UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 19, 1991

DECISION

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

BY THE COMMISSION:

The issue in this case is whether Administrative Law Judge Stanley M. Schwartz erred in vacating Item 4 of a serious citation issued by the Secretary of Labor to ARA Living Centers of Texas, Inc., alleging that it violated 29 C.F.R. § 1910.1200(h)1 by failing to provide its employees with information and training on certain hazardous chemicals. We find that the judge did err and reverse his decision as to Item 4.

Background Facts

In April 1989, Bevil Hart, an industrial hygienist working for the Occupational Safety and Health Administration (“OSHA”), conducted an inspection of Respondent’s Oak Park Manor Nursing Home. Following the inspection, OSHA issued Respondent a citation for a serious violation. Item 4 of the citation alleges that Respondent violated section 1910.1200(h) because:

Employees were not provided information and training as specified in 29 CFR 1910.1200(h)(1) and (2) on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard is introduced into their work area:

At Oak Manor Nursing Home, Nacogdoches, Texas, employees are using chemicals such as cleaning chemicals.

The hazardous chemicals involved (phosphoric acid and ethyl dimethyl benzyl ammonium chloride) were present in two products that employees of the health care facility used for cleaning purposes: CBC Plus Bowl Cleaner—With Xanthum, and Asepticare Spray Cleaner/Disinfectant. OSHA proposed a penalty of $120 for this alleged violation.

Analysis

The only witness who gave testimony on Item 4 was Industrial Hygienist Hart. He testified that Respondent had material safety data sheets (“MSDSs”) for CBC Plus and Asepticare and reiterated the requirement that MSDSs “should contain the actual ingredients plus health effects and address ... about 13 different items.” He also testified that if an employee had access to the label and MSDS for a product, the employee would have the information that OSHA intended.

Hart further testified that Respondent “did not have the written program saying how ... [the company] would carry out the training” to assure that its employees had knowledge of MSDSs and the hazards involved. Hart stated that when he discussed this citation item with Terry Curry, the nursing home administrator, Curry admitted to him that the employees had not been trained and stated that “he would comply, that they would get all the material safety data sheets together ... write the program and train the employees.”

At the hearing, Respondent put on no witnesses to contradict the testimony of Industrial Hygienist Hart that it had not provided training to its employees. Nor did Respondent file a review brief in which it could have addressed the Secretary’s evidence.

Judge Schwartz found that Respondent’s employees had access to the product labels and material safety data sheets for CBC Plus and Asepticare. On that basis, and because Industrial Hygienist Hart had testified that “if employees had access to product labels and material safety data sheets, they would have the information OSHA intended them to have,” the judge vacated the alleged violation of section 1910.1200(h).

Section 1910.1200(h) imposes separate requirements on employees as to information and training. As set forth in footnote 1 above, subsection (1), Information, requires that an employer provide its employees with certain specified information. Subsection (2), Training, sets out the minimum training requirements imposed on employers. Full compliance with the information portion of the standard will not satisfy the requirements of the training portion of the standard. The training provision specifies that employee training shall include at least: (i) methods for detecting the presence or release of hazardous chemicals in the work area; (ii) the physical and health hazards of chemicals in the work area; (iii) the measures employees can take to protect themselves from these hazards, including procedures the employer has implemented to protect employees from exposure to hazardous chemicals; and (iv) the details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information. These requirements go beyond merely informing employees of the location and availability of the written hazard communication program required by the first part of the standard.

The judge erred in failing to credit the unrebutted testimony of Industrial Hygienist Hart that Respondent had not provided its employees with training related to the hazardous chemicals in the work area. We therefore reverse the judge and affirm citation item 4 as to the training requirement.

Characterization of the Violation

To prove a serious violation, the Secretary must establish “a substantial probability that death or serious physical harm could result” from a condition or practice at Respondent’s work place. Section 17(k), 29 U.S.C. § 666(k). Natkin & Co., 1 BNA OSHC 1204, 1205, 1971–73 CCH OSHD ¶ 15,679, pp. 20,967–68 (No. 401, 1973).

