.
&i ‘written hazard communication program. (1) Employers shall develop, implement, and
maintain at the workplace, a written hazard communication program . . . which at least
describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and
other forms of warning, material safety data sheets, and employee information and training
will be met, 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 . . . .
&Labels and otherforms of warning. (1) The chemical manufacturer, importer, or distributor
shall ensure that each container of hazardous chemicals . . . is labeled, tagged or marked with
the following information:
(i) Identity of the hazardous chemical(s);
(ii) Appropriate hazard warnings; and
(iii) Name and address of the chemical manufacturer, importer, or other responsrble party.
;6) he employer may use signs, placards, process sheets, batch tickets, operating procedures,
or other such written materials in lieu of a-g labels to individual stationary process
containers, as long as the alternative method identifies the containers to which it is applicable
and conveys the information required . . . to be on a label.
20
requirements of section 1910.1200(f). However, the handbook failed to make clear the
system of labeling Safeway would use in the event it received a product without a label.
Berry testified that in determining what MSDS’s must be at a particular store,
Safeway conducts an initial inventory and provides MSDS’s for any product which it feels
an employee may use. Although he felt that no MSDS was needed for the windshield washer
because it was exempt as a consumer product, he did not contradict Dailey’s testimony that
Safeway’s inventory did not include either the windshield washer or the sanitizer?
The judge found a violation of section 1910.1200(e)(1) solely on the basis that the
Johnson sanitizer was not included on Safeway’s inventory of hazardous chemicals. The judge
found the evidence on this point undisputed. He did not address, and made no findings
regarding, the other two deficiencies to which Dailey testified.
The Secretary relies on Dailey’s testimony in support of the judge’s finding of
noncompliance with section 1910.12OO(e)(1). The Secretary also asserts that the evidence
shows that Safeway’s program was deficient for not setting forth a means to insure that
MSDS’s are available for each product in use and for not specifying the labeling system. The
Secretary points out that section 1910.12OO(e)(1) specifically requires the employer to
describe how it will meet the criteria set forth in section 1910.1200(f) for labeling. The Secre-
tary also claims that the program failed to describe a means by which employees could
obtain MSDS’s; however, as indicated above, Dailey did not consider the program deficient
on this ground.
Safeway concedes that its list of hazardous chemicals did not include the windshield
washer or sanitizer and relies instead on its contention that these products are exempt from
the HCS. Safeway also claims that Dailey’s objection that the program failed to ensure that
it would have the MSDS’s for hazardous substances used in the store is inconsistent with
Dailey’s testimony that he was not alleging that employees were unable to obtain MSDS’s
on request. Lastly, Safeway notes that Dailey testified that the alleged violation was based
“Berry did say that Safeway’s managers had testified in another proceeding that they keep a log of what
products employees use, but he did not identify the proceeding, and Safeway did not request that the record
in that case be admitted into evidence here. Assuming that Berry was referring to mother case involving
Safewayalso decided by Judge Cronin, S’afway Store NO.576,91 OSAHRC WA1 l(l991) (ALJ), we note that
Judge Cronin’s decision in that case does not address the matter of the log of products used.
on the absence of a system for labeling products that were received without labels, and it
contends that therefore its program was not deficient with respect to the two products at
issue here because they bore manufacturer’s labels.
Analysis
Because it is undisputed that the sanitizer was not included on the list of hazardous
chemicals, we affirm the judge’s decision. As to the other deficiencies on which the
Secretary’s allegation is based, we find from Berry’s unrebutted testimony that in Safeway’s
program Safeway did in fact have a means for identifying those products for which it would
need MSDS’s. Although Dailey may not have seen any documentation of that method in the
written materials he received, the Secretary is not alleging that Safeway violated the standard
because it failed to make its method known to the Secretary. Lastly, we also find on the
record that Safeway’s instructions in the videotape shown to employees, which was admitted
into evidence, adequately describe its procedures for product labeling. Among other things,
the videotape addresses the use of hazard warning signs for work areas and also informs
employees of what action they are to take in the event they encounter a container of a
chemical which has no label. See Syntron,Inc., 11 BNA OSHC 1868, 198384 CCH OSHD
ll 26,841 (No. 81-1491-S, 1984) (reliance on videotape as basis for decision).
Accordingly, we find that Safeway’s hazard communication program was deficient only
because of its failure to include the sanitizer on the inventory or list of hazardous chemicals
and was not deficient in the other two aspects to which Dailey testified.
FAILURE TO EIAVEMSDS’S AVAILABLE
(8 1910.1200(g)(l)Amendedto section1910.1200(g)(8))12
Dailey asked Dave Harms, the store manager, for MSDS’s for the windshield washer
and sanitizer. Although Harms produced MSDS’s for some substances, he was unable to find
‘%he two sections provide:
g 1910.1200 Hazard communication.
(g) Material safev data sheets. (1) Chemical manufacturers and importers shall obtain or
develop a material safety data sheet for each hazardous chemical they produce or import.
Employers shall have a material safety data sheet for each hazardous chemical which they use.
$ ie 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).
22
the data sheets for those two products. Berry testified that no MSDS was available for the
cleaner because Safeway regarded it as an exempt consumer product and that the MSDS
for the sanitizer was available in Safeway’s division office in Englewood, Colorado, about 50
miles away. According to Berry, an employee who requests an MSDS will receive it either
by facsimile transmission (“FAX”) if the need for the MSDS is urgent or by next day
delivery through Safeway’s internal mail system. However, on cross-examination, Berry
admitted that no MSDS would be released after the division office closes at 6:00 p.m.
whereas store 914 is open until at least 9:00 or 10:00 p.m.
