SECRETARY OF LABOR,

Complainant,

v.

WESTINGHOUSE HAZTEC INC.,

Respondent.

OHSRC Docket No. 88-2458

ORDER

The parties in the above-cited action entered into a written Stipulation and Settlement Agreement which was filed by the Secretary of Labor with the Commission on March 12, 1990. In filing the Stipulation and Settlement Agreement, the Secretary of Labor certified that the Agreement disposed of all pending issues subject to the aforementioned action. As part of the Stipulation and Settlement Agreement, the Respondent requested that its previously filed Notice of Contest in this action be withdrawn.

Having fully reviewed the Stipulation and Settlement Agreement, attached hereto, it is found that the aforementioned Agreement has disposed of all issues presently pending before the occupational Safety and Health Review Commission. Therefore, pursuant to a delegation of authority to the Executive Secretary, 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979), the parties' Stipulation and Settlement Agreement is approved and the Notice of Contest in the above-cited action is dismissed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: March 28, 1990


ELIZABETH DOLE,

SECRETARY OF LABOR,

Complainant,

v.

WESTINGHOUSE HAZTECH, INC.,

Respondent.

OSHRC Docket No. 88-2458

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, Westinghouse Haztech, Inc., that:

1. Respondent represents that the alleged violations have been abated;

2. Complainant hereby agrees to reduce the penalty assessed for the alleged violation from $100.00 to $0;

3. Respondent hereby withdraws the Notice of Contest previously filed in this case;

4. Complainant agrees that the citation affirmed as a result of Respondent's withdrawal of its notice of contest will not be used as a basis for a repeated violation in any subsequent proceeding involving the same or substantially similar violation or hazard;

5. Respondent hereby certifies that a copy of this settlement agreement was posted at its workplace on this 8th day of March, 1990;

6. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding;

7. The parties have entered into this stipulated settlement solely to avoid protracted and expensive litigation. This settlement is not to be construed as an admission of fault or liability of any violation of the Occupational Safety and Health Act or regulations or standards promulgated thereunder of any other law, regulation or standard. The parties have entered into this stipulated settlement with the intent and on the basis that it is related solely to the disposition of this case and is determinative of issues in this case only. It shall not be binding in any subsequent actions, proceedings or events consistent with the terms of this agreement and it in no way affects any rights, defenses, or remedies which may be available in the future to Respondent or any other party.

8. There are no affected employees or authorized employee representatives.

James R. Attaway, Jr.
Attorney for Westinghouse,
Haztech, Inc.
Westinghouse Environmental
and Geotechnical Services, Inc.

ANTONY F. GIL
Attorney for the

Secretary of Labor


SECRETARY OF LABOR,

Complainant,

v.

WESTINGHOUSE HAZTECH, INC.,

Respondent.

OSHRC Docket No. 88-2458

APPEARANCES:

Ken S. Welsch, Esquire, and Stephen J.
Simko, Jr. Esquire, Office of the
Solicitor, U. S. Department of Labor, on
behalf of complainant.

James R. Attaway, Jr., Esquire, S&ME,
Inc., Raleigh, North Carolina, on behalf
of respondent.

DECISION AND ORDER

SPARKS, Judge:     On August 8, 1988, Westinghouse Haztech, Inc., was called to participate in cleanup operations at the derailment of a CSX train at Middleton, Georgia. Five tank cars containing xylene, a hazardous substance, had derailed causing a spillage in excess of 50,000 gallons.

Following an inspection by two industrial hygienists from the Occupational Safety and Health Administration, a citation for a serious violation of 29 C.F.R. 1910.120(d)(2) [[1]] was issued alleging the following conditions:

At the train derailment spill response site, Middleton, GA, where a site map was not available and where the work zone boundaries were incompletely established or delineated, on or about August 10, 1988, exposing employees to possible ignition of flammable xylene from ruptured tank cars and decomposition products from spilled polyurethane pellets.

Respondent does not dispute the significant facts but contends that its operations were not subject to the standard cited.

FINDINGS OF FACT

1. Respondent, Westinghouse Haztech, Inc., maintains its principal place of business at 5280 Panola Industrial Boulevard, Decatur, Georgia. It is engaged in providing environmental services throughout the eastern United States.

2. Respondent is an employer engaged in a business affecting commerce.

3. On August 8, 9, and 10, 1988, respondent was one of several employers engaged in the cleanup of hazardous materials at the site of the derailment of a CSX train near Elberton, Georgia. Respondent was primarily engaged in removing xylene from the ground and transferring xylene from railroad tank cars to tanker trucks. Overall control of the site was maintained by CSX Transportation.

