Oxford Mining, Inc.

Plain-English summary

Oxford Mining did reclamation work at an abandoned bauxite mine site in Arkansas, where employees handled Alroc, an alkaline treated pot-liner material used to surface haul roads and fill the pit. OSHA cited Oxford for two serious violations: not providing personal protective equipment and not training employees on how to protect themselves from the chemical's hazards. Oxford argued OSHA had no jurisdiction because the Mine Safety and Health Administration regulated the site. Administrative Law Judge Nancy J. Spies rejected that defense and affirmed both items at $650 each. On review, the Commission vacated the citation, holding that MSHA had regulatory authority over the area in and around the mine and that OSHA's authority was therefore preempted under section 4(b)(1) of the OSH Act, for the reasons given in the companion case involving the general contractor, JTM Industries (OSHRC 98-0030). The full text below includes both the Commission's decision and the underlying ALJ decision it reversed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a); 29 C.F.R. § 1910.1200(h)(3)(iii)
• Outcome: Citation vacated; OSHA jurisdiction preempted by MSHA under section 4(b)(1) of the OSH Act.
• Key point: Where MSHA has statutory authority over the working conditions, OSHA's authority is preempted under section 4(b)(1), and the citation cannot stand regardless of the merits.

Full text (OSHRC public release)

SECRETARY OF LABOR,

                            Comp lainant,

               v.                                      OSHRC D ocket No. 98-0057

OXF ORD MIN ING, I NC.,

                            Respon dent.



                                       DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
Oxford Minin g, Inc. (“Oxford”) was under contract with JTM Industries, Inc. (“JTM”)
to perform reclamation work at the East 40 Mine (“E-40 mine”) at Reynolds Metals
Company’s Hurricane Creek Mine Project in Bauxite, Arkansas. Following an inspection by
the Occupational Safety and Health Administration (“OSHA”) on July 18, 1997, the
Secretary of Labor (“the S ecretary”) issued to Oxford one citation with two items, alleging
serious violations of personal p rotective equ ipment an d training stan dards base d on wo rk in
and around the E-40 mine. In addition, the Secretary issued to JTM one citation with two
items, alleging violations of the same standards, based on the same working conditions.
Administrative Law Judge Nancy J. Spies affirmed all items of the citations issued to Oxford
and JT M an d, with r egard to Oxfo rd, asses sed a pe nalty of $ 1300.
In JTM Industr ies, Inc., OSHRC Docket No. 98-0030, which we also issue today, we
vacated the citation issued to that compan y, finding that, pursuant to the Federa l Mine S afety
and Health Act of 1977, 3 0 U.S.C . § 801 et seq., the Mine Safety and H ealth Administration
has regulatory authority over the area in and around the E-40 mine under the circumstances
of that case, and that OSHA’s authority is thereby preempted under section 4(b)(1) of the
Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. § 653(b)(1). 1 Because

1
Section 4(b)(1) provides:

      Nothing in this Act shall apply to working conditions o f employee s with

the citation issued to Oxford alleges violatio ns pertaining to the same w orking co nditions in
and arou nd the E-4 0 mine, in the present case we also find that OSHA’s authority over the
cited conditions is preempted under section 4(b)(1) of the OSH Act, for the reasons stated
in JTM Industries, Inc. Acco rdingly, w e vaca te the O SHA citation is sued to Oxfo rd.

                                                              /s/
                                                              Thomasina V . Rogers
                                                              Chairman


                                                              /s/
                                                              Ross Eisenbrey
                                                              Commissioner

Date: December 14, 2001

   respect to which o ther Federa l agencies . . . ex ercise statutory au thority to
   prescribe or enforce standards or regulations affecting occupational safety or
   health.

Secretary of Labor,
Comp lainant,

           v.                                     OSH RC D ocket N o. 98-0057

Oxfo rd Min ing, Inc .,
Respon dent.