In a very brief discussion, the judge found that a violation of section 1910.1200(g)(8)
had been tried by consent and that Safeway had failed to comply with this section because
MSDS’s were “inaccessible” to employees working weekends or evenings. The judge did not
address section 1910.1200(g)(l) and did not make any findings with respect to that section.
Safeway argues before us that it did not try a violation of section 1910.1200(g)(8) by
consent. While Safeway concedes that it questioned Berry regarding the means by which
MSDS’s would be made available to employees, it contends that by doing so it did not
demonstrate consent to try a violation of section 1910.1200(g)(8) but rather introduced that
evidence as a defense to a charge of not having MSDS’s in its possession under section
1910.1200(g)(1). Safeway also notes that neither party addressed section 1910.1200(g)(8) in
their posthearing briefs, thereby indicating, in Safeway’s view, that neither party understood
that section to be in issue.
As to the merits, Safeway asserts that neither section 1910.12OO(g)(1) nor section
1910.1200(g)(8) re q uire that the MSDS be physically present at the workplace itself, and
Safeway asserts that on the facts here, it could make an MSDS available quickly enough to
meet the requirements of the standard. Safeway relies on a decision by a Commission judge
in a case involving another grocery store chain, Rice Chopper Supemarkets, No. 90-552
(Dec. 26, 1990) (ALJ), rev’d, 15 BNA OSHC 1518, 1992 CCH OSHD lI 29,608 (1992). In
that decision, Administrative Law Judge Michael H. Schoenfeld held that the employer’s
practice of keeping its OSHA log and summary of occupational injuries and illnesses in a
central office and furnishing a copy within two days to any employee upon request complied
with the recordkeeping regulation at 29 C.F.R. 6 1904.2(a) because the employer had made
23
the log and summary “available.” Safeway also contends that two cases in which the
Commission held that MSDS’s were not readily accessible, Thomas Lindstrom Co., 15 BNA
OSHC 1353, 1991 CCH OSHD 9 29,526 (No. 90-1084, 1991) and Super Excavators, Inc.,
15 BNA OSHC 1313, 1991 CCH OSHD ll 29,498 (No. 89-2253, 1991), are distinguishable
because the employers in those cases did not have FAX capability.
In his brief on review, the Secretary contends that an amendment to section
1910.1200(g)(8) “comfortably” conforms to the evidence. In his reply brief, the Secretary
recognizes that trial by consent exists only where the parties “squarely recognize” that they
are trying an unpleaded issue, but he contends that this test was met because Safeway itself
introduced the relevant evidence when it asked Berry questions about Safeway’s efforts to
make MSDS’s accessible to employees. The Secretary further points out that in following up
this line of inquiry during his cross-examination of Berry, he adduced the testimony that the
MSDS’s were not readily accessible at off-hours, evidence which goes beyond the simple
question of whether Safeway failed to have MSDS’s in its possession for those chemicals it
used.
On the merits, the Secretary argues that the judge properly found that MSDS’s were
not “readily accessible” as that phrase is used in section 1910.1200(g)(8). The Secretary
states that the judge’s decision is consistent with the preamble to the standard and with an
enforcement directive the Secretary issued shortly after the inspection at issue here.
1. Amendment Issue
The provision alleged in the citation and complaint, section 1910.12OO(g)(1), merely
requires an employer to “have” an MSDS for each hazardous chemical that it uses. The
location where the employer keeps the required MSDS’s, and their availability to employees
in work areas, are not elements of a violation of this provision. Rather, such factors are rele-
vant only to section 1910.1200(g)(8). As the Secretary correctly notes, the test for
determining trial by consent under Fed. R. Civ. P. 15(b) is whether the parties clearly know
that the evidence is directed toward an unpleaded issue. Amour Food Co., 14 BNA OSHC
1817, 1824, 1987-90 CCH OSHD ll 29,088, p. 38,885 (No. 86-247, 1990). Since the parties
here introduced evidence relevant only to section 1910.1200(g)(8), and not relevant to the
24
originally-cited section 1910.12OO(g)(l), we conclude that they understood that they were
litigating the issue of a violation of section 1910.1200(g)(8). Mcl43ZZiamsForge Co., 11 BNA
OSHC 2128, 2130, 1984-85 CCH OSHD ll 26,979, p. 34,669 (No. 80-5868, 1984).
However, the elements of a violation of section 1910.1200(g)(8) are not unpleaded
issues in the circumstances presented here. Although the Secretary charged that Safeway
failed to comply with section 1910.12OO(g)(l), it is clear from the outset of the proceeding
that the gravamen of the Secretary’s case was the unavailability of the MSDS’s at the specific
store. The citation itself, for instance, alleged that Safeway did not have MSDS’s “on hand”
for the hazardous substances used in the store. The complaint alleged that Safeway could
have abated the violative conditions by “obtaining and maintaining at the workplace MSDSs
for each hazardous chemical used at the workplace” (emphasis added). Safeway’s own
counsel in fact asked the following question of Dailey: “And with respect to (G)(l), the
violation that you’re alleging is that the two [MSDS’s] were not present at the store”
(emphasis added), to which Dailey replied in the affirmative. As the Secretary points out,
Safeway made no objection that the violation as thus described went beyond the
pleadings.13
Therefore, in our view, the question presented here is not trial by consent of an
unpleaded issue because the issue of failing to have MSDS’s available at the specific
worksite was pleaded and was understood by both parties to be the pleaded issue. The
question, rather, is one of amending the cited standard to conform to the real basis for the
violation. See Motion-fition Co.lyonkers Contrac. Co., A Joint Venture, 16 BNA OSHC
1105, 1118, 1993 CCH OSHD II 30,048, p. 41,275 (No. 88-572, 1993) (discussion of amend-
ment which does not materially alter the Secretary’s case), petition for review filed, No.