4. The work was performed pursuant to an agreement called an "Emergency Contract" which provided for cleanup services for a period of three days after work commenced.

5. Industrial Hygienists Ken Smith and James White conducted an inspection of respondent's cleanup operations between 4:00 p.m., August 9, 1988, and 11:00 a.m., August 10, 1988.

6. The health hazards of xylene include central nervous system, depression, nausea, and eye, nose and throat irritation. In addition, xylene is flammable.

7. Xylene appears on the list of substances regulated by the Department of Transportation at 49 C.F.R. 172.101.

8. The Site Safety and Health Plan maintained at the site did not contain a site map. A complete plan was later furnished OSHA which contained a site map.

9. The work zones were not clearly delineated so as to distinguish between safe and contaminated work areas.

10. More than 50,000 gallons of xylene spilled from the tank cars some of which had collected on the ground in pools.

11. Employees of respondent were exposed to the xylene. Additional findings of fact are contained in the following discussion.

DISCUSSION

As the site control program did not contain a site map nor marked work zones as required by 29 C.F.R. 1910.120(d)(2), the principal issue for decision is whether respondent's operations at the time of the inspection were subject to the cited provision. To decide that issue the question becomes whether, at the time of the inspection, respondent's operation was solely an emergency response operation which does not require a site map and marked work areas, or post-emergency operations which do require such safety features.

The pertinent definitions are contained in the standard. Section 1910.120 entitled "Hazardous waste operations and emergency response" covers several facets of waste treatment and control, including "emergency response operations" which is defined as follows:

(v) Emergency response operations for releases of or substantial threats of releases of hazardous substances and post-emergency response operations for such releases.

"Emergency response" is defined in section 1910.120 (a)(3) as follows:

"Emergency response" means a coordinated response effort by employees from outside the immediate release area or by outside responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental releases that can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area are not considered to be emergency responses within the scope of this standard. Responses to releases of hazardous substances where the concentration of hazardous substance is below the established permissible exposure limits are not considered to be emergency responses.

Section 1910.120(a)(2) makes all paragraphs applicable to post-emergency response operations, but only paragraph (1) applies to the following conditions:

(iv) Paragraph (1) of this section applies to emergency response operations for releases of or substantial threats of releases of hazardous substances.

There can be no doubt that xylene is classified as a hazardous substance (Ex. C-3; Tr. 22, 35). Neither can there by any question but that large amounts, in excess of 50,000 gallons, had been released into the environment from the leaking tank cars. Although the parties argue whether employees could be contaminated, it is clear that the hazard of such contamination was present.

Respondent contends that only emergency response operations of the type described above were conducted at the wreck site at the time of the inspection and that it was not, therefore, subject to the cited standard.

The compliance officer testified that the "Technical Support people" of OSHA took the position that the entire section applied to emergency response operations not just subparagraph 1.[[2]] The plain language of the standard does not appear to support that interpretation, and counsel for the Secretary does not urge that position in tier brief. Rather, she contends that the emergency portion of respondent's activities had ended and that, at the time of the inspection, respondent was engaged in post-emergency cleanup and removal of hazardous substance. She argues as follows (brief pp. 5-6):

Therefore, it is agreed that respondent's initial reaction upon arriving at the site may have been in response to such an emergency (Tr. 63, 65, 70). However, by the time of the OSHA inspection, respondent's activities involved merely the cleanup and removal of the xylene (Tr. 11, 12, 13, 24). Section 1910.120 (1)(5) provides that "Upon completion of the emergency response, if it is determined that it is necessary to remove hazardous substances, health hazards and materials contaminated. . . , then such operations shall meet all the requirements of paragraph (b) through (n) of this section." Thus, since respondent's emergency response had ceased, the requirements at 1910.120(d) would be applicable to respondent at the time of the OSHA inspection. (Footnote omitted.)

It would seem that the standard envisions that the emergency response would not be delayed while a site map is prepared and the work zones delineated. [[3]] However, once the emergency conditions had been abated, those portions of the site plan are required. The rationale for such distinction may be that priority would be given to reducing the emergency hazards, but the safety provisions of the site plan would be implemented as expeditiously as possible. The interpretation of the Secretary is consistent with the language [[4]] and purpose of the standard.

The question is whether, at the time of the inspection, respondent's operations had changed from "emergency response" to "post-emergency response" operations.

