G-UB-MK Constructors

Plain-English summary

G-UB-MK repaired and modified boiler unit no. 5 at TVA's Colbert Fossil Plant in Alabama. Initial arsenic monitoring found ten of eleven sampled employees above the permissible exposure limit, but written notice was delayed and requested records were not promptly provided to OSHA or the site labor representative. Asbestos monitoring remained below the action level, yet later results requested by the representative were not furnished directly for several months. The judge also found that G-UB-MK had adopted TVA's hazard-communication program without tailoring it to its own chemicals and responsibilities and had not provided required chemical or respirator training. Most arsenic, asbestos, hazard-communication, exposure-record, and respirator-training items were affirmed. A written-respirator-program item and a missing safety-data-sheet item were vacated, and total penalties were $6,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.1018(e)(5)(i), 1910.1018(q)(3), 1926.58(n)(5)(ii), 1926.59(e)(1), 1926.59(h), 1910.20(g)(1), 1910.134(b)(1), 1910.134(b)(3), and 1926.59(g)(8).
• Outcome: Mixed. Seven citation items or grouped items were affirmed and two were vacated, with total penalties of $6,500.
• Key point: A contractor may adopt another employer's safety program only if it is tailored to the contractor's own hazards, records, training duties, and employees.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E.. SUITE 240
ATLANTA, GEORGIA 30309-3119 -.

                                                                                    FAX

PHONE: COM (404) 347411
cm4(404)347497 m (404) 347~a113
Frs(404)
3474197

SECRETARY OF LABOR,

               Complainant,
                                                 0
           v.                                    a       OSHRC Docket No. 92-3040
                                                 0
                                                 0

G-UB-MK CONSTRUCTORS, 0
l

                                                 0
                                                 0




               Respondent.                       0
                                                 0
                                                 l




   JosephB. Lucbt, Esqpire
     ome of the solicitor
     u. s. Departmentof Labor
     NashWe,Tennessee
       For complaiannt

Before: Administrative Law Judge Edwin G. Salyers

   This promding        arises under the Occupational safety and Health Act of 1970

(29 USC., 8 651, of q, hereafter refened to as the Act).
Rcspcmdent,G-UB-MK Constructors(G-UB-MK), at all times relevant to this action
maintained a place of business at the Tennessee Valley Authority’s (TVA’s) Colbert Fossil
Plant in Tuscumbia, Alabama, where it was engaged in modification and maintcnsnce of
steam generator units (boilers) (Tr. 541,600). Respondent admits it is an employer engaged
in a business affecting commerce and is subject to the requirements of the Act.
 On May 27 and 28, 1992, following receipt of an employee complaint, &
Occupational Safbty and Health Administration (OSHA) conducted an inspection of
G-LJBMX?s Mkt works&e (Tr. 11,14,20). As a result of the inspection, G-UB-m m
issued citaticsns alkgine a number of violations of the Act, together with proposed penalties.
G-LJElklK filed a timely notice contesting the alleged violations in their entirety, bringing
this matter before the Occupational safety and Health Review Commission (Commission).
On April 27 and 29,1993, a hearing was held in Florence, Alabama, on the contested
issues. The parties have submitted briefs and this matter is ready for disposition

   Serious Citation No. 1 alleges:
   1
   29 CFR 1910.1018(e)(5)(i): Each employee was not notified in writingwithin
   five (5) working days after receipt of monitoring results, which rem
   that employee’s exposure to inorganic arsenic:                       .

          a) Boiler 5, results of exposure monitoring were not pravi&i . to
          employees in writing within 5 days of receipt.

   2a
   The alleged violations below have been grouped because they involve similar
   or related hazards that may increase the potential for illness.

   29 CFR 1910.1018(q)(3)(i): All records for inorganic arsenic rquired to be
   maintained by paragraph (s) of this section were not made availabk upon
   rquest to the Assistant Secretary and the Director for examjnation and
   copying:

          a)   Boiler 5, records of all eqosur~ monitoring were not made
          &k        for examination and copying.

   2b
   29 CFR 1910.1018(q)(3)(ii): R ecords requested, which are required to be
   maintained by paragraph (q) of this section, were not provided to employees,
   designated representative and Assistant Secretary:

a) Boi&r 5, S& l&or representative did not receive arsenic exposure
mom ra& after a written request was filed with the site
=w=

3
29 CFR 19263@)(5)(ii): Upon request, the employer did not make any
exposure records required by 29 CFR 19263(f) and (II) available for
eation and co- - to affected employees, former employees, designated
representatives, or the Assistant Secretary in a~rdak with 29cFR
1~10.2O(a)-(e) and W(i):

   a) Boiler 5: site labor representative did not receive asbestos CXPOSUfC
   monitoring results after a written &quest was filed with1 the site
   manager.

4
29 CFR 1926.59(e)(l): Employer had not developed or impkmented a
written hazard communication program which describes how the criteria in 29
CFR 1926.59(f), (g), and (h) will be met:

   a) Boiler 5, a written hazard communication program had IK%been
   developed for employees exposed to Mar&us chemicaIs ti       a~
   asbestos, arsenic, welding fimes and ceramic Ever.

5
29 CFR 1926.59(h): Employees were not provided information and traking
as specified in 29 CFR 1926.59(h)(l) and (2) on hazardous chemicals in their
work area at the time of their initial assignment and whenever a IEWhazard
was introduced into their work area:

   a) Boiler 5, information and trainingwere not provided for employees
   exposed to hazardous chemicals such as asbestos, arsenic, welding
   fumes and ceramic fiber.

“Other” than serious Citation No. 2 alleges:

1
29 CFR 191OSo(g)(1): The employer did not provide current employees upon
their fint entering into employment and at least annually thereafter the
information required in 29 CFR 1910.20(g)(l)(i) -(iii):
 a) Boili& 5, at the time of initial emplqment employees were not
info- of the existence, location, and availability of records covered
by 29 CFR 191020. They were not infkxmedof the person responsible
ti m&t&,&g md providingaccess to records or of their rights of
aaxsatotherecords.