Appearances:

   Madeleine T. Le, Esquire                       Carl B. Carruth, Esquire
   David C. Rivela, Esquire                               McNair Law Firm, P.A.
           U. S. Department of Labor              Columbia, South Carolina
           Office of the Solicitor                                 For Respondent
           Dallas, Texas
                    For Complainant

Before:Administrative Law Judge Nancy J. Spies

                                     DECISION AND ORDER
   Oxford Mining, Inc. (Oxford),         contests a citation issued to it by the Secretary on

November 14, 1997. The Secretary issued the citation as a result of an inspection conducted by the
Occupational Safety and Health Administration (OSHA) at the Hurricane Creek Mine Project in
Bauxite, Arkansas, in July 1997.
Item 1 of the citation alleges a serious violation of § 1910.132(a), for failure to provide
appropriate personal protective equipment to its employees. Item 2 of the citation alleges a serious
violation of § 1910.1200(h)(3)(iii), for failure to train employees in measures theycan take to protect
themselves from exposure to hazardous chemicals.
Also on November 14, 1997, the Secretary issued a citation alleging violations of the same
standards to JTM Industries, Inc., with whom Oxford had subcontracted on the Hurricane Creek
Mine Project. Both Oxford and JTM contested the citations, and the cases were consolidated by
order of the undersigned on May 27, 1998, for purposes of hearing.2
Oxford disputes OSHA’s jurisdiction over the worksite, asserting an affirmative defense
under § 4(b)(1) of the Occupational Safety and Health Act of 1970 (Act). For the reasons set out
below, Oxford’s affirmative defense is rejected, and items 1 and 2 of the citation are affirmed.
Background
At one time Reynolds Metals Company operated numerous open pit bauxite mines at its
Hurricane Creek Mine Project in Bauxite, Arkansas (Tr. 603). The bauxite ore excavated from the
mines was used in the production of aluminum. The specific worksite at issue in this case is
designated as the E-40 site. The E-40 site is a 330-acre site that includes an abandoned bauxite mine
pit and the areas adjacent to the pit (Tr. 335).
To remove the bauxite ore, Reynolds stripped away the overburden of soil and rocks that
covered the natural deposit of bauxite. Reynolds removed the overburden (called “spoil”) from the
mine pit and piled it up in spoil piles at an area north of the E-40 mine known as Four Lakes.
Reynolds then blasted over the bauxite ore that had been uncovered and removed it from the mine
pit by a dragline, loaded it onto trucks, and hauled it to Reynolds’s processing plant in Euclid,
Arkansas. Reynolds extracted the last bauxite from the E-40 pit in February 1983 (Exh. C-5,
Tr. 600).
On June 6, 1994, Reynolds contracted with JTM to perform reclamation services at the E-40
mine pit. On August 12, 1994, JTM subcontracted with Oxford to fill the E-40 pit and to construct
haul roads to the E-40 site. In August 1994, Oxford began performing reclamation services
(Exh. R-8).

2
To avoid confusion, the cases were severed for purposes of decision.

   In addition to the Hurricane Creek Mine Project, Reynolds also operated a waste treatment

facility near Arkadelphia, Arkansas, known as the Gum Springs Facility. At the Gum Springs
Facility, Reynolds treated spent pot liners used in the primary aluminum reduction process.
Reynolds gave the spent pot liner the trade name “Alroc.”3 Reynolds wanted to find a commercial
use for Alroc, which was being disposed of in a landfill at the Gum Springs Facility. Reynolds had
a number of haul roads on which haul trucks traveled between the Four Lakes spoil piles and the
E-40 site. In June and July 1995, Reynolds first used Alroc to surface a test road (Exh. C-5;
Tr. 348).
In April 1996 Reynolds began placing Alroc from Gum Springs in the E-40 mine pit in thin
layers between thicker layers of mine spoil to reduce the acidity of the mine spoil leachate from the
pit. The Alroc was alkaline and would help to neutralize the acidity of the leachate from the mine
spoil. The Alroc was also used on the haul roads to keep the haul trucks from getting stuck and to
use a fill material for the pit to help neutralize the mine spoil (Exh. C-5; Tr. 347).
From 1994 to 1997, approximately 151,770 cubic yards of Alroc were shipped from the Gum
Springs Facility to the E-40 site. While working at the Hurricane Creek Mine Project, employees
of both Oxford and JTM regularly handled Alroc. The number of onsite employees at the site varied
from 50 to 100. Reynolds employed three of these employees. JTM employed five (Tr. 617). The
rest of the employees worked for Oxford (Exh. C-5).
In January 1997, leachate water concentrations from the Gum Springs landfill indicated
elevated levels of arsenic, fluoride, cyanide, and pH. The Environmental Protection Agency (EPA)
conducted interstitial ground water sampling from bore holes at Gum Springs and Hurricane Creek.
After the sampling, Reynolds and the Arkansas Department of Pollution Control and Ecology
reached a consent agreement on June 30, 1997, to restrict the use and disposal of Alroc. The
agreement became effective on August 23, 1997 (Exh. C-5).
Oxford began removing Alroc from the haul roads in June 1997. OSHA began its inspection
of the E-40 site on July 18, 1997.
Preemption Under § 4(b)(1) of the Act

