“SECRETARY OF LABOR,Complainant,v.GENERAL MOTORS CORPORATION,ARLINGTON PLANT,RespondentOSHRC Docket No. 85-1082_ORDER _The Commission approves the Parties’ settlement agreement as to item 1of the citation. The judge’s decision becomes the final order of theCommission as to item 2 of the citation.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: APR 27, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.GENERAL MOTORS CORP.,ARLINGTON PLANT,Respondent.OSHRC DOCKET NO. 85-1082_DECISION AND ORDER_Appearances:James J. Manzanares, Esq., of Dallas, for the complainant.Jaimie R. Goodman, Esq., of Detroit, Michigan, for the respondent.PROCEDURAL HISTORYBLYTHE, Judge:This is a case arising under the Access to Employee Exposure and MedicalRecords standard, 29 C.F.R. 1910.20, and involves one citationcontaining two nonserious items issued August 27, 1985, to therespondent, General Motors Corp., Arlington Plant (\”GM\”), after aninspection August 19, 1985, by an industrial hygienist of theOccupational Safety and Health Administration (\”OSHA\”) as the result ofan employee complaint. GM filed notice of contest by letter datedSeptember 23, 1985, thus invoking the jurisdiction of the OccupationalSafety and Health Review Commission (\”the Commissioner\”) under ? 10(c)of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678(\”the Act\”). Subsequently the Secretary of Labor (\”the Secretary\”) fileda formal complaint, and GM filed an answer thereto.This case came on regularly for hearing January 23, 1986, in Dallas,Texas. Both parties filed post-hearing briefs.DISCUSSION AND OPINION1. _The alleged violation of 29 C.F.R. 1910.20(g)(1)(iii)_Item 1 of citation 1 alleges a nonserious violation of 29 C.F.R.1910.20(g)(1)(iii), as follows:29 C.F.R. 1910.20(g)(1)(iii): Employee(s) exposed to toxic substances orharmful physical agents were not informed of their rights to access torecords pertaining to such exposure:(a) Employees working in tool crib area near column PG were exposed toKSGM degreaser (95% Trichloroethylene) were not informed of their rightsto records pertaining to exposure.Section 1910.20(g)(1) provides:(g) Employee Information(1) Upon an employee’s first entering into employment, and at leastannually thereafter, each employer shall inform employees exposed totoxic substances or harmful physical agents of the following:(i) The existence, location, and availability of any records covered bythis section;(ii) the person responsible for maintaining and providing access torecords; and(iii) each employee’s right’, of access to these records.Although GM is alleged to have violated only ?1910.2(g)(1)(iii), it isnecessary to consider subparagraphs (i) and (ii) to see what \”theserecords\” in subparagraph (iii) means.Although subparagraph (i) makes \”these records\” mean \”any record coveredby this section\” the citation itself narrows the scope of inquiry toemployee exposure records. Under ?1919.20(c)(5),\”Employee exposure record\” means a record containing any of thefollowing kinds of information concerning employee exposure to toxicsubstances or harmful physical agents.(i) environmental (workplace) monitoring or measuring, includingpersonal, area, grab, wipe, or other form of sampling as well as relatedcollection and analytical methodologies, calculations, and otherbackground data relevant to interpretation of the results obtained:(ii) biological monitoring results which directly assess the absorptionof a substance or agent by body systems (e.g. the level of chemical inthe blood, urine, breath, hair, fingernails, etc.) but not includingresults which assess the biological effect of a substance or agent;(iii) material safety data sheets; or(iv) in the absence of the above, any other record which reveals theidentity (e.g., chemical, common, or trade name) of a toxic substance orharmful physical agent.The Secretary in his brief contends that GM’s employees were notinformed of their right to access to: [a] material safety data sheets;[b] \”data related to monitoring of the environment in which they work;\”[c] \”records that reveal the identity of the substance that was used;\”[d] \”any medical records the company may have on them.\” With regard tothe last named, the citation does not cover medical records, sotestimony regarding them will be disregarded. The other three categoriescome within the definition of \”employee exposure record,\” but under thatdefinition (ii) satisfies the requirement of (iii) if material safetydata sheets are available, as they were here.