“Docket No. 88-1249 SECRETARY OF LABOR, Complainant,v.CONAGRA FLOUR MILLING CO.,Respondent.OSHRC Docket No. 88-1249ORDEROn August 15, 1991, the Secretary filed a Notice ofWithdrawal in the above-captioned case. The Commission acknowledges receipt of theSecretary’s Notice of Withdrawal and sets aside the Judge’s Decision and Order affirmingthe alleged violation of 29 C.F.R. ? 1910.1200(e)(1)(i). There being no matters remainingbefore the Commission requiring further consideration, the Commission orders theabove-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 30, 1991LYNN MARTIN, SECRETARY OF LABOR,Complainant,v.CONAGRA FLOUR MILLING CO.,and its SUCCESSORS,Respondent.OSHRC Docket No. 88-1249SECRETARY’S NOTICE OF WITHDRAWAL OF CITATIONIn a decision dated January 31, 1991, AdministrativeLaw Judge David G. Oringer affirmed a citation for an other-than-serious violation of 29C.F.R. 1910.1200.(e)(1)(i) (Item 5, Citation No. 2). Respondent’s subsequent petition fordiscretionary review of the judge’s decision was granted by the Commission and a briefingnotice was issued on August 7, 1991.After review of the record evidence, the Secretary hereby withdraws the citation fora violation of 29 C.F.R. 1910.1200(e)(1)(i) and requests that the Commission set aside theALJ’s decision as to this item.Respectfully submitted,DAVID G. FORTNEYDeputy SolicitorCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial LitigationORLANDO J. PANNOCHIAAttorney for theSecretary of Labor\u00a0\u00a0SECRETARY OF LABOR,Complainantv.CON AGRA FLOUR MILLING CO.,and its successors,Respondent.OSHRC DOCKET NO. 88-1249APPEARANCES: FOR THE COMPLAINANT:Marshall H. Harris, Esq., Regional Solicitor;James E. Culp, Esq., of CounselU.S. Department of LaborOffice of the SolicitorFOR THE RESPONDENT:McGrath, North, Mullin & Kratz, P.C.Dean G. Kratz, Esq., of CounselDECISION AND ORDERORINGER, JUDGE: This is a proceeding brought underSection 10(c) of the Occupational Safety and Health Act of 1970, (84th Statute, 1590; 29U.S.C. ? 651, et seq., (hereinafter sometimes referred to as \”theAct\”) to review citations issued by the Secretary of Labor pursuant to ? 9(a) and aproposed assessment of penalties thereon issued pursuant to ? 10(a) of the Act.This case arose as a result of citations served early in May 1988 subsequent to aninspection on April 12 and April 28 of the same year. Respondent filed a timely notice ofcontest to the citations and notification of proposed penalties.A hearing on the matter was held in Philadelphia, Pennsylvania on June 5, 6, & 7,1989, pursuant to due notice.STATEMENT OF THE CASEAt the commencement of the hearing the parties agreedto settle several items in that the respondent agreed to withdraw its notice of contest toother than serious citation No. 2, items numbered 1, 2, 3 and 4. (Tr. 6)After conferring with the tribunal the parties agreed to settle items 1a and 1b ofserious citation No. 1 by consolidating the two items as a single other than seriousviolation and for the Secretary to withdraw the proposed penalty. In consonance therewiththe Respondent agreed to withdraw its notice of contest to the amended item. (Tr. 8) Theitems remaining for resolution were items 2a(a) and 2a(b) alleging two violations of thestandard set forth at 29 C.F.R. 1910.1200(g)(8) and item 2b of citation No. 1, alleging aserious violation of the standard set forth at 29 C.F.R. 1910.1200(f)(5)(ii). In additionthereto the last item remaining for resolution is item 5 of citation No. 2 alleging another than serious violation of standard 29 C.F.R. 1910.1200(e)(1)(i).The allegation of violation of 29 C.F.R. 1910.1200(g)(8) found in item 2a(a) of theserious citation alleged that the employer failed to maintain material data sheets forBrutus A. welding rods and for OSHA Red Industrial Enamel manufactured by Sherwin WilliamsCo. Item 2b of serious citation No. 1 alleged a violation of the standard set forth at 29C.F.R. 1910.1200(f)(5)(ii) in that the employer did not ensure that each container ofhazardous chemicals in the work place was labeled, tagged or marked with appropriatehazard warnings.The respondent strongly defends in the first instance on the ground that the BrutusA. welding rods and the OSHA Red Industrial paint fall within the exemption of therequirements of 29 C.F.R. 1910.1200 found in standard 29 C.F.R. 1910.1200(b)(6)(VII).Inasmuch as the inspection took place from April 12, 1988 to April 28, 1988, it wouldappear that the code of Federal Regulations compilation revised as of July 1, 1987 wouldbe the proper volume to examine. However, less than two months after the volume waspublished, the Secretary promulgated a standard set forth at 29 C.F.R.1910.1200(b)(6)(VII) on August 24, 1987 which can be found in Vol. 52, No. 163, Page31878. It also appears in the volume that was revised as of July 1, 1988. This amendmentreads as follows:29 C.F.R. 1910.1200(b)(6) This section does not apply to: (VII) any consumer productor hazardous