3
It is also known as “kiln residue” and was referred to by some witnesses at the hearing as
“ash.”

   Oxford argues that the E-40 site is exempt from the requirements of the Occupational Safety

and Health Act because, under § 4(b)(1) of the Act, the Mine Safety and Health Administration
(MSHA) preempts OSHA’s jurisdiction. This is an affirmative defense and Oxford has the burden
of proving that such preemption occurred.
Section 4(b)(1) of the Act provides:
Nothing in this Act shall apply to working conditions of employees with respect to
which other Federal Agencies, and State agencies acting under section 274 of the
Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory
authority to prescribe or enforce standards or regulations affecting occupational
safety and health.

   In order to establish an affirmative defense under § 4(b)(1), the employer must show that an

agency other than OSHA has the statutory authority to regulate the health and safety of workers and
that the other agency exercises its statutory authority in such a manner as to exempt the cited
working conditions. Northwest Airlines, Inc., 8 BNA OSHC 1982 (No. 13647, 1980).
The OSH Act authorizes the Secretary of Labor to set mandatory occupational safety
and health standards for businesses affecting interstate commerce. See 29 U.S.C. §
653(b)(1). The Act, however, exempts from the statute’s reach employees who are
regulated by other federal agencies. 29 U.S.C. § 653(b)(1). A two-step analysis is
used to determine whether OSHA jurisdiction has been preempted: (1) whether a
regulation has been promulgated by a state or federal agency other than OSHA; and
(2) whether the regulation promulgated covers the specific “working conditions” at
issue.

Bush & Burchett, Inc., 117 F. 3d 932, 936 (6th Cir. 1997) (footnote and citation omitted).
The Mine Safety and Health Act (MSH Act) itself provides little clear-cut guidance on the
jurisdictional issue in this case. The MSH Act does not specifically address reclamation work or
work with hazardous waste. It is ambiguous as to the duration of MSHA’s jurisdiction over
abandoned mine sites.
The Secretary attempted to bolster its position that OSHA has jurisdiction over the E-40 site
by proffering the deposition testimonyof Doyle Fink, district manager for MSHA.4 Fink stated that,

4
The deposition of Do yle Fink was taken by the S ecretary on D ecembe r 29, 1998 , to
supplement the record in this case. Fink’s deposition testimony will be cited as “Fink
(contin ued...)

in his opinion, MSHA did not have jurisdiction over the E-40 site. His testimony failed to establish
a legal basis for determining jurisdiction.
Fink is employed as district manager in MSHA’s Dallas, Texas, office and he supervises
MSHA inspectors in six states, including Arkansas (Fink deposition, p. 5). Fink referred to the
Memorandum of Understanding between MSHA and OSHA5. The Memorandum addresses each
agency’s jurisdiction with regard to milling and preparation processes, which are not at issue here.
Fink admitted that the Memorandum of Understanding does not mention reclamation work. He
stated that the Memorandum uses the MSH Act’s definition of “coal or other mine,” so that it
provides no clarification beyond the MSH Act’s definition (Fink deposition, pp. 13-14). Fink
admitted that his opinion that MSHA did not have jurisdiction over the E-40 pit was an
accommodation to MSHA’s personnel shortages (Fink deposition, p. 25). The Secretary failed to
adduce any evidence that Fink had the authority to determine which agency had jurisdiction over the
E-40 site.
Determination of who had proper jurisdiction over the E-40 site must be decided based on
the MSH Act’s definition of a mine. If the E-40 site is a mine, then MSHA promulgated regulations
that covered the site and MSHA has jurisdiction. If the E-40 site does not qualify as a mine, then
MSHA did not promulgate regulations that covered the site and OSHA has jurisdiction. As the
discussion below will show, MSHA’s definition of what constitutes a “mine” has been the subject
of considerable litigation.
Section 3(h)(1) of the MSH Act defines “coal or other mine” as:
(A) an area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings ponds,

4
(...continued)
deposition, p. --.” A copy of Fink’s deposition is entered into the record as Exhibit J-59 in
the case file.
5
“The intera gency agree ment wa s originally reported in 39 Fed . Reg. 2 7,382 ( 1974) . . .”
Dono van v. C arolina Stalite C o., 734 F. 2d 154 7, 1550, footnote 4 (D .C. Cir. 1984).

   on the surface or underground, used in, or to be used in, or resulting from, the work
   of extracting such minerals from their natural deposits in nonliquid form, or if in
   liquid form, with workers underground, or used in, or to be used in, the milling of
   such minerals, or the work of preparing coal or other minerals, and includes custom
   coal preparation facilities. In making a determination of what constitutes mineral
   milling for purposes of this chapter, the Secretary shall give due consideration to the
   convenience of administration resulting from the delegation of one Assistant
   Secretary of all authority with respect to the health and safety of miners employed at
   one physical establishment.