  2
  29 CFR 1910.134@)( 1): Writtenstandard operating procedures governing the
  selectionand use of respirators were not established:

         a) Boiler 5, a written program was not developed for respirators used
         to pmvide protection against contaminants,such as arsenic, weld&q
         fumes, and ceramic fibers.             .

  3
  29 CFR 1910.134(b)(3): The users of respirators were not instructed. and
                                                                        I
  trained in the proper use of respirators and their limitations:          .
         a) Boiler 5, trainingwas not prwided to employees wearing diqaabk
         respirators.

  4
  29 CFR 192659(g)(8): Employer did not maintain copies of the rquired
  material safety data sheets for each hazardous chemical in the workpti ti
  ensure that they were readily acces&le to the employees in their WoTkarea
  duringeach work shift:

         a) Boiler 5, material safety data sheets were not available for wekiing
         rods which contain -dous       chemicals.

Fossilfuels,including coal, are commonly known to contain arsenic; when coal is burned,
arsenic becomes concentrated in the cinders that result from combustion (Tr. 344). In a
boiler, keed arsenic lodges in the boiler’s pipes and may also be found in the boiler’s
particulate byproduct, Vyash” (Tr. 24).
Employees cutting pipe in the CoIbert No. 5 boiler’s economjxr and precipitator, a
collection device on the boiler’s smoke stack which filters the combustion gases produced
by the boiler, could be expected to release some form of arsenic into the air (Tr. 27,
345-346). Rolf Amundson, G-UB-MK’s site manager (Tr. 625), testified that TVA arsenic

                                        4

sampljlls had been rcvicmd and that G-UB-MKwas aware there was a potential for arsenic
exposure%iI2thtarca,although past samplings had been well below PEL levels (Tr. 633).
NO- E,mimm, an incbtrial hygiene and environmental consulting firm retained 4
G-UBAdK,fint comhted arsenic monitoring in G-UB-MK’s work areas in the econobr
ad precipitator on April 17, 1992 (Exh. C-4; Tr. 492-494, 502). The results of the
moitoag were sent to a lab for analysis and the results made available by phone to Don
Fee&l, G-UBMK’s area safety engineer, on approximately April 21,1992 (Tr. 46498).
Further monitoring was performed on April 22, May 5 and May 20 pro 24, 495). At
Feezell’s request, a complete package documenting the monitoring results was not provided
to Feezell until all the monitoringwas completed in mid-May (Tr. 499).
Eleven employees were monitored on April 17; ten registered exposures OIICT
OSHA%
permissible vure limit (PEL) of 10 micqrams per cubic meter =m ovct an
eight-hour day (‘T’r.42). The highest exposure, 149.15 micrograms ptf cubic aiicter, y

. believed to be a fklse reading (Exh. C-4; Tr. 42, 507-509). Other read@ s&b ’ J
overexposures from 223 to 59.4 micrograms per cubic meter for the same day & k& ‘- ,
No overexposures were registered during later monitoring (E&s. C-S, Cb, C-7; h. 43-#).
Bobby Terrell, the boilermaker’s general foreman, test&d that Don FeeAl tokI him
verbally of the arsenic results twelve to thirteen days after the initial arsenk monitoring
(Tr. 721-726). Terrell stated all workers engaged at the economizer were oraIly noti&d of
the monitoring results at that time (Tr. 722-726). Terry White, a boilermaker monitored for
exposure to arsenic on April 17 (Tr. 274-276), testified, however, that he was unaware that
he had been exposed to arsenic until a safety meeting on the subject of asbcstc~ was held ’
shortly before May 22 (Tr. 281-283).
Emplq~~ who had actually been monitored were eventually noti&d in writing of
the monitoring ra~M in letters drafted May 21, 1992 (Exh. R-Q Tr. l23,441-42,698).
Compm OEticer Sharon RatlE testified that on May 28 she was told by Amundson
employees had not yet been notified (Tr. 29, 802). Terry White testified he received the
monitoring results in a letter postmarked May 27 or 28 (Tr. 278). Other employees working
in the area where monitoring was taking place were not notified in writing oft,& results (Tr.
123-124; See also testimony of Randy Pittman, Tr. 569-571). On May 28, Compliance
.
5
officer miff requested &a&son to provide her with G-LJBMC’s records of arsenic
qm nao&Dhg at that time (Tr. 35, TIO,799-801). Amundson refused Statingthat &e
data he had was not annpktc (Tr. 35036,7~~,811).
IMid Faulkner, a site labor representative for Tennessee Vaiky Trades and I&or
council, told Raiff that on approximately May 22, 1992, he had asked G-UB-MK to
provide him with arsenic monitoring results, had been refused, and had not yet received any
monitoring documents (Tr. 47; Set & testimony of Faulkner, Tr. 21~220,223). Faulkner
further requested monitoring test results in a letter to Amundson dated May al992 (E&.
C-9; Tr. 47-49). On August 31,1992, Faulkner told RatliE he had not yet received a copy
of the arsenic monitoring (Tr. 50). Fauttcncttestified that he receivedthe arsenicmonitoring
on October -1992 (Tr. 225).
Compliance Officer Ratliff testified that arsenic has been lwmg&ed 81 a muse of
lung and skin cancer, as well as dermatitis and nasal petiorations (Tr. 33). Dr. Cbri schuttz,
a boardartified to&ologist called by the Secretary (Tr. 312-342) agreed, m that
inorganic arsenic is a carcinogen known to cause rcspiratoq pmbkms and h& aixi *@kin
cancer in exposed populations (Tr. 343). Higher qosures for 10-r periods &rcrociatea
with higher incidents of disease (Tr. 402). Schultz stated that cancer in humans exposed to
carcinogens is a progressive disease. Specific symptoms may not appear until fifteen to thirty
years after the initial exposure (Tr. 349).
Respondent’s expert, Dr. Rupert Burtan, a board-certi&i spccWst in occupational
and emironmental medicine (Tr. 371), took the view the arsenic -es su&red by
G-UB-MK’s employees in the case at bar were unlikely to lead to serious ilhxss or death
(Tr. 421-423)? However, Dr. Schultz opined, %ith a reasonable degree of scientific
certainty,” that the uqxmre of G-UB-IMKYsemployees to the levels of &rscnic they
encountered in boiler No. 5 increased their risk of developing respiratory cancer and

l Dr. Bwtan admitted, however,that his opinion (to the efhct that them is a thmhdd apcmm to
carch~gensbebw whichcanax is not a risk),is disputedin the scicnti&communitym. 426A3O).