substance, as those terms are defined in the Consumer Product Safety Act (15U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1251 etseq.) respectively, where the employer can demonstrate it is used in the work placein the same manner as normal consumer use, and which use results in a duration andfrequency of exposure which is not greater than exposures experienced by consumers;…The compliance officer testified that respondent’s material safety data sheets didnot adequately indicate the ingredients of the welding rod or the health hazardsassociated therewith (Tr. 14). He further testified that the deficiency in recording wasthe failure to list chromium and nickel as ingredients of the Brutus A. welding rods. Item2a(b) claims that the material data sheet for OSHA Red Industrial Enamel was deficient inthat there was no representation of the adverse health affects that might be associatedwith exposure to lead. (Tr. 45) The compliance officer was of the opinion that this was aserious hazard and that exposure could cause death or serious physical harm to employees.(Tr. 50)Item 2b of serious citation No. 1 alleges that the hazard warning on the container ofBrutus A. welding rods was inadequate and did not warn the employees of the hazardsassociated therewith. (Tr. 54, 55) The hazard warning which was considered inadequatestated, inter alia, \”Welding may produce fumes and gases hazardous to your health.Avoid breathing these fumes. Use adequate ventilation\”. (Tr. 56) The Secretary’switness, Mr. Renner, was of the opinion that the target organ must be reflected in thewarning and, in addition thereto, this respondent separated its admonitions to employeeswith the terms \”caution\”, \”warning\” and \”danger\” and, inthis case, they used \”caution\” which was inadequate, given the company’sdefinition of caution in its training program.While this may be dicta I find that the target organ must be included on the warning.See Secretary of Labor, Complainant v. Hilton Davis Chemical Co., respondent andInternational Chemical Workers union and its Local 342, authorized employeerepresentative, Docket No. 86-494, 13 BNA OSHC 1182 (a first impression opinion by mybrother, Judge Burroughs) (1987).The first salient question before me is whether or not these allegations of violationunder 1200 came within the purview of the exemption previously referred to. Under theexemption the employer must demonstrate that the product is used in the work place in thesame manner as in normal consumer use and such use results in a duration and frequency ofexposure no greater than exposures experienced by consumers using the same materials.Inasmuch as this is an exception, the burden rests with the respondent to prove that it isof the same duration of exposure and used similar to that in consumer use.During cross-examination the respondent asked the compliance officer to tell him howrespondent used the Brutus A. rods and paint differently in that facility from the mannerand for the duration that a consumer would use them. His question went on as follows\”… you’re saying they’re using the welding rods differently in that facility thanthe consumer would use them\” and the compliance officer answered in the affirmative.The next question was \”alright, how? In what way?\” \”I know of no consumersin my personal acquaintance that do welding work, repair welding work around theirhomes,\” was the answer.During cross-examination counsel went on to ask, inter alia,…\”Nowlet’s take the paint. What is your basis for saying that they use paint differently atthis facility than a consumer would use it?\” Answer -\”well, the paint that’sbeing used in this facility contains lead, and leaded paints are not available forconsumer usage.\” While the cross-examination was interesting and not objected to, theburden of proof insofar as whether or not this was a consumer product was with therespondent in this case, not the complainant, in that it is an affirmative defense and anexception given by the Secretary and in fact specifically makes the exemption contingentupon \”where the employer can demonstrate it is used in the work place in the samemanner as normal consumer use and which use results in a duration and frequency ofexposure which is not greater than exposures experienced by consumers;…\” Thereforethe question before me is not whether Mr. Renner, the compliance officer, proved greateruse than consumer use; rather the question is, did this respondent affirmatively provethat the use was not greater than consumer use? Unfortunately for the complainant thecompliance officer apparently did not investigate the duration of the exposure to thesematerials and what we have is the uncontroverted testimony of Mr. Bray an employee of thecompany called by the Secretary and Mr. Bellinger, called by respondent. Mr. Rennertestified that he did not ascertain the duration of exposure in the facility.The government called one, Robert Bray, a Millwright, who worked