\”KSGM,\” the degreaser identified in the citation as the \”toxic substanceor harmful physical agent\” here involved, is the trade name of a solventused by GM to clean parts of welding guns during maintenance. Themanufacturer’s material safety data sheet (Exhibit R-1) lists thecontents as 9S percent 1,1,1- trichloroethane (methyl chloroform and 5percent 1,1,2-trichloroethane and 1,2,2- trifluoroethane.The citation erroneously lists \”trichloroethylene\” (a more toxicsubstance than 1,1,1– trichloroethane) as the primary ingredient ofKSGM. The OSHA industrial hygienist, Luis ViIlanueva, testified that hewas so informed by GM representatives during the inspection (which theydenied), and that he had requested, but had not been supplied, thematerial safety data sheet for KSGM (also denied by GM’s witnesses). Inany event, this error was called to the attention of OSHA’s areadirector, James Knorpp,during an informal conference after the citationwas issued (Tr. 57). Yet the Secretary did not move to amend thecitation and complaint until after the hearing. GM opposes this motion.It also objects under Rule 408, F . R . E., to consideration oftestimony arising from the informal conference on the ground that theinformal conference involved settlement negotiations.Rule 408, made applicable by Commission Rule 72, 29 C.F.R. 2200.72,provides, in pertinent part… This rule does not require the exclusion of any evident otherwisediscoverable merely because- it. is presented in the course ofcompromise negotiations. This rule also does not require exclusion whenthe evidence is offered for another purpose, such as proving bias orprejudice of a witness, negativing a contention of undue delay, orproving an effort to obstruct a criminal investigation or prosecution.The correct identity of the chemical was \”otherwise discoverable\” andwas offered for \”another purpose\” than the purported settlement offer,so the objection under Rule 408 is overruled.It is apparent that GM knew from the outset that the primary chemical inKSGM was misnamed and that no prejudice will result if, as the Secretarybelatedly requests, the citation and complaint are amended to conform tothe evidence under Rule 15(b), F.R.Civ.2., made applicable by CommissionRule 2(b), 29 C.F.R. 2200.2(b). The motion is granted.The next question is whether the chemicals in KSGM are \”toxic substancesor harmful physical agents.\” As defined in ? 1910.20(c)(ii),\”Toxic substance or harmful physical agent\” means any chemicalsubstance, biological agent (bacteria, virus, fungus, etc.), or physicalstress (noise, heat, cold, vibration. repetitive motion, ionizing andnon-ionizing radiation, hypo- or hyperbaric pressure, etc.) which:(i) is regulated by any Federal law or rule due to a hazard to health,(ii) is listed in the latest printed edition of the National Institutefor Occupational Safety and Health (NIOSH) Registry of Toxic Effects ofChemical Substances (RTECS) (See Appendix B),(iii) has yielded positive evidence of an acute or chronic healthhazarded in human, animal or other biological testing conducted by, orknown to, the employer, or(iv) has a material safety data sheet available to the employerindicating that the material may pose a hazard to human health.Both 1,1,1-and 1,1,2-trichloroethanes are listed in the NIOSH Registry(Exhibit C-1), but GM contends that that is not dispositive of thematter and that the Secretary must prove that KSGM is a harmfulsubstance in the manner in which it was used and that employees wereexposed to it.GM points out that its employees were required to wear protective glovesand glasses when cleaning parts in the degreaser, that the vat iscovered when not in use, and that there is no evidence that thepermissible exposure limits (\”PEL\”) for these chemicals was exceeded.Under Table Z-1 of 29 C.F.R. 1910.1000, the PEL (8-hour time weightedaverage) for 1,1,1-trichloroethane is 350 p.p.m., and for1,1,2-trichoroethane and 1,2,2-trifluoroethane is 1,000 p.p.m. GM testedthe environment around the before the citation was issued and found thelevel of 1,1,1-trichoroethane far below the PEL (Tr. 72). Moreover, theexposure was for short periods so no TWA could be calculated.Section 1910.20(c)(8) provides:\”Exposure\” or \”exposed\” means that an employee is subjected to a toxicsubstance or harmful physical agent in the course of employment throughany route of entry (inhalation, ingestion, skin contact or absorption,etc.), and includes past exposure, but does include situations where theemployer can demonstrate that the toxic substance or harmful physicalagent is not used, handled, stored, generated, or present in theworkplace in any manner different from typical non-occupational situations.Joanne Pritchard, who works in GM’s hazardous materials and hazardcommunications program, testified that trichloroethane is used in commonhousehold fabric cleaners (Tr. 82). On this basis GM contends that itcomes within the exception in the last clause of the exposuredefinition. However, this is not the same thing as contemplated by thewords, \”not used, handled, stored,…or present in the workplace in anymanner different from typical non-occupational situations.\” A clear-cutexample would be the use of this chemical from a small can to cleanfabrics in GM’s plant. The situation here is not comparable to householduse.Ms. Pritchard, incidentally, conceded that, since trichloroethane islisted by NIOSH in RTECS and can defat the skin and cause dermatitis,\”you could say it is a harmful physical agent\” (Tr. 76, 82).RTECS shows that both 1,1,1- and 1,1,2-trichloroethane are the subjectof continuing studies on carcinogenicity in animals and that the latteris a \”suspected’ carcinogen in animals.Actual exposure need not be proved under ?1910.20(c)(8), supra; it maybe \”potential (e.g.., accidental or possible)\”. Here there is a\”‘potential\” for \”accidental or possible\” exposure to the skin, at least.All of the foreqoinq has been necessary to reach the main issue: WhetherGM properly informed employees of their \”rights of access\” to employeeexposure records, specifically the material safety data sheet andenvironmental monitoring data on KSGM. Section 1910.20(g)(1) requiresthat employees be so informed \”[u]pon…first entering into employment,and at least annually thereafter.\”The Secretary produced two witnesses, Johnny R. Hunt and Howard G. Huff,who worked in the vicinity of the degreaser (and in Hunt’s case usedit). Huff testified to the effect that he had never been informed of hisright to have access to the records in question until GM set up classessome two months after the inspection (Tr. 25). Hunt was not sure when hewas so informed but thought it was after the inspection (Tr. 21-14).GM’s witnesses regarding this subject were John D. Jackson, maintenancesupervisor of the department housing the degreaser in question, andWilliam E. Elmore, a supervisor to safety department. Jackson testifiedthat KSGM was a harmless solvent, that he was never told it was aharmful substance (Tr. 97) and that if he was told a substance washarmful he would tell employees of their right to see the materialsafety date sheet (Tr. 95).Elmore testified that new employees are given a booklet (Exhibit R-2)which, among other things, tells them about the use of bulletin boardsin the plant (but does not inform employees of any rights pertinenthere); that a notice posted on the bulletin boards indicated thatmaterial safety date sheets were available at the safety office(Tr. 99); that employees or their union representatives sometimes dorequest such data sheets (Tr. 108); that the union representatives hasaccess to all the data sheets in the safety office (Tr. 108); and thatno specific requests were ever received for a data sheet on1,1,1-tricloroethane (Tr. 110).There was no testimony about informing employees regarding theenvironmental testing for 1,1,1- trichloroethane described by Ms. Pritchard.In sum, it is apparent that at the time of the inspection GM did nothave in place an organized program to inform employees entering intoemployment, and annually thereafter, of their right of access toemployee exposure records. I therefore find a violation of 29 C.F.R.1910.20(g)(1)(ii).GM contends that if there is a violation it should be characterized asde minimis. A violation may be so characterized \”where it has only anegligible relationship to safety and health and where it is thusinappropriate to require that the violation be abated or to assess apenalty.\” National Rolling Mills Co., 76 OSAHRC 121\/D7, 4 BNA OSHC 1719,1976-77 CCH OSHD (P) 21,114 (No. 7987, 1976). GM contends that in theway it uses KSGM the risk of injury is slight, justifying a de minimischaracterization. This misses the point, for the purpose of ? 