The parties presented minimal testimony on the characterization of the citation item at issue. Industrial Hygienist Hart testified that he categorized the violation as serious because a skin rash could result from use of the pertinent chemicals and the “skin rash could be of such a severe nature that it would be ... classified as serious.”

The label on the CBC Plus container provides:

CBC Plus contains phosphoric acid and a nonionic surfactant. It contains no hydrochloric acid and is safe for workers and fixtures when used as directed.... PRECAUTIONARY STATEMENTS: WARNING: Can cause severe irritation or chemical burns. Harmful if swallowed. Contains phosphoric acid. Wear rubber gloves and goggles. Avoid contact with eyes, skin and clothing.

The label on the Asepticare container provides:

ASEPTICARE.... is noncorrosive and nonabrasive.... PRECAUTIONARY STATEMENTS: HAZARDS TO HUMANS AND DOMESTIC ANIMALS

CAUTION: Avoid spraying in eyes.

Based on the limited record presented to us, we conclude that the evidence of a possible skin rash is insufficient to establish a substantial probability of serious physical harm within the meaning of Section 17(k) of the Act. We therefore find that the violation was other-than-serious.

Accordingly, we affirm Item 4 of Serious Citation 1 as an other-than-serious violation of section 1910.1200(h). We find that a penalty of $120 is appropriate and assess a penalty in that amount.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

December 19, 1991

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

FINAL ORDER DATE: December 5, 1990

APPEARANCES:

E. Jeffery Story, Esquire

Dallas, Texas

For the Complainant

Susan Thomas Whittle, Esquire

Austin, Texas

For the Respondent

DECISION AND ORDER

SCHWARTZ, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission (“the Commission”) pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq. (“the Act”).

Respondent operates Oak Manor Nursing Home, a 64–bed facility located in Nacogdoches, Texas. (Tr. 103; 131–33). The Occupational Safety and Health Administration (“OSHA”) inspected Oak Manor on April 19 and 20, 1989, primarily to examine employee exposure to bloodborne diseases. (Tr. 53). The inspection resulted in the issuance of two citations. Respondent does not contest citation number 2, which alleges an “other” violation of 29 C.F.R § 1903.2(a)(1). However, it contests all four items of citation number 1, which alleges serious violations of 29 C.F.R. §§ 1910.141(a)(4)(ii), 1910.145(f)(8)(i), 1910.1200(e)(1) and 1910.1200(h).

A hearing took place in Tyler, Texas on May 30, 1990. No additional persons intervened. Only Respondent submitted a post-trial brief.

29 C.F.R. 1910.141(a)(4)(ii)

Item 1 of the citation alleges a violation as follows:

All sweepings, solid or liquid wastes, refuse, and garbage shall be removed in such a manner as to avoid creating a menace to health:

Oak Manor Nursing Home, Nacogdoches, Texas, employees were recapping needles containing body fluids before disposing of them.

Bevil Hart, the compliance officer who inspected Oak Manor, appeared and testified. He has been an OSHA industrial hygienist since 1977. Prior to that he worked as an industrial hygienist in private industry for ten years. Hart learned during his inspection that employees gave injections. He asked how employees disposed of syringes and was taken to a locked room, where he saw “several to many” recapped needles in a sharps container. He described the container as similar to a plastic milk bottle. Sharp instruments are pushed through its opening, which is designed to prevent the contents from spilling out. Hart was told employees recapped needles. He recommended the citation because recapping a needle containing body fluids is hazardous. It can result in a needlestick injury and exposure to HBV, which causes infectious hepatitis, or HIV, which causes AIDS. Hart said the exposure could cause permanent disease or death. (Tr. 22–23; 26; 30–40; 44).

Hart’s inspection report stated that “employees were recapping needles containing body fluids before disposing of them.” (Tr. 65; Exh. R–5). He testified that he did not actually see body fluids in the recapped needles, or see employees giving injections. (Tr. 66–67). Hart indicated he “saw the containers containing recapped needles that they said that they had used in injection in place there.” (Tr. 67). However, he was unable to identify who told him employees were recapping used needles. (Tr. 34–36; 65–67; 151–52). He said he concluded the recapped syringes were used because, to the best of his recollection, he asked employees and the statement was made. (Tr. 62; 151). He then said he asked Mr. Curry, the facility administrator who was with him during the inspection, and the nurse supervisor, whose name he could not recall. He said he was sure a management official was there at the time, since his procedure is to always have management present. He subsequently said, however, that he could not “say that Mr. Curry or that Nurse So-and-so—one of those two management or both of those management people were with me all the time.” (Tr. 31; 62–64; 150–52).

