“SECRETARY OF LABOR,Complainant,v.SUPER EXCAVATORS, INC.,Respondent.OSHRC Docket No. 89-2253_DECISION_Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Super Excavators, Inc., (\”Super\”) is a construction company specializingin public works construction, particularly excavating trenches for sewerand water lines. Its headquarters is in Menomonee Falls, Wisconsin. Acompliance officer (\”CO\”) of the Occupational Safety and HealthAdministration (\”OSHA\”) inspected a worksite in Milwaukee where Superwas laying sewer pipe. As a result of that inspection, OSHA issued acitation alleging that Super had committed serious violations of twodifferent sections of the Hazard Communication Standard for theconstruction industry.Super contested that citation, and a hearing was held before anadministrative law judge of the Review Commission, who found that Superhad committed two serious violations. The judge’s decision has beendirected for review pursuant to section 12(j) of the Occupational Safety& Health Act of 1970 (\”the Act\”), 29 U.S.C. ? 661(j).I.Item 1 of the citation alleged that Super had violated the standard at29 C.F.R. ? 1926.59(e)(1) [[1\/]]. The citation alleged that Super hadnot developed or implemented a written hazard communication programdescribing how it would meet the requirements set out in the HazardCommunication Standard. The record shows that Super had, in fact,developed a written hazard communication program, as required by section1926.59(e)(1) and had implemented it, but that Super did not have awritten copy of the program at the worksite during the inspection. Theadministrative law judge found that this failure constituted a seriousviolation.On review, the Secretary has filed a document captioned \”Secretary’sNotice To Amend Citation,\” in which the Secretary states, \”[T]heSecretary hereby amends the classification of the 1926.59(e)(1) citationto allege a de minimis violation of the standard.\” In her brief, theSecretary states that Super had implemented an effective overall hazardcommunication program, that the failure to have a copy of the writtenprogram at a transient worksite may have no direct or immediaterelationship to employee safety and health, and that this amendmentwould be consistent with OSHA’s current enforcement policy for theHazard Communication Standard, as set out in CPL 2-2.38C (Oct. 22,1990). Super, on the other hand, opposes this amendment, arguing thatthere was no violation and that the citation should be vacated.In section 12(g) of the Act, 29 U.S.C. ? 661(g), Congress provided thatFederal Rules of Civil Procedure shall govern Commission proceedingsunless the Commission has adopted a different rule. Rule 35(f) of theCommission’s Rules of Procedure, 29 C.F.R. ? 2200.35(f), provides:? 2200.35 Complaints.(f) Amendment of the citation and complaint. A contested citation,notification of proposed penalty, or notification of failure to abatemay be amended once as a matter of course in the complaint before ananswer is served if: (1) the amended allegation arises out of the sameconduct, occurrence or hazard described in the citation; (2) theamendment does not result in incurable harm to the employer in thepreparation or presentation of its case; and (3) the complaint clearlyidentifies the change that is being made in the allegation. All otheramendments of the Secretary’s allegations, as well as any amendments ofthe employer’s responses, are governed by Federal Rule of CivilProcedure 15.Here, an answer has been served, a hearing held, and a decision issued,so the citation may not be amended under Rule 35(f). Rule 15(a) of theFederal Rules of Civil Procedure [[2]], which applies to the situationhere, provides that a party may amend its pleading only if it has eitherthe written consent of the opposing party or leave of court (in thiscase, the Commission). Therefore, the Secretary may not unilaterallyamend the citation and the \”Notice to Amend\” is ineffective.However, section 10(c) of the Act provides for the Review Commission toissue an order affirming, modifying, or vacating the Secretary’scitation or directing other appropriate relief.[[3]] Accordingly, theReview Commission has the authority to determine that a violation is_de_ _minimis_, _Illinois Bell Telephone Co._, 5 BNA OSHC 1884, 1977-78CCH OSHD ? 