SECRETARY OF LABOR,

Complainant,

v.

SUPER EXCAVATORS, INC.,

Respondent.

OSHRC Docket No. 89-2253

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

Super Excavators, Inc., ("Super") is a construction company specializing in public works construction, particularly excavating trenches for sewer and water lines. Its headquarters is in Menomonee Falls, Wisconsin. A compliance officer ("CO") of the Occupational Safety and Health Administration ("OSHA") inspected a worksite in Milwaukee where Super was laying sewer pipe. As a result of that inspection, OSHA issued a citation alleging that Super had committed serious violations of two different sections of the Hazard Communication Standard for the construction industry.

Super contested that citation, and a hearing was held before an administrative law judge of the Review Commission, who found that Super had committed two serious violations. The judge's decision has been directed for review pursuant to section 12(j) of the Occupational Safety & Health Act of 1970 ("the Act"), 29 U.S.C. 661(j).

I.

Item 1 of the citation alleged that Super had violated the standard at 29 C.F.R. 1926.59(e)(1) [[1/]]. The citation alleged that Super had not developed or implemented a written hazard communication program describing how it would meet the requirements set out in the Hazard Communication Standard. The record shows that Super had, in fact, developed a written hazard communication program, as required by section 1926.59(e)(1) and had implemented it, but that Super did not have a written copy of the program at the worksite during the inspection. The administrative law judge found that this failure constituted a serious violation.

On review, the Secretary has filed a document captioned "Secretary's Notice To Amend Citation," in which the Secretary states, "[T]he Secretary hereby amends the classification of the 1926.59(e)(1) citation to allege a de minimis violation of the standard." In her brief, the Secretary states that Super had implemented an effective overall hazard communication program, that the failure to have a copy of the written program at a transient worksite may have no direct or immediate relationship to employee safety and health, and that this amendment would be consistent with OSHA's current enforcement policy for the Hazard Communication Standard, as set out in CPL 2-2.38C (Oct. 22, 1990). Super, on the other hand, opposes this amendment, arguing that there was no violation and that the citation should be vacated.

In section 12(g) of the Act, 29 U.S.C. 661(g), Congress provided that Federal Rules of Civil Procedure shall govern Commission proceedings unless the Commission has adopted a different rule. Rule 35(f) of the Commission's Rules of Procedure, 29 C.F.R. 2200.35(f), provides:

2200.35 Complaints.

(f) Amendment of the citation and complaint. A contested citation, notification of proposed penalty, or notification of failure to abate may be amended once as a matter of course in the complaint before an answer is served if: (1) the amended allegation arises out of the same conduct, occurrence or hazard described in the citation; (2) the amendment does not result in incurable harm to the employer in the preparation or presentation of its case; and (3) the complaint clearly identifies the change that is being made in the allegation. All other amendments of the Secretary's allegations, as well as any amendments of the employer's responses, are governed by Federal Rule of Civil Procedure 15.

Here, an answer has been served, a hearing held, and a decision issued, so the citation may not be amended under Rule 35(f). Rule 15(a) of the Federal Rules of Civil Procedure [[2]], which applies to the situation here, provides that a party may amend its pleading only if it has either the written consent of the opposing party or leave of court (in this case, the Commission). Therefore, the Secretary may not unilaterally amend the citation and the "Notice to Amend" is ineffective.

However, section 10(c) of the Act provides for the Review Commission to issue an order affirming, modifying, or vacating the Secretary's citation or directing other appropriate relief.[[3]] Accordingly, the Review Commission has the authority to determine that a violation is de minimis, Illinois Bell Telephone Co., 5 BNA OSHC 1884, 1977-78 CCH OSHD 22,209 (No. 2097, 1977); Donovan v. Daniel Constr. Co., 692 2.2d 818, 821 (1st Cir. 1982); so we will treat the Secretary's filing as a motion to amend the citation to a de minimis notice.