Hart testified that he could not remember what Oak Manor’s infection control program said. However, he was sure he had reviewed it. He said if there had not been one, that would have been a basis for a citation. (Tr. 68).

Cathy Beatty also appeared and testified. She is licensed as a registered nurse in Texas. She has been a nurse consultant for ARA facilities for 13 years, and has provided consultant services to Oak Manor. She oversees company policy, procedures and federal regulations that relate to patient care and infection control. (Tr. 98–102).

Beatty testified that the Texas Department of Health (“TDH”) regulates Oak Manor and ARA’s other Texas facilities. TDH conducts two annual surveys of the facilities it regulates, as well as follow-up visits and complaint investigations. TDH also requires facility-wide infection control programs that include proper waste disposal, monitoring systems and provisions for employee safety. (Tr. 103; 105–06; 108; 110).

Beatty said that in July, 1988, ARA revised the infection control procedures at all of its facilities pursuant to Centers for Disease Control (“CDC”) guidelines and TDH regulations. The new procedures had to do with infectious waste and sharps disposal. ARA set up a monitoring and follow-up system to ensure all of its facilities complied with the procedures. Beatty was directly involved in implementing the new procedures, and, as far as she knew, they were implemented at Oak Manor. (Tr. 107–08; 110–11).

Beatty said that the sharps disposal procedure prohibits the recapping of used needles, and that ARA has experienced good compliance with the procedure. She discovered a few instances of recapped needles in the past year, but upon investigation learned it occurred when the injection had not been given and there was no contamination. She said a needle should not be recapped if it has contacted a patient or stuck someone, but that recapping is proper when there has been no patient contact—for example, if a patient refuses an injection, or if a needle has been contaminated by touching a bottle rather than a patient. (Tr. 111–13).

Beatty explained that it cannot be assumed that every recapped needle in a sharps container has been used. She said it is not unusual to dispose of unused needles in sharps containers, since that is the only place needles are disposed of now. After a needle is removed from its sealed container it is disposed of in a sharps container, whether it is used or not. (Tr. 113; 127).

Beatty testified that to her knowledge, Oak Manor’s infection control program has complied with TDH regulations and CDC guidelines. She confirmed compliance by looking at the facility’s TDH surveys for last year; the only deficiency she found had to do with the handling of soiled linen. (Tr. 123).

Tommy Ford also appeared and testified. He has been the regional director of operations for ARA for over four years. He oversees the operation of 13 facilities in Texas and has been responsible for Oak Manor since May, 1989. Although Ford disagreed with Beatty about when TDH had issued new regulations, he agreed that ARA made company-wide changes in its infection control procedures, including sharps containers, in July, 1988. He said ARA issued a new infection control manual at that time which reflected those changes. He explained that ARA disseminates any policy changes either by mail or at regional training sessions; he felt certain ARA provided the information to all of its facilities. Ford said if Oak Manor had been out of compliance with the new procedures, it would have been cited by TDH. He had reviewed Oak Manor’s TDH surveys for the last two years and could recall only one deficiency, which had to do with a nurse aide’s handling of linen. (Tr. 130–33; 142–46).

Respondent has raised the issue of due process. ARA contends that it lacked fair notice of any intent by the Secretary to regulate the recapping of used needles through the language found at 1910.141(a)(4)(ii). It suggests that, at the very least, resort should have been to the personal protective equipment standard, 1910.132(a), or the general duty clause requirements found at § 5(a)(1) of the Act. Respondent indeed advances some persuasive points in support of its position. The Secretary, as noted above, has filed no brief. Regardless, these issues need not be addressed. Rather, the evidence of record indicates that the Secretary has failed to carry her burden of proof with respect to item 1 of the citation. Consequently, this item must be vacated. Resolution of the due process and applicability issues shall await a more appropriate vehicle. Resolution of these issues is unnecessary to a final disposition of this item. My reasons follow.