                                          6

de-t&is2 (Tr. 34&349,355). For reasons which will be discus& below (see Classi&ation
sectian, pg. 8, &@w),the court concludes it is unnv for the secretary to shw an
~edatc cxpm to serious injuryto meet the burden of proof under the citedsmdard,
As Rptfmcm&m& in her testimony, unless monitoring records are maintained and
provided, employeesdo not larowwhether to request protective equipment or seek medical
treatment (Tr. 54), nor can OSHA ascertain an employer’s compliance with the arsenic
standard or ensure employees’ protection (Tr. 53).

                                           .       l   l   .


                                      &lxab&ty

     G-UB-MK arguesthat the inorganicarsenicregulationswere never intendedto apply

to the intermittentarsenic exposureencounteredby worken at coal-fired-1 planff
Section 1910.1018(a) unambiguouslystates:

     This section applies to ai2 occupationalexposures to inorg@c arse&c epecpt
     that this section does not apply to employtt qosures inagricultpnar
     resxiltingfrom pesticide application,the treatmentof woodwithmtiv~
     or the utilizationof arsenicallypreserved wood (Emphasis added)

     Section 3 1910.1018, et seq., is, on its fact, applicable to G-UBMK?s operation.

Because the scope of the regulation is clear, it is neither neccsary nor proper to look to
secondary sources to discover the drafter’sintent. Alaska lbd Fm Ak h Gc&nAge
Fisti, 15 BNA OSHC 1699,1992 CCH OSHD V 29,758 (Nos. 8%1017 8t 8!M192,1992).

                            Serious Citation No. 1. Item 1

     Section 1910.1018(e)(S)(i) provides that:
     Within &c (5) worUg days after the receipt of motitoring red& the
     empkycr W notifjveach employee in writing of the results which represent
     that anpbyee’
                 s exposures.

2 Dr. Burtanadmittedthat the literaturein the fieldpointsto inorpnicarsenic as a causeof lrragcan=,
althoughhe stated his ownresearchfailedto showsucha amelation (Tr.379. Skindamp, howeuer,was
foundin the studygroup Bunan cikmsed (Tr.386).

                                               7

It is undisputed that each employee working in boiler No. 5 was not not&d h
writ@ of - rcs&s which represented that employee’s exposure to inorganic
arsenicm M-, GUB-MK admits that the notifications that were sent out were not
pe within five working days after G-UB-MK’s receipt of the monitoring results (Tr.
32). A violation of 8 1910.1018(e)(5)(i) is, therefore,established.

   G-UB-MK disputes the classification of the violation as “serious,"               arguing that

employeeoverexposures were insufficient and the delays in notification too brief to actually
result in serious bodily harm.
According to 0 17(k) of the Act, a violation is considered serious if olt vio~@m -.
condition or practice gives rise to a “substantialprobabili~ of death or seri&
.?F@
harm. The test for determining the serious nature of violations of monitaring &&q-4
.
.i 4
standardsis not, therefore, whether actual overexposures to toxic materials q m apP
. -
the Secretary. The substantial probabilityof death or serious physical harm mqui@
. l$U& -”
Act refers not to any actual injwy but to the probabilitythat the hwmd ack#f’ro’lm
prevented by a given standard could reslt in death or serious physical harm. D~-Trrm
Corp., 15 BNA OSHC 2072, 1993 CCH OSHD 1 29,942 (No. 8SOS23, lS3); Hte@
Dot&ev. O.SXRC, 725 F.2d 1237 (9th Cir. 1984).
The Secretary has sufficiently established that employees unWtin& exposed to
known carcinogens over their working life are exposed to a serious risk of ham. Eqmsures
to carcinogens are admittedly cumulative; timely written noti&ation of exposures is,
therefore, rquired to allow exposed employees to track their increased risk of developing
camm3 Such inhmation allows the employees to determine for themselves the need far
medical m ot to refbse future work in areas of potential cxpomrc. This is
especial@ imprtant where, as here, single job employers do not maintain medical
surveillance for itinerant laborers. Failure to provide the required not-i&Won within the

3 As evideaoedby the testimony of employee Terry White,oral notification play an WXIUC bunkn on the
empkqvceto rccalfand reaxd monitoring results and is inadequateto fiai6llthe requirements e pofpo~c
of the standard.

                                              8

me pw established by the standard could result in unacceptable cumu18oivtvura
for some wmbU%

   The Sccrctay has proposed a penaity of S2JSO.
   The gravity of the cited violation is moderate. Approximately forty boilermakers

worked in the economizerarea for a three- to five-week period (Tr. 34, 5657). Large .
overe~ures were recordedin the earliest monitoring, April 17. Although some workers
were provided oral notification of the results, monitored employees did not receive written
notification of their exposures until over a month later, exposed employees not monitored
received no written notification.
G-UEMK is a large company Fro 97, S%S97) with 427 craBmen 011the C&ut
worksiteat one point(Tr. 628). It has no histoq of priorviolationsvr. 97). T&cSecretq
denieda good faith reductionbased on G-UB-MK’s f&ilureto implementa rasetgand he&h
prugram at the Colbert site (Tr. 98).
0
Taking the relevant factors into amsideration, the mWrqned tieibatan
additional 10 per cent reduction for good f&&his warranted. Due to time constraints (Tr.
604), G-UB-MK temporarilyadopted TVA’s safety and health program rather than develop
their own (Tr. 605610). Although, as discussed below, that pmgram may not havle been
tailored to mext the specific requirements of G-UB-MK’scontract,this Judge cannot say the
deficiencies in the program are suf&ientiy flagrant to demonstrate bad fhith. In view of this
circumstance, and considering the gravity factor to be moderate, a penalty of $1,500 will be -
assessed.