After reviewing the record, we conclude that amendment of the citation is warranted. Although the citation alleged that Super had not developed or implemented a written hazard communication program, the Secretary's complaint amended the citation by alleging that Super had violated 29 C.F.R. 1926.59(e)(1) because the written hazard communication program was not available at the work site. The issue litigated by the parties at the hearing was whether Super's written program was "maintain(ed) at the workplace."

To a large extent, the written program is a plan and a training document, to be used in familiarizing employees with the hazardous chemicals present in their workplace, with the hazards posed by these chemicals, with methods of avoiding exposure, and with treatment in the case of exposure. The Secretary has stated that Super had implemented an effective program, which we interpret to mean that the company's employees had been given the requisite training. Further, although the parties stipulated that the four substances at Super's worksite, concrete, concrete pipe, PVC pipe, and waterplug, fell within the standard's definition of "hazardous chemical," none of these substances appears to be unduly volatile or to have posed a significant danger to Super's employees. We consider the Secretary's representations to be an admission that Super's failure to have a copy of its written program at its Milwaukee worksite had no direct or immediate relationship to employee safety and health. We therefore find that amendment of the citation to a de minimis notice is appropriate. Accordingly, we grant the Secretary's motion to amend. Having granted the Secretary's motion, we must consider the legal significance of such an amendment.

Section 9(a) of the Act, 29 U.S.C. 658(a), which authorizes the Secretary to issue citations, provides:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. in addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

The last sentence of section 9(a) makes it clear that a de minimis notice is not a citation. Because it is not a citation, a de minimis notice carries no penalty and no abatement requirement. Dravo Corp., 7 BNA OSHC 2095, 2100, 1980 CCH OSHD 24,158, 29,368 (No. 16317, 1980), pet. for review denied, 639 F. 2d 772 (3rd Cir. 1980); National Rolling Mills, Co., 4 BNA OSHC 1719, 1976-77 CCH OSHD 21, 114 (No. 7987, 1976). A de minimis notice does not become part of an employer's history of previous violations, which is one of the factors to be considered in assessing a penalty under section 17(j) of the Act, 29 U.S.C. 666(j). Westburne Drilling, Inc., 5 BNA OSHC 1457, 1977-78 CCH OSHD 21, 814 (No. 15,631, 1977). It is not proof that there was a violation; it is evidence only that the Secretary believed that there was a violation. Cf., Secretary of Labor v. OSHRC (Goltra Castings, Inc.), 938 F.2d 1116, 1118 (10th Cir. 1991) (uncontested citation and settlement of citation establish only Secretary's opinion that there was a violation, it cannot be used as the basis for alleging a repeated violation in the future. Stone Container Corp., 14 BNA OSHC 1757, 1762, 1987-90 CCH OSHD 29.064, p. 38,819 (No. 88-310, 1990).

Because the Secretary's citation to Super has been amended to a de minimis notice, there is no penalty or order that Super abate the practice cited.   Because there are no legal consequences flowing from such a notice, we conclude that there is no legal controversy before us.  We therefore will not address Super's arguments going to the merits of whether there was a violation.

II.

Item 2 of the citation alleged that Super had violated 29 C.F.R. 1926.59(g)(8), which provides:

(8) The employer shall maintain copies of the required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).

The parties stipulated that Super did have material safety data sheets ("MSDSs") for the four substances at its main office, approximately 22 miles away, but did not have them anywhere on the Milwaukee worksite. The Secretary argues that the standard requires the MSDSs to be physically present at the worksite. The Secretary also states that the standard may be complied with if the MSDSs are immediately available through a facsimile transmitting machine or other device. Super argues that the standard does not require that the MSDSs be physically present at the worksite, only that they be readily available, and that the facts here satisfy that requirement because the MSDSs could be made available within a reasonable time. The company also argues that its worksite is not governed by section 1926.59(g)(8) because it fell within the provisions of 1926.59(g)(9).