   Courts addressing the issue of MSHA jurisdiction have recognized § 3(h)(1)’s “sweeping

definition” of a mine in accordance with the MSH Act’s legislative history. “[I]t does not matter if
what is included in the definition fails to conform to the conventional concept of mining.” Cyprus
Industrial Minerals Co. v. MSHA, 664 F.2d 1116, 1118 (9th Cir. 1981). In Donovan v. Carolina
Stalite Co., 734 F. 2d 1547, 1554 (D.C. Cir. 1984), the D. C. Circuit Court of Appeals quotes the
Senate Report, which has been influential in the interpretation of the jurisdictional application of the
MSH Act:
The Senate Report also said: “The Committee notes that there may be a need to
resolve jurisdictional conflicts, but it is the Committee’s intention that what is
considered to be a mine and to be regulated under this Act be given the broadest
possibl[e] interpretation” [S.Rep. No. 181, 95th Cong., 1st Sess. 14 (1997), U.S.
Code Cong. & Admin. News 1977, 34013414] (emphasis added). Close
jurisdictional questions are to “be resolved in favor of inclusion of a facility within
the coverage of the Act.” Id.

    See also, Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979), and

Harman Mining Corp. v. Federal Mine Safety and Health Review Commission, 671 F 2d 794 (4th
Cir. 1981).
MSHA’s broad jurisdiction remains in place even if MSHA has reduced or suspended its
enforcement activities. In Daniel Construction Co., 12 BNA OSHC 1748, 1751 (No. 82-668, 1986),
the Review Commission affirmed the administrative law judge’s finding that MSHA preempted
OSHA’s jurisdiction under § 4(b)(1), despite evidence that MSHA had no resources to enforce its
standards in that case. “The exemption . . .was applied even though at the time of the inspection the
other agency was not enforcing its regulations.”

    As noted above, Fink testified that MSHA did not want jurisdiction over the E-40 site

because MSHA has limited resources and personnel shortages (Fink deposition, p. 25). The case law
holds that these considerations are irrelevant in a judicial determination of jurisdiction. “Any
oversight of the adequacy of another agency’s enforcement activities is beyond the scope of a
permissible inquiry under section 4(b)(1).” Pennsuco Cement and Aggregates, Inc., 8 BNA
OSHC 1378, 1381 (No. 15462, 1980).
The Secretary cites two cases in support of its position that MSHA’s broad coverage does
not extend to the E-40 site. In Lancashire Coal Co. v. MSHA, 968 F. 2d 388 (3rd Cir. 1992), the
issue was whether a coal silo that collapsed during reclamation work done at an abandoned coal
preparation plant came under the jurisdiction of MSHA. The collapse occurred in 1989. The coal
silo had not been used since 1971. The administrative law judge ruled that the silo was within the
jurisdiction of MSHA. The Federal Mine and Safety Review Commission upheld the judge’s
decision. The Third Circuit Court of Appeals set aside the Review Commission’s decision, finding
that MSHA did not have statutory jurisdiction under the MSH Act over the abandoned coal silo at
the time it issued the citations.
The court noted that the MSH Act “refers to three different mining activities: ‘extracting’
minerals; ‘milling’ minerals; and ‘preparing coal or other minerals.’” Id. at 390. Section 3(h)(1)(C)
includes within the definition of “mine” structures “used in, or to be used in, or resulting from” the
work of extracting coal; that is, the past, present, and future tenses are covered. However, only
structures “used in, or to be used in” the milling of or preparing coal are included in the definition
of a “mine.” The statute does not include the words “resulting from” before the words “the work of
preparing coal.”
The court noted that the language of the statute led to an anomalous result, and turned to the
legislative history of the MSH Act for aid in determining the meaning of section 3(h)(1):
In analyzing the legislative history, it is important to note that there was both a Senate
and a House version of the bill that became the Federal Mine Safety and Health Act,
and that these versions defined “mine” slightly differently.