The standard, as noted above, does not address directly the question of recapping of used needles. The citation is the source of the actual allegation. The Secretary alleges that ARA employees were recapping needles containing body fluids before disposing of them. The Secretary’s burden is to establish each element of the charge by a preponderance of the evidence of record.

Turning to the relevant evidence, it demonstrates that Oak Manor employees gave injections and that there were recapped needles in the sharps container. However, it does not demonstrate employees recapped needles containing body fluids.

The evidence shows that in July, 1988, ARA revised its infection control procedures to prohibit the recapping of used needles. It also shows that Oak Manor has complied with ARA’s procedures. Ford said if Oak Manor had been out of compliance, TDH would have cited it. Both Ford and Beatty had reviewed Oak Manor’s TDH compliance surveys; the only deficiency concerned the handling of linen.

The evidence further shows it cannot be assumed that recapped needles in a sharps container have been used. Beatty said that while a needle should not be recapped if it has contacted a patient or stuck someone, recapping is permissible if there has been no patient contact. She also said it is not unusual for unused needles to be in a sharps container, since that is the only place needles are disposed of now.

Although his report states that employees were recapping needles containing body fluids, Hart admitted he did not actually see body fluids in the recapped syringes or see employees recapping used needles. He concluded the recapped syringes were used because, to the best of his recollection, he asked employees and the statement was made. However, he could not identify who made the statement. His testimony indicated it might have been Curry or the nurse supervisor; however, he could not say that either one was with him all the time.

A review of Hart’s testimony reveals he often could not remember who he talked to or the content of statements made. He attributed this to the fact that he had inspected Oak Manor over a year before the hearing and that he had conducted many inspections since then. (Tr. 30–31; 33; 35–36; 150–52). While it is understandable that Hart would not remember every statement made by every person during the inspection, he should have put in writing information essential to support the citation. This is especially true where, as here, the Secretary relies on a standard that does not specifically address the recapping of used needles. However, his report does not reveal this information. His report also reveals no deficiencies in Oak Manor’s infection control program. (Exh. R–5). Hart could not remember what the program said, but testified he was sure he had reviewed it. Had there been a problem with the facility’s needle-recapping procedure, it follows that he would have documented it in his report. The inescapable conclusion is that Hart based his recommendation for a citation on his assumption that the recapped needles he saw were used.

In this particular matter, Respondent has rebutted the assumption by establishing there are times that a needle may be recapped. An example is when there is no patient contact. Also, it has been established that these unused recapped needles are disposed of in sharps containers. Based on the evidence of record, it is found that the Secretary has failed to establish that Oak Manor employees recapped needles containing body fluids. It is just as reasonable to conclude, under the narrow facts of this case, that the recapped needles observed by the compliance officer had no patient contact and thus contained no body fluids. The issue raised here may well be resolved during consideration of the comments concerning the Secretary’s proposed rule which prohibits the recapping of used needles. 54 F.R. 23135, column 2, (d)(2)(iv). (Joint Exh. 5).

29 C.F.R. 1910.145(f)(8)(i)

Item 2 of the citation alleges a violation as follows:

Biological hazard tags were not used to identify the actual or potential presence of a biological hazard and to identify containers that contain hazardous biological agents:

At Oak Manor Nursing Home, Nacogdoches, Texas, employees were using unlabeled containers for possible biological hazardous waste.

Respondent contends it cannot be held in violation of the subject standard because it did not have fair notice of OSHA’s intent to enforce the standard as requiring biological hazard tags in order to minimize exposure to HIV and HBV. It points out OSHA first notified employers of its intent to exercise its enforcement authority in regard to HIV and HBV in a Joint Advisory Notice (“Notice”) issued by the Departments of Labor and Health and Human Services on October 30, 1987. 52 F.R. 41818. The Notice urged health care employers to protect employees from HIV and HBV exposure by following CDC guidelines. It also stated OSHA was enforcing existing regulations and the general duty clause to protect workers, but did not specify which regulations applied.