22,209 (No. 2097, 1977); _Donovan v. Daniel Constr. Co._, 6922.2d 818, 821 (1st Cir. 1982); so we will treat the Secretary’s filingas a motion to amend the citation to a _de_ _minimis_ notice.After reviewing the record, we conclude that amendment of the citationis warranted. Although the citation alleged that Super had not developedor implemented a written hazard communication program, the Secretary’scomplaint amended the citation by alleging that Super had violated 29C.F.R. ? 1926.59(e)(1) because the written hazard communication programwas not available at the work site. The issue litigated by the partiesat the hearing was whether Super’s written program was \”maintain(ed) atthe workplace.\”To a large extent, the written program is a plan and a trainingdocument, to be used in familiarizing employees with the hazardouschemicals present in their workplace, with the hazards posed by thesechemicals, with methods of avoiding exposure, and with treatment in thecase of exposure. The Secretary has stated that Super had implemented aneffective program, which we interpret to mean that the company’semployees had been given the requisite training. Further, although theparties stipulated that the four substances at Super’s worksite,concrete, concrete pipe, PVC pipe, and waterplug, fell within thestandard’s definition of \”hazardous chemical,\” none of these substancesappears to be unduly volatile or to have posed a significant danger toSuper’s employees. We consider the Secretary’s representations to be anadmission that Super’s failure to have a copy of its written program atits Milwaukee worksite had no direct or immediate relationship toemployee safety and health. We therefore find that amendment of thecitation to a de minimis notice is appropriate. Accordingly, we grantthe Secretary’s motion to amend. Having granted the Secretary’s motion,we must consider the legal significance of such an amendment.Section 9(a) of the Act, 29 U.S.C. ? 658(a), which authorizes theSecretary to issue citations, provides:If, upon inspection or investigation, the Secretary or his authorizedrepresentative believes that an employer has violated a requirement ofsection 5 of this Act, of any standard, rule or order promulgatedpursuant to section 6 of this Act, or of any regulations prescribedpursuant to this Act, he shall with reasonable promptness issue acitation to the employer. Each citation shall be in writing and shalldescribe with particularity the nature of the violation, including areference to the provision of the Act, standard, rule, regulation, ororder alleged to have been violated. in addition, the citation shall fixa reasonable time for the abatement of the violation. The Secretary mayprescribe procedures for the issuance of a notice in lieu of a citationwith respect to de minimis violations which have no direct or immediaterelationship to safety or health.The last sentence of section 9(a) makes it clear that a _de_ _minimis_notice is not a citation. Because it is not a citation, a _de_ _minimis_notice carries no penalty and no abatement requirement. _Dravo Corp.,_ 7BNA OSHC 2095, 2100, 1980 CCH OSHD 24,158, ? 29,368 (No. 16317, 1980),_pet. for review denied_, 639 F. 2d 772 (3rd Cir. 1980); _NationalRolling Mills, Co._, 4 BNA OSHC 1719, 1976-77 CCH OSHD ? 21, 114 (No.7987, 1976). A _de_ _minimis_ notice does not become part of anemployer’s history of previous violations, which is one of the factorsto be considered in assessing a penalty under section 17(j) of the Act,29 U.S.C. ? 666(j). _Westburne Drilling, Inc._, 5 BNA OSHC 1457, 1977-78CCH OSHD ? 21, 814 (No. 15,631, 1977). It is not proof that there was aviolation; it is evidence only that the Secretary believed that therewas a violation. _Cf._, _Secretary of Labor v. OSHRC (Goltra Castings,Inc.)_, 938 F.2d 1116, 1118 (10th Cir. 1991) (uncontested citation andsettlement of citation establish only Secretary’s opinion that there wasa violation, it cannot be used as the basis for alleging a repeatedviolation in the future. _Stone Container Corp._, 14 BNA OSHC 1757,1762, 1987-90 CCH OSHD ? 