“Docket No. 89-2253 SECRETARY OF LABOR,Complainant, v. SUPER EXCAVATORS, INC., Respondent.OSHRC Docket No. 89-2253DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:Super Excavators, Inc., (\”Super\”) is a constructioncompany specializing in public works construction, particularly excavating trenches forsewer and water lines. Its headquarters is in Menomonee Falls, Wisconsin. A complianceofficer (\”CO\”) of the Occupational Safety and Health Administration(\”OSHA\”) inspected a worksite in Milwaukee where Super was laying sewer pipe. Asa result of that inspection, OSHA issued a citation alleging that Super had committedserious violations of two different 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 Super had committed twoserious violations. The judge’s decision has been directed for review pursuant to section12(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 thestandard at 29 C.F.R. ? 1926.59(e)(1) [[1\/]]. The citation alleged that Super had notdeveloped or implemented a written hazard communication program describing how it wouldmeet the requirements set out in the Hazard Communication Standard. The record shows thatSuper had, in fact, developed a written hazard communication program, as required bysection 1926.59(e)(1) and had implemented it, but that Super did not have a written copyof the program at the worksite during the inspection. The administrative law judge foundthat this failure constituted a serious violation.On review, the Secretary has filed a document captioned\”Secretary’s Notice To Amend Citation,\” in which the Secretary states,\”[T]he Secretary hereby amends the classification of the 1926.59(e)(1) citation toallege a de minimis violation of the standard.\” In her brief, the Secretary statesthat Super had implemented an effective overall hazard communication program, that thefailure to have a copy of the written program at a transient worksite may have no director immediate relationship to employee safety and health, and that this amendment would beconsistent with OSHA’s current enforcement policy for the Hazard Communication Standard,as set out in CPL 2-2.38C (Oct. 22, 1990). Super, on the other hand, opposes thisamendment, arguing that there was no violation and that the citation should be vacated.In section 12(g) of the Act, 29 U.S.C. ? 661(g), Congressprovided that Federal Rules of Civil Procedure shall govern Commission proceedings unlessthe Commission has adopted a different rule. Rule 35(f) of the Commission’s Rules ofProcedure, 29 C.F.R. ? 2200.35(f), provides:? 2200.35 Complaints.(f) Amendment of the citation and complaint. A contestedcitation, notification of proposed penalty, or notification of failure to abate may beamended once as a matter of course in the complaint before an answer is served if: (1) theamended allegation arises out of the same conduct, occurrence or hazard described in thecitation; (2) the amendment does not result in incurable harm to the employer in thepreparation or presentation of its case; and (3) the complaint clearly identifies thechange that is being made in the allegation. All other amendments of the Secretary’sallegations, as well as any amendments of the employer’s responses, are governed byFederal Rule of Civil Procedure 15.Here, an answer has been served, a hearing held, and a decisionissued, so the citation may not be amended under Rule 35(f). Rule 15(a) of the FederalRules of Civil Procedure [[2]], which applies to the situation here, provides that a partymay amend its pleading only if it has either the written consent of the opposing party orleave of court (in this case, the Commission). Therefore, the Secretary may notunilaterally amend the citation and the \”Notice to Amend\” is ineffective.However, section 10(c) of the Act provides for the ReviewCommission to issue an order affirming, modifying, or vacating the Secretary’s citation ordirecting other appropriate relief.[[3]] Accordingly, the Review Commission has theauthority to determine that a violation is de minimis, Illinois BellTelephone Co., 5 BNA OSHC 1884, 1977-78 CCH OSHD ? 22,209 (No. 2097, 1977); Donovanv. Daniel Constr. Co., 692 2.2d 818, 821 (1st Cir. 1982); so we will treat theSecretary’s filing as a motion to amend the citation to a de minimis notice.After reviewing the record, we conclude that amendment of thecitation is warranted. Although the citation alleged that Super had not developed orimplemented a written hazard communication program, the Secretary’s complaint amended thecitation by alleging that Super had violated 29 C.F.R. ? 1926.59(e)(1) because thewritten hazard communication program was not available at the work site. The issuelitigated by the parties at the hearing was whether Super’s written program was\”maintain(ed) at the workplace.