On November 27, 1987, OSHA issued an advance notice of proposed rulemaking (“ANPR”) in regard to HIV and HBV concerns. 52 F.R. 45438. (Joint Exh. 4). The ANPR repeated OSHA’s intent to enforce existing regulations and the general duty clause, and stated OSHA’s intent to begin an inspection program to examine health care employee work practices. It noted that while OSHA had no specific standards to reduce employee exposure to HIV and HBV, there were a number of existing regulations that applied to the hazard. The only regulation identified, however, was 1910.132.

On May 30, 1989, OSHA issued a proposed rule regarding occupational exposure to bloodborne pathogens. 54 F.R. 23042. (Joint Exh. 5). The proposed regulations, which are not yet final, specifically require biohazard labels on containers storing potentially infectious materials. 54 F.R. 23138, column 2, (g)(ii)(A). (Joint Exh. 5).

Because the Notice and ANPR did not specifically identify the subject standard as one applicable to HIV and HBV, Respondent asserts it did not have fair notice of OSHA’s enforcement intentions. It also asserts the proposed regulations, which specifically address the complained-of behavior, constitute an admission that existing regulations do not adequately advise employers of what is required or prohibited in regard to HIV and HBV concerns. I disagree.

1910.145(f)(8)(i) requires the use of biological hazard tags to identify the actual or potential presence of a biological hazard. Both Cathy Beatty and Bevil Hart testified there is no difference between the terms “infectious waste” and “biological hazardous waste.” (Tr. 125; 148). It cannot be said, therefore, that a fair reading of the standard would not give a health care employer notice the standard applies to infectious waste, and, consequently, HIV and HBV.

Bevil Hart testified he recommended the citation because he saw unmarked, unlidded trash receptacles at Oak Manor which held gauze, sponges and gloves that could have been contaminated with HIV or HBV-infected body fluids. He knew he saw at least one instance of the condition, even though he did not recall exactly where he observed it. He said the condition was hazardous because it did not warn employees, particularly those with skin abrasions, that they could be exposed to HIV or HBV. He said HIV and HBV are biological hazards because they can result in permanent disease or death. (Tr. 40–44; 71–75).

Cathy Beatty testified that TDH regulates Oak Manor and ARA’s other Texas facilities. TDH requires regulated facilities to properly dispose of waste. A proper disposal method, according to Beatty, consists of bagging waste, labeling rooms where it is kept, and contracting with a waste disposal company to dispose of it. Beatty said ARA facilities follow this method. They store soiled linens and infectious wastes in rooms or utility closets labeled “soiled.” These rooms are understood as contaminated areas in nursing homes and communicate to employees that no clean materials should be put there. To Beatty’s knowledge, Oak Manor has complied with TDH infection control regulations. Both she and Tommy Ford said they had reviewed Oak Manor’s TDH compliance surveys. The only deficiency they found had to do with an employee’s handling of soiled linen. (Tr. 103; 105–07; 123; 146).

The foregoing shows that TDH regulates Oak Manor’s waste disposal and that Oak Manor has complied with TDH requirements. It also shows that ARA facilities have a procedure which warns employees about exposure to potentially infectious waste by storing it in rooms labeled “soiled.” Hart’s testimony, however, demonstrates that Oak Manor did not use biological hazard tags or other means of warning employees about exposure to potentially infectious materials disposed of in trash receptacles, and Respondent did not rebut his testimony. Nevertheless, the citation must be vacated. My reasons follow.

The 1987 Notice advised health care employers to follow contemporary CDC guidelines to prevent employee exposure to HIV and HBV. CDC guidelines issued in June, 1988, stated that “[p]olicies for ... disposing of infective waste are generally determined by institutions in accordance with state and local regulations.” (Joint Exh. 3, p. 381). In sum, the Notice instructed employers to follow CDC guidelines, which in turn advised employers to follow state and local regulations. The ANPR and proposed regulations did not rescind the Notice. Consequently, as long as Oak Manor was in compliance with CDC guidelines and applicable state regulations at the time of the inspection, then it was also in compliance with the Notice and the intent of the subject standard.

