“SECRETARY OF LABOR,Complainant,v.COMPASS STEEL ERECTION, INC.,Respondent.OSHRC Docket No. 90-0354-S_ORDER_This matter is before the Commission on a Direction for Review enteredby Chairman Edwin G. Foulke, Jr. on October 24, 1990. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the Occupational Safety and Health Act and are In compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the commission inthis case. _See_ 29 U.S.C. ?? 659(c), 660(a) and (b).Edwin G. Foulke, JrChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: November 19, 1990 ————————————————————————ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.COMPASS STEEL ERECTION, INC.,Respondent.OSHRC Docket No. 90-0354-S_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which are currently pendingbefore the Commission.IIIt is hereby stipulated and agreed by between the Complainant, Secretaryof Labor, and the Respondent, Compass Steel Erection Inc., that:1. Respondent represents that all of the alleged violations for which itwas cited have been abated and shall remain abated.2. Complainant hereby amends Citation 1, item 1 to characterize thealleged violation of 29 C.F.R. 1926.351(b)(2) as other than serious. Theproposed penalty for this citation is $360.3. Respondent hereby agrees to withdraw its notice of contest toCitation 1, as amended above, and to Citation 2, items I through 4.4. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding.5. Respondent states that there are no authorized representatives ofaffected employees.6. The parties agree that this Stipulation and Settlement Agreement iseffective upon execution.7. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at its main office on the 18 day of October, 1990,in accordance with Commission Rules 7 and 100, and remained posted for aperiod of ten days.————————————————————————ROBERT P. DAVISSolicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDONALD G. SHALHOUBDeputy Associate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial LitigationD. W. DURHAM (Date) ORLANDO J. PANNOCCHIA (Date)Vice-President Attorney for theCompass Steel Erection, Inc. Secretary of Labor ————————————————————————SECRETARY OF LABOR,Complainant,v.COMPASS STEEL ERECTION, INC.,Respondent.OSHRC Docket No. 90-0354-SAPPEARANCES:_Daniel T. Curren_, Esq., for the Complainant._D. W. Durham_, for the Respondent._DECISION AND ORDER_L. LaVecchia, JudgeThis proceeding arises under Section 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. ? 651 _et_ _seq_.), referred to as the \”Act.\”The respondent was cited by the Occupational Safety and HealthAdministration, also known as \”OSHA,\” for alleged violations of thesafety and health standards promulgated under the Act.A hearing was held in the matter on June 8, 1990, at Dallas.After amending the citations at the outset of the hearing, thecomplainant alleges that the respondent violated the following standardsin the manner indicated:Item 1 of Citation No. 1 (Serious) alleges that the respondent violatedthe standard set forth at 29 CFR 1926.351 (b)(2) for failing to insulatecompletely exposed metal parts of cable lugs used to connect or splicelengths of welding cables to each other.The standard states that \”only cable free from repair or splices for aminimum distance of 10 feet from the cable end to which the electrodeholder is connected shall be used, except that cables with standardinsulated connectors or with splices whose insulating quality is equalto that of the cable are permitted.\”Citation No. 2, characterized as \”other than serious\” alleges, asamended, that the respondent violated the standard set forth at 29 CFR1926.59(e)(1) by failing to develop, implement, or maintain at the worksite a written hazard communication program for use by employees usingmaterials such as acetylene, oxygen, and welding rods.Under 29 CFR 1926.59(e)(1)(ii) the respondent allegedly violated thestandard by not having a written hazard communication program with acomplete list of the hazardous chemicals known to be present in the workarea, such as acetylene, oxygen, and welding rods.Under 29 CFR 1926.59(e)(2) the respondent allegedly violated thestandard by not having a written hazard communication program in accordwith the methods prescribed in pertinent sections of the standard.Under 29 CFR 1926.350(j) (Section 3.2.4.3 ANSI 249.1-1967 as adopted bythis standard, the respondent allegedly violated the Standard by storingan oxygen and acetylene bottle next to one another while tied to a guardrail in a stairwell. The standard requires that these materials beseparated because of their combustible nature by a distance of at least20 feet or by a non-combustible barrier with an appropriatefire-resistance rating._THE FACTS_On November 13-14, 1989 the respondent’s construction site in FortWorth, Texas was inspected by Jeffery Jones, a compliance officeremployed by the Occupational