\”To a large extent, the written program is a plan and a trainingdocument, to be used in familiarizing employees with the hazardous chemicals present intheir workplace, with the hazards posed by these chemicals, with methods of avoidingexposure, and with treatment in the case of exposure. The Secretary has stated that Superhad implemented an effective program, which we interpret to mean that the company’semployees had been given the requisite training. Further, although the parties stipulatedthat the four substances at Super’s worksite, concrete, concrete pipe, PVC pipe, andwaterplug, fell within the standard’s definition of \”hazardous chemical,\” noneof these substances appears to be unduly volatile or to have posed a significant danger toSuper’s employees. We consider the Secretary’s representations to be an admission thatSuper’s failure to have a copy of its written program at its Milwaukee worksite had nodirect or immediate relationship to employee safety and health. We therefore find thatamendment of the citation to a de minimis notice is appropriate. Accordingly, we grant theSecretary’s motion to amend. Having granted the Secretary’s motion, we must consider thelegal significance of such an amendment.Section 9(a) of the Act, 29 U.S.C. ? 658(a), which authorizesthe Secretary to issue citations, provides:If, upon inspection or investigation, the Secretary or hisauthorized representative believes that an employer has violated a requirement of section5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of thisAct, or of any regulations prescribed pursuant to this Act, he shall with reasonablepromptness issue a citation to the employer. Each citation shall be in writing and shalldescribe with particularity the nature of the violation, including a reference to theprovision of the Act, standard, rule, regulation, or order alleged to have been violated.in addition, the citation shall fix a reasonable time for the abatement of the violation.The Secretary may prescribe procedures for the issuance of a notice in lieu of a citationwith respect to de minimis violations which have no direct or immediate relationship tosafety or health.The last sentence of section 9(a) makes it clear that a deminimis notice is not a citation. Because it is not a citation, a de minimisnotice carries no penalty and no abatement requirement. Dravo Corp., 7 BNA OSHC2095, 2100, 1980 CCH OSHD 24,158, ? 29,368 (No. 16317, 1980), pet. for review denied,639 F. 2d 772 (3rd Cir. 1980); National Rolling Mills, Co., 4 BNA OSHC 1719,1976-77 CCH OSHD ? 21, 114 (No. 7987, 1976). A de minimis notice does notbecome part of an employer’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, 1977-78 CCH OSHD ? 21, 814 (No.15,631, 1977). It is not proof that there was a violation; it is evidence only that theSecretary believed that there was a violation. Cf., Secretary of Labor v. OSHRC(Goltra Castings, Inc.), 938 F.2d 1116, 1118 (10th Cir. 1991) (uncontested citationand settlement of citation establish only Secretary’s opinion that there was a violation,it cannot be used as the basis for alleging a repeated violation in the future. StoneContainer 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 ade minimis notice, there is no penalty or order that Super abate the practice cited.\u00a0 Because there are no legal consequences flowing from such a notice, we concludethat there is no legal controversy before us.\u00a0 We therefore will not address Super’sarguments going to the merits of whether there was a violation.II.Item 2 of the citation alleged that Super had violated 29C.F.R. ? 1926.59(g)(8), which provides:(8) The employer shall maintain copies of the required materialsafety data sheets for each hazardous chemical in the workplace, and shall ensure thatthey are readily accessible during each work shift to employees when they are in theirwork area(s).The parties stipulated that Super did have material safety datasheets (\”MSDSs\”) for the four substances at its main office, approximately 22miles away, but did not have them anywhere on the Milwaukee worksite. The Secretary arguesthat the standard requires the MSDSs to be physically present at the worksite. TheSecretary also states that the standard may be complied with if the MSDSs are immediatelyavailable through a facsimile transmitting machine or other device. Super argues that thestandard does not require that the MSDSs be physically present at the worksite, only thatthey be readily available, and that the facts here satisfy that requirement because theMSDSs could be made available within a reasonable time. The company also argues that itsworksite is not governed by section 1926.59(g)(8) because it fell within the provisions of1926.59(g)(9).The