                          Serious Citaiou No. 1. Item 2a

   Scctb    19l(HOl8&)(3)(i) rquires that=
   The cmpwr shall make available upon request all records rquired to be
   maintained by paragraph (q) of this section to the Assistant Secretary and the
   Director for examination and copying.




                                         9

The regulatioa ckarly states that records rquired under the Act shall b prha
to h mq v m. The immediate compliance requisite precludes the fabrication
or sa&izatial Of required records.4 G-UB-MK’s refusal to provide the requested records
to complianct mr &iff at the time of the inspection, therefore, ConstitUeSa violation
of the Act.

                                          Penalties
    Items 2a and 2b involve similar hazards that kay increase the potential for harm.

The proposed combined penalty is discussed beluw.

                             Serious Citation    No. 1. Item 2b

    Section 1910.1018&)(3)(ii) provides:
    Records required by this paragraph shall be provided upon request to
    employees, designated representatives, and the As&ant Secretq in
    accordance with 29 CFIR1910.20(a) through (e) and (a) through (IQ

    Site representative Faulkner’s undisputed testimony establishes that ribe v

Amundson w aware that Faulkner’s May 28,1992, letter reque&ng WI tc~;tre&ts”
referred, &W&J, to arsenic monitoring results, which Faulkner hadverHlyrequegted hm
Amu&son a few days earlier. It is also undisputed that Faulkner did not receive the
requested monitoring until October 22,1992. TM circumstance cstablidhes a violation of
the cited standard.

                                       Classification

    G-UB-MK argues that its failure to provide the required records should be classed

aS&minimis, The commission, however, has held that access to medical and exposure
records can play a crucial role in protecting employee health where employees are exposed
to toxic substances within the scope of their employment. GmeMl htibtm cop,

4 There is no suction, and this Judgedoes not imply,thatG-UB-MKs M&al to providecxp~~ tdcords
was so motivated.

                                                10      .

E&p&htiw Lk, 14 BNA OSHC 2064, ‘1991 CCH MHD 1 29,m (Nos. 82630,
&731& 84-816 1991). G-UB-MK employees were wcmcposured to arsenic for m *’
m&e- period Failure to provide the compliance offi~r ad employee
rep~~~~dth monitoringresults delayed
. their ability to evaluate the arsenic hazard and
assess h~ n& for enghwing or work prxticc controk The violation here was properly
deemed serious.

    The Secretary propcxs a combined penalty of S2,2!50.

    The rekvant fkctor~ have been set forth in the penalty section for item 1. For the

reasons discwed there, the proposed penalty is deemed excessive. The court mrs the
gravity factor to be moderate for items 2(a) and (b), and a further reduction f& @ fUth
is allowed. A total penalty of $1,500 is assess&

    G-UB-MK had contracted with TVA to repair botr No. 5, rep-                 the q&eat

element and economizer tube, and rehabilitating the chimney, precipitator and turbo
generator (Exh. C-8, C-8a; Tr. 71, 532). TlGs was undertaken in addition to “regular
operations on end work maintenance” (Tr. 532). On the date of the ins- G-UB-MK
employees were engaged in cuttingand welding pipe in the 44penthouse”at the top of boiler
No. 5 (T’r. M-17).
G-UB-MK was aw8fe that asbest= insulation had originaQ been used in the No. 5
boiler, but be&v& that it had since been removed (Tr. 632-633,753). Mbcstos monitoring
was conducted in the penthouse on May 7,lm tier an inspector d&covered suspicious
insulating material in the penthouse (Tr. 54&,633634), a& from May 19 through the date
of the iqection vr. 59). Asbestos results rquire no laboratory testing and are available
within thirty minutes of sampling (Tr. 503). The results of this monitoring were provided
to the boilermakers’ union job steward and posted at the boilermakers’lunchroom and tool
room (Tr. 459, 487,639, 657658,717, 720-721). All results obtained in monitoring were

                                             11

below the OSHA PEL of .2 fibers per cubic centimeter over an eight-hour day, and belw
the action led of .l &CIS per cubiccentimeter (Tr. 60).
David F~~IWX testBed that he requested asbestos monitoring results from F-u
and Amundsoft OUIw 18 or 20,1992, after leaming that boilermakers had been exposed
to asbcsfos in the penthouse (Tr. 212~215,242-244). Faulkner stated that he was advised
d the data was not yet in (Tr. 216). However, a May 20,1992, letter addressed to Famer
containingasbestos sampling results was given to Faulkner by another empee on or about
May22,1992 (T’r.221). Faulkner admitted its contents were readily availabk to employees
on the site (Tr. 234). Faulkner received the results of monitoring conducted after May 20
on October 2& 1992 (Tr. 236437).
On May 28,1992, Faulkner filed a grievance with Amundson which requested
. that

the asbestos results be sent to the union halls of the trades represented on GIaWa
Colbert worksite and posted at the worksite itself(J&h. C-9; Tr. 222423,2!Bj. *

to monitoring records, employees cannot know whethertheyare beingmwp&cMd
Gramexposure to asbestos, or whether to seek medical attention (Tr. 62). Appmdmateb
forty employees were working in the penthouse area when monitoring was conducted vr.
63)a

                    &@icabi&     of the &Mruction Standards

   Part 1926 of the Act contains the safety and health regulations far amstn&on.

Those regulations are applicable to employers who are actually engqcd in construction, -
alteration and/or repair of a buildingor structure,or who are engaged in operations that are
an integral and mxssary part of construction work. Uhibd Giwp@dd Ckxp, 9 BNA
OSHC 2117,lSl CCH OSHD 125,579 (No. 784265, Ml), afid withwpub&W om,
683 F.2d 4U (5th cit. 1982).
The Secretary has established that G-UB-MK was engaged in amstructioz~
G-UB-MK contracted solely for, and was engaged solely in, the repair, alteration and
maintenance of TVA structures;specifically
Wler unitNo. 5. G-UB-&K’s operations were
separate fkom, and in no way ancillary, to the actual operation of the boiler unit. Set m

                                         12

ug ConiForiy,7 BNA OSHC 1744,1979 cm == 123,914 (No. 15169,1979), offd,
645 F.u 822 (9th cir. 19sl). ‘I’hecited construction standards are applicable.