29.064, p. 38,819 (No. 88-310, 1990).Because the Secretary’s citation to Super has been amended to a deminimis notice, there is no penalty or order that Super abate thepractice cited. Because there are no legal consequences flowing fromsuch a notice, we conclude that there is no legal controversy beforeus. We therefore will not address Super’s arguments going to the meritsof whether there was a violation.II.Item 2 of the citation alleged that Super had violated 29 C.F.R. ?1926.59(g)(8), which provides:(8) The employer shall maintain copies of the required material safetydata sheets for each hazardous chemical in the workplace, and shallensure that they are readily accessible during each work shift toemployees when they are in their work area(s).The parties stipulated that Super did have material safety data sheets(\”MSDSs\”) for the four substances at its main office, approximately 22miles away, but did not have them anywhere on the Milwaukee worksite.The Secretary argues that the standard requires the MSDSs to bephysically present at the worksite. The Secretary also states that thestandard may be complied with if the MSDSs are immediately availablethrough a facsimile transmitting machine or other device. Super arguesthat the standard does not require that the MSDSs be physically presentat the worksite, only that they be readily available, and that the factshere satisfy that requirement because the MSDSs could be made availablewithin a reasonable time. The company also argues that its worksite isnot governed by section 1926.59(g)(8) because it fell within theprovisions of 1926.59(g)(9).The standard Super relies on states:(9) Where employees must travel between workplaces during a workshift,i.e., their work is carried out at more than one geographical location,the material safety data sheets may be kept at a central location at theprimary workplace facility. In this situation, the employer shall ensurethat employees can immediately obtain the required information in anemergency.We conclude that Super’s worksite was governed by section (g)(8), notsection (g)(9). There is no evidence in the record that Super’semployees traveled between workplaces within the meaning of (g)(9). Thatsection was intended to cover situations in which employees had toperform an activity at more than one location, for example, employeeswho install or repair machinery on various premises and must travelbetween these sites to get to the equipment they repair or install.Telephone linemen and those in similar activities are an example ofemployees who perform this type of activity. Here, there is noindication that Super’s employees worked anywhere else during the day orthat they reported to the main office first and traveled to theMilwaukee site on company time. Absent evidence to the contrary, wecannot say that Super’s employees followed any course but the usualconstruction industry practice of reporting directly to the jobsite andleaving from there at the end of the workday. While we recognize thatsome of the company’s supervisory personnel may have traveled betweenthe cited worksite and the main office during the workday, there is noindication in the record that the laborers and foremen left the siteduring working hours, and we do not believe that the activity of a fewof the company’s managerial personnel brought this worksite within theambit of section (g)(9). [[4]] We therefore find that Super’s worksitewas governed by the requirements of section 1926.59(g)(8).An important requirement of section (g)(8) is that the MSDSs be readilyaccessible. Although Super argues that they could be produced within areasonable period of time, we do not believe that this satisfies theintent of the standard. One of the primary pieces of informationcontained in an MSDS is emergency medical treatment for exposure oroverexposure to the hazardous chemical. Super’s MSDSs would not havebeen readily available in an emergency.The company argues that there were telephones available in Milwaukee andthat the necessary information could be obtained very quickly. IfSuper’s worksite were covered by section (g)(9), that would besufficient, for that standard requires only that \”employees canimmediately obtain the required information in an emergency.\” Acomparison of the language of the two standards, however, shows that,under section (g)(8), a copy of the MSDS itself, not just theinformation contained in the MSDS, must be readily available.Accordingly, we reject Super’s contention that telephone communicationis adequate to comply with the requirements of section (g)(8).Super also asserts that the worksite where it was installing sewer pipeis not covered by section (g)(8) because it is not a \”workplace\” or a\”work area\” as those terms are defined in 29 C.F.R. ? 