“Secretary of Labor,Complainant,v.RMI COMPANY,Respondent, andOIL, CHEMICAL, AND ATOMIC WORKERSUNION, AFL-CIO, LOCAL 7-509,Authorized EmployeeRepresentative.OSHRC DOCKETNo. 89-0428_ORDER_On March 8, 1991, the Secretary filed a Notice of Withdrawal of Citationin the above-captioned case. The Secretary has withdrawn the onlyremaining item at issue in this case, item 3 of Citation 1.The Commission acknowledges receipt of the Secretary’s Notice ofWithdrawal and sets aside the Judge’s Decision and Order which affirmeditem 3 of Citation 1 and assessed a $350 penalty. There being no mattersremaining before the Commission requiring further consideration, theCommission orders the above-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: April 8, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.RMI COMPANY,Respondent,andOIL, CHEMICAL AND ATOMICWORKERS UNION, AFL-CIO,LOCAL 7- 509,Authorized EmployeeRepresentative.OSHRC Docket No. 89-0428APPEARANCES:Sandra B. Kramer, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.Thomas Barnard, Esquire, and David Somrak, Esquire, Duvin, Cahn and Barnard, Cleveland, Ohio, on behalf of respondent.Gary Thompson, International Representative, Oil, Chemical and Atomic Workers International Union, Chagrin Falls, Ohio, on behalf of authorized employee representative.Fred Ruffo, Representative for the Local Union, Oil, Chemical and Atomic Workers International Union, Ashtabula, Ohio, on behalf of authorized employee representative._DECISION AND ORDER_BRADY, Judge: This proceeding is brought pursuant to section 10 of theOccupational Safety and Health Act of 1970 (\”Act\”) to contest a citationissued to respondent (\”RMI\”) by the Secretary of Labor (\”Secretary\”)pursuant to section 9(a) of the \”Act.The facts which gave rise to issuance of the citation are not indispute. RMI operates a plant in Ashtabula, Ohio, which manufacturessodium and chlorine. The facility consists of 20 to 25 buildingsincluding an evaporator building and office building. An employee of anRMI subcontractor connected a respirator to RMI’s plant compressed airline to use for breathing purposes. He was unaware the air line wasbeing purged with nitrogen which caused his asphyxiation and death.RMI’s maintenance engineer authorized use of the air line by thesubcontractor. However, he was not aware the line containednitrogen.[[1]] The question to be resolved is whether RMI violated thehazard communication standard at 29 C.F.R. ? 1910.1200(h)(1)(ii) in notinforming the engineer of the presence of nitrogen in the plant air lines.The standard which pertains to employee information and trainingprovides in pertinent part that:Employers shall provide employees with information and training onhazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard is introduced into their work area.(1) _Information_. Employees shall be informed of: * * *(ii) Any operations in their work area where hazardous chemicals are present, . . . .The Commission has held that, in order to establish a violation as inthis case, it is necessary for the Secretary to show by a preponderanceof the evidence that (1) the cited standard applies; (2) there was afailure to comply with the standard; (3) employees had access to theviolative condition; and (4) the cited employer either knew or couldhave known of the condition with the exercise of reasonable diligence._Astra Pharmaceutical Products, Inc.,_ 82 OSAHRC 55\/E9, 9 BNA OSHC 2126,1981 CCH OSHD ? 25,578 (No. 78-6247, 1979); _Daniel InternationalCorp.,_ 81 OSAHRC 71\/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD ? 21,679 (No.76-181, 1977).The central issue relates to whether the standard applies. RMI contendsthat the maintenance engineer, John Korb, was not an \”employee\” withinthe meaning of the standard and the hazard was not in his \”work area\” asdefined by the regulation.\”Employee\” is defined in 29 C.F.R. ? 1910.1200(c) as \”a worker who maybe exposed to hazardous chemicals under normal operating conditions orin foreseeable emergencies.\” The term \”work area\” is defined to mean \”aroom or defined space in a workplace where hazardous chemicals areproduced or used, and where employees are present.\”The evidence shows that Korb’s job as maintenance engineer includedestimating maintenance jobs, taking bids and awarding contracts. In thiscapacity, he contracted with the Boyd E. Hart Company (\”Hart\”) tosandblast and paint a cooling tower support structure. The structure waslocated approximately 100 feet above the evaporator building. It alsoshows the evaporator building was separate and apart from the buildingwhere Mr. Korb’s office was located and that he did not supervise anyRMI employees but was involved with them on various maintenance andrepair jobs in an advisory capacity. During the period in question, hehad no reason to work in the evaporator building except with the outsidecontractor.RMI’s contention, however, that the regulation was not violated becauseKorb was not an employee with respect to the hazard or that