standard Super relies on states:(9) Where employees must travel between workplaces during aworkshift, i.e., their work is carried out at more than one geographical location, thematerial safety data sheets may be kept at a central location at the primary workplacefacility. In this situation, the employer shall ensure that employees can immediatelyobtain the required information in an emergency.We conclude that Super’s worksite was governed by section(g)(8), not section (g)(9). There is no evidence in the record that Super’s employeestraveled between workplaces within the meaning of (g)(9). That section was intended tocover situations in which employees had to perform an activity at more than one location,for example, employees who install or repair machinery on various premises and must travelbetween these sites to get to the equipment they repair or install. Telephone linemen andthose in similar activities are an example of employees who perform this type of activity.Here, there is no indication that Super’s employees worked anywhere else during the day orthat they reported to the main office first and traveled to the Milwaukee site on companytime. Absent evidence to the contrary, we cannot say that Super’s employees followed anycourse but the usual construction industry practice of reporting directly to the jobsiteand leaving from there at the end of the workday. While we recognize that some of thecompany’s supervisory personnel may have traveled between the cited worksite and the mainoffice during the workday, there is no indication in the record that the laborers andforemen left the site during working hours, and we do not believe that the activity of afew of the company’s managerial personnel brought this worksite within the ambit ofsection (g)(9). [[4]] We therefore find that Super’s worksite was governed by therequirements of section 1926.59(g)(8).An important requirement of section (g)(8) is that the MSDSs bereadily accessible. Although Super argues that they could be produced within a reasonableperiod of time, we do not believe that this satisfies the intent of the standard. One ofthe primary pieces of information contained in an MSDS is emergency medical treatment forexposure or overexposure to the hazardous chemical. Super’s MSDSs would not have beenreadily available in an emergency. The company argues that there were telephones available in Milwaukee and that thenecessary information could be obtained very quickly. If Super’s worksite were covered bysection (g)(9), that would be sufficient, for that standard requires only that\”employees can immediately 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 the information contained in the MSDS, must bereadily 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 installingsewer pipe is 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]] Theessence of this argument is that the site is not a \”workplace\” because it doesnot contain one or more \”work areas\” and that it is not a \”work area\”because it does not contain a \”defined space\” where the hazardous chemicals areused. The Secretary argues that the two trailers at the worksite are defined spaces.Both arguments are too literal. A \”defined space\”does not have to have walls enclosing it or be demarcated by lines on the ground. Forexample, it is likely that Super’s worksite was separated from vehicular traffic and thatpedestrians were not allowed to pass through it. In other words, it was\”defined\” as an area people not involved in the construction work could notenter. The open trench, where the pipes were being laid, was a defined space where thehazardous chemicals were used. The fact that it would be located in a different place inthe afternoon than it had been in the morning makes it no less \”defined.\”Because there 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 wascovered by section 1926.59(g)(9). Because we find that Super did not have MSDSs readilyaccessible at the site, we hold that Super violated the standard at 29 C.F.R. ?1926.59(g)(8).The Secretary alleged that the violation was serious andproposed a penalty of $120.00. Under section 17(k) of the Act, 29 U.S.C. ? 666(k), aviolation is serious if there is a substantial probability that death or serious physicalharm could result. This does not mean that the occurrence of an accident must be asubstantially probable result of the violative condition but, rather, that a seriousinjury is the likely result if an accident does occur. Natkin & Co., 1 BNA OSHC1204, 1205, 1971-73 CCH OSHD ? 15,679, pp. 20,967-68 (No. 401, 1973). The likelihood ofan accident’s occurring and the likelihood of an injury resulting from that accident arefactors to be considered in evaluating the gravity of a violation for purposes ofassessing a penalty. Baltz Bros. Packing Co., 1 BNA OSHC 1118, 1119, 1971-73 CCHOSHD ? 