“Docket No. 90-0354 SECRETARY OF LABOR, Complainant, v.COMPASS STEEL ERECTION, INC., Respondent.OSHRC Docket No. 90-0354-SORDERThis matter is before the Commission on a Direction for Review entered by ChairmanEdwin G. Foulke, Jr. on October 24, 1990. The parties have now filed a Stipulation andSettlement Agreement. Having reviewed the record, and based upon the representations appearing in theStipulation and Settlement Agreement, we conclude that this case raises no matterswarranting further review by the Commission. The terms of the Stipulation and SettlementAgreement do not appear to be contrary to the Occupational Safety and Health Act and areIn compliance with the Commission’s Rules of Procedure. Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order. This is the final order of the commission in this case. See 29 U.S.C.?? 659(c), 660(a) and (b).Edwin G. Foulke, Jr ChairmanVelma MontoyaCommissionerDonald G. Wiseman CommissionerDated: November 19, 1990\u00a0ELIZABETH DOLE, SECRETARY OF LABOR, Complainant, v.COMPASS STEEL ERECTION, INC., Respondent.OSHRC Docket No. 90-0354-SSTIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full and complete settlement and disposition ofthe issues in this proceeding which are currently pending before the Commission.IIIt is hereby stipulated and agreed by between the Complainant, Secretary of Labor, andthe Respondent, Compass Steel Erection Inc., that:1. Respondent represents that all of the alleged violations for which it was cited havebeen abated and shall remain abated.2. Complainant hereby amends Citation 1, item 1 to characterize the alleged violation of29 C.F.R. 1926.351(b)(2) as other than serious. The proposed penalty for this citation is$360.3. Respondent hereby agrees to withdraw its notice of contest to Citation 1, as amendedabove, and to Citation 2, items I through 4.4. Each party agrees to bear its own fees and other expenses incurred by such party inconnection with any stage of this proceeding.5. Respondent states that there are no authorized representatives of affected employees.6. The parties agree that this Stipulation and Settlement Agreement is effective uponexecution.7. Respondent certifies that a copy of this Stipulation and Settlement Agreement wasposted at its main office on the 18 day of October, 1990, in accordance with CommissionRules 7 and 100, and remained posted for a period of ten days.ROBERT P. DAVIS Solicitor of Labor CYNTHIA L. ATTWOOD Associate Solicitor forOccupational Safety and Health DONALD G. SHALHOUBDeputy Associate Solicitor for Occupational Safety and HealthDANIEL J. MICKCounsel for Regional Trial LitigationD. W. DURHAM (Date)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ORLANDO J.PANNOCCHIA (Date)Vice-President\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Attorney for theCompass Steel Erection, Inc.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Secretary of Labor\u00a0SECRETARY 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 and Health Act of 1970(29 U.S.C. ? 651 et seq.), referred to as the \”Act.\”The respondent was cited by the Occupational Safety and Health Administration, also knownas \”OSHA,\” for alleged violations of the safety and health standards promulgatedunder 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, the complainant alleges thatthe respondent violated the following standards in the manner indicated:Item 1 of Citation No. 1 (Serious) alleges that the respondent violated the standard setforth at 29 CFR 1926.351 (b)(2) for failing to insulate completely exposed metal parts ofcable lugs used to connect or splice lengths of welding cables to each other.The standard states that \”only cable free from repair or splices for a minimumdistance of 10 feet from the cable end to which the electrode holder is connected shall beused, except that cables with standard insulated connectors or with splices whoseinsulating quality is equal to that of the cable are permitted.\”Citation No. 2, characterized as \”other than serious\” alleges, as amended, thatthe respondent violated the standard set forth at 29 CFR 1926.59(e)(1) by failing todevelop, implement, or maintain at the work site a written hazard communication programfor use by employees using materials such as acetylene, oxygen, and welding rods.Under 29 CFR 1926.59(e)(1)(ii) the respondent allegedly violated the standard by nothaving a written hazard communication program with a complete list of the hazardouschemicals known to be present in the work area, such as acetylene, oxygen, and weldingrods.Under 29 CFR 1926.59(e)(2) the respondent allegedly violated the standard by not having awritten hazard communication program in accord with the methods prescribed in pertinentsections of the standard.Under 29 CFR 1926.350(j) (Section 3.2.4.3 ANSI 249.1-1967 as adopted by this standard, therespondent allegedly violated the Standard by storing an oxygen and acetylene bottle nextto one another while tied to a guard rail in a stairwell. The standard requires that thesematerials be separated because of their combustible