1910.20(g)is to inform employees about toxic substances and harmful physicalagents in the workplace so they may avoid injuries and illnesses. Thispurpose will be served by requiring abatement, which would not berequired if the violation were to be characterized as de minimis. Theviolation must be characterized as other-than-serious.II. _The alleged-violation of 29 C.F.R. 1910.20(g)(2)._Item 2 alleges a nonserious violation of 29 C.F.R. 1910.20(g)(2) in thatEmployees working in tool crib area near column PG were not providedwith or copy made available of 29 CFR 1910.20 and its appendices.The cited standard provides:Each employer shall make readily available to employees a copy of thisstandard and its appendices, and shall distribute to employees anyinformational materials concerning this standard which are madeavailable to the employer by the Assistant Secretary of Labor forOccupational Safety and Health.GM’s witnesses, Jackson and Elmore, testified that before citation wasissued copies of this standard were posted on bulletin boards atstrategic locations throughout the plant and were also available toemployees and their union representatives at the safety office, thesecurity office, and the main maintenance office. Employees Hunt andHuff testified that they had never seen this standard posted on thebulletin boards. The inspector, Villanueva, did not. check the bulletinboards. Thus the testimony of Jackson and Elmore is essentiallyuncontradicted.I find that ?1910.20 and its appendices were \”readily available\” to GM’semployees, including those in the \”tool crib area near column PG\”, isset forth in the citation.FINDINGS OF FACT1. GM operates an automobile assembly plant in Arlington, Texas, and isengaged in a business affecting commerce within the meaning of ?3(5) ofthe Act.2. On August 19, 1985, an OSHA industrial hygienist, pursuant to anemployee complaint, inspected a portion of GM’s Arlington plant, thatis, the tool crib area near column PG, where there was a degreaser vatused by the WEMR department to clean parts of welding guns.3. The degreaser was a v measuring about 3′ X 5′ X 3’ deep, with a lidthat was kept closed except when parts were being cleaned. The partswere loweredinto the vat in a basket and a pump was turned on to circulate thesolvent. Sometimes a brush was used to remove residue adhering to theparts.Employees using the degreaser were required to wear protectivegloves and glasses, and face masks were available for use at the optionof the employees. Frequency of use of the degreaser varied from twice aday to once a week.4. The solvent in the degreaser, bearing the trade name \”KSGM,\” wascomposed of 95 percent 1,1,1-trichloroethane and 5 percent 1,1,2-trichloroethane and 1,2,2-trifluoroethane. Both1,1,1-trichloroethane and 1,1,2-trichloroethane are listed in the NIOSHRegistry of Toxic Effects of Chemical Substances (\”RTECS\”). Thesechemicals are toxic substances.5. Prior to issuance of the citation herein, GM had tested theenvironment of the degreaser to determine the airborne1,1,1-trichloroeethane.There is no evidence that affected employees wereinformed of their right of access to record of such tests.6. GM had a material safety data sheet for KSGM. Affected employees werenot informed of their right of access to such records as required by 9.C.F.R. 1910.20 (g) (1)(iii).7. Prior to August 19, 1985, GM did not have in place a program toensure that employees exposed to toxic substances or harmful physicalagents, upon first ….. its employment and at least annuallythereafter, were informed of their right of access to employee exposurerecords.8. GM knew or in the exercise of reasonable diligence could have knownthat it was in violation of 29 C.F.R. 1910.20(g)(1)(iii).9. Prior to the issuance of the citation GM made copies of 29 C.F.R.1910.20 and its appendices readily available to its employees at itssafety office, its security office, and its main maintenance office andby posting same on bulletin boards strategically located in the plant.CONCLUSION OF LAW1. The Commission has jurisdiction of the parties and of the subjectmatter of this proceeding.2. On August 19, 1985, GM was in nonserious violation of 29 C.F.R.1910.20(g)(1)(iii).3. On said date GM was not in violation of 29 C.F.R 1910.20(g)(2)._O R D E R_It is ORDERED that:1. Item 1 of citation 1, for nonserious violation of 29 C.F.R.1910.20(g)(1)(iii), is AFFIRMED.2. Item 2 of citation 1, for nonserious violation of 29 C.F.R.1910.20(g)(2), is VACATED. DEE C. BLYTHEAdministrative Law JudgeDate: May 9, 1986″