SECRETARY OF LABOR,

Complainant,

v.

THOMAS LINDSTROM COMPANY,

Respondent.

OSHRC Docket No. 90-1084

DECISION

Before: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

At issue in this case is whether Administrative Law Judge Michael H. Schoenfeld erred in affirming a citation issued to Thomas Lindstrom Co. ("Lindstrom") alleging a violation of 29 C.F.R. § 1926.59(g)(8), [[1]] which requires that material safety data sheets ("MSDSs") for hazardous chemicals be "readily accessible" to employees.

Lindstrom, a structural steel erector, was building an addition to an existing department store at a construction site in Cherry Hill, New Jersey. During an inspection of the worksite, a compliance officer of the Occupational Safety and Health Administration ("OSHA") asked Lindstrom's onsite foreman -- who had been using oxygen and acetylene while welding -- for the MSDSs for oxygen and acetylene. The foreman could not produce the MSDSs at that time because they were not at the worksite. The MSDSs were at Lindstrom's central office, variously estimated to be between 10 and 45 minutes away by car.

Lindstrom argues that MSDSs are "readily accessible" within the meaning of the standard if they can be supplied at any time during the work shift in which a request for them is made. It contends that it operated a communications program and delivery system by which foremen in the field could telephone Lindstrom's coordinator for the MSDSs and have them delivered to the jobsite, which in this case was only about 10 minutes from the office where the MSDSs were kept.

The Secretary argues that "readily accessible" as used in the cited standard means that the hazard information contained in MSDSs must be "quickly available to employees at each worksite where they are exposed to hazardous chemicals." (Emphasis in original).[[2]] She contends that the judge correctly discerned the sense of immediacy underlying the cited standard when he stated in his decision:

Under the standard cited, employees on the worksite faced with a hazardous chemical are entitled to have access to a material safety data sheet which spells out not only the potential hazards but, more importantly, the safety precautions to be taken and the procedures to be used in the event of a spill or leak. Employee safety is diminished to the extent that employees have to wait for delivery of the information needed to protect them. Time could well be of the essence should there he a spill or leak.

The Secretary points out that both oxygen and acetylene are hazardous chemicals as defined by the Hazard Communication Standard. Oxygen can promote combustion in other material, thereby increasing the severity of fires: acetylene is a highly flammable acid explosive chemical that should not be stored near oxygen.

Our resolution of this question is governed by our recent decision in Super Excavators Inc., OSHRC Docket No. 89-2253 (Oct. 18, 1991). In affirming a violation of section 1926.59 (g) (8) in that case, we held that an employer who did not have the MSDSs on the worksite but claimed that it could get them "within a reasonable period of time" was not in compliance. We conclude that because Lindstrom's MSDSs were located only at its central office the MSDSs were not "readily accessible" at the worksite and the company was not In compliance with the standard.

Accordingly, we affirm the judge's decision.


Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: November 20,1991


SECRETARY OF LABOR,

Complainant,

v.

THOMAS LINDSTROM COMPANY, INC.,

Respondent.

Docket No: 90-1084

APPEARANCES:

For Complainant


Alan L. Kammerman, Esq.

U.S. Department of Labor
Office of the Solicitor

For Respondent


James F. Sassaman

Director of Safety
General Building Contractors Association

BEFORE: MICHAEL H. SCHOENFELD

JUDGE, OSHRC

DECISION AND ORDER

Background and Procedural History

This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 (1970) ("the Act").

On March 8, 1990, pursuant to a general inspection schedule, Bernard F. DeZalia, a Compliance Officer ("CO") of the U.S. Occupational Safety and Health Administration conducted an inspection of a construction site on Route 38 in Cherry Hill, New Jersey (Tr. 10-11) [[1]]. As a result of that inspection, on March 30, 1990, a citation was issued to Respondent alleging that it had committed an other than serious violation of the Act. Respondent timely filed a notice of contest. A complaint and answer were duly filed and the case came on to be heard in Camden, New Jersey. No affected employees or representatives thereof entered an appearance. Both parties have filed posthearing briefs.

Jurisdiction

The Complaint alleges and Respondent does not deny that it is a corporation doing business in the State of New Jersey engaged in steel erection work and that it uses materials and equipment originating in other states.

I thus find that Respondent is engaged in a business affecting commerce within the meaning of § 3(3) of the Act and conclude that it is an employer within the meaning of § 3(5) of the Act.

Accordingly, the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter.

Citation No. 1 Item 1
Alleged violation of 29 C.F.R. § 1926.59 (g) (8)

The cited standard provides:

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 operative facts are undisputed. Upon the CO's request, an employee of Respondent who had been using oxygen and acetylene for welding at the inspected work site could not produce a material safety data sheet at the site for either chemical. (Tr. 13) Material safety data sheets ("MSDS") were kept at Respondent's office and could have been delivered to the site within an hour. Although Respondent had an employee safety training program, it never specifically informed its employees that material safety data sheets would be delivered to the work sites (as were other supplies, materials and equipment). (Tr. 39-40)

The sole issue in this case is whether the material safety data sheets must be physically located at each work site or may they be maintained at a central location from where they are easily deliverable to the worksite.