The standard Super relies on states:

(9) Where employees must travel between workplaces during a workshift, i.e., their work is carried out at more than one geographical location, the material safety data sheets may be kept at a central location at the primary workplace facility. In this situation, the employer shall ensure that employees can immediately obtain the required information in an emergency.

We conclude that Super's worksite was governed by section (g)(8), not section (g)(9). There is no evidence in the record that Super's employees traveled between workplaces within the meaning of (g)(9). That section was intended to cover situations in which employees had to perform an activity at more than one location, for example, employees who install or repair machinery on various premises and must travel between these sites to get to the equipment they repair or install. Telephone linemen and those in similar activities are an example of employees who perform this type of activity. Here, there is no indication that Super's employees worked anywhere else during the day or that they reported to the main office first and traveled to the Milwaukee site on company time. Absent evidence to the contrary, we cannot say that Super's employees followed any course but the usual construction industry practice of reporting directly to the jobsite and leaving from there at the end of the workday. While we recognize that some of the company's supervisory personnel may have traveled between the cited worksite and the main office during the workday, there is no indication in the record that the laborers and foremen left the site during working hours, and we do not believe that the activity of a few of the company's managerial personnel brought this worksite within the ambit of section (g)(9). [[4]] We therefore find that Super's worksite was governed by the requirements of section 1926.59(g)(8).

An important requirement of section (g)(8) is that the MSDSs be readily accessible. Although Super argues that they could be produced within a reasonable period of time, we do not believe that this satisfies the intent of the standard. One of the primary pieces of information contained in an MSDS is emergency medical treatment for exposure or overexposure to the hazardous chemical. Super's MSDSs would not have been readily available in an emergency.
The company argues that there were telephones available in Milwaukee and that the necessary information could be obtained very quickly. If Super's worksite were covered by section (g)(9), that would be sufficient, for that standard requires only that "employees can immediately obtain the required information in an emergency." A comparison of the language of the two standards, however, shows that, under section (g)(8), a copy of the MSDS itself, not just the information contained in the MSDS, must be readily available. Accordingly, we reject Super's contention that telephone communication is adequate to comply with the requirements of section (g)(8).

Super also asserts that the worksite where it was installing sewer pipe is not covered by section (g)(8) because it is not a "workplace" or a "work area" as those terms are defined in 29 C.F.R. 1926.509(c). [[5]] The essence of this argument is that the site is not a "workplace" because it does not contain one or more "work areas" and that it is not a "work area" because it does not contain a "defined space" where the hazardous chemicals are used. The Secretary argues that the two trailers at the worksite are defined spaces.

Both arguments are too literal. A "defined space" does not have to have walls enclosing it or be demarcated by lines on the ground. For example, it is likely that Super's worksite was separated from vehicular traffic and that pedestrians were not allowed to pass through it. In other words, it was "defined" as an area people not involved in the construction work could not enter. The open trench, where the pipes were being laid, was a defined space where the hazardous chemicals were used. The fact that it would be located in a different place in the afternoon than it had been in the morning makes it no less "defined." Because there was at least one "defined space" at the worksite, it constituted a "work area," and Super's site was a "workplace" governed by 29 C.F.R. 1926.59(g)(8), because it did contain one or more work areas.

For these reasons, we reject the argument that the worksite was covered by section 1926.59(g)(9). Because we find that Super did not have MSDSs readily accessible at the site, we hold that Super violated the standard at 29 C.F.R. 1926.59(g)(8).

The Secretary alleged that the violation was serious and proposed a penalty of $120.00. Under section 17(k) of the Act, 29 U.S.C. 666(k), a violation is serious if there is a substantial probability that death or serious physical harm could result. This does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result if an accident does occur. Natkin & Co., 1 BNA OSHC 1204, 1205, 1971-73 CCH OSHD 15,679, pp. 20,967-68 (No. 401, 1973). The likelihood of an accident's occurring and the likelihood of an injury resulting from that accident are factors to be considered in evaluating the gravity of a violation for purposes of assessing a penalty. Baltz Bros. Packing Co., 1 BNA OSHC 1118, 1119, 1971-73 CCH OSHD 15,464, 20,728 (No. 91, 1979).