13For these reasons, we reject Safeway’s contention that it introduced evidence of its means for providing
employees with access to MSDS’s which were maintained off-site only as a defense to or in mitigation of a
charge under section 1910.12OO(g)( 1). There is simply no basis in the record to support such a position.
As Safeway points out, the Secretary did not mention section 1910.1200(g)@) in his posthearing brief.
However, the Secretary’s brief argued that the specific location of MSDS’s and their accessibility to employees
is an element of a violation of section l910.12OO(g)(l). While the Secretary’sview of the meaning of section
1910.1200(g)(l) is incorrect, his posthearing brief is consistent with the factual basis for the charge as set forth
in the citation and complaint.
25
93-1385 (D.C. Cir. June 15, 1993). We conclude that an amendment to section
1910.1200(g)(8) is proper because it does not alter the factual allegations set forth in the
citation. Coastal Pile Driving Inc., 6 BNA OSHC 1133, 1977-78 CCH OSHD ll 22,375
(No. 15043, 1977).
2. Merits of the Violation.
We further conclude that Judge Cronin properly found Safeway in noncompliance
with section 1910.1200(g)(8). In reversing the judge’s decision in price Chopper, on which
Safeway relies, the Commission interpreted the term “available” used in the recordkeeping
standard to mean “present or ready for immediate use.” The Commission expressly held that
the standard does not permit a delay of up to two days in employee access to the log and
summary. 15 BNA OSHC at 1520, 1992 CCH OSHD at p. 40,084.
In Pn’ce Chopper, the Commission stated in dicta that use of FAX could comply with
the standard, citing the Secretary’s program directive under the HCS. Id. at 1520 n.3, 1992
CCH OSHD at p. 40,083 n.3. However, the mere availability of FAX is not sufficient to
establish compliance with the requirement of section 1910.1200(g)(8) that MSDS’s be
“readily accessible during each work shift” if the FAX is itself delayed. As the program
directive states,
This provision requires MSDSs or electronically accessible MSDSs to be
maintained on site. Readable copy of MSDS(s) must be available on-site. This
may be accomplished by use of computers with printers, microfiche machines,
and/or telefax machines, any of which would meet the intent of the standard.
The key to compliance with this provision is that employees have no barriers
to access to the information and that MSDSs be available during the
workshift.. . .
. Employees must have access to the MSDSs and be able to get the
informa&n when they need it, in order for an employer to be in compliance
with the rule.
OSHA Instruction CPL 2-2.38C, Inspection Procedures for the Hazard Communication
Standard,29 CFR 1910.1200,1915.99,1917.28,1918.90,1926.59, and 19I8.21,2 BNAOSHR
Ref. File 31:9502, :9524 (Oct. 22, 1990) (emphasis added). Similarly, the preamble to the
HCS emphasizes the need for prompt access to MSDS’s: “In order for the MSDS to serve
as a source of detailed information on hazards, it must be located close to the workers, and
26
readily available to them during each workshift.” 48 Fed. Reg. 53,337 (1983). Thus, as the
Commission indicated in Super Excavators, the Secretary has acknowledged that making
MSDS’s immediately available through “a facsimile transmitting machine or other device”
would comply with the standard. 15 BNA OSHC at 1315, 1991 CCH OSHD at p. 39,803.
Because a request for an MSDS received after its division office had closed for the evening
would not be honored until at least the next day, we conclude, as did the judge, that Safeway
has not complied with the requirement of section 1910.1200(g)(8). See 7?iomas Linclstrom
(where MSDS’s were kept at a central office 10 to 45 minutes from the worksite,
Commission rejected the employer’s contention that MSDS’s are reasonably accessible if
they can be supplied at any time during the work shift).
Accordingly, we conclude that the judge did not err in his disposition of the issues
before him. The judge assessed no penalties for the other than serious violations of the HCS,
and neither party takes exception to the judge’s assessment. Therefore, for the reasons set
forth above, we affirm his decision.
Edwin G. Foulke, Jr.
Chairman
Velma Montoya
Commissioner
Dated: December 16, 1993
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE: FAX:
COM (202) 6064100 COM(202)606-5050
FTs(202)606-5100 FTs(202)606-5050
SECRETARY OF LABOR,
Complainant,
v. .. Docket No. 91-0373
..
SAFEWAY STORE NO. 914, ..
..
Respondent. l
.
.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
December 16,1993. 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
December 16, 1993
Date
Executive Secretary
Docket No. 91-0373
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. 20210
Tedrick Housh, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 2106
911 Walnut Street
Kansas City, MO 64106
James J. Gonzales, Esquire
Rachel A. Yates, Esquire
Holland & Hart
555 Seventeenth Street, Suite 2900
Post Office Box 8749
Denver, CO 80201
James A. Cronin, Jr.
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UWED STATES OF AMERICA
~WPATlONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW.
4TH FLOOR
WASHING;TON DC. 20006-I 246
FAX:
~&bllO2)6&4-“008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0373
SAFEWAY STORE #914
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LA’W JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 6, 1991. The decision of the Judge
will become a final order of the Commission on January 6, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
December 26, 1991 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revlew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
. Secretary. or call (202) 634-7950.