                               serious CitatiouNo. 1. Item 3

       The citation states:
       29 CFR 1926.58(n)(5)@): Upon rquest, the employer did not make any
       exposure records required by 29 CFR 1926.58(f) and (n) availabk for
       examination and copyingto aELectedemployees, formeremployees,designated
       representatives, or the Assistant Secretary - in accordance with 29 CFR
       191020(a)-(e) and (g)-(i):

              a) Boiler 5, site labor representative did not receive asbestos exposure
              monitoring results after a written request was Ekd with the site
              manager.

       The record establishesthat site representativeFamer          reqwsted, m w        ~gt

. provided asbestos exposure monitoring results taken after May 2Q 1992, until-.=+, -
1992 However, those results were posted on the site and were readQ av@#bk,to 4
employees as well as to Faulkner, whose duties took him to the work areas for di the crafb
on the site. As a practical matter, the court concIudes respondent substantialiycomplied
with the intent of the standard by posting the results at the worksite. It did, h-r,
seriously violate the standard’s mandate to furnish the results to the empbyees designignated
representation upon rquest. The gravityfactor is considered low, and a pen&y of $500 is
deemed appropriate.

                               Alld   violatiousof6 1926J9

       It is undisputed that G-UB-MK employees were exposed to hazardous chemicals
including rwbestos, arsenic, welding fumes and ceramic Ebers (Tr. 64,70-71), and that a
written hazmkns communication program was, therefom required at the site.
       ‘Because of time constraints, G-UB-MK had not developed their own program, but
expressly adopted the TVA program in its entirety (Exh. R-l; Tr. 65,157,603-604,675-676).
The TVA program, however, did not contain a list of chemicals which G-UB-MK employees
would be using (Tr. 66,146).    III addition, the TVA programstates that TVA’s technical

                                             13

SC- would be responsible for procu]ringd materid safe9 data sheets wm), and for
pmvidingW Wunication tdd&
coanplfrna OBtiar Ratliff testified that TVA was not, in fact, responsibte for
procUring G4JBMiCs MSDSS pr. 66, 145-146). While G-UB-MK relied on TVA to
provide its NlSDss, it did not actual& arrange for the nwssary MD& to be maintained
on tie jobite (Tr. 686). Neither was TVA respons~%lefor training G-UB-MK empbyecs.
G-lJ&MK conducted its own safety training,,which consbd of a thirty-minute orientation .
(Tr. 77,675). Compliance Deicer RatliE testified that the employees she interviewed during
the inspection did not know the location of MSDSs‘(Tr.77; SCGa& testimony of Randy
Pittman,Tr. 565). David Faulkner test&xi that upon his hiring he had received only five
or ten minutesof orientation from Mr. Am&son which did not b&de any inkmaw
regarding MSDSs (T’r. 210-211). Terry White testSed that he spA&ally asked ti
MSDSs were kept and was told by Don Feezcll that there were none at Thortbne (Tr.
27%280).
RatlifE testified that GUB-MK empbyees had not re&vec3 ~IMW&IScbemkal
training (Tr. 77). Fauiltner confirmed he did not receive any bzardous &em&&I t&a&
untilapproximatelya month after the OSHA inspection (Tr. Wl, 229,239). Teny White
verifiedhe was not providedwith any health hazard information OIIarsenicora&estusor
any other hazardous chemical prior to the OSHA inspection vr. 284). Sidney Dobbs, Jerry
Greer and RandyPittman,boilermakers who worked both in the penthowe and economizer
(Tr. 449,470-471,542-543X cor&med they had never received any train@ on the health
effects of either arsenic or asbestos (Tr. 44&449,478,565-567).

    Section lSU659@)(1) requires that:
    EmpI-       shall develop, implement, and maintain at the workplace, a written
    md      communication program for their workplaces which as least descrii
    how the criteria specified in paragraphs (f),(g), and (h) of this section for
  . labels and other forms of warning, materialsafety data sheet@ md tminingwill
    be met, and which also includes the following:



                                          14

(i) A lbt of the hazardous chemicals known to be present using~II
identity that is referenced on the appropriatematerial tiety data sheet
(the list may be compiled for the workplace as a whole or for
individual work areas) . . .

                                       Amendment

      As a threshold matter, the undersignedfinds that G-UB-MK’s request to dismiss this
item based on OSHA’s f&ilure to provide adequate notice of the specific allegationsis
without merit.
       G-UB-MK argues that the citation charges it only with f&i&g to develop a hazard
communication program. At the hearing, however,the Secretary’scounsel stated that item 4
was based not on the absence of a program, but on inadequaciesof the WA props
adopted by G-UBMK         Respondent maintains that it was deprivedof an m
                                                                                        l

                                                                                            to

. a
defend itself against those charges.
The citation states:
a) Boiler 5, a written hazard communication program had not been
developed for employees exposed to bdous chemicals such as asbestoq
arsenic, welding fumes and ceramic fiber.

       Although the citation does not list specific deficiencies in G-UB-MK’s prqram,
OSHA’s compliance officer enumerated those at the hearing, and G-UB-WC’s attorneyfblly
explored the matter on cmss~           tion (Tr. 144168). The entire TVA program (bh.            .
R-18) was entered into evidence at trial, and its contents examined This Judge cannot find
that G-UB-MK is pre&diced by amendment of the pleadings to allege dekiencies in G-UB-
hKs adoption of the TVA hazard communicationprogram. The pleading are, therefore,
amended to confbm to the evidence. Advance Bmnz~ Inc. v. Dt& 917 F.2d 944,955 (6th
Cir. 1990); S&xab Bond Corwuaibn Comzpuany,
                                        15 BNA OSHC 1031,199l CCH OSHD
1 29,325 (No. &74!32,1991).