Id. at 391.
The court concluded the legislative history:

    does not explain Congress’s use of distinct bases for those definitions. The Secretary
    attempts to explain the distinction by contending that the words “resulting from”
    were inadvertently omitted from section 3(h)(1) in connection with coal preparation
    structures. . .
            We agree that inadvertent omission may be a plausible explanation for the
    distinction between sections 3(h)(1) and 3(h)(2). But the legislative history is simply
    not clear enough to demonstrate that Congress intended the words in section 3(h)(1)
    to be construed as covering the abandoned silo at issue in this case.

Id. at 392.
The court’s analysis demonstrates that Lancashire does not provide unqualified support for
the Secretary’s position in the present case. The activity at issue in Lancashire is “the work of
preparing coal,” whose structures the court determined were not covered by the phrase “resulting
from.” Coal preparation is not at issue here.
Oxford argues that Lancashire actually supports its position because the court follows
§ 3(h)(1)(C) and finds MSHA jurisdiction over “lands, excavations, [etc.] . . .used in, or to be used
in, or resulting from the work of extracting . . .minerals.” Oxford argues that, since at one time
Reynolds extracted bauxite from the E-40 site, the E-40 site as a whole resulted from the work of
extracting minerals and thus is under MSHA’s jurisdiction. Oxford’s reliance on Lancashire is also
misplaced. Lancashire deals with a structure (a coal silo), covered under § 3(h)(1)(C). At issue here
are haul roads, which are not covered under section (C) of the statute.6
The Secretary cites Bush & Burchett, Inc. v. Reich, 117 F. 3d 932 (6th Cir. 1997), in support
of its position because in that case the Sixth Circuit Court of Appeals limited MSHA’s jurisdiction,
under § 3(h)(1)(B), over “private ways and roads appurtenant to [an area of land from which
minerals are extracted].”
In Bush & Burchett, the owner of a coal mine contracted with the respondent to build a bridge
to connect the mine to a railroad loadout facility, located on the opposite side of a river. The contract
between the owner and the respondent provided that, upon completion, the bridge and connecting

6
The citation identifies the location where the exposure occurred as “in and around the E-40
pit.” The hearing focused on the employees’ exposure to Alroc while they were working on
the haul ro ads. The haul roads are what will be considered by the undersigned in determining
the jurisdictional issue.

haul road would be conveyed to the state of West Virginia to become part of the state highway
system.
During the construction of the bridge, two of respondent’s employees were killed when a
boom crane collapsed on top of a pier where they were standing. The day following the fatalities
OSHA sent a compliance officer to the site to investigate, after the OSHA area office had conferred
with the MSHA area office, and both had determined that MSHA did not have jurisdiction at the
accident site. BBI argued that MSHA’s jurisdiction preempted OSHA’s jurisdiction. The
Occupational Safety and Health Review Commission affirmed the citations. The Sixth Circuit
affirmed the decision of the Review Commission.
BBI argued that the bridge work came under the definition of a “mine” by virtue of
§ 3(h)(1)(B), because the public road being constructed was “appurtenant to” a coal mine. In
rejecting this argument, the Sixth Circuit emphasized that the road connecting the bridge to the mine
was public, thus it did not come under the § 3(h)(1)(B) “private ways” specification.
Although BBI’s position is not wholly without merit, since the Act is to be given a
very broad reading, we cannot accept BBI’s reading of § 802(h)(1)(B). Not only does
the statute not compel such a reading, but also such a reading is contrary to common
sense. Without some limitation on the meaning of “roads appurtenant to,” MSHA
jurisdiction could conceivably extend to unfathomable lengths since any road
appurtenant to a mine that connects to the outside world would necessarily run into
yet other roads, thus becoming one contiguous road. Because of the potential reach
of MSHA jurisdiction if the definition in § 802(h)(1)(B) is left unfettered, “private
ways and roads” cannot simply mean “anyroad.” Otherwise, there could conceivably
be no limit to MSHA jurisdiction, a result Congress clearly did not intend.

Id. at 937.

    The present case is distinguishable from this aspect of Bush. The haul roads constructed by

Oxford and JTM were private ways, and there is no danger that finding theyare “appurtenant to” the
E-40 pit could extend MSHA’s jurisdiction to “unfathomable lengths.” The haul roads constructed
by Oxford and JTM ran between the E-40 pit and the spoil piles at Four Lakes (Exh. R-9). The haul
roads surfaced with Alroc were all used in connection with the reclamation of the E-40 mine pit
(Tr. 349).