Date: December 6, 1991
DOCKET NO. 91-0373
NOTiCE IS GIVEN TO THE FOLLO’WING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick Housh, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
Federal Office Bldg., ko& 2106
911 Walnut Street
Kansas City, MO 64106
James J. Gonzales, Esquire
Rachel A, Yates, Esqwe
Holland & Hart
Suite 2900
555 Seventeenth Street
Denver, CO 80202
James A Cronin
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582
001ooo15353:08
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
I
SECRETARY OF LABOR, I
I
Complainant, I
I
v. I OSHRC DOCKET
I NO. 91-0373
SAFEWAY STORE NO. 914, I
I
Respondent. I
I
APPEARANCES:
For the Complainant:
Evert H. Van Wijk, Esq., Kathleen Butterfield,
Esq. I Office of the Solicitor,
U.S. Department of Labor, Kansas City, MO
For the Respondent:
James J. Gonzales, Esq. and Rachel Yates, Esq.,
Holland & Hart, Denver, CO
DECISION AND ORDER
Cronin, Judge:
This proceeding arises under the Occupational Safety and
Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter
called the 89Act1*)o
At all times relevant to this matter, respondent, Safeway
Store No. 914 (Safeway), maintained a workplace at 2321 West
Eisenhower, Loveland, Colorado, where it was engaged in retail
grocery sales. Respondent admits it employs approximately 98
workers and is engaged in a business affecting commerce.
Respondent, therefore, is an employer within the meaning of
the Act,
On October 17, 1990, an Occupational Safety and Health
AdministratfOh (OSHA) Compliance Officer (CO) conducted an
inspection of Safeway Store No. 914 (Tr. 38). As a result of
that inspection Safeway was issued citations on January 4,
1991, alleging a QeriouP violation of 29 CFR §1910.1200(h)
and Vgwillful" violations of 29 CFR §§1910.1200 (e)(l), and
(g)(l), together with total proposed penalties of $16,800.00.
By filing a timely notice of contest to all citations,
Safeway brought this proceeding before the Occupational Safety
and Health Review Commission (Commission).
On April 15, 1991, the Secretary filed a Complaint
recharacterizing the alleged violations of g1910,1200(e)(1)
and (g)(l) as %erious/* withdrawing all allegations concern-
ing the use of Formula 409, and alleging, as an alternative to
~1910.12OO(e(l), a violation of §1910.1200(e)(4).
On August 13, 1991, a hearing was held in Denver,
Colorado. At the hearing,this Judge granted the Secretary%
motion to reclassify all three citations as "other than seri-
ous 0” The parties have submitted briefs, and this matter is
now ready for decision.
Alleged Violations
Citation 1, item 1 alleges:
29 CFR §1910.1200(h): Employees were not provided information
and training as specified in 29 C.F.R. ~1910,1200(h)(1) and
(2) on hazardous chemicals in their work area at the time of
their initial assignment and whenever a new hazard was intro-
duced into their work area:
2
The employer did not adequately provide information and
training for employees exposed to hazardous chemi-
cals/substances in the workplace such as; Regal
Windshield Washer Cleaner, Johnson J-80 Sanitizer, and
Formula 409.
The cited standard provides:
EmDlovee information and training. Employers shall pro-
vide 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.
Citation 2, item 1 alleges:
29 CFR Ql910.1200(e)(l): Employer had not developed or imple-
mented a written hazard communication program which at least
describes how the criteria in 29 CFR ~1910.12OO(f),(g) and (h)
will be met:
( a1 The employer had not developed a complete
hazard communication program for hazardous chemi-
cals/substances such as but not limited to: Regal
Windshield Washer cleaner, Johnson J-80 Sanitizer,
and Formula 409.
The cited standard, in pertinent part, provides:
Written hazard communication Drogram. (1) Employ-
ers 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:
l
(1) Alist 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, . . . .
Citation 2, item 2 alleges:
29 CFR Ql910.12OO(g)(l): Employer did not have a material
safety data sheet for each hazardous chemical which is used in
the workplace:
3
( a1
The'-employer did not have a material safety
da ta shmet on hand for each hazardous sub-
stancqkhemical used in the workplace such as:
Regal Windshield Washer and Johnson J-80 Sanitizer.
The cited standard provides:
Material safety data sheets. (1) Chemical manufac-
turers and importers shall obtain or develop a
material safety data sheet for each hazardous chemi-
cal they produce or import. Employers shall have a
material safety data sheet for each hazardous chemi-
cal which they use.
The standard at 29 CFR §1910.1200(e)(4) provides:
The employer shall make the written hazard communi-
cation program available, upon request, to employ-
ees, their designated representatives, the Assistant
Secretary and the Director, in accordance with the
requirements of 29 CFR 1910.20(e).
Issues
1 Whether citation 2 items 1 and 2 are barred by the
siatute of limitations p;ovided in 59(c) of the Act?
2 Whether Regal Windshield Washer Cleaner and/or Johnson J-
8; Sanitizer are hazardous chemicals as defined by the Hazard
Communication Standard at §1910.1200 et seq. ‘?
3 Whether Safeway established that Regal Windshield Washer
aAd/or Johnson J-8 come within the consumer product exemption
at fs1910.1200(b)(6)(vii)?
4 Whether the Secretary has shown, by a preponderance of the
ekdence, that Safeway was in violation of §1910.12OO(h) on
October 17, 1990.
5 Whether the Secretary has shown, by a preponderance of the
evidence, that Safeway was in violation of §1910.1200(e)(l)
, on
October 17, 1990.
a) In the alternative, whether the Secretary -has shown
that Safeway was in violation of §1910.12OO(e)(4).
.6 Whether the Secretary has shown, by a preponderance of the
e;idence, that Safeway was in violation of §1910.12OO(g)(l) on
October 17, 1990.