                                            15

The Violatioq

  m    cviduxc esWlis,hes that G-UB-MK had not developed or implemented its om

~riffm hazardcommunicationprogram descriiing how the criteria in 29 CFR 1926.59(f),
(g), anti 00 will be *a
Section 19269(e)(3) provides:
The empluyermay rely on an existing hazard communication program to
complywiththeserequirements, provided that it meets the criteria established
in paragraph(e).

  Any hazard communication program adopted must, according to the standard,

describe in writing how OSHA requirements regardingMSDSs and traing will be met. It
mustalso include a list of the hazardous chemicals known to be present in the em@yefs
work areas.
G-UB-MK fhikd to tailor TVA’s program to reflect the partMar wurk amditWs
which would be encountered by its employees as required by the mdard. Nm in tht
written materials distinguishes between TVA’s and G-UB-h&K’s procedures boamakiq
MSDSs or -dous chemical training available to employees. Nor is any ciiss made
between the hazardous chemicals known to be present in the TVA fhility as a whok and
those to which G-UBMK employees will be eqosed.
References in a written program stating that a third party, TVA, was respor&le for
providingservices actually provided by G-UB-MK are potentially misleading to employees
using the program, as is an overinclusive list of hazardous chemicals. The undersigned finds
that the cited standard requires ad employer who wishes to adopt a hazardous chemical
program developed by another employer must tailor the adopted program to address the
concerns of its own employees. G-UB-MK was, therefore, in violation of the ~1926.59(e).

                              Classification & PenaIR

   The record establishes that the cited violation was serious in nature. The Secretary

maintains that without a written program, training in hazardous chemicals may not be
implemented, exposing employees to serious harm. Employees who have not been trained

                                            16

h tie &ardous chemicals to which they are exposed in their workplace may not rtcognize
symptoms of -aare and seek medical surveillarr~o They may not rqucst protect&
control Inem=- or personal protective equipment and may not be aware of effective
emergency cuWF01B
In f&t, as discus& below, under citation No. 1, item 5, G-UB-MK did not
implement the hazardous chemical training rquired under 3 1926.59(h) for employees
actually exposed to chemical hazards. The violation is serious.
The Secretary has proposed a penalty of $1,350. As discus& above, an additional
reduction for moderate gravityand good faith is wan&cd A penalty of $1,000 is &ssesWL

                             Serious Citation No. 1. Ifem 5

   Section 1926.59(h) provides:
   Empbyee infomutibn and mining. Employers shall prwide empbjatm with
   information and training on hazardous chemicals in their work area at the
   time of their initial assignment, and whenever a’new hazard is intrudu& into
   their work area?

5 Section 192659(h) mandata that training indu&

   (1) lirfamatiool.Emplayeesshall be iImmcd OE

          (i) The requirementsof this suztio&

          (ii) Any operation in their lmrk area where hazardotsschm        8re
          present; =4




          (ii) The physicaland health hazardsof the clmnhls in the mmrkm

                                                                                 (amtintaale.)

                                              17

It is u&@mted that training was not prtided to employees exposed to hazardous
&em such m ahtt&~, arsenic, welding ~~IIESad ceramic fi’ber? G-LB-m relied
tit& 011trainhq prcvi~usly provided by other employers, specifidy n& for whom
many of the boilermakers had previously worked (“h 74-750). Thogir many of the
bae&ers had prior hazardous cmrmmication pmgmm trainbg (‘b. 751), G-UBMK
abo emplayed at least 56 newly hired apprentices and boilermakers who had never worked
for TVA before (Tr. 569,788-789). The evidence does not reflect that these employees or,
for that matter, any of G-UB-MK’s employees, received hazardous communication training
directly from GAJBMK prior to the Secretary’s inspection.
G4JB-MC violated the cited standard by its failure to pmvide any of its empIoytw ,
with the rquired training. Item 5 will be affirmed.

                                    ClasScation    8t Pen@

   For the reasons previously dbcusM, the undersignedfind&thatitclnSira~

violation with moderate gravity. A penalty of $1,500 is consider& appropriate and wiIl be
assessed,

                      Wthex? Than Serious CitationNo. 2. Item

   Section 1910.2O(g)(1) requires:




             (iv) Tbedetailsofthe~communica~progamdevetopedby~emploper,
             includingan czplanationof the labelingsystem8ndthe materials&i d8ta sheet,
             and how emplqees can obtainand use the approprjatebazwi informatiot~

Upon hiring, written materials provided to G-UBMK employeesgenerallywarn tbat there are hazuds
associatedwith cxpostue to asbestos and advise the use of wntrol measures
ad personalproteaivequip-t
(Th 16%163).This hct does not equate to training.

                                              18

Upon an employee’sfirst entering into employment, and at least annua@
thee, each employer shall inform current employees covered by th&
Jectiondtlld&W&

          (I) The existence, location, and availability of any records
          awered by this section;

          (ii) Tht person responsible for maintaining and providing
          access to records; and

          (iii) Each employee’s rights of access to these records.

   Compliance officer Ratiiff testified the employees she interviewed during her

inspection confirmed that, upon hiring, they had not been told of the existence, kxation and
availability of employee exposure records cuvered by 0 1910.20. ‘Iky were not inkmcd
of the person responsl%lefor maintaining and providingaccess to records or obti’rightr
of access to the rcaxds (Tr. 81). David Faulkner verified he was not W of tht
location or availability of monitoring records at the Coibert site (Tr. 230). W&i&&&, .
Greer and Pittman testified they were never informed of their right to nsvh h r&It@ do
G-UB-MK’s hazardous chemical monitoring or of the kxation of the ES&&*&
monitoring (Tr. 289,452,480,572).