The testimony of Beatty and Ford, supra, demonstrates TDH is the state authority which regulates Oak Manor, and that Oak Manor has complied with TDH requirements. The testimony of Beatty and Ford, as set out in the above 1910.141(a)(4)(ii) discussion, demonstrates that Oak Manor has also complied with CDC guidelines. Beatty explained how ARA revised the infection control procedures at all of its facilities in July, 1988, pursuant to CDC guidelines and TDH regulations. Ford agreed that ARA made company-wide changes in its infection control procedures at that time. He said if Oak Manor had been out of compliance with the new procedures, TDH would have cited it.

On the basis of the foregoing, I find as fact that Oak Manor was in compliance with CDC guidelines and TDH regulations at the time of the inspection. It was therefore in compliance with the Notice and the intent of 1910.145(f)(8)(i). In light of the lack of clarity in this area, a specific standard is needed to advise employers of what is prohibited or required in regard to HIV and HBV concerns. The proposed regulations address this matter and have generated a great deal of public comment; however, they are not yet final. OSHA’s attempt to protect workers in the interim is commendable. Nevertheless, on the facts of this case, I find it would be unfair to penalize Respondent for conducting itself as the Notice instructed. If Oak Manor had not followed CDC guidelines and TDH regulations, it would have been in violation of the standard. However, under the circumstances, the citation must be vacated.

29 C.F.R 1910.1200(e)(1) and 29 C.F.R. 1910.1200(h)

Item 3 of the citation alleges a violation of 1910.1200(e)(1) as follows:

Employer had not developed or implemented a written hazard communication program which at least describes how the criteria in 29 CFR 1910.1200(f), (g) and (h) will be met:

At Oak Manor Nursing Home, Nacogdoches, Texas, employees are using chemicals such as cleaning chemicals and the company has not developed and implemented a written program.

Bevil Hart testified he recommended this citation because he observed hazardous chemicals which Oak Manor employees used for cleaning and there was no written hazard communication program. His report identified the chemicals as phosphoric acid and ethyl dimethyl benzyl ammonium chloride. Hart said phosphoric acid is hazardous because it causes injury when ingested or upon contact with skin or eyes. (Tr. 46–49; 93–94; Exh. R–5).

Hart identified two bottles as CBC Plus bowl cleaner and Asepticare spray cleaner/disinfectant. He said these “could be” the cleaning products he observed and cited as hazardous. Hart identified two other bottles as Sani–Flush toilet bowl cleaner and Lysol deodorizing cleaner. He agreed these were consumer products, but did not feel they accomplished the same things as CBC and Asepticare, since they are for household use. (Tr. 77–78; 84–85).

Hart noted the CBC and Asepticare labels stated they were professional products. He felt these were industrial products that would not be sold to the general public and that industrial chemicals were generally more concentrated. However, he agreed the labels did not say they were industrial products and that CBC and Asepticare could be used in the home. (Tr. 80–83).

Hart was aware of the exception to the hazard communication standard, which applies to products used as normal consumers would use them. He concluded, however, that Oak Manor housekeeping employees used the chemicals more often than normal consumers would, and that the exception did not apply. (Tr. 79; 82–84).

Item 4 of the citation alleges a violation of 1910.1200(h) as follows:

Employees were not provided information and training as specified in 29 CFR 1910.1200(h)(1) and (2) on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard is introduced into their work area:

At Oak Manor Nursing Home, Nacogdoches, Texas, employees are using chemicals such as cleaning chemicals.

Hart said he recommended this citation because there were no material safety data sheets for, and employees were not trained about, hazardous chemicals in the workplace. He read from his report, which stated: “No written program; does have MSDS; has not had the training for employees on HAZCOM.” He also testified that based on his report, it appeared Oak Manor did have material safety data sheets. He said the CBC and Asepticare labels contained partial hazard information, and that material safety data sheets should contain actual ingredients and health effects. He acknowledged that if employees had access to product labels and material safety data sheets, they would have the information OSHA intended them to have. (Tr. 49–50; 86–88; 92–93; Exh. R–5).

Respondent contends it did not violate the cited standards because of an exemption from the hazard communication standard, set forth at 1910.1200(b)(6)(vii).

  The standard’s exception does exempt consumer products. However, it specifically provides, in accordance with Commission precedent on exceptions, that the employer must demonstrate the product is used in the workplace in the same manner as normal consumer use, and that such use results in a duration and frequency of exposure which is not greater than exposures experienced by consumers. Respondent contends that the compliance officer failed to evaluate employee exposure and frequency of use. However, the burden of proof, as noted above, is allocated to Respondent. ARA has failed to establish it falls within the exception to the hazard communication standard. A violation has been established.