4
AS a' result of his prior inspection on August 23, 1989,
of Safeway Store No. 914, the inspecting CO, Peter Dailey,
concluded that respondent had no hazard communication standard
W 0 105). On September 28, 1989, the Secretary issued cita-
tions alleging violation of ~1910.12OO(e)(l), stating that no
written hazard communication program *was available.@ The
Secretary's complaint additionally alleges under the
1200(e)(l) charge that Safeway had not developed or imple-
mented a comprehensive program (Stipulation, Tr. 37-38; Ex. J-
1 I J-2). In 1989, Safeway also was cited for violation of
~1910.1200(g)(l)f based on allegations that no material safety
data sheets (MSDSs) were maintained at Store #914 (Stipula-
tion, Tr. 37-38; Ex. J-l, J-2).
On April 20, 1990, Safeway mailed to complainant a copy
of its hazard communication program which the parties had been
**discussingfor settlement purposes" (Stipulation, Tr. 39; Ex.
C-6). The September 1989 complaint was withdrawn by the Sec-
retary on April 23, 1990 (Ex. J-3), and this case was dis-
missed by this Judge on May 22, 1990.
Safeway contends that the Secretary knew or should have
known of the alleged deficiencies in Safeway's hazard communi-
cation form after the inspection in September 1989 and receipt
of Safeway's hazard communication program in April 1990.
According to respondent, the Secretary, therefore, knew, or
should have known, by April 1990 of all of the facts which
5
later formed the basis of the alleged violations of
1200(e)(1), (e)(4) and (g)(l) in 1991. Respondent argues that
under the circumstances the Secretary% allegations of those
violations in this case are time barred by the statute of
limitations provided in section 9(c) of the Act.
Section 9(c) provides that '[n]ocitation may be issued
after the expiration of six months following the occurrence of
any violation/ In effect, this section bars the Secretary
from issuing a citation more than six months after a violation
has been abated or has ceased to exist.
Additionally, the Commission applies the so-called *dis-
covery rule" to existing violations, whether discrete or con-
tinuing, by holding that the six month statute of limitations
under section 9(c) commences to run on an existing violation
once the Secretary knows or should have known of the viola-
tion's existence. Sun Shix,.Inc., 12 BNA OSHC 1185, 1186 (No.
80-3192, 1985); Kaspar Wire Works, Inc., 13 BNA OSHC 1261,
1262 (No. 85-1060, 1987)/ 2
Compliance Officer Dailey testified that he recommended
issuance of the 1991 ~1910.1200(e)(1) citation based on his
belief that Safeway's hazard communication program was incom-
plete because it did not specify how containers of hazardous
1
In an earlier decision, Yelvington Welding Service, 6 BNA
OSHC 2013 (No. 15958, 1978), the Commission also held that the
running of the statute of limitations is tolled when the
employer% conduct prevents the Secretary of learning of a
violation% existence. That holding, however, has no application
here because there is no indication that Safeway attempted to
conceal the alleged violations in 1989 or 1990.
6
chemicals were to be labeled, did not contain a complete list
of the hazardous chemicals used in the workplace, specifically
Regal Windshield Washer and Johnson J-80 sanitizer, and did
not include procedures for obtaining MSDSs for hazardous chem-
icals when they are introduced into the workplace.
Clearly, Commission precedent bars the Secretary from
citing Safeway on charges that it had no hazard communication
program prior to April 1990, the basis of the 1989 citation.
The 59(c) limitations period also has run on violations
relating to deficiencies that were facially apparent in
Safeway's program in April 1990, because the Secretary knew or
should have discovered those deficiencies upon receiving and
reviewing a copy of the program. Thus, the Secretary is
barred from citing Safeway for any failure to include provi-
sions describing how the labeling requirements of the standard
will be met or hoti MSDSs for new hazardous chemicals will be
obtained.
Commission precedent, however, does not prevent the Sec-
retary from later enforcing OSHA standards against an employer
for violations which may have existed during a prior inspec-
tion but were not readily apparent to the Secretary. Stated
somewhat differently, 59(c) does not impose an affirmative
duty on the Secretary to conduct her investigations so as to
ascertain that all possible violations relating to a general
set of.circumstances have been discovered, or forever forfeit
her ability to regulate in that area.
7
There is no evidence in this record that the Secretary
knew or h&~-reason to know that Regal Windshield Washer and
Johnson J-80 were in use in Store #914 in April 1990, or prior
thereto. The Secretary, therefore, had no reason to know that
the list of hazardous chemicals contained in the April 1990
program was incomplete. The Secretary, then, is not barred
from issuing a citation in 1991 for an alleged violation of
~1910.12OO(e)(l) based on the alleged failure to list Regal
Windshield Washer and Johnson J-80 Sanitizer on its inventory
of hazardous chemicals.
For the same reason, the Secretary is not barred from
charging Safeway in 1991 with a violation of §1910.12OO(g)(l)
for its alleged failure to have MSDSs for those chemicals at
the store. When the 1989 citation for violation of that regu-
lation was issued,the CO believed that respondent had no MSDSs
at the worksite and that was the basis of the charge. At that
time, the Secretary had no reason to investigate further.
Because the Secretary had no reason to know about the Regal
Windshield Washer and the Johnson J-80 prior to the 1990
inspection, the Secretary is not barred from issuing the 1991
1200(g)(1) charge.
Nor ia the amendment of the Secretary's citation
, by the
complaint to charge in the alternative an allegation of viola-
tion of §1910.1200(e)(4) barred by the statute of limitations.