The requirement of the cited standard is one of "readily accessible." Similar phrases have been interpreted as they are used in other standards. For example, copies of the OSHA injury log must "be available" at each of a Respondent's establishments. See, 29 C.F.R. § 1904.2 (b) (2) (1990). Noting that "available" could mean either present and ready for immediate use or accessible or obtainable, this Administrative Law Judge held there to he no violation of the standard where an employer with a chain of supermarkets maintained the records centrally but had an established system, of which the employees were specifically informed, for delivery of a requested log within 48 hours. Price Chopper Supermarkets, A Golub Corporation, BNA OSHC (No. 90-0552, December 21, 1990). On the other hand, a violation of 29 C.F.R. § 1926.352(d) (1990), requiring fire extinguishing equipment to be "immediately available" was found where the evidence raised the inference that the nearest fire extinguisher known to the welder was on the floor below his workplace. Cornell and Company, 14 BNA OSHC 1887 (No. 89-2127, 1990). Judge Burroughs has held that logs of tests made on equipment were not "available for inspection in the immediate vicinity of the affected operation" as required by 29 C.F.R. § 1915.7(c)(2) (1990), where a company safety director kept the log with him when he left the work site. Oil Recovery Co. of Alabama, Inc., 14 BNA OSHC 2013 (No. 89-3445, 1990).

Respondent essentially asserts two arguments: first, their policy of maintaining the MSDS at its office was adequate because of their method of delivery to the field; second, the cited standard "establishes the applicable duration [of delivering the MSDS] as "each work shift" and not a matter of minutes." (Respondent's Brief pp. 7-8) Respondent is mistaken.

The Secretary correctly points to another section of the standard, 29 C.F.R. § 1926.59 (g) (9), which addresses the issue of allowing an employer to keep MSDS at a central location. That situation is not present in this case. Lindstrom employees do not travel between workplaces during a workshift. Moreover, even if the centrally located MSDS policy was correct, the delivery system was inadequate to ensure availability immediately in an emergency. The record evidence indicates that Lindstrom did not have a specific program for delivering the MSDS to its employees in the field. No express instructions were given its employees regarding the MSDS delivery system, they were merely implied based on their "corporate culture". (Respondent's Brief, p. 5) This is not sufficient to establish compliance with the standard.

Respondent's second argument establishes that it has failed to see the purpose of maintaining pertinent MSDS at the worksite. While Respondent would allow delivery as "each work shift" and not a matter of minutes, it fails to recognize the need for accessibility in ensuring the safety of its employees. "The purpose of the standard is to have MSDS's available for employees who must work with hazardous chemicals. MSDS's provide emergency first-aid procedures in the event of overexposure to the chemicals, and, in an emergency, a delay of five to ten minutes could be fatal." Voss-Jorgensen- Schueler Co., 14 BNA OSHC 1987, 1988 (1990) (affirming a violation of 29 C.F.R. § 1926.59(g)(1)).

In Brice Chopper no particular urgency could be reasonably read into the requirement to make available information about injuries which had already occurred. In both Cornell and Oil Recovery, however, the speed with which the equipment or log could be retrieved was important to the safety of the employees involved. Such is the case here. Under the standard cited employees on the worksite faced with a hazardous chemical are entitled to have access to a material safety data sheet which spells out not only the potential hazards but, more importantly, the safety precautions to be taken and the procedures to be used in the event of a spill or leak. [[2]] Employee safety is diminished to the extent that employees have to wait for delivery of the information needed to protect them. Time could well be of the essence should there be a spill or leak.

Reading the standard's requirement in the context of the nature of the hazards sought to be prevented, I conclude that delivery of material safety data sheets to a worksite within an hour of the time requested does not constitute having the sheets "readily accessible" as required by the cited standard. Accordingly, Citation No. 1, Item 1 is AFFIRMED.

Considering the size or Respondent, its good faith, history and the gravity of the violation under § 17 (j) of the Act, 29 U. S. C. § 666 (i), I find that the imposition of no penalty is appropriate.

FINDINGS OF FACT

Findings of fact relevant and necessary for a determination of all issues have been made above. Fed. R. Civ. P. 52 (a). All proposed findings of fact and conclusions of law inconsistent with this decision are hereby denied.

CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer within the meaning of § 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 (1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter.
3. Respondent failed to comply with the standard at 29 C.F.R. § 1926.59(g)(8) (1990) as alleged.
4. Respondent's failure to comply with the standard at 29 C.F.R. § 1926.59(g)(3) (1990) constituted an other than serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 (1970).
5. Pursuant to § 17(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 (1970) a monetary penalty of $ 0 for the above violation is appropriate.

ORDER

1. Citation No. 1, Item 1 is AFFIRMED. No penalty is assessed.

Michael H. Schoenfeld
Judge, OSHRC


Dated: APR 09, 1991 Washington, D.C.




FOOTNOTES:
[[1]] Section 1926.59(g)(8) provides:

§ 1926 .59 Hazard communication.

(g) Material safety data sheets.

(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).

[[2]] The Secretary points out in her brief that an enforcement directive she published as OSHA Instruction CPL 2-2.38C (Oct. 22, 1990). provides that MSDSs or electronically accessible MSDS(s) must be available at each worksite. She observes that the record here is devoid of evidence that Lindstrom's jobsite was equipped with any means of receiving electronicalIy transmitted copies of MSDSs (such as by computers with printers, microfiche machines or telefax machines), so as to trigger the administrative exception created in Instruction CPL 2-2.38C.

[[1]]  Reference to the official record in this case are as follows.  TR, Transcript of Proceedings; CX, Complainant's Exhibit, RX, Respondent's Exhibit.

[[2]] Requirements for the contents of material safety data sheets are found at 29 C.F.R. § 1926.50 (g) (2) (1990).