at the worksite inquestion for 11 1\/2 years. (Tr. 177) He stated that the Brutus A. welding rods are usedonly to weld dissimilar types of steel to each other such as an alloy steel, somethinglike stainless or welding cast iron or tempered steel, to a mild steel. (Tr. 178) Hetestified that he does such welding once a month, approximately. Under Mr. Culp’s redirectexamination he testified that a very small percentage of his welding time is spent withthe Brutus A. welding rod. (Tr. 186) This is consonant with his testimony that he uses itapproximately 5 minutes a month. Even if that is a minimization of the time, and it wasten minutes a month, it would still approximate the equivalent of consumer use. Mr. Brayalso testified that insofar as the OSHA Red paint is concerned it was used one week inapproximately 11 1\/2 years that he was employed and it was only used to paint the top rungof some step ladders as a hazard warning not to stand above the ladders.The respondent’s main witness was Wayne Bellinger, the Safety Director for Con Agra,who has been the incumbent in this position for approximately 15 years and is responsiblefor safety and accident prevention at approximately 2500 Con Agra facilities and hasvisited the cited facility between 25 and 35 times. (Tr. 192-194) Similar to thecompliance officer he is heavily experienced in safety. Respondent’s Exhibit R16 is aphotograph, taken on February 11, 1989, showing the inside of the Mid American WeldingSupply Store in Omaha, Nebraska which disclosed several shelves of welding rods for saleincluding Brutus A. welding rods which are sold to the general public. (Tr. 239) Whilethis was taken on February 11, 1989, long subsequent to the inspection, it still disclosesthat these items are sold to the general public and are consumer products in that they canbe purchased by the public. The question remains whether the use in this case iscompatible to that of a consumer.On February 11, 1989, a photograph was taken of another store which showed hundredsof cans of paint all of which have warnings about lead similar to that found on OSHA Red.Mr. Bellinger visited Sherwin Williams stores, all in Omaha, Nebraska and was able topurchase OSHA Red Enamel in all of these stores. (Tr. 245, 246) AccordingIy, therespondent has proven that it can be purchased by the general public and by consumers.While Mr. Renner stated that the purchase of the items in a retail store may makethem consumer products, that alone is not definitive. The proof must be that the exposureand the use is comparable to that of a consumer.The testimony is uncontroverted insofar as the duration of exposure to each of thesetwo items, inasmuch as the compliance officer did not inquire into the time of exposure ofemployees to each of the products in question.I find that even given two welders and a total of ten to twenty minutes a month, andone use of OSHA Red paint in 11 1\/2 years to paint the top rungs of ladders, the use ineach case, is equivalent to consumer use and thus comes within the purview of theexemption.If in a further inspection OSHA can show a greater duration, then, and in such case,of course, it could cite this respondent again. Given the proof of record in this case Imust find in favor of the respondent. First of all the uncontroverted testimony of Mr.Bellinger reveals that these items may be purchased in retail stores by the general publicwho are consumers and the duration of use, considering the testimony of the witnesses, isno more than that of the average consumer who would use these products. Accordingly, bothproducts, as used it this facility, come within purview of the exemption set forth at 29C.F.R. 1910.1200(b)(6)(VII) and thus the allegations of violation must fall.Insofar as the other than serious citation item No. 5 is concerned, alleging a violationof the standard set forth at 29 C.F.R. 1910.1200(e)(1)(i), different criteria exists.There the applicable Section (e) reads as follows:Written Hazard Communication Program (1) employer shall develop, implement, andmaintain at the work place, a written hazard communication program for their work placeswhich at least describes how the criteria specified in ? (f), (g), (h) of this sectionfor labels and other forms of warning, materials safety data sheets, and employeeinformation and training will be met, and which also includes the following: 1. A list ofthe hazardous chemicals known to be present using an identity that is referenced on theappropriate material safety data sheet (the list may be complied for the work place as awhole or for individual work areas); and…This list contained an extra hazardous chemical, to wit Benzene, which was not at thefacility. Mr. Renner argues that this is a violation. The Secretary argues and itswitness, Mr. Renner, the compliance officer, testified that in the event of an emergencyit would be difficult for persons responding to an emergency in that they would lose timesearching for