Respondent's failure to make Safeway's complete written hazard
communication program available to the Secretary's CO, upon
8
request, coastitutes a distinct, discrete violation, arising
out of a conrpletelydifferent factual basis than the alleged
subsection (e)(1) and (g)(l) violations. The statute of limi-
tations on respondent's failure to provide the requested
program began to run at the time of the CO’s request and the
date of the inspection, October 17, 1990. Sun Ship Inc.,
supra.
Because the complaint's alleged violation of subsection
(e)(4) in the alternative has a completely distinct factual
basis, than the (e)(l) charge, the (e)(4) charge does not
relate back to the date of the citation. See Rule 15(c) Fed-
eral Rules of Civil Procedure. The complaint, however, was
filed on April 15, 1991 and, thus, comes within the six month
statute of limitations that began to run on the da& of the
request, October 17, 1990.
ADplicabilitv of !U910.1200
The term llhazardous chemicaP is defined at 29 C.F.R.
§1910.12OO(c) as "any chemical which is a physical hazard or a
health hazard." According to 29 C.F.R. §lOlO.l200(d)(3)(i),
chemical substances which are listed in 29 C.F.R. Part 1910,
Subpart 2, Toxic and Hazardous Substances, shall be treated as
hazardous. Also, mixtures which have not been tested as a
whole are assumed to present the same hazards as do their
components which comprise one percent or greater of the mix-
ture. 29 C;F.R. 1910.1200(d)(5)(ii).
9
Regal Windshield Washer contains 1.29 percent methanol, a
chemical substance listed in Subpart 2. Regal Windshield
Washer, therefore, is a lthazardouschemicaP as a matter of
law (Tr. 202, 215; Ex. C-4).
Johnson J-80 Sanitizer contains 1.29 percent n-Alkyl
Dimethyl Benzyl Ammonium Chlorides and 1.29 percent n-Alkyl
Dimethyl Ethyl-Benzyl Ammonium Chlorides (Tr. 200; Ex. C-3).
Although ammonium chlorides are not listed in Subpart Z, the
Secretary maintains they are hazardous chemicals because they
are ttirritants.lt By definition, the term "health hazard**
includes chemicals which are ~5rritants/ See 29 C.F.R.
~1910.1200(c) According to Appendix A to the Hazard Communi-
cation Standard, an irritant is a hazardous chemical and is
defined as a Vhemical * * * which causes a reversible in-
flammatory effect on living tissue by chemical action at the
site of contact.'@
The Hazard Communication Standard requires chemical manu-
facturers and importers to consider the available scientific
evidence in evaluating chemicals. Evidence of hazardous ef-
fects that meets the criteria established in Appendix A for
health hazards must be reported on the MSDS. 29 C.F.R.
~191&1200(d)(2); Appendices A and B. Employers, on the other
hand, need not conduct an independent evaluation of each chem-
ical in their workplace, but may rely on the manufacturer's
MSDS. 29 C.F.R. §1910.1200(d)(l), Appendix B.
10
Under-- the heading, Health Hazard Data, the MSDS for
Johnson J-8@ Sanitizer states that It[d]irect contact of pro-
duct with eyes can cause irritation. Direct contact of pro-
duct with skin can cause irritation. . .. Product spray, mist
fog or vapor may cause irritation to nose, throat and lungs if
adequate ventilation is not employed." (Ex l c-3). In this
Judge's view, a chemical manufacturer's identification of a
health hazard on the MSDS is prima facie evidence that a chem-
ical is hazardous for purposes of the Act. Because the MSDS
for Johnson J-80 identifies it as a skin and eye irritant, it
is prima facie evidence that it is a hazardous chemical for
purposes of the Act.
Respondent conducted no independent evaluation of Johnson
J-80. Respondent, however, introduced the opinion of its
expert, Dr. Gary Kreiger, that the ammonium chlorides in
Johnson J-80 Sanitizer are not hazardous 'chemicals for the
purposes of the standard (Tr. 210). Dr. Kreiger, however,
admitted in effect that undiluted Johnson J-80 is an alkaline
solution with a pH of 8 to 9, and its contact with the eye
could result in a "reversible inflammatory effecttt (Tr. 2140
218).
Based on the MSDS and Dr. Kreiger's admission, this Judge
finds that Johnson J-80 is an irritant and a hazardous chemi-
cal for purposes of the Act.
11
ct or Hazardous Substance Exception
subsection (b)(6)(vii) establishes an exception to the
application of §1910.1200 for:
any consumer product or hazardous substance, as those
terms are defined in the Consumer Product Safety Act (15
U.S.C. 2051 et sea.) and Federal Hazardous Substance Act
15 U.S.C. 1261 et sea.) where the employer can demon-
strate it is used in the workplace in the same manner as
normal consumer use, and which use results in a duration
and frequency of exposure which is not greater than expo-
sures experienced by consumers.
During the October 17, 1990, inspection, Safeway employee
Louise Crouch told CO Dailey that she used Regal Windshield
Washer to clean her scanner glass throughout the day (Tr. 490
50) l Another employee, Rebecca Chambers, testified at the
hearing that she used undiluted Regal in a spray bottle a
couple of times a day to clean checkstand scanners at work
w
(Tr. 236-240).
Regal Windshield Washer fluid clearly is a consumer
product available off-the-shelf at Safeway and other retail
outlets (Tr. 63, 131, 138-139, 249). Regal Is product label
identifies it as an Itall season anti-freeze and cleaner,"
which "cuts road grime, salt, bugs and dirt for better
vision.11 TJsel~directions instruct that the fluid be diluted
with two parts water in summer and used only in well
ventilated areas. (Ex 0 C-l), Safeway employees, William
Allison and Rebecca Chambers, testified that they use the
Regal in their
, homes, not only to fill their cars' windshield
washer reservoirs, but to fill squirt bottles for cleaning
window panes in their homes (Tr l 220-221, 234-235). Mr.