1926.509(c). [[5]]The essence of this argument is that the site is not a \”workplace\”because it does not contain one or more \”work areas\” and that it is nota \”work area\” because it does not contain a \”defined space\” where thehazardous chemicals are used. The Secretary argues that the two trailersat the worksite are defined spaces.Both arguments are too literal. A \”defined space\” does not have to havewalls enclosing it or be demarcated by lines on the ground. For example,it is likely that Super’s worksite was separated from vehicular trafficand that pedestrians were not allowed to pass through it. In otherwords, it was \”defined\” as an area people not involved in theconstruction work could not enter. The open trench, where the pipes werebeing laid, was a defined space where the hazardous chemicals were used.The fact that it would be located in a different place in the afternoonthan it had been in the morning makes it no less \”defined.\” Becausethere was at least one \”defined space\” at the worksite, it constituted a\”work area,\” and Super’s site was a \”workplace\” governed by 29 C.F.R.1926.59(g)(8), because it did contain one or more work areas.For these reasons, we reject the argument that the worksite was coveredby section 1926.59(g)(9). Because we find that Super did not have MSDSsreadily accessible at the site, we hold that Super violated the standardat 29 C.F.R. ? 1926.59(g)(8).The Secretary alleged that the violation was serious and proposed apenalty of $120.00. Under section 17(k) of the Act, 29 U.S.C. ? 666(k),a violation is serious if there is a substantial probability that deathor serious physical harm could result. This does not mean that theoccurrence of an accident must be a substantially probable result of theviolative condition but, rather, that a serious injury is the likelyresult if an accident does occur. _Natkin & Co.,_ 1 BNA OSHC 1204, 1205,1971-73 CCH OSHD ? 15,679, pp. 20,967-68 (No. 401, 1973). The likelihoodof an accident’s occurring and the likelihood of an injury resultingfrom that accident are factors to be considered in evaluating thegravity of a violation for purposes of assessing a penalty. _Baltz Bros.Packing Co._, 1 BNA OSHC 1118, 1119, 1971-73 CCH OSHD ? 15,464, 20,728(No. 91, 1979).Here, determining the seriousness of the violation is more difficultbecause the absence of an MSDS, alone, would not cause physical harm. Wemust therefore look to other factors. An MSDS is not like the writtenprogram, which is essentially a general plan covering all hazardouschemicals in a workplace. An MSDS contains a great deal of very specificinformation about one hazardous chemical, including safe handlingprecautions, procedures for cleaning up spills, emergency first aidprocedures, and the telephone number of the party who can provideadditional information about emergency procedures. The lack of an MSDScould result in an employee’s being given inadequate or impropertreatment for exposure to a hazardous substance. Here, however, the foursubstances found in Super’s workplace were not particularly volatile. Itis likely that any harm they caused would be of a superficial nature,such as dermatitis from exposure to the cement. Because the secretaryhas stipulated that Super had implemented an effective overall hazardcommunication program, we conclude that Super’s employees had beentrained not only in the recognition and avoidance of the hazards posedby these substances but also in the proper treatment in case ofexposure. Under these circumstances, it is not likely that the physicalharm caused by exposure to any of these substances would be soexacerbated by the absence of an MSDS as to cause serious injury. Wetherefore find that serious physical harm was not likely to result fromthe lack of an MSDS at this satellite worksite and that this violationwas not serious but was, instead, other-than-serious.Section 17(j) of the Act, 29 U.S.C. ? 666(j), sets out four factors tobe considered in assessing a penalty: the employer’s size, the gravityof the violation, the good faith of the employer, and the employer’shistory of previous violations. The Secretary proposed a penalty of$120. We have considered the evidence in the record on the statutoryfactors. Because we find that this violation was of low gravity, weassess a penalty of $60.00.III.Accordingly, we amend item 1 of the citation to a de minimis notice, forwhich there is no penalty. We affirm item 2 of the citation as another-than-serious violation of 29 C.F.R. ? 1926.59(g)(8) and assess apenalty of $60.00.