   While Bush supports Oxford’s position in this regard, it fails to support it in another crucial

aspect. The problem of the use of voice tenses surfaces in Bush, as it did in Lancashire. Read
together, § 3(h)(1)(A) and (B) state that a “mine” is “an area of land from which minerals are
extracted . . . [and] private ways and roads appurtenant to such area[.]” The definition is in the
present tense. In order to be considered a mine, the area of land in question must currently be
undergoing extraction of minerals. Bauxite was last extracted from the E-40 site in 1983.
Oxford argues that the three tenses used in § 3(h)(1)(C) apply to the haul roads, so that they
are “resulting from the work of extracting” minerals. BBI made the same argument in Bush,
claiming that the bridge was a structure resulting from the work of extracting minerals. The Sixth
Circuit rejected this argument, stating “[I]t is not clear from the statute or legislative history that
Congress intended to include roads within the meaning of 30 U.S.C. § 802(h)(1)(C), since Congress
specifically dealt with roads in § 802(h)(1)(B).” Id. at 939.
The Sixth Circuit’s analysis is reasonable. As noted in Lancashire and other decisions, the
MSH Act’s definition section is not a model of clarity. The use of the different tenses in different
sections of the statute can lead (and have led) to confusion. The most straightforward reading of the
statute, however, appears to be that the use of the qualifying phrase “used in, or to be used in, or
resulting from, the work of extracting” minerals applies only to those items listed in (C), and not to
(A) and (B).7 The haul roads were constructed years after the last bauxite extraction had occurred.
They were constructed for two reasons: to provide access to the reclamation project and to test
whether Alroc was suitable as roadbed material.
Based upon this reasoning, the undersigned concludes that the haul roads were not under
MSHA’s jurisdiction at the time of the OSHA inspection. Bauxite was no longer being extracted
from the E-40 site. Thus, the haul roads did not constitute a “mine” within the meaning of § 3(h)(1)
of the MSH Act.

7
Oxford attempts to insert its reclamation work under (C) by arguing that the haul roads
were constructed on lands (one of the items listed in (C)) resulting from the extraction of the
mineral bauxite. Oxfo rd’s arg umen t reads (B ) out of the statu te. The argument is rejected.

   OSHA’s jurisdiction was not preempted under § 4(b)(1) by MSHA. OSHA properly had

jurisdiction over the E-40 site at the time of the OSHA inspection.
THE CITATION
The Secretary has the burden of proving her case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or, with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Item 1: Alleged Serious Violation of § 1910.132(a)
The Secretary alleges that Oxford committed a serious violation of § 1910.132(a), which
provides:
Protective equipment, including personal protective equipment for eyes, face, head,
and extremities, protective clothing, respiratory devices, and protective shields and
barriers, shall be provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner
capable of causing injury or impairment in the function of any part of the body
through absorption, inhalation or physical contact.

                               Applicability of the Standard
   Oxford argues that the Secretary failed to prove the existence of a hazard to employees of

sufficient severity to warrant the use of PPE. Oxford contends that Alroc contains mild irritants not
capable of causing substantial injury or impairment to employees. “The broad personal protective
equipment standard at section 1910.132(a) applies to the facts of the case if a reasonable person
familiar with the circumstances, including facts unique to an industry, would recognize a hazardous
condition requiring the use of personal protective equipment.” Lukens Steel Company, 10 BNA
OSHC 1115, 1123 (No. 76-1053, 1981).
Oxford’s employees experienced symptoms associated with exposure to a highly alkaline
material such as Alroc. Employees working at the site complained that the Alroc irritated their skin,
especially when they were sweating (Tr. 127). Employees experienced severe headaches while
working with Alroc (Tr. 22, 84, 116).
JTM employees Jim Boulder and Rickie Nutt testified that they did not develop rashes or
have any other adverse reactions to working with Alroc (Tr. 457, 470). Oxford argues that the
absence of reaction to Alroc in these employees, as well as the failure on the Secretary’s part to
prove a causal connection between Alroc and the other employees’ rashes and headaches, results in
a failure of proof for the existence of a hazard that would require the use of PPE.
The fact that not all employees developed rashes or headaches does not establish that a
hazard did not exist. People have differing sensitivities to environmental irritants. The fact that one
employee may have a higher tolerance for a hazardous substance than another employee does not
render the substance any less hazardous.
The dispositive evidence on this issue is the MSDS for Alroc (Exh. C-6). As noted in the
discussion of item 2, it details the signs and symptoms of exposure, and lists the medical conditions
aggravated by exposure. The MSDS recommends the use of PPE when working with Alroc. A
reasonable person familiar with the MSDS who knew that his employees were working daily with
Alroc, to the extent that they were regularly coated with dust from the Alroc, would have required
the use of PPE. Section 1910.132(a) applies to the cited conditions.
Oxford also argues that (Oxford’s brief, pp. 42-43):
the subject of eye protection is covered by a more specific standard which was not
cited. The standard, 29 CFR § 1910.133 specifically addresses the need for eye
protection and because it is more specific, it preempts §1910.132(a) and renders
§ 1910.132(a) inapplicable to eye protection. It should be noted that § 1910.133(a)
requires eye protection to protect against the hazards of flying particles, molten
metal, liquid chemicals, acids, or caustic liquids, chemical gases or vapors, or
potentially injurious light radiation. Mere dust particles, alkaline or not, do not
require eye protection. Therefore, the use of eye protection is not properly an issue.