the hazardwas not present in this work area is without merit. Mr. Korb had theauthority to provide the subcontractor’s foreman with a special couplingto connect into the plant air line. He obtained the coupling from thestoreroom where he had signed out for it.Clearly the maintenance engineer’s authority to obtain tools from thestoreroom and provide them to subcontractors for use attests to hisstatus as an employee and that he was not restricted to a particularwork area. In carrying out the responsibilities of his position, theengineer could obviously encounter \”foreseeable emergencies\” workingthroughout the facility.The evidence establishes that the cited standard applies and there was afailure to comply in not informing the maintenance engineer of thepresence of nitrogen in the plant air line. Mr. Korb, as well as otheremployees outside the evaporator building, had access to the hazard ofnitrogen which RMI knew about or could have known about with theexercise of reasonable diligence.RMI had a duty, commensurate with the responsibilities of itsmaintenance engineer at the facility, to inform him of the presence ofany hazardous conditions. Although the employees in the evaporator plantwere adequately informed of the presence of the hazard, it wasnonetheless incumbent on respondent to inform those employees who wereforeseeable exposed to the hazard.An employer as in this case need not take steps to prevent hazards whichare not generally foreseeable, but it must do all it feasibly can toprevent foreseeable hazards. The relevant test is not the foreseeabilityof a particular incident but the foreseeability of the hazard. _SeeGeneral Dynamic Corp. v. OSHRC,_ 599 F.2d 453 (1st Cir. 1979).The violation having been established, it must now be determined whetherit is of a serious nature, as alleged. For a violation to be determinedserious under section 17(k) of the Act, there must be a substantialprobability that death or serious physical harm could result therefrom.The death resulting from use of plant air containing nitrogen is clearlyserious within the meaning of the Act.The next question determination concerns the amount of penalty to beassessed for the violation. Under section 17(j) of the Act, theCommission is required to find and give \”due consideration\” to the sizeof the employer’s business, the gravity of the violation, the good faithof the employer, and the history of previous violations in determiningthe assessment of an appropriate penalty. The gravity of the offense isthe principal factor to be considered. _Nacirema Operating Co.,_ 72OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1971).The Commission rated in _Secretary v. National Realty and ConstructionCo.,_ 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No.85, 1971), that the elements to be considered in determining the gravityare: (1) the number of employees exposed to the risk of injury; (2) theduration of exposure; (3) the precautions taken against injury, if any;and (4) the degree of probability of occurrence of injury.Weighing all the foregoing factors in light of the circumstances, it isconcluded that a penalty in the amount of $350 is deemed appropriate._FINDINGS OF FACT_1. RMI Company, at all times hereinafter mentioned, operated a plant inAshtabula, Ohio, which manufactured sodium and chlorine.2. Authorized representatives of the Secretary conducted an inspectionof the work site resulting in issuance of a citation.3. Respondent’s maintenance engineer had contracted with a paintingcontractor to sandblast and paint the cooling tower on top of theevaporator building at the facility.4. The maintenance engineer, whose office was in an office building, didnot supervise employees in the manufacturing plant but worked with themmore in an advisory capacity. His duties also carried throughout thefacility when working with subcontractors.5. The engineer had authority to direct use of the plant air andprovided the subcontractor with a coupling to tap into the line.6. The maintenance engineer was not informed the air line was beingpurged with nitrogen, a hazardous chemical._CONCLUSIONS OF LAW_1. Respondent, RMI Company, at all times pertinent hereto, was anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter hereinpursuant to section 10(c) of the Act.2. Respondent is, and at all times pertinent hereto, required to complywith the Act and the safety and health regulations promulgated pursuantthereto.3. Complainant’s motion to vacate Items 1 and 2 of the citation is granted.4. Respondent violated 29 C.F.R. ? 1910.1200(h)(1)(ii) as alleged in thecitation._ORDER_Upon the basis of the foregoing findings of fact, conclusions of law,and the entire record, it is ORDERED:Items 1 and 2 of the citation are hereby vacated. Item 3 is herebyaffirmed and a penalty of $350.00 assessed.Dated this 9th day of May, 1990.PAUL L.BradyJudge————————————————————————FOOTNOTES:[[1]] At the hearing, nitrogen was shown to be a hazardous chemicalwithin the meaning of the standard (Exs. C-1, C-2, C-3).”