“Docket No. 85-1082 SECRETARY OF LABOR,Complainant,v.GENERAL MOTORS CORPORATION,ARLINGTON PLANT,RespondentOSHRC Docket No. 85-1082ORDER The Commission approves the Parties’ settlement agreement as to item 1 of the citation.The judge’s decision becomes the final order of the Commission as to item 2 of thecitation.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. 85-1082DECISION AND ORDERAppearances: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 Medical Records standard,29 C.F.R. 1910.20, and involves one citation containing two nonserious items issued August27, 1985, to the respondent, General Motors Corp., Arlington Plant (\”GM\”), afteran inspection August 19, 1985, by an industrial hygienist of the Occupational Safety andHealth Administration (\”OSHA\”) as the result of an employee complaint. GM filednotice of contest by letter dated September 23, 1985, thus invoking the jurisdiction ofthe Occupational Safety 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\”)filed a formal complaint, and GM filed an answer thereto.This case came on regularly for hearing January 23, 1986, in Dallas, Texas. Both partiesfiled 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), asfollows:29 C.F.R. 1910.20(g)(1)(iii): Employee(s) exposed to toxic substances or harmful physicalagents were not informed of their rights to access to records pertaining to such exposure:(a) Employees working in tool crib area near column PG were exposed to KSGM degreaser (95%Trichloroethylene) were not informed of their rights to records pertaining to exposure.Section 1910.20(g)(1) provides:(g) Employee Information(1) Upon an employee’s first entering into employment, and at least annually thereafter,each employer shall inform employees exposed to toxic substances or harmful physicalagents of the following:(i) The existence, location, and availability of any records covered by this section;(ii) the person responsible for maintaining and providing access to records; and(iii) each employee’s right’, of access to these records.Although GM is alleged to have violated only ?1910.2(g)(1)(iii),\u00a0 it is necessary toconsider subparagraphs (i) and (ii) to see what \”these records\” in subparagraph(iii) means.Although subparagraph (i) makes \”these records\” mean \”any record covered bythis section\” the citation itself narrows the scope of inquiry to employee exposurerecords. Under ?1919.20(c)(5),\”Employee exposure record\” means a record containing any of the following kindsof information concerning employee exposure to toxic substances or harmful physicalagents.(i) environmental (workplace) monitoring or measuring, including personal, area, grab,wipe, or other form of sampling as well as related collection and analyticalmethodologies, calculations, and other background data relevant to interpretation of theresults obtained:(ii) biological monitoring results which directly assess the absorption of a substance oragent by body systems (e.g. the level of chemical in the blood, urine, breath, hair,fingernails, etc.) but not including results which assess the biological effect of asubstance or agent;(iii) material safety data sheets; or(iv) in the absence of the above, any other record which reveals the identity (e.g.,chemical, common, or trade name) of a toxic substance or harmful physical agent.The Secretary in his brief contends that GM’s employees were not informed of their rightto access to: [a] material safety data sheets; [b] \”data related to monitoring of theenvironment in which they work;\” [c] \”records that reveal the identity of thesubstance that was used;\” [d] \”any medical records the company may have onthem.\” With regard to the last named, the citation does not cover medical records, sotestimony regarding them will be disregarded. The other three categories come within thedefinition of \”employee exposure record,\” but under that definition (ii)satisfies the requirement of (iii) if material safety data sheets are available, as theywere here.\”KSGM,\” the degreaser identified in the citation as the \”toxic substance orharmful physical agent\” here involved, is the trade name of a solvent used by GM toclean parts of welding guns during maintenance. The manufacturer’s material safety datasheet (Exhibit R-1) lists the contents as 9S percent 1,1,1- trichloroethane (methylchloroform and 5 percent 1,1,2-trichloroethane and 1,2,2- trifluoroethane.The citation erroneously lists \”trichloroethylene\” (a more toxic substance than1,1,1– trichloroethane) as the primary ingredient of KSGM. The OSHA industrial hygienist,Luis ViIlanueva, testified that he was so informed by GM representatives during theinspection (which they denied), and that he had requested, but had not been supplied, thematerial safety data sheet for KSGM (also denied by GM’s witnesses). In any event, thiserror was called to the attention of OSHA’s area director, James Knorpp,during an informalconference after the citation was issued (Tr. 57). Yet the Secretary did not move to amendthe citation and complaint until after the hearing. GM opposes this motion. It alsoobjects under Rule 408, F . R . E., to consideration of testimony arising from theinformal conference on the ground that the informal conference involved settlementnegotiations. Rule 408, made applicable by Commission Rule 72, 29 C.F.R. 2200.72, provides, inpertinent part… This rule does not require the exclusion of any evident otherwise discoverable