   Oxford is correct in its recitation of the hazards that § 1910.133(a) was designed to protect

against. “Mere dust particles” are not included among those hazards. The cited standard
§ 1910.132(a), however, requires the use of personal protective equipment (PPE) for eyes “wherever
it is necessary by reason of hazards of processes or environment, [and] chemical hazards[.]”
Therefore, § 1910.132(a) addresses the hazard of exposure of the employees’ eyes to the hazardous
chemical Alroc more specifically than does § 1910.133(a). Section 1910.133(a) does not preempt
§ 1910.132(a), and the use of eye protection is properly an issue in this case.
Noncompliance with the Standard
Compliance officer William Cole testified that the PPE needed to protect employees from
the hazards of Alroc were “Tyvek suits for your skin exposure; protective gloves that prevent the
material from being on the hands; boots and eye protection, such as goggles or some kind of perhaps
safety glasses with a face shield to keep the dust off of the face and eye area” (Tr. 203).
Oxford did not provide PPE to its employees and did not require its employees to wear PPE
(Tr. 35-36, 82). Oxford employees wore street clothing, such as jeans and tee-shirts, to work in
(Tr. 31).
The record establishes that Oxford did not require its employees to wear appropriate PPE
when working with Alroc. Its employees woreshort sleeved shirts that exposed their arms to contact
with the Alroc dust. Oxford was in noncompliance with § 1910.132(a).
Employee Exposure
Oxford’s employees were exposed to Alroc on a daily basis (Tr. 17, 67, 72, 89, 98, 124).
Employer Knowledge
Oxford was aware that it did not require its employees to wear any PPE.
The Secretary has established a violation of § 1910.132(a). The hazard created by failure to
comply with the standard is that employees experienced exposure to the chemical irritants in Alroc.
The violation is classified as serious.
Item 2: Alleged Serious Violation of § 1910.1200(h)(3)(iii)
The Secretary alleges that Oxford committed a serious violation of § 1910.1200(h)(3)(iii),
which provides:
Employee training shall include at least:
...
(iii) The measures employees can take to protect themselves from [the physical and
health hazards of the chemicals in the work area], including specific procedures the
employer has implemented to protect employees from exposure to hazardous
chemicals, such as appropriate work practices, emergency procedures, and personal
protective equipment to be used[.]

    The Secretary alleges the following violative conduct for this item in the citation:
   For employees engaged in job operations in and around the E-40 Mine Reclamation
   Area, the employer did not conduct hazard communication training which included
   measures employees could take to protect themselves from chemical hazards
   associated with exposure to road bed materials and Alroc (treated pot liner). Bulk
   analysis of these materials indicated a pH of 11.5.

                               Applicability of the Standard
   Oxford argues that § 1910.1200(h)(3)(iii) does not apply to the cited conditions because the

Secretary failed to prove that Alroc is a hazardous substance.
Section 1910.1200(c) defines “hazardous chemical” as “any chemical which is a physical
hazard or a health hazard.” Its definition of “health hazard” includes “chemicals which are. . .
irritants. . . and agents which damage the lungs, skin, eyes, or mucous membranes.”
The material safety data sheet (MSDS) for Alroc states that Alroc has a tested pH of 11.2 to
11.5 (Exh. C-6). OSHA’s analysis of bulk samples of Alroc taken at the site show a pH of 11.5
(Exh. C-8). The MSDS includes the following items in the section titled “Health Hazards”
(Exh. C-6):
Acute--Avoid skin and eye contact. This product is alkaline and may produce skin
and eye irritation. If dust exposure is kept below the TLV’s for nuisance dust,
fluoride should not represent a health hazard.
Chronic--Overexposure to fluoride may cause increased bone density. Dermatitis
may occur from prolonged skin contact.
Signs and Symptoms of Exposure--Eye, skin or respiratory tract irritation.
Medical Conditions Generally Aggravated by Exposure--Pre-existing upper
respiratory and lung diseases such as, but not limited to, bronchitis, emphysema, and
asthma.