A different result is found with respect to the alleged violation of 1910.1200(h). It appears Hart recommended the citation in part because he believed there were no material safety data sheets. However, his report indicated there were. Hart acknowledged that if employees had access to product labels and material safety data sheets, they would have the information OSHA intended them to have. Since the record shows Oak Manor had both, there was no violation of 1910.1200(h).

Having given “due consideration” to the size of the employer’s business, the gravity of the violation, the good faith of the employer, and the history of previous violations, the Secretary’s proposed penalty of $120 for item 3 is found to be appropriate.

Conclusions of Law

1. Respondent, ARA Living Centers of Texas, Inc., d/b/a/ Oak Manor Nursing Home, is engaged in a business affecting commerce and has employees within the meaning of § 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of the proceeding.

2. On April 19 and 20, 1989, Respondent was not in violation of 29 C.F.R. §§ 1910.141(a)(4)(ii), 1910.145(f)(8)(i) and 1910.1200(h).

3. On April 19 and 20, 1989, Respondent was in serious violation of 29 C.F.R. § 1910.1200(e)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Item 3 of serious citation number 1 is AFFIRMED and a penalty of $120 is assessed.

2. Items 1, 2 and 4 of serious citation number 1 are VACATED.

Stanley M. Schwartz

Administrative Law Judge

October 26, 1990

NOTICE OF DECISION

IN REFERENCE TO:

Secretary of Labor v. ARA Living Centers of Texas, Inc., d/b/a Oak Manor Nursing Home

OSHRC Docket No. 89–1894

1. Enclosed is a copy of my decision. It will be submitted to the Commission’s Executive Secretary on October 26, 1990. The decision will become the final order of the Commission at the expiration of thirty (30) days from the date of docketing by the Executive Secretary, unless within that time a Member of the Commission directs that it be reviewed. All parties will be notified by the Executive Secretary of the date of docketing.

2. Any party that is adversely affected or aggrieved by the decision may file a petition for discretionary review by the Review Commission. A petition may be filed with this Judge within twenty (20) days from the date of this notice. Thereafter, any petition must be filed with the Review Commission’s Executive Secretary within twenty (20) days from the date of the Executive Secretary’s notice of docketing. See Paragraph No. 1. The Executive Secretary’s address is as follows:

Executive Secretary

Occupational Safety and Health Review Commission

1825 K Street, N.W., Room 401

Washington, D.C. 20006

3. The full text of the rule governing the filing of a petition for discretionary review is 29 C.F.R. Section 2200.91 (51 Fed.Reg. 32026, Sept. 8, 1986). It is appended hereto for easy reference. The rule also prescribes requirements concerning the following: (a) any cross-petition for discretionary review; (b) the contents of a petition; (c) the effect of a failure to file a petition; (d) statements in opposition to a petition; and (e) the number of copies required of any document that may be filed.

There are closely related rules which are published in 29 C.F.R. section 2200.90 and .92 (51 Fed.Reg. 32026, 32027, Sept. 6, 1986). Rule 90 concerns the contents of a decision of this kind; the aforementioned docketing of this Judge’s report by the Executive Secretary; and the correction of errors and relief from default. Rule 92 describes review by the Commission—the jurisdiction of the Commission and the standards that are applied concerning issues that are raised by the parties or that otherwise may exist. The text of these rules is also appended hereto.

Stanley M. Schwartz

Administrative Law Judge

October 5, 1990

1 Section 1910.1200(h) provides:

§ 1910.1200 Hazard communication.

* * *

(h) Employee information and training. Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.

(1) Information. Employees shall be informed of:

(i) The requirements of this section;

(ii) Any operations in their work area where hazardous chemicals are present; and,

(iii) The location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and material safety data sheets required by this section.

(2) Training. Employee training shall include at least:

(i) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.);

(ii) The physical and health hazards of the chemicals in the work area;

(iii) The measures employees can take to protect themselves from these hazards, 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; and,

(iv) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information.