15,464, 20,728 (No. 91, 1979).Here, determining the seriousness of the violation is moredifficult because the absence of an MSDS, alone, would not cause physical harm. We musttherefore look to other factors. An MSDS is not like the written program, which isessentially a general plan covering all hazardous chemicals in a workplace. An MSDScontains a great deal of very specific information about one hazardous chemical, includingsafe handling precautions, procedures for cleaning up spills, emergency first aidprocedures, and the telephone number of the party who can provide additional informationabout emergency procedures. The lack of an MSDS could result in an employee’s being giveninadequate or improper treatment for exposure to a hazardous substance. Here, however, thefour substances found in Super’s workplace were not particularly volatile. It is likelythat any harm they caused would be of a superficial nature, such as dermatitis fromexposure to the cement. Because the secretary has stipulated that Super had implemented aneffective overall hazard communication program, we conclude that Super’s employees hadbeen trained not only in the recognition and avoidance of the hazards posed by thesesubstances but also in the proper treatment in case of exposure. Under thesecircumstances, it is not likely that the physical harm caused by exposure to any of thesesubstances would be so exacerbated by the absence of an MSDS as to cause serious injury.We therefore find that serious physical harm was not likely to result from the lack of anMSDS at this satellite worksite and that this violation was not serious but was, instead,other-than-serious.Section 17(j) of the Act, 29 U.S.C. ? 666(j), sets out fourfactors to be considered in assessing a penalty: the employer’s size, the gravity of theviolation, the good faith of the employer, and the employer’s history of previousviolations. The Secretary proposed a penalty of $120. We have considered the evidence inthe record on the statutory factors. Because we find that this violation was of lowgravity, we assess a penalty of $60.00.III.Accordingly, we amend item 1 of the citation to a de minimisnotice, for which 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 a penalty of $60.00.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDate: October 18, 1991SECRETARY 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, WIDECISION AND ORDERLoye, Judge:This proceeding arises under the Occupational Safety and HealthAct of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the \”Act\”).Respondent Super Excavators, Inc. is a construction operationwith its principal place of business in Menomonee Falls, Wisconsin (Answer, ? II).Respondent admits it is engaged in a business affecting commerce and is, therefore, anemployer within the meaning of the Act and subject to 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) respondentwas issued citations and proposed penalties pursuant to the Act alleging Seriousviolations of 29 C.F.R. ?1926.59(e)(1) and (g)(1) and a Repeat violation of ?1926.251(b)(1). By filing a timely notice of contest respondent brought this proceedingbefore the Occupational Safety and Health Review Commission contesting the citations andthe proposed penalties. On January 9, 1990 a hearing was held in Milwaukee, Wisconsin.With its Post-trial Brief, Complainant submits a Motion toamend item 2 of Serious citation No. 1, to allege violation of $1926.59(g)(8) in lieu of1926.59(g)(1). Complainant claims that (g)(8) governs the facts as they were tried in thiscase and that amendment is necessary to conform to the evidence. As there is no objectionfrom the respondent, the Motion 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 theworkplace, a written hazard communication program for their workplaces which at leastdescribes how the criteria specified in paragraphs (f) (g) and (h) of this section forlabels and other forms of warning, material safety data sheets, and employee informationand training will be met. . . .Section 2926.59(9) (8) requires:The employer shall maintain copies of the required materialsafety data sheets for each hazardous chemical in the workplace, and shall ensure thatthey are readily accessible during each work shift to employees when they are in theirwork areas(s).FactsOSHA’s June 20, 1989 inspection took place at respondent’sworksite at South Clement and East Oklahoma Avenue, Milwaukee, Wisconsin, where respondentwas engaged in excavating a trench (Tr. 39-41). The work area might advance up to 200 feeta day depending upon excavating conditions (Tr. 86-87). A convenience trailer was locatedone city block east of the excavation (Tr. 54).At the excavation the CO observed the crew laying cut concretepipe and using cement (Tr. 42). He also noted waterplug on the worksite and PVC pipe nearthe trailer (Tr. 42). In response to the CO’s questions, respondent’s superintendentindicated that the latter items were used on the job (Tr. 42, 104).