G-UB-MK Constructors (ALJ decision, May 2, 1994)

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,
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v. a OSHRC Docket No. 92-3040
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G-UB-MK CONSTRUCTORS,
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Respondent.
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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