                                   JYheViolatioq

   G4JB-MK does not dispute the allegationset forth by the Sccretaxybut arguesthat

the cited section is inapplicable because it had no qure monitoring rcauxis at the time
of its employees’ initial employment. This argument is without merit. G-UB-MK’s ’
interpretation of the standard would alluw employers creating records quired under 8
9 1910.20foeW Easttime to withhold this informationfromemployees far up to a year-an
absurdrcsuk
As discmcd above, G-UB-MK was aware prior to the start of the boiler
rehabilitation that both arsenic and asbestos were potentially present at the w&&c, and
should have reasonably anticipated that monitoring and the creation of exposure records
might become necessary. In any even% once actual monitoring commenced, it was the
employer’s duty to fulH the requirements of the standard. .
19
 . 0
ticmon and Penalty

   G-UB-MK argues that this violation should prbperly r’
                                                       beclassifiedaSdeminimir.     The

u&enigned dm not agree. As d&cussedunder serious Citation No. 1, items 1 and 2 above,
am to exposure records are necessary to allow exposed employees to track their increased
risk of developing cancer, to determine the need for medical ~uweillance, or to refuse future
work in areas of potential exposure. Therefore, there is some relationship between
empiuyee safety and health and an employer’s failure to inform those employees of the
availability of hazardous chemical exposure records. This item will be af&med as “other”
than serious with no penalty asessed as proposed by the Secretary.

                   “O&e? ‘Iban Serkms Citation Na 2. Item 2

   Sextion 1910.134@)(1) provides:
   Written standard operating procedures governing the selection and w         of
   respirators shall be established.

   Compliance OBicer Ratliffbased this charge upon her conclusion that G-UBMKhad

not established a written respirator program covering the procedures for selection and use
of respirators which would provide protection against contaminants, such as arseaic, welding
fumes and ceramic f5bcrs (Tr. 84).
At the hearingof this case, ~4JB&Kinoduced a copy of TVA’s respirator trainiq
manual, which was part of the ‘WA safety program actopted by G4JB-MK (Tr. 187).
Ratlif&after reviewingthe manual, testifkd the TVA procedures were adequate to meet the
requirements of the stsWard (Tr. 188). She furfher testied that neither Feczell nor
Amundson p her the manual at the time of her inspection or at a September 3,1992,
closing co&em but bad shown her only a TVA policy statement concerning respirators
and facial hair (Tr. 83-87).

                                         20

. . ..
3pe VlolatlQg

                                      only that a respiratory program be established. Under
                                      has not shown by a preponderance of the evidence that
G-UB-MK violated the cited standard.
       Item 2 of Citation NO.2 will be vacated.


                         WtheP Than Serious Citatim No. 2, Item 3

       Section 1910.134(b)(3) provides:
                        for a minjntalacceptzab&pqpm. . (3) The user shall be
                 l



       00 v                                                      l




       instructedand trabd in the proper use of respirators and their limitatbna

       Moldex 2200 dust masks were in use at the Colbert site vr. 84). camplirnct OEcer
Ram testified,without contradiction, that the Moldcx 2200 dustand mist mphata, which

.
purifies the air being breathed, is a NIOSH-certiiied respirator (Tr. 191). RatIiBcmclud&
that employees using the respirators were not instructedand trained in their propa m and
limitations (Tr. 88-89), and that employees were using the dust masks to reduce their
eqmsure to “flu gas,” or sulfbr ciiuxide, against which the Moldcs 2200 pruvides no
protection (Tr. -90). RatlifFs main concern was that the Moldex 220 is not approved’11for
use in atmospheres containing asbestos, arsenic, welding fumes or hazardous air
contaminants to which G4JBMK employees were potentially exposed Fro 80,92).
Terry White con&med he had received no training or information on respirator use
at the Colbert site (Tr. 285). Faulber testified he was unaware of any respimtor program,
and had not received any instruction on the limitations of the dust mask in use at the&bite
(Tr. 226227). Sii Dobbs testified he never received any trainiq in the use or limitations
of respirators,including the dust mask he wure when working around dust in the penthouse
(Tr. 446447). Jeny Greer stated he did not receive respirator training. Without
management approval, Greer used a twin canister respirator he found in a tool box on the
site until the filters became too clogged for fiutheruse (Tr. 474-476).

                                                21

~dscm testitifkdhe imructed new empfs towcar diqosabk paper respirators
0
accordingtO-- on the hod’ when he conducted their orientation. He w
informed than they show be clean shaven when wing themmasks and that the masks were
ineffective for fimes and -dous vapors (Tr. 681482). Amundson admitted that he did
not conduct the orientation for later hires but delegated that duty to his staff (Tr. 675-677).

   The testimony of G-UBMK employees establishes that trainiq was not provided to

alI employees wearing disposable respirators. Amunhson had no direct knowkdge of the
contents of the employee orientations which, if conducted at all, were conducted by others;
his testimonyis, therefore, insufficient to rebut the Secret@ evidence.
Nor is there any merit to G&JB-MK’s argument that some employas bad prior
respirator training (Respondent’s Brie&pg. 82). There is no tidencc that GUB-MK nraAr.
an effort to ascertain the prior train@ kvcl of each empkycci Morcovcr, mtanthc
employees testifying, eg, Dobbs and Grew, had received any prior train& in tire tme d
respirators by G-UB-MK or any of their previous employers.
In support of its argument that this item should be vacated, G-UBMK cites Marco
Carring& AJling Inc., 11 BNA OSHC 1911,1983 CC?I OSHD 126@9 (No. 820210,1984);
Bbchom & Co., 11 BNA OSHC US,1983 CCH OSHD g 26,452(No. 7MW7,1S3); and
GUy Oil Corp., 11 BNA OSHC 1477,1983 CCH OSHD f 26$29 (No. 7MOl4,1983). In
Kknco, an unreviewed administrativelaw judge decision which has no prccedenti&lvalue, the
ALJ found the invohved employees had actually received the nv train@ from a
previous employer and held 8 1910.134(b)(3) “does not require that the employees’ specific
employer must have given him the training.” Iii at 1912 The f&s inKarca m therefore,
distinguishable &om the facts at bar. Bkksom is also inapposite on both the facts and the
law. In that case, the employer initially had respirators on the worksite for use by its
employees in the event of fire. At the time of the Secretary’sinspection, however, the
employer had changed its policy fkom one in which the employees would actually engage in
fire-fighting operations and require the respirators to one where the fire would be fought