Here, determining the seriousness of the violation is more difficult because the absence of an MSDS, alone, would not cause physical harm. We must therefore look to other factors. An MSDS is not like the written program, which is essentially a general plan covering all hazardous chemicals in a workplace. An MSDS contains a great deal of very specific information about one hazardous chemical, including safe handling precautions, procedures for cleaning up spills, emergency first aid procedures, and the telephone number of the party who can provide additional information about emergency procedures. The lack of an MSDS could result in an employee's being given inadequate or improper treatment for exposure to a hazardous substance. Here, however, the four substances found in Super's workplace were not particularly volatile. It is likely that any harm they caused would be of a superficial nature, such as dermatitis from exposure to the cement. Because the secretary has stipulated that Super had implemented an effective overall hazard communication program, we conclude that Super's employees had been trained not only in the recognition and avoidance of the hazards posed by these substances but also in the proper treatment in case of exposure. Under these circumstances, it is not likely that the physical harm caused by exposure to any of these substances would be so exacerbated by the absence of an MSDS as to cause serious injury. We therefore find that serious physical harm was not likely to result from the lack of an MSDS at this satellite worksite and that this violation was not serious but was, instead, other-than-serious.

Section 17(j) of the Act, 29 U.S.C. 666(j), sets out four factors to be considered in assessing a penalty: the employer's size, the gravity of the violation, the good faith of the employer, and the employer's history of previous violations. The Secretary proposed a penalty of $120. We have considered the evidence in the record on the statutory factors. Because we find that this violation was of low gravity, we assess a penalty of $60.00.

III.

Accordingly, we amend item 1 of the citation to a de minimis notice, for which there is no penalty. We affirm item 2 of the citation as an other-than-serious violation of 29 C.F.R. 1926.59(g)(8) and assess a penalty of $60.00.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Date: October 18, 1991


SECRETARY OF LABOR,

Complainant,

v.

SUPER EXCAVATORS, INC.,

Respondent.

OSHRC DOCKET NO. 89-2253

APPEARANCES:

For the Complainant:
Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, IL

For the Respondent:
Mark M. Camp, Esq., Thomas G. Kreul, Esq.,
Pfannerstill and Camp, Milwaukee, WI

DECISION AND ORDER

Loye, Judge:

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

Respondent Super Excavators, Inc. is a construction operation with its principal place of business in Menomonee Falls, Wisconsin (Answer, II). Respondent admits it is engaged in a business affecting commerce and is, therefore, an employer within the meaning of the Act and subject to the Act's requirements (Answer III).

As a result of an inspection on June 20, 1989 (Tr. 39) by an Occupational Safety and Health Administration (OSHA) Compliance Officer (CO) respondent was issued citations and proposed penalties pursuant to the Act alleging Serious violations of 29 C.F.R. 1926.59(e)(1) and (g)(1) and a Repeat violation of 1926.251(b)(1). By filing a timely notice of contest respondent brought this proceeding before the Occupational Safety and Health Review Commission contesting the citations and the proposed penalties. On January 9, 1990 a hearing was held in Milwaukee, Wisconsin.

With its Post-trial Brief, Complainant submits a Motion to amend item 2 of Serious citation No. 1, to allege violation of $1926.59(g)(8) in lieu of 1926.59(g)(1). Complainant claims that (g)(8) governs the facts as they were tried in this case and that amendment is necessary to conform to the evidence. As there is no objection from the respondent, the Motion will be Granted.

Alleged Violations
29 C.F.R. 1926.59(e)(1) and (g)(8)

The relevant portions of 1926.59(e)(1) state:

Employers shall develop, implement, and maintain at the workplace, a written hazard communication program for their workplaces which at least describes how the criteria specified in paragraphs (f) (g) and (h) of this section for labels and other forms of warning, material safety data sheets, and employee information and training will be met. . . .