Safety and Health Administration (\”OSHA\”).The respondent company was one of the subcontractors performing work atthe work site. The CO found that the respondent was operating a Lincolnare welding machine in an area where there were several welders at work.The stinger cable on the Lincoln welder showed evidence of damage whichhad been taped over with duct tape. Three areas within a 10- foot lengthof the stinger cable were found to be so taped. Duct tape is notconsidered to be an adequate insulating tape for wrapping damagedportions of cable. (Tr. 7-12). Interviews with respondent’srepresentative confirmed that the welder was being used in the headhouse of the elevator. The infraction was considered serious because anemployee exposed to the damaged areas could sustain an electrical shock.The tape itself showed evidence of being frayed and worn. Minor burns tosevere burns or death could result from an electrical shock. Theelectricity involved is direct current of about 10 volts and 170amperes. (Tr. 15-16). The higher the amperes the greater is the risk ofserious injury.The CO found that the respondent’s hazard communication program wasinadequate in that several areas in the written program were notcovered. Labeling processes were not mentioned, nor was there anyinformation with respect to the maintenance of material safety datasheets. These sheets are used to inform employees about the chemicals inuse at the work site, and how to deal with them. (Tr. 22). Hazardouschemicals in use at the work site included acetylene, a fire hazard, andoxygen, a supporter or causant ant of fire hazards. (Tr. 24). Weldingrods are also considered hazardous because of the fumes they generate.The fact that employees were working in a confined space increased thehazards to which the employees might have been exposed. For example,metal fumes caused by welding can result in metal fume fever beingexperienced by employees working in a confined space. Lead fumes couldalso be generated by working in a confined space as welders.The CO was also of the opinion that escape routes had not beenestablished for the benefit of the employees in the event it becamenecessary to quickly evacuate the small space in the head house.The employees were not advised of the procedures to be followed inmulti-employer work sites, such as the one in question here. Therespondent’s representative asserted that all of the alleged violationswould be abated.The CO discovered a bottle of acetylene and a bottle of oxygen placedalongside each other near a stairwell. In the event of a fire this wouldpresent a dangerous mix of materials, and the storage of these two itemsin close proximity is prohibited by the standard. However, therespondent stated that the two items were placed in the position foundonly for the purpose of being picked up after the job was completed._DISCUSSION_The respondent’s representative, Mr. D.W. Durham, did not feel that theuse of duct tape for repairing damaged sections of cable connections onthe arc welder represented any substantial danger of electrical shock toemployees using the apparatus. He indicated that duct tape had been usedbecause it was found to be more durable than regular insulating tape. Onthe other hand, there is no evidence that he ever applied for a varianceon that theory, and the CO’s explanation of the electrical hazardinvolved in the custom is persuasive. I will find that there was aserious violation of the standard involved. The respondent should eitherapply for a variance or discontinue the practice of using duct tape forthe purpose described.The respondent has been aware of the hazard communication standards andappears to have made a diligent effort to comply with the standards. Therespondent’s interpretation of the language of the program has beensomewhat confused, but in view of the complex matters dealt with in thestandards, I will find that the violations were _de_ _minimis_ in character.The acetylene and oxygen were not found to be in storage at the time ofthe alleged violation, but a reasonable interpretation of the standardwould extend the prohibition to the mixing of the two in close proximityin almost any circumstances. A violation will be found, but it will alsobe found to be _de_ _minimis_.CONCLUSIONS1. The Commission has jurisdiction in this matter.2. The respondent was in serious violation of 29 CFR 1926.351(b)(2) asalleged in the citation and complaint. The proposed civil penalty of$360 is appropriate.3. The respondent was in _de_ _minimis_ violation of Items 1 through 4in Citation No. 2. No penalty is assessed in these circumstances.ORDER1. Item 1 of Citation No. 1 is affirmed, with a civil penalty of $360assessed for the violation.2. Items 1 through 4 of Citation No. 2 are affirmed as _de_ _minimis_violations, with no penalty assessed.So ORDERED.Louis G. LaVecchiaJudge, OSHRCDATED: September 14, 1990DALLAS”