                                          22

by nearby firt &pwtxnent~ a,& employees would immediately vacate the premises. I,nem
of w T the hnmission vacated the citation holding:
The &ed #andard requires that the user of a respirator be properly trained
ia its m and limitations. The mere presence of respirators on a jobsite does
not tr$gcr the train@ requirement. In this case, it appears that Blocksom at
one time did intend that the rcspiratxxs would be used by employees in
fighting fires. However, at the time of the alleged violation, Bkksom no
longer intended that the respirators be used but had a policy to evacuate the
plant in the event of any fire beyond immediate control and to rely on its
automatic sprinkler system and the nearby Gre departments to control alI
other fires. Thus, under the circumstancesofthiscase,traihginthe
respirators was not rquired. Id at 33395.596.

   w     oil is also distinguishableupon the fkts. In Guy, the Commission overturned

a violation of 8 1910.134(b)(3)upon its conclusion that the Secretary’s evkkncc Mcd 40’
show “exposure to hazardousair contaminantC It, therefore, heM “a M rbqukins the
use of respirators must be shown before an employer is obligated to pr&d& rwpir&. .=
training.-’ Id at 33,819. Since the evidence in the case at bar reflects m a pot& ‘4’
exposure of employees to toxic chemicals, these employees should have been psuviM W&IN
appropriate respirators and should have been trained in their use and limitations.
Exposures to toxic chemicals is established by the record. Up to 125 boWmakers
were potentially exposed to ttic substances for approximatelytwo months ur. 80) without
the benefit of proper training
For the reasons previously ckusscd, an additional reduction in the Secreta@
proposed penalty of $900 is appropriate. A penalty of $500 will be assesW.

7I11~~~ophbninciyr,CommissioDera~~bsoewithhisco~~m~~~tbrttbe
Secietuprn~~raPalorpotentialempfayee~~to~~LevebOftoPicS\rb9tonces~~~
thedtadsEItlLb36Wr&erul InhisHew,itisunnecessaqtoshowaposPreinmnMIIoft&PEL
(permbsibkqosu~ limits)establishedin 3 1910.1ooO be&= 3 19l(U4 lrranbe appUd I;dlat 33,820421.
In the opinion of the undezsign* Ckmmissionet Clear@ views apssed in his dimcat mxc ammtdy
interpretthe intentandpurpowof the respiratorstandard.RecentCommissioadecisionsreflecta trawlmom
in Iin&with Clear@ dissentand in favot of a liiiiral a~nstructionof W respiratorsuWard to prow
emplqws actual@and/orpotentiallyexposedto air cw&unbnts fromthe health a~-- of such
expmes. Scu P&meFd Ii, 1991CCHOSHD 129,304 (No. 85-l&1991); W ocilW~savicrj, 1992
CCHOSHD v 2!3$07(No. 8749z&1992).

                                           23

section 19=.59(g)(8) rquires:
The empby’ershallmaintaincopiesof the re@red material safety data sheets
for each hazardous chemical in the workplace, and &all ensure that they are
readily access~%leduring each work shift to employwswhen they are in their
work area(s).

            ComplianceOfEicerRatliff testified that during her iqection,   ‘WA safetypersonnel
could not locate an MSDSfor welding rods which contain
                                                 w     hazardous chemicals (Tr. 92-94,
199). Joseph Thomas,a TVA maintenancesuperintendent,test&d that the compliance
officerwas able to locate all the MS&          she was looking for except the weld@ rod sheet
(Tr. 742). Later that day or the next, Thomas was able to kxate the missing lMSD& which
had been misfiled(Exh. R-4; Tr. 746-747). While this cirm                      may codtute     a
technical     violation of the standard, the evidence is ins-t         .to show G-UBMK bui

.
knowledgeof the citedcondition.The axut viewsthisocmmnceasa”clcrical~~
was corrected upon discovery.

                                            The Violatioq

            In order to prove a violation of sectionS(a)(2) of the Act, the bxetq    mustshow,
interah, that the cited employer either knew or could have known of the amdith withthe
exercise of reasonable diligence. S&qek Walker Towing Cknp, 14 BNA 06?K 2072,2074,
1991 CCH OSHD ! 2999, p. 39;157 (No. 874359, 1991). The Secretary failed to prove
that G-UB-MK knew or should have known the missing MSDS had been mi&kd.
            Item 4 of CitationNo. 2 wiUbe vacated



                                     CONCLUSIONS OF LAW

            All findings of fact and conclusions of law relevant and necessq   to a determination
of the contested issues have been found specially and appear in the decision above in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.


                                                 24

1. Serbus Citation NO. 1, item 1, akging a violation of 8 l~lO.lOls(e)(5)(i), is
affirmed and a penalty of $1,500 is asw=d.
2, Serious Citation No. 1, items 2a and 2b, tiegingviolations of 8 l~lO.l018(q)(3)(i)
and (ii), are af&bmeciand a penalty of $1,500 is assess&
3. Serious Citation No. 1, item 3, alleging a violation of Q 19%!58(n)(S)(ii), is
affirmed and a penalty of $%)(Iis asses&.
4. Serious Citation No. 1, item 4, alleging a violation of 0 192659(e)(l), is affirmed
and a penalty of $1,000 is assessed
5. Serious Citation No. 1, item 5, alleging a violation of 8 192659(h), is afbmccl and
a penalty of $1,500 is asses&.
6. “Other” than serious Citation No. 2, item 1, alleging avioIathn of0 l9lm)(Q,
..
is aIBrmedwithout penalty.
7. “Other” than serious Citation No. 2, item 2, alkging a vhktbn of
6 1910.134(b)(l), is vacated@
8. “Other” than serious Citation No. 2, item 3, alleging a viol&on of
8 1910.134(b)(3), is affirmed and a penalty of $500 is assess&
9. “Other” than serious Citation No. 2, item 4, alleging a violation of@ 191059(g)(8),
is vacated.

                                                   Judge

 Date: March 24 1994




                                              25