merelybecause- it. is presented in the course of compromise negotiations. This rule also doesnot require exclusion when the evidence is offered for another purpose, such as provingbias or prejudice of a witness, negativing a contention of undue delay, or proving aneffort to obstruct a criminal investigation or prosecution.The correct identity of the chemical was \”otherwise discoverable\” and wasoffered for \”another purpose\” than the purported settlement offer, so theobjection under Rule 408 is overruled.It is apparent that GM knew from the outset that the primary chemical in KSGM was misnamedand that no prejudice will result if, as the Secretary belatedly requests, the citationand complaint are amended to conform to the evidence under Rule 15(b), F.R.Civ.2., madeapplicable by Commission Rule 2(b), 29 C.F.R. 2200.2(b). The motion is granted.The next question is whether the chemicals in KSGM are \”toxic substances or harmfulphysical agents.\” As defined in ? 1910.20(c)(ii), \”Toxic substance or harmful physical agent\” means any chemical substance,biological agent (bacteria, virus, fungus, etc.), or physical stress (noise, heat, cold,vibration. repetitive motion, ionizing and non-ionizing radiation, hypo- or hyperbaricpressure, 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 Institute for OccupationalSafety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS) (SeeAppendix B), (iii) has yielded positive evidence of an acute or chronic health hazarded in human,animal or other biological testing conducted by, or known to, the employer, or (iv) has a material safety data sheet available to the employer indicating that thematerial 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), butGM contends that that is not dispositive of the matter and that the Secretary must provethat KSGM is a harmful substance in the manner in which it was used and that employeeswere exposed to it.GM points out that its employees were required to wear protective gloves and glasses whencleaning parts in the degreaser, that the vat is covered when not in use, and that thereis no evidence that the permissible exposure limits (\”PEL\”) for these chemicalswas exceeded.Under Table Z-1 of 29 C.F.R. 1910.1000, the PEL (8-hour time weighted average) for1,1,1-trichloroethane is 350 p.p.m., and for 1,1,2-trichoroethane and1,2,2-trifluoroethane is 1,000 p.p.m. GM tested the environment around the before thecitation was issued and found the level of 1,1,1-trichoroethane far below the PEL (Tr.72). Moreover, the exposure 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 through any route of entry(inhalation, ingestion, skin contact or absorption, etc.), and includes past exposure, butdoes include situations where the employer can demonstrate that the toxic substance orharmful physical agent 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 hazard communications program,testified that trichloroethane is used in common household fabric cleaners (Tr. 82). Onthis basis GM contends that it comes within the exception in the last clause of theexposure definition. However, this is not the same thing as contemplated by the words,\”not used, handled, stored,…or present in the workplace in any manner differentfrom typical non-occupational situations.\” A clear-cut example would be the use ofthis chemical from a small can to clean fabrics in GM’s plant. The situation here is notcomparable to household use.Ms. Pritchard, incidentally, conceded that, since trichloroethane is listed by NIOSH inRTECS and can defat the skin and cause dermatitis, \”you could say it is a harmfulphysical agent\” (Tr. 76, 82).RTECS shows that both 1,1,1- and 1,1,2-trichloroethane are the subject of continuingstudies on carcinogenicity in animals and that the latter is a \”suspected’ carcinogenin animals.Actual exposure need not be proved under ?1910.20(c)(8), supra; it may be \”potential(e.g.., accidental or possible)\”.\u00a0 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: Whether GM properlyinformed employees of their \”rights of access\” to employee exposure records,specifically the material safety data sheet and environmental monitoring data on KSGM.Section 1910.20(g)(1) requires that employees be so informed \”[u]pon…first enteringinto employment, and at least annually thereafter.\”The Secretary produced two witnesses, Johnny R. Hunt and Howard G. Huff, who worked in thevicinity of the degreaser (and in Hunt’s case used it). Huff testified to the effect thathe had never been informed of his right to have access to the records in question until GMset up classes some 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 witnessesregarding this subject were John D. Jackson, maintenance supervisor of the departmenthousing the degreaser in question, and William E. Elmore, a supervisor to safetydepartment. Jackson testified that KSGM was a harmless solvent, that he was never told itwas a harmful substance (Tr. 97) and that if he was told a substance was harmful he wouldtell employees of their right to see the material safety date sheet (Tr. 95).Elmore testified that new employees are given a booklet (Exhibit R-2) which, among otherthings, tells them about the use of bulletin boards in the plant (but does not informemployees of any rights pertinent here); that a notice posted on the bulletin boardsindicated that material safety date sheets were available at the safety office (Tr. 99); that employees or their union