12
Allison has used Regal in this manner for a couple of years
(Tr. 224).
Dr. Krieger testified that methanol, the hazardous ingre-
dient in Regal Windshield Washer, is a common ingredient in
antifreeze, and paint and varnish removers (Tr0 191). Dr.
Krieger stated that a checker spraying Regal onto a 8-1/2~txll~1
scanner would be exposed to significantly smaller quantities
of methanol than would a consumer adding anti-freeze to his
car, cleaning paint brushes, or cleaning larger areas of
glass, i.e. windows at home (Tr. 196499).
The Secretary concedes that Regal is a consumer product,
but contends that the product is not used by Safeway in the
same manner as by normal consumers, and results in exposures
greater than those of the normal consumer.
This Judge disagrees. Consumers do not always use
products solely in the intended manner or for their intended
purpose. Although Regal is not specifically intended for use
as a household window cleaner, its use for such purpose is
reasonably predictable given its primary function as a glass
cleaner. Nothing in the record indicates that Mr. Allison or
Ms. Chambers are not normal consumers or that their use of the
Regal Windshield Washer was idiosyncratic.
Dr l Krieger's opinion that the Safeway checkers' use of
Regal Windshield Washer did not result in exposures greater
than those experienced by consumers also was unrefuted.
13
The respondent has demonstrated that Regal Windshield
Washer falls within the exemption for consumer products pro-
vided by subsection (b)(6)(vii). The requirements of
§1910.1200 et seq., therefore, are not applicable to Regal,
and all allegations concerning it are vacated.
Johnson J-80 Sanitizer is a lthazardoussubstance1tunder
the Federal Hazardous Substance Act, which covers 'Iany sub-
stance or mixture of substances which . . . is an irritant."
15 U.S.C. 126l(f)(l)(A)(iii). The consumer exemption, how-
ever, does not apply to Johnson J-80 Sanitizer.
Respondent introduced no evidence that Johnson J-80 Sani-
tizer was available to or used by household consumers. More-
over, the label from the J-80 indicates that the product is
intended for Vommercial Markets" (Ex. C-2). Dr. Krieger,
however, did testify that products containing ordinary ammo-
nium compounds, the general class of compounds to which n-
Alkyl Dimethyl Benzyl Ammonium Chloride and n-Alkyl Dimethyl
Ethyl-Benzyl Ammonium Chlorides belong, are available to con-
sumers. Dr. Krieger stated that the ordinary ammonium com-
pounds appear not only in solutions used by restaurants for
cleaning utensils and equipment, but in disinfectants, and
germicides for home wound cleansing (Tr0 200-201). Dr.
Krieger stated that home germicidals contain anywhere from .Ol
to l-1/2 percent concentrations of the compounds (Tr. 2010
202). Johnson J-80 Sanitizer, of course, contains 1.29
14
c
14
percent m-< of Benzyl and Ethyl-Benzyl Ammonium Chlorides
(Tr. 202; me c-3).
This Judge finds that respondent failed to
establish a normal consumer use of Johnson J-80 or any sub-
stantially similar product. Respondent's expert testified
that products available for home use normally contain between
0 01 to l-l/2 percent concentrations of ammonium compounds.
Apparently, Dr. Krieger believed that Johnson J-80 fell within
that range (Tr. 209). But Johnson l-80, in fact, contains a
total of 2.58 percent, far higher than the customary concen-
trated solutions available to and used by consumers. Although
the J-80 is diluted before use, respondent's employees must
perform the dilution, at which time they are exposed to the
full strength solution.
On this record, respondent has failed to prove that
Johnson J-80 comes within the exemption provided by 29 C.F.R.
Alleaed Violation of 51910.12OO~e~U), and
§1910.1200(e) (4) in the Alternative
Subsection (e)(l) requires that employers develop, imple-
ment and maintain at the workplace, a written hazard communi-
cation program which includes, among other things,
. a list of
the hazardous chemicals known to be present in the workplace.
Johnson J-80, which is at1 hazardous chemical,1twas used
by Safeway No. 914 employees. Patricia Williams, a Safeway
employee, testified that she used Johnson J-80 for sanitizing
the lids of bulk bins in the bulk food area. Ms. Williams
15
would dilute approximately a quarter of a teaspoon of J-80 in
a 32 OZ. spray bottle filled with water before spraying it on
the lids (Tr. 169-170). Paul Trinidad testified that within
two or three months of the October 17 inspection he diluted a
couple of capfuls of J-80 into a paint can size tub of water
and used it on a rag to clean a display (Tr. 155-161).
It is undisputed that Johnson J-80 Sanitizer, a non-
exempt hazardous chemical, does not appear on respondent's
MSDS inventory, the only listing of hazardous chemicals found
in Safeway's program (Tr. 85, 134; Ex. C-6).
Respondent, therefore, is found in violation of subsec-
tion (e)(l) on October 17, 1990, and citation 2, item 1 is
affirmed. Because the respondent is found to have violated
the originally cited standard, there is no need to consider
the alternative allegation of a subsection (e)(4) violation.
Alleaed Violation of U910.1200(a) (1)
The cited standard requires the employer to have an MSDS
for each hazardous chemical it uses. The subsection goes on
to prescribe that the MSDSs must be readily accessible to
employees during each work shift. 29 C.F.R. §1900.12OO(g)(8).
The CO testified that at the time of the inspection an MSDS
was not available for Johnson J-80 Sanitizer at the workplace
(Tr. 113-114).