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDate: October 18, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.SUPER EXCAVATORS, INC.,Respondent.OSHRC DOCKET NO. 89-2253APPEARANCES:For the Complainant:Rafael Alvarez, Esq., Office of the Solicitor,U.S. Department of Labor, Chicago, ILFor the Respondent:Mark M. Camp, Esq., Thomas G. Kreul, Esq.,Pfannerstill and Camp, Milwaukee, WI_DECISION AND ORDER_Loye, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651 et seq.; hereafter called the \”Act\”).Respondent Super Excavators, Inc. is a construction operation with itsprincipal place of business in Menomonee Falls, Wisconsin (Answer, ?II). Respondent admits it is engaged in a business affecting commerceand is, therefore, an employer within the meaning of the Act and subjectto the Act’s requirements (Answer ? III).As a result of an inspection on June 20, 1989 (Tr. 39) by anOccupational Safety and Health Administration (OSHA) Compliance Officer(CO) respondent was issued citations and proposed penalties pursuant tothe Act alleging Serious violations of 29 C.F.R. ?1926.59(e)(1) and(g)(1) and a Repeat violation of ? 1926.251(b)(1). By filing a timelynotice of contest respondent brought this proceeding before theOccupational Safety and Health Review Commission contesting thecitations and the proposed penalties. On January 9, 1990 a hearing washeld in Milwaukee, Wisconsin.With its Post-trial Brief, Complainant submits a Motion to amend item 2of Serious citation No. 1, to allege violation of $1926.59(g)(8) in lieuof 1926.59(g)(1). Complainant claims that (g)(8) governs the facts asthey were tried in this case and that amendment is necessary to conformto the evidence. As there is no objection from the respondent, theMotion will be Granted.Alleged Violations29 C.F.R. 1926.59(e)(1) and (g)(8)The relevant portions of ? 1926.59(e)(1) state:Employers shall develop, implement, and maintain at the workplace, awritten hazard communication program for their workplaces which at leastdescribes how the criteria specified in paragraphs (f) (g) and (h) ofthis section for labels and other forms of warning, material safety datasheets, and employee information and training will be met. . . .Section 2926.59(9) (8) requires:The employer shall maintain copies of the required material safety datasheets for each hazardous chemical in the workplace, and shall ensurethat they are readily accessible during each work shift to employeeswhen they are in their work areas(s)._Facts_OSHA’s June 20, 1989 inspection took place at respondent’s worksite atSouth Clement and East Oklahoma Avenue, Milwaukee, Wisconsin, whererespondent was engaged in excavating a trench (Tr. 39-41). The work areamight advance up to 200 feet a day depending upon excavating conditions(Tr. 86-87). A convenience trailer was located one city block east ofthe excavation (Tr. 54).At the excavation the CO observed the crew laying cut concrete pipe andusing cement (Tr. 42). He also noted waterplug on the worksite and PVCpipe near the trailer (Tr. 42). In response to the CO’s questions,respondent’s superintendent indicated that the latter items were used onthe job (Tr. 42, 104). Respondent stipulates that cement, PVC pipe,water plug and concrete pipe are hazardous chemicals within thedefinition of 1926.59(c) (Stipulation of Facts No. 5). Respondentfurther stipulates that neither the Material Safety Data Sheets (MSDS)nor a copy of respondent’s hazard communication program were physicallypresent at the Milwaukee worksite (Stipulation of Facts No. 3 and 4).Hazard information was kept rather at respondent’s main office 22 milesand approximately 30 minutes away (Tr. 56-57).The Complainant maintains that ? 1926.59(g)(8) requires that hazardmaterials be available at each worksite, not maintained at a centralizedlocation. The CO testified that the MSDS tells employees how torecognize and protect against over-exposure and how to take care of anaccidental spill. It provides information vital to medical personnel,and should, in the CO’s opinion go along to the hospital with anycontaminated personnel (Tr. 57, 60)._Discussion_As a threshold matter, respondent contends that the cited standards areinapplicable because on the date of the inspection, employees were notusing cement or waterplug and were not cutting PVC or concrete pipe.Respondent maintains that the \”mere presence\” of the hazardous materialsdid not create a hazard to employees.This judge finds that respondent’s argument is without merit. Section1926.59(b) S_cope and Application_, makes the cited standard applicableto any chemical which is known to be present in the workplace in such amanner that employees may be exposed under normal conditions of use orin a foreseeable emergency.