representatives sometimes do request such datasheets (Tr. 108); that the union representatives has access to all the data sheets in thesafety office (Tr. 108); and that no specific requests were ever received for a data sheeton 1,1,1-tricloroethane (Tr. 110).There was no testimony about informing employees regarding the environmental testing for1,1,1- trichloroethane described by Ms. Pritchard.In sum, it is apparent that at the time of the inspection GM did not have in place anorganized program to inform employees entering into employment, and annually thereafter,of their right of access to employee exposure records. I therefore find a violation of 29C.F.R. 1910.20(g)(1)(ii).GM contends that if there is a violation it should be characterized as de minimis. Aviolation may be so characterized \”where it has only a negligible relationship tosafety and health and where it is thus inappropriate to require that the violation beabated or to assess a penalty.\” National Rolling Mills Co., 76 OSAHRC 121\/D7, 4 BNAOSHC 1719, 1976-77 CCH OSHD (P) 21,114 (No. 7987, 1976). GM contends that in the way ituses KSGM the risk of injury is slight, justifying a de minimis characterization. Thismisses the point, for the purpose of ? 1910.20(g) is to inform employees about toxicsubstances and harmful physical agents in the workplace so they may avoid injuries andillnesses. This purpose will be served by requiring abatement, which would not be requiredif the violation were to be characterized as de minimis. The violation must becharacterized 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 that Employees working in tool crib area near column PG were not provided with or copy madeavailable of 29 CFR 1910.20 and its appendices.The cited standard provides:Each employer shall make readily available to employees a copy of this standard and itsappendices, and shall distribute to employees any informational materials concerning thisstandard which are made available to the employer by the Assistant Secretary of Labor forOccupational Safety and Health.GM’s witnesses, Jackson and Elmore, testified that before citation was issued copies ofthis standard were posted on bulletin boards at strategic locations throughout the plantand were also available to employees and their union representatives at the safety office,the security office, and the main maintenance office. Employees Hunt and Huff testifiedthat they had never seen this standard posted on the bulletin boards. The inspector,Villanueva, did not. check the bulletin boards. Thus the testimony of Jackson and Elmoreis essentially uncontradicted.I find that ?1910.20 and its appendices were \”readily available\” to GM’semployees, including those in the \”tool crib area near column PG\”, is set forthin the citation.FINDINGS OF FACT1. GM operates an automobile assembly plant in Arlington, Texas, and is engaged in abusiness affecting commerce within the meaning of ?3(5) of the Act.2. On August 19, 1985, an OSHA industrial hygienist, pursuant to an employee complaint,inspected a portion of GM’s Arlington plant, that is, the tool crib area near column PG,where there was a degreaser vat used by the WEMR department to clean parts of weldingguns.3. The degreaser was a v measuring about 3′ X 5′ X 3’ deep, with a lid that was keptclosed except when parts were being cleaned. The parts were lowered into the vat in a basket and a pump was turned on to circulate the solvent. Sometimes abrush was used to remove residue adhering to the parts.Employees using the degreaser wererequired to wear protective gloves and glasses, and face masks were available for use atthe option of the employees. Frequency of use of the degreaser varied from twice a day toonce a week.4. The solvent in the degreaser, bearing the trade name \”KSGM,\” was composed of95 percent 1,1,1-trichloroethane and 5 percent 1 ,1,2-trichloroethane and1,2,2-trifluoroethane. Both 1,1,1-trichloroethane and 1,1,2-trichloroethane are listed inthe NIOSH Registry of Toxic Effects of Chemical Substances (\”RTECS\”). Thesechemicals are toxic substances.5. Prior to issuance of the citation herein, GM had tested the environment of thedegreaser to determine the airborne 1,1,1-trichloroeethane.There is no evidence thataffected employees were informed of their right of access to record of such tests.6. GM had a material safety data sheet for KSGM. Affected employees were not informed oftheir 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 to ensure that employeesexposed to toxic substances or harmful physical agents, upon first ….. its employmentand at least annually thereafter, were informed of their right of access to employeeexposure records.8. GM knew or in the exercise of reasonable diligence could have known that it was inviolation 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 itsappendices readily available to its employees at its safety office, its security office,and its main maintenance office and by posting same on bulletin boards strategicallylocated in the plant.CONCLUSION OF LAW1. The Commission has jurisdiction of the parties and of the subject matter of thisproceeding.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 RIt is ORDERED that:1. Item 1 of citation 1, for nonserious violation of 29 C.F.R. 1910.20(g)(1)(iii), isAFFIRMED.2. Item 2 of citation 1, for nonserious violation of 29 C.F.R. 1910.20(g)(2), is VACATED.\u00a0DEE C. BLYTHEAdministrative Law JudgeDate: May 9, 1986″