Robert Kemp, respondent's Operations Supervisor in Atlanta, testified he was first notified of the CSX train wreck about 4:00 p.m., August 8, 1988 (Tr. 57-58). At that time, he was instructed to obtain a preliminary site specific health and safety plan from the company's industrial hygienist including material safety data sheets for the chemicals to be encountered and to gather other needed equipment (Tr. 58). They arrived at the scene of the wreck at approximately 7:00 p.m. where they met representatives of CSX and EPA and executed a contract at 8:00 to 9:00 p.m. (Ex. R-3; Tr. 63-64). The OSHA compliance officers arrived at tile scene the following day at about 4:00 p.m., August 9, 1988 (Tr. 24). Work had been suspended pending the arrival of a crane to upright the tank cars which would permit the xylene to be pumped from the derailed cars. The OSHA representatives were at the site the next day, August 10, 1988, between 6:45 a.m. and 11:00 a.m. At the time of the first visit to the site on August 9, 1988, about 20 hours after respondent's arrival at the scene, the compliance officers found that there was no site map showing major features and danger areas (Tr. 26). The compliance officers also concluded that the work zones had not been sufficiently delineated. Respondent's supervisor described everything north of a sheet of plastic, designated as a decontamination area, as a hot zone (Tr. 32).

The OSHA representatives expressed an opinion that barricade tape, traffic cones or similar devices were necessary to mark the various hazardous and safe areas at the site (Tr. 29).

After arrival at the scene and giving, instructions to employees, respondent monitored the site. Although there was a strong odor, the readings were low (Tr. 69-71). They continued monitoring the site because the air temperature of 77 F. was at the explosive limit (Tr. 75-706) although the level of vapors was far below the minimum (Tr. 70). Mr. Kemp, respondent's supervisor, testified that first priority was given to removing xylene off the ground which he the greatest hazard. He estimated there was 200 considered gallons under one of the cars. Secondly, they began pumping xylene from the tanks (Tr. 65-66, 77). That is consistent with the with the secretary's understanding of the events (Tr. 12, 14).

The Secretary offers little help as to the exact time or event which changed respondent's operations from an emergency response to a post-emergency cleanup and it is difficult to pinpoint a precise time. By the time of the second visit of the compliance officers on August 10, 1988, respondent had cleaned up the ground and. was pumping out the tank cars. It is concluded that respondent's activities had been reduced to routine cleanup activities indicative of post-emergency operations. In that phase of operations, respondent was required to comply with (b) through (n) of section 1910.120, but a site map had not been prepared nor had the work areas been marked with sufficient clarity. Respondent began to mark the work areas with barricade tape after the OSHA representative brought it to the employers attention, but the attempt was inadequate as it did not completely mark off the hot areas (Tr. 39-40). The information was available and respondent had had ample time to complete the map and mark the work areas. The evidence establishes a violation of the standard charged.

Respondent had a total of about 20 employees working in shifts at the site. Although the hazards of xylene can cause serious injury or death, the monitoring of conditions, partial removal of the xylene, and protective clothing worn by employees indicate that the employees were not exposed to conditions capable of causing serious injury. The items cited are found to be other than serious.

The overall impression of respondent's operations, as drawn from the record, shows it to be an efficient, well-managed and skilled organization. Considering the gravity of the violations, and the size, good faith and history of the respondent, a penalty of $100 is appropriate.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in interstate commerce which is subject to the Act and this proceeding.

2. Respondent violated 29 C.F.R. 1910.120(d)(2) under conditions constituting an other than serious violation.

3. A penalty of $100 is reasonable and appropriate.

ORDER

It is hereby ORDERED:

1. The citation is affirmed as an other than serious violation.

2. A penalty of $100 is assessed.

Dated this 7th day of June, 1989.

JOE D. SPARKS

Judge



FOOTNOTES:

[[1]] Sections 1910.120(d)(1) and 1910.120(d)(2) of 29 C.F.R. state as follows:

(d) Site-control. (1) A site control program for preventing contamination of employees shall be developed during the planning stages of a hazardous waste operation clean-up.

(2) The site control program shall, as a minimum include: A site map, site work zones; the use of a "buddy system"; site communications; the standard operating procedures or safe work practices; and, identification of nearest medical assistance.

[[2]] Compliance officer Smith testified as follows (Tr. 46):

A Right, but it was my understanding, I reviewed this was our Technical Support people, that that paragraph is taken to mean, that paragraph L refers to emergency sites only, it does not mean that paragraph L alone and not any other part of the standard refers to hazardous waste sites, or rather to emergency clean up operations.

In other words, I don't know if I am making myself clear, paragraph L refers to emergency clean up sites, but the remainder of the standard also applies, it is my understanding, as I prepared the citation.

[[3]] Section 1910.120 (1)(ii) does not require a site map or marking of work areas as elements of an emergency response plan.

section 1910.120 (2)(ii) provides as follows:

All paragraphs of this section except paragraph (0) apply to . . . post-emergency response operations . . . .