\” Respondent’s superintendent admitted thehazardous materials present were used on site. Employee exposure tothose chemicals is clearly foreseeable. [[1]] _See_, _General Carbon Co.v. OSHRC_, 860 F.2d 479, 13 BHA OSHC 1949 (D.C. Cir. 1988) (HazardCommunication Standard applicable and enforceable without proof ofindividual existence of significant risk of harm).Respondent also argues that, if applicable, the standard requires onlythat hazard information be immediately available to employees and allowsthe information to be maintained in a central location. In support,respondent points to 1926.59(g)(9) which states that:Where employees must travel between workplaces during a workshift, i.e.,their work is carried out in more than one geographical location, thematerial safety data sheets may be kept at a central facility. In thissituation, the employer shall ensure that employees can immediatelyobtain the required information in an emergency.This judge finds that the plain language of the regulation requires thatthe subject hazard information be made available at geographicallydistant work sites. Section 1926.59(c) defines \”workplace\” as \”anestablishment, job site, or project, at one geographical locationcontaining one or more work areas.\” The standard plainly contemplatesprovision of such information at each location where employees work withhazardous chemicals.Moreover, this judge finds that respondent’s reliance on the exemptionstated in ? 1926.59(9) is misplaced. Exemptions to the sweep of remediallegislation must be narrowly construed and limited to effect only theremedy intended. Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1379(No. 15462, 1980). The cited exemption was intended to apply where,during a single shift, employees \”must travel between\” distinct anddistant workplaces, not where, as here, workers remain at a relativelyfixed workplace which might daily extend a few hundred feet further froma stationary job trailer where hazard information might easily bemaintained.The standards cited here are intended to provide employees withcomprehensive information regarding possible workplace dangers. Suchinformation must be immediately available to guide clean up and medicalefforts. Failure to provide such information is properly classified asSerious.Citation 1, items 1 and 2 will be affirmed as a Serious violation of theAct._Penalty_The Secretary has proposed a combined penalty of $240.00.The determination of what constitutes an appropriate penalty is withinthe discretion of the Review commission. _Long Manufacturing Co. v.OSHRC_, F.2d 902 (8th Cir. 1977). In determining the penalty theCommission is required to give due consideration to the size of theemployer, the gravity of the violation and the employer’s good faith andhistory of previous violations. The gravity of the offense is theprinciple factor to be considered. _Nacirema Operating Co._, 1 BNA OSHC1001 (No. 4, 1972).Respondent is a large employer, with over 100 employees (Tr. 61). Thereis nothing in the record to indicate bad faith or past history ofviolations of the hazard communication provisions (Tr. 62). Althoughthe cited violation at its central location approximately 30 minutesfrom the work site. Therefore, the gravity of the violation is deemedto be low. For the reasons set forth above, the proposed penalties are deemed to beappropriate._Section 1926.251(b)(l)_The cited standard requires that \”welded alloy steel chain slings shallhave permanently affixed durable identification stating size, grade,rated capacity and sling manufacturer.\”Respondent admits that at the time of the inspection there was no tag onthe subject sling (Tr. 16). Respondent’s superintendent indicated tothe co that the sling had been used but did not say when or for whatpurpose (Tr. 69, 104). The co assumed that pipe was being lowered intothe trench by means of the sling since it was attached to the crane andready for use (Tr. 50). The co testified that chains should beinspected on a yearly basis and visually checked daily (Tr. 49). He didnot know and made no attempt to ascertain how long the tag had beenmissing (Tr. 85).The Commission has held that:In order to prove a violation of section 5(a) (2) of the Act, 29 U.S.C.?654(a)(2), the Secretary must show by a preponderance of the evidencethat (1) the cited standard applies, (2) there was a failure to complywith the cited standard, (3) employees had access to the violativecondition and (4) the cited employer either knew or could have known ofthe condition with the exercise of reasonable diligence.Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 78 6247, 1981).The Secretary’s prima facie case fails to demonstrate employer knowledgeof the cited standard. Even assuming that reasonable diligence requiresdaily inspection of chain slings, as is urged by the Secretary, thisjudge cannot conclude that respondent failed to exercise same. Therecord is devoid of any evidence establishing that respondent’sinspection schedule was deficient or that daily inspection would haveresulted in discovery of the missing tag.Repeat citation 2 will, therefore, be dismissed._Findings of Fact and Conclusions of Law_All findings of fact and conclusions of law relevant and necessary to adetermination of the contested issues have been found specially andappear in the decision above.ORDERBased upon the findings of fact and conclusions of law set forth hereinit is ORDERED:1. Citation 1, items I and 2 are AFFIRMED as Serious violations and apenalty of $240.00 is hereby ASSESSED.2. Citation 2, item 1 together with the proposed penalty is hereby VACATED.Benjamin R. LoyeJudge, OSHRCDated: May 25, 1990————————————————————————FOOTNOTES:[[1\/]] That standard provides:(e) Written hazard communication program. (1) Employers shall develop,implement, and maintain at the workplace, a written hazard communicationprogram for their workplaces which at least describes how the criteriaspecified in paragraphs (f), (g), and (h) of this section for labels andother forms of warning, material safety data sheets, and employeeinformation and training will be met, and which also includes the following:(i) A list of the hazardous chemicals known to be present using anidentity that is referenced on the appropriate material safety datasheet (the list may be compiled for the workplace as a whole or forindividual work areas); and,(ii) The methods the employer will use to inform employees of thehazards of non-routine tasks (for example, the cleaning of reactorvessels), and the hazards associated with chemicals contained inunlabeled pipes in their work areas.[[2]] Rule 15(a) provides:Rule 15. Amended and Supplemental Pleadings(a) Amendments. A party may amend the party’s pleading once as a matterof course at any time before a responsive pleading is served or, if thepleading is one to which no responsive pleading is permitted and theaction has not been placed upon the trial calendar, the party may soamend it at any time within 20 days after it is served. Otherwise aparty may amend the party’s pleading only by leave of court or bywritten consent of the adverse party; and leave shall be freely givenwhen justice so requires. A party shall plead in response to an amendedpleading within the time remaining for response to the original pleadingor within 10 days after service of the amended pleading, whicheverperiod may be the longer, unless the court otherwise orders.[[3]] Section 10(c), 29 U.S.C. ? 659(c), states in pertinent part:(c) If an employer notifies the Secretary that he intends to contest acitation issued under section 9(a) . . . the Secretary shall immediatelyadvise the Commission of such notification, and the Commission shallafford an opportunity for a hearing (in accordance with section 554 oftitle 5, United States Code, but without regard to subsection (a)(3) ofsuch section). The Commission shall thereafter issue an order based onfindings of fact, affirming, modifying, or vacating the Secretary’scitation or proposed penalty, or directing other appropriate relief, andsuch order shall become final thirty days after its issuance….[[4]] The company suggests that it comes within the purview of section(g)(9) because its worksite was not fixed but moved as the trenchingprogressed. As the standard speaks of employees traveling, not worksitestraveling, we reject this suggestion.[[5]] According to those definitions, \”Workplace\” means anestablishment, job site, or project, at one geographical locationcontaining one or more work areas. \”Work area\” means a room or definedspace in a workplace where hazardous chemicals are produced or used, andwhere employees are present. [[1]] In any event, respondent’s reliance on this argument is misplaced.The issues in this case were stipulated for trial. ? 1926.59’sapplicability was not among them. Respondent may not now take advantageof the Secretary’s understandable failure to put on evidence or presentargument on the issue.”