nature by a distance of at least 20feet or by a non-combustible barrier with an appropriate fire-resistance rating.THE FACTSOn November 13-14, 1989 the respondent’s construction site in Fort Worth, Texas wasinspected by Jeffery Jones, a compliance officer employed by the Occupational Safety andHealth Administration (\”OSHA\”). The respondent company was one of thesubcontractors performing work at the work site. The CO found that the respondent wasoperating a Lincoln are welding machine in an area where there were several welders atwork. The stinger cable on the Lincoln welder showed evidence of damage which had beentaped over with duct tape. Three areas within a 10- foot length of the stinger cable werefound to be so taped. Duct tape is not considered to be an adequate insulating tape forwrapping damaged portions of cable. (Tr. 7-12). Interviews with respondent’srepresentative confirmed that the welder was being used in the head house of the elevator.The infraction was considered serious because an employee exposed to the damaged areascould sustain an electrical shock. The tape itself showed evidence of being frayed andworn. Minor burns to severe burns or death could result from an electrical shock. Theelectricity involved is direct current of about 10 volts and 170 amperes. (Tr. 15-16). Thehigher the amperes the greater is the risk of serious injury.The CO found that the respondent’s hazard communication program was inadequate in thatseveral areas in the written program were not covered. Labeling processes were notmentioned, nor was there any information with respect to the maintenance of materialsafety data sheets. These sheets are used to inform employees about the chemicals in useat the work site, and how to deal with them. (Tr. 22). Hazardous chemicals in use at thework site included acetylene, a fire hazard, and oxygen, a supporter or causant ant offire hazards. (Tr. 24). Welding rods are also considered hazardous because of the fumesthey generate.The fact that employees were working in a confined space increased the hazards to whichthe employees might have been exposed. For example, metal fumes caused by welding canresult in metal fume fever being experienced by employees working in a confined space.Lead fumes could also be generated by working in a confined space as welders.The CO was also of the opinion that escape routes had not been established for the benefitof the employees in the event it became necessary to quickly evacuate the small space inthe head house.The employees were not advised of the procedures to be followed in multi-employer worksites, such as the one in question here. The respondent’s representative asserted that allof the alleged violations would be abated.The CO discovered a bottle of acetylene and a bottle of oxygen placed alongside each othernear a stairwell. In the event of a fire this would present a dangerous mix of materials,and the storage of these two items in close proximity is prohibited by the standard.However, the respondent stated that the two items were placed in the position found onlyfor the purpose of being picked up after the job was completed.DISCUSSIONThe respondent’s representative, Mr. D.W. Durham, did not feel that the use of ducttape for repairing damaged sections of cable connections on the arc welder represented anysubstantial danger of electrical shock to employees using the apparatus. He indicated thatduct tape had been used because it was found to be more durable than regular insulatingtape. On the other hand, there is no evidence that he ever applied for a variance on thattheory, and the CO’s explanation of the electrical hazard involved in the custom ispersuasive. I will find that there was a serious violation of the standard involved. Therespondent should either apply for a variance or discontinue the practice of using ducttape for the purpose described.The respondent has been aware of the hazard communication standards and appears to havemade a diligent effort to comply with the standards. The respondent’s interpretation ofthe language of the program has been somewhat confused, but in view of the complex mattersdealt with in the standards, I will find that the violations were de minimisin character.The acetylene and oxygen were not found to be in storage at the time of the allegedviolation, but a reasonable interpretation of the standard would extend the prohibition tothe mixing of the two in close proximity in almost any circumstances. A violation will befound, but it will also be 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) as alleged in thecitation and complaint. The proposed civil penalty of $360 is appropriate.3. The respondent was in de minimis violation of Items 1 through 4 inCitation No. 2. No penalty is assessed in these circumstances.ORDER1. Item 1 of Citation No. 1 is affirmed, with a civil penalty of $360 assessed for theviolation.2. Items 1 through 4 of Citation No. 2 are affirmed as de minimisviolations, with no penalty assessed.So ORDERED.Louis G. LaVecchiaJudge, OSHRCDATED: September 14, 1990 DALLAS”