Section 2926.59(9) (8) requires:

The employer shall maintain copies of the required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they are readily accessible during each work shift to employees when they are in their work areas(s).

Facts

OSHA's June 20, 1989 inspection took place at respondent's worksite at South Clement and East Oklahoma Avenue, Milwaukee, Wisconsin, where respondent was engaged in excavating a trench (Tr. 39-41). The work area might advance up to 200 feet a day depending upon excavating conditions (Tr. 86-87). A convenience trailer was located one city block east of the excavation (Tr. 54).

At the excavation the CO observed the crew laying cut concrete pipe and using cement (Tr. 42). He also noted waterplug on the worksite and PVC pipe near the trailer (Tr. 42). In response to the CO's questions, respondent's superintendent indicated that the latter items were used on the job (Tr. 42, 104).  Respondent stipulates that cement, PVC pipe, water plug and concrete pipe are hazardous chemicals within the definition of 1926.59(c) (Stipulation of Facts No. 5). Respondent further stipulates that neither the Material Safety Data Sheets (MSDS) nor a copy of respondent's hazard communication program were physically present at the Milwaukee worksite (Stipulation of Facts No. 3 and 4). Hazard information was kept rather at respondent's main office 22 miles and approximately 30 minutes away (Tr. 56-57).

The Complainant maintains that 1926.59(g)(8) requires that hazard materials be available at each worksite, not maintained at a centralized location. The CO testified that the MSDS tells employees how to recognize and protect against over-exposure and how to take care of an accidental spill. It provides information vital to medical personnel, and should, in the CO's opinion go along to the hospital with any contaminated personnel (Tr. 57, 60).

Discussion

As a threshold matter, respondent contends that the cited standards are inapplicable because on the date of the inspection, employees were not using cement or waterplug and were not cutting PVC or concrete pipe. Respondent maintains that the "mere presence" of the hazardous materials did not create a hazard to employees.

This judge finds that respondent's argument is without merit. Section 1926.59(b) Scope and Application, makes the cited standard applicable to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency." Respondent's superintendent admitted the hazardous materials present were used on site. Employee exposure to those chemicals is clearly foreseeable. [[1]] See, General Carbon Co. v. OSHRC, 860 F.2d 479, 13 BHA OSHC 1949 (D.C. Cir. 1988) (Hazard Communication Standard applicable and enforceable without proof of individual existence of significant risk of harm).

Respondent also argues that, if applicable, the standard requires only that hazard information be immediately available to employees and allows the information to be maintained in a central location. In support, respondent points to 1926.59(g)(9) which states that:

Where employees must travel between workplaces during a workshift, i.e., their work is carried out in more than one geographical location, the material safety data sheets may be kept at a central facility. In this situation, the employer shall ensure that employees can immediately obtain the required information in an emergency.

This judge finds that the plain language of the regulation requires that the subject hazard information be made available at geographically distant work sites. Section 1926.59(c) defines "workplace" as "an establishment, job site, or project, at one geographical location containing one or more work areas." The standard plainly contemplates provision of such information at each location where employees work with hazardous chemicals.

Moreover, this judge finds that respondent's reliance on the exemption stated in 1926.59(9) is misplaced. Exemptions to the sweep of remedial legislation must be narrowly construed and limited to effect only the remedy intended. Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1379 (No. 15462, 1980).  The cited exemption was intended to apply where, during a single shift, employees "must travel between" distinct and distant workplaces, not where, as here, workers remain at a relatively fixed workplace which might daily extend a few hundred feet further from a stationary job trailer where hazard information might easily be maintained.

The standards cited here are intended to provide employees with comprehensive information regarding possible workplace dangers. Such information must be immediately available to guide clean up and medical efforts. Failure to provide such information is properly classified as Serious.

Citation 1, items 1 and 2 will be affirmed as a Serious violation of the Act.

Penalty

The Secretary has proposed a combined penalty of $240.00.