Respondent maintains that during the course of their
training, employees are given instructions for obtaining MSDSs
for any product in the store from Safeway's Loss Control
16
office (!I% 249). Maurice Ray Berry, Safeway's Loss Control
Manager, testified that an MSDS for Johnson J-80 was available
in that office (Tr. 249). Upon request, Loss Control would
send a copy of the MSDS, by Fax or delivery truck to the
requesting store (Tr. 249). The Loss Control office keeps
normal office hours, however, and requests received after
hours would be recorded on voice mail and no action taken
until the next morning (Tr. 256).
Retention of MSDSs at a distant location where they are
inaccessible to employees working weekends or evenings,
clearly fails to comply with the strictures of subsection
(g)(8), which require MSDSs to be readily accessible.
Because an alleged violation of §1910.12OO(g)(8) was
tried by the implied consent of the parties, Item 2, of Cita-
tion 2, is amended to conform to the evidence to allege a
violation of §12OO(g)(8). As amended, item 2 is affirmed.
Alleged Violation of S1910.1200(h)
The cited standard requires employers to train employees
on the specific hazardous chemicals which they will encounter
in their work area. Employees must be informed of any opera-
tions in their work area where hazardous chemicals are present
(~1910.1200(h)(l)(ii)) and trained at least as to the physical
and health hazards associated with, and the measures which may
be taken to protect themselves from, exposure to those chemi-
cals (§1910.1200(h)(2)(ii) and (iii)).
17
..
1
The Secretary concedes that Safeway employees participat-
ed in a chemical hazard safety training program, which includ-
ed a video and handbook generally explaining chemical hazards
(Tr. 244-246, Ex. C-6, R-9, R-10, R-11). The Secretary, how-
ever, contends that employees be using Johnson J-80 Sanitizer
received no information specifically concerning that product.
Paul Trinidad testified that although he received chemi-
cal hazard training upon being hired, he was not given any
information regarding the possible health hazards of Johnson
J-80 (Tr. 164-165).
Patricia Williams also received general training, but
could not recall whether Johnson J-80 had been specifically
mentioned (Tr. 171).
Respondent contends that employees were instructed to
read the MSDS for any product they used in their work (Tr.
268). But as. previously found, no MSDS for-Johnson J-80 was
available at the worksite.
Maurice Berry testified, on cross-examination, without
elaboration, that training on Johnson J-80 is provided as part
of the training program (Tr. 257) and that instructions for
the proper use of J-80 are posted in Safeway's meat department
(Tr l 257). But Mr, Berry's mere assertion that training was
provided cannot be credited in the absence of any evidence
that Mr. Berry had first hand knowledge of Store No. 914's
training with respect to Johnson J-80 and without any details
as to the specific training provided.
18
RespOndat also failed to introduce the meat department's
use instructions for J-80. Without them, this Judge cannot
conclude that the V%nstructionsllcontain the hazard informa-
tion required by subsection (h). Moreover, there is no evi-
dence that Safeway made these instructions available to Mr.
Trinidad.
Based on the testimony of employee Trinidad and the fact
that Store #914 had no MSDS on hand for Johnson J-80, this
Judge finds that more probably than not Safeway did not pro-
vide information and training on Johnson J-80 to all of its
employees using the chemical. Respondent is found in viola-
tion of §1910.1200(h) on October 17, 1990, and citation 1,
item 1 is affirmed.
Penalties
The determination of what constitutes an appropriate
penalty is within the discretion of the Review Commission.
Long Manufacturing Co. v. OSHRC, 554 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 prin-
ciple factor to be considered. Nacirema Operating Co., 1 BNA
OSHC 1001, (No. 4, 1972).
Respondent
. employs approximately 98 employees. The Sec-
retary introduced no evidence of bad faith or of any previous
violations by respondent. The citations are all classified as
19
.
"other thw serious," and only two employees were exposed,
intermittently, and briefly, to the proven hazard. Also, no
penalties for the amended *otherthan serious'violations were
proposed by the Secretary.
Because this record fails to establish the appropriate-
ness of any penalty, the violations will be affirmed without
penalty.
Findings of Fact
All findings of fact relevant and necessary to a deter-
mination 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 that are
inconsistent with this decision are denied.
Conclusions of Law
10 Section 9(c) of the Act did not time bar the complainant
from issuing a citation on January 4, 1991, charging viola-
tions of §1910.1200(e)(l) and (g)(1).
20 Section 9(c) of the Act did not time bar the complainant
on April 15, 1991 from amending the citation of January 4,
1991 by charging a violation of §1910.1200(e)(4) in the alter-
native.
3 0 Regal Windshield Washer Cleaner and Johnson J-80 Sanitizer
are hazardous chemicals as defined by the Hazard Communication
Standard at §1910.1200 et seq.
20
40 Regal Windshield Washer comes within the exemption at
§1910.12OO(b)(6)(vii) and is not subject to the application of
the Hazard Communication Standard.
5 l Johnson J-80 Sanitizer does not come within the exemption
at ~1910.12OO(b),(6)(vii) and is subject to the application of
the Hazard Communication Standard.
6 l Respondent was in violation of §1910,1200(h) on October
17f 1990.
7 l Respondent was in violation of ~1910,1200(e)(1) on October
17 , 1990.
8 0 Respondent was in violation of §1910.12OO(g)(8) on October
17, 1990.
ORDER
10 An other than serious violation of §1910.1200(h), is
AFFIRMED, without penalty,
2 l An other than serious violation of §19lO.l200(e)(l), is
AFFIRMED, without penalty.
3 l An other than serious violation of §1910.12OO(g)(8), is
AFFIRMED, without penalty,
.
Dated: November 25, 1991
21
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