\u00a0 Respondentstipulates that cement, PVC pipe, water plug and concrete pipe are hazardous chemicalswithin the definition of 1926.59(c) (Stipulation of Facts No. 5). Respondent furtherstipulates that neither the Material Safety Data Sheets (MSDS) nor a copy of respondent’shazard communication program were physically present at the Milwaukee worksite(Stipulation of Facts No. 3 and 4). Hazard information was kept rather at respondent’smain office 22 miles and approximately 30 minutes away (Tr. 56-57).The Complainant maintains that ? 1926.59(g)(8) requires thathazard materials be available at each worksite, not maintained at a centralized location.The CO testified that the MSDS tells employees how to recognize and protect againstover-exposure and how to take care of an accidental spill. It provides information vitalto medical personnel, and should, in the CO’s opinion go along to the hospital with anycontaminated personnel (Tr. 57, 60).DiscussionAs a threshold matter, respondent contends that the citedstandards are inapplicable because on the date of the inspection, employees were not usingcement or waterplug and were not cutting PVC or concrete pipe. Respondent maintains thatthe \”mere presence\” of the hazardous materials did not create a hazard toemployees.This judge finds that respondent’s argument is without merit.Section 1926.59(b) Scope and Application, makes the cited standard applicable toany chemical which is known to be present in the workplace in such a manner that employeesmay be exposed under normal conditions of use or in a foreseeable emergency.\”Respondent’s superintendent admitted the hazardous materials present were used on site.Employee exposure to those chemicals is clearly foreseeable. [[1]] See, GeneralCarbon Co. v. OSHRC, 860 F.2d 479, 13 BHA OSHC 1949 (D.C. Cir. 1988) (HazardCommunication Standard applicable and enforceable without proof of individual existence ofsignificant risk of harm).Respondent also argues that, if applicable, the standardrequires only that hazard information be immediately available to employees and allows theinformation to be maintained in a central location. In support, respondent points to1926.59(g)(9) which states that:Where employees must travel between workplaces during aworkshift, 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 this situation, theemployer shall ensure that employees can immediately obtain the required information in anemergency.This judge finds that the plain language of the regulationrequires that the subject hazard information be made available at geographically distantwork sites. Section 1926.59(c) defines \”workplace\” as \”an establishment,job site, or project, at one geographical location containing one or more workareas.\” The standard plainly contemplates provision of such information at eachlocation where employees work with hazardous chemicals.Moreover, this judge finds that respondent’s reliance on theexemption stated in ? 1926.59(9) is misplaced. Exemptions to the sweep of remediallegislation must be narrowly construed and limited to effect only the remedy intended.Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1379 (No. 15462, 1980).\u00a0 The citedexemption was intended to apply where, during a single shift, employees \”must travelbetween\” distinct and distant workplaces, not where, as here, workers remain at arelatively fixed workplace which might daily extend a few hundred feet further from astationary job trailer where hazard information might easily be maintained.The standards cited here are intended to provide employees withcomprehensive information regarding possible workplace dangers. Such information must beimmediately available to guide clean up and medical efforts. Failure to provide suchinformation is properly classified as Serious.Citation 1, items 1 and 2 will be affirmed as a Seriousviolation of the Act.PenaltyThe Secretary has proposed a combined penalty of $240.00. The determination of what constitutes an appropriate penalty iswithin the discretion of the Review commission. Long Manufacturing Co. v. OSHRC,F.2d 902 (8th Cir. 1977). In determining the penalty the Commission is required to givedue consideration to the size of the employer, the gravity of the violation and theemployer’s good faith and history of previous violations. The gravity of the offense isthe principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC 1001 (No.4, 1972).