   The MSDS warns employees working with Alroc to wear goggles and a face shield “as

appropriate” and to wear rubber or cloth gloves “as necessary.”
The Secretary has established that Alroc is properly classified as a hazardous chemical. The
MSDS states that exposure to Alroc can irritate the eyes, skin, or respiratory tract. The definition
of “health hazard” encompasses such irritants. Section 1910.1200(h)(3)(iii) applies to the Alroc at
the worksite.
Noncompliance with the Standard
Oxford claims that it provided training to its employees on working with Alroc. Two Oxford
employees, Scotty Peebles and Charles Rhoades, testified they were given no information about
alroc. The employees stated that Oxford never instructed them on specific procedures to prevent
exposure to Alroc (Tr. 21-22, 80-82).
Oxford submitted training sheets signed by Peebles and Phoades as evidence that its
employees received hazardous communication training (Exhs. R-1, R-2, R3). Peebles explained that
the training forms were given to him by Oxford’s secretary, Alfreda Beaugard, who asked him to
sign the form. She did not train him and was not qualified to do so (Tr. 51). Exhibit R-1 has
Beaugard listed as the person who administered the training to Peebles. Peebles stated that Oxford’s
safety meeting consisted of signing “a yellow notebook piece of paper with your name on it and that
was it” (Tr. 44). Rhoades testified that about half a year after he began working for Oxford, a scraper
caught on fire at the site. After the fire, Oxford’s employees were called to a meeting where they
were given a folder with sheets that Oxford asked the employees to sign and return (Tr. 104).
Rhoades testified that Exhibit R-3 was one of the documents that he signed at that meeting. Rhoades
stated that his supervisor, Denny Tom, said, “This covers us” (Tr. 108). Rhoades said he received
no information about Alroc at that meeting (Tr. 107).
The Secretary has established that Oxford did not train its employees in the hazards of
dealing with Alroc. Oxford was in noncompliance with § 1910.1200(h)(3)(iii).
Employer Exposure
Oxford employees were exposed to Alroc the dayof the OSHA inspection. Rhoades testified
that after OSHA finished air monitoring, Oxford employees were ordered to dig up Alroc that had
been deposited in the mine pit (Tr. 88).
Oxford’s employees were exposed to Alroc on a daily basis. Peebles stated, “I loaded it on
trucks. I walked over it. I parked my vehicle on it. I ate lunch on it. You know, once it was there
it was everywhere. It was all over the job” (Tr. 17).
Oxford’s employees were also exposed to Alroc when building, maintaining, and operating
on Alroc - surfaced roads on the E-40 site (tr. 17, 67, 89, 98, 124). Whenever employees operated
vehicles on the Alroc-surfaced roads large quantities of Alroc dust were raised into the air. At times
the dust would become so thick that it would be impossible for the employees to see where theywere
driving (Tr. 72, 89-90, 98, 126-127).
The Secretary has established that Oxford’s employees were exposed to Alroc.
Employer Knowledge
Oxford was aware that Alroc is a hazardous chemical and that Oxford was not providing the
required training. The company had the information from the MSDS identifying Alroc as a skin,
eye, and lung irritant.
The Secretary has established that Oxford committed a violation of the cited standard.
The hazard created by Oxford’s failure to provide adequate training to its employees is that
they would fail to use proper personal protective equipment when working with Alroc, possibly
resulting in irritations of their eyes, skin, or lungs. The violation is classified as serious.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravityof the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
The record does not establish the size of Oxford’s business. No evidence or prior violations
or of bad faith was adduced. The gravity of the violations is low. The exposure was nearly constant
while many Oxford employees were at the site, but the harmful effects of the Alroc to which they
were exposed were mild. It is determined that the appropriate penalty for item 1 and item 2 is
$650.00 each.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
1. Item 1 of the citation, alleging a serious violation of § 1910.132(a), is affirmed and
a penalty of $650.00 is assessed; and

   2.     Item 2 of the citation, alleging a serious violation of § 1910.1200(h)(3)(iii), is
         affirmed and a penalty of $650.00 is assessed.


                                                     /s/

                                              NANCY J. SPIES
                                              Judge

Date: December 13, 1999