The determination of what constitutes an appropriate penalty is within the discretion of the Review commission. Long Manufacturing Co. v. OSHRC, F.2d 902 (8th Cir. 1977). In determining the penalty the Commission is required to give due consideration to the size of the employer, the gravity of the violation and the employer's good faith and history of previous violations. The gravity of the offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC 1001 (No. 4, 1972).

Respondent is a large employer, with over 100 employees (Tr. 61). There is nothing in the record to indicate bad faith or past history of violations of the hazard communication provisions (Tr. 62).  Although the cited violation at its central location approximately 30 minutes from the work site.  Therefore, the gravity of the violation is deemed to be low. 

For the reasons set forth above, the proposed penalties are deemed to be appropriate.

Section 1926.251(b)(l)

The cited standard requires that "welded alloy steel chain slings shall have permanently affixed durable identification stating size, grade, rated capacity and sling manufacturer."

Respondent admits that at the time of the inspection there was no tag on the subject sling (Tr. 16).  Respondent's superintendent indicated to the co that the sling had been used but did not say when or for what purpose (Tr. 69, 104).   The co assumed that pipe was being lowered into the trench by means of the sling since it was attached to the crane and ready for use (Tr. 50).  The co testified that chains should be inspected on a yearly basis and visually checked daily (Tr. 49).  He did not know and made no attempt to ascertain how long the tag had been missing (Tr. 85).

The Commission has held that:

In order to prove a violation of section 5(a) (2) of the Act, 29 U.S.C. 654(a)(2), the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence.

Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 78 6247, 1981).

The Secretary's prima facie case fails to demonstrate employer knowledge of the cited standard. Even assuming that reasonable diligence requires daily inspection of chain slings, as is urged by the Secretary, this judge cannot conclude that respondent failed to exercise same. The record is devoid of any evidence establishing that respondent's inspection schedule was deficient or that daily inspection would have resulted in discovery of the missing tag.

Repeat citation 2 will, therefore, be dismissed.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above.

ORDER

Based upon the findings of fact and conclusions of law set forth herein it is ORDERED:

1. Citation 1, items I and 2 are AFFIRMED as Serious violations and a penalty of $240.00 is hereby ASSESSED.

2. Citation 2, item 1 together with the proposed penalty is hereby VACATED.

Benjamin R. Loye
Judge, OSHRC

Dated: May 25, 1990


FOOTNOTES:

[[1/]] That standard provides:

(e) Written hazard communication program. (1) Employers shall develop, implement, and maintain at the workplace, a written hazard communication program for their workplaces which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, material safety data sheets, and employee information and training will be met, and which also includes the following:
(i) A list of the hazardous chemicals known to be present using an identity that is referenced on the appropriate material safety data sheet (the list may be compiled for the workplace as a whole or for individual work areas); and,
(ii) The methods the employer will use to inform employees of the hazards of non-routine tasks (for example, the cleaning of reactor vessels), and the hazards associated with chemicals contained in unlabeled pipes in their work areas.

[[2]] Rule 15(a) provides:

Rule 15. Amended and Supplemental Pleadings

(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

[[3]] Section 10(c), 29 U.S.C. 659(c), states in pertinent part:

(c) If an employer notifies the Secretary that he intends to contest a citation issued under section 9(a) . . . the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section). The Commission shall thereafter issue an order based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance....

[[4]] The company suggests that it comes within the purview of section (g)(9) because its worksite was not fixed but moved as the trenching progressed. As the standard speaks of employees traveling, not worksites traveling, we reject this suggestion.

[[5]] According to those definitions, "Workplace" means an establishment, job site, or project, at one geographical location containing one or more work areas. "Work area" means a room or defined space in a workplace where hazardous chemicals are produced or used, and where employees are present.

 

[[1]] In any event, respondent's reliance on this argument is misplaced. The issues in this case were stipulated for trial. 1926.59's applicability was not among them. Respondent may not now take advantage of the Secretary's understandable failure to put on evidence or present argument on the issue.