something like Benzene, which was not in the facility and in addition itwould be a burden on the compliance officers. I find that the inclusion of a hazardouschemical that does not exist on the premises is a hazard. Certainly if respondent listed anon-existent hazardous chemical it certainly would be confusing to anyone searching and Ithink it could be certainly detrimental to the safety program of the Secretary in that iswastes the time of the compliance officer and could be dangerous in case of an emergencyor accident.Accordingly, I find that the Secretary has proven an other than serious violation ofthe standard set forth at 29 C.F.R. 1910.1200 (e)(1)(i).FINDINGS OF FACT1. The respondent is a conglomerate withapproximately 60,000 employees and 2500 facilities. It operates a flour milling facilityat Martins Creek, Pennsylvania, the worksite in question herein.2. The respondent’s facility was inspected by Mr.Renner an industrial hygienist for the Occupational Safety and Health Administration fromApril 12, 1988 to April 28, 1988.3. The respondent was cited for violations of varioussections of the standards set forth at 29 C.F.R. 1910.1200.4. At the commencement of the hearing the respondentagreed to withdraw its notice of contest to other than serious citation No. 2, items 1, 2,3, and 4.5. After conferencing with the Judge, the partiesagreed to settle serious citation No. 1, items 1a and 1b thereof, by consolidating thoseitems as a single other than serious violation and deleting the proposed penalty.6. Burtus A. welding rods can be purchased by amember of the public and a consumer at retail hardware stores.7. Burtus A. welding rods are used infrequently,approximately 5 minutes each month by each welder at respondent’s facility, which use iscomparable to consumer use.8. Leaded paints including OSHA Red paint may bepurchased by consumers in retail paint stores.9. The record reveals that OSHA Red pain had beenused on one occasion only at the respondent’s facility in 11 1\/2 years for the purpose ofpainting the top rung of ladders, as a caution indication. This is comparable to no morethan consumer use.10. The complainant failed to ascertain the durationof exposure of employees to each of those items and the uncontroverted testimony in therecord discloses the durations given above.11. The listing of Benzene when there is no Benzenein the facility is a hazard and is a violation of the affected standard.12. The list of hazardous chemicals maintained at thefacility had a sufficient inadequacy in that Benzene was included as a chemical on thelist and such item did not exist in the plant. The additional reporting of a chemical suchas Benzene might result in delaying the emergency response of those responding to theemergency to take unnecessary precautions and to waste time. In addition it affects theproper utilization of OSHA resources and wastes time in conducting proper inspections.CONCLUSIONS OF LAW1. The respondent, Con Agra, is engaged in a businessthat affects commerce and is subject to the Act and the jurisdiction of this Tribunal.2. The standard set forth at 29 C.F.R. 1910.1200 doesnot apply to Brutus A. welding rods and OSHA Red paint as utilized in this plant inasmuchas they come within the exemption for consumer products as set forth at 29 C.F.R.1910.1200(b)(6)(VII).3. Respondent was not in violation of 29 C.F.R.1910.1200(g)(8) for failing to maintain a material safety data sheet for Brutus A. weldingrods.4. The respondent was not in violation of 29 C.F.R.1910.1200(g)(8) for failing to maintain a material safety data sheet for OSHA RedIndustrial Enamel paint.5. The respondent was not in violation of 29 C.F.R.(f)(v)(ii) for failing to provide an appropriate hazard warning on a container of BrutusA. welding rods.6. The respondent was in other than serious violationof the standard set forth at 29 C.F.R. 1910.1200(e)(1)(i) by failing to maintain anadequate list of hazardous chemicals present at the worksite.ORDERIn view of the foregoing, good cause appearingtherefor, it is ordered that:1. The allegation of other than serious violations by this respondent of thestandards set forth at 29 C.F.R. 1910.95(d)(1), 29 C.F.R. 1910.95(g)(1), 29 C.F.R.1910.95(k)(2), 29 C.F.R. 1910.95(1)(i) and 29 C.F.R. 1910.1200(e)(1)(i) are all affirmedand no penalty is assessed therefor.2. Items 1a and 1b of serious citation No. 1,alleging serious violations of the standards set forth at 29 C.F.R. 1910.134(f)(2)(ii) and29 C.F.R. 1910.134(f)(2)(IV) are consolidated and are affirmed as an other than seriousviolation and no penalty is assessed therefor.3. Items 2a(a) and 2a(b) alleging violations of thestandard set forth at 29 C.F.R. 1910.1200(g)(8) are vacated.4. Item 2b of serious citation No. 1 alleging aviolation of the standard set forth at 29 C.F.R. 1910.1200(f)(5)(ii) is vacated. Nopenalties are assessed.It is so Ordered.DAVID G. ORINGER,JUDGE OSHRCDated:\u00a0\u00a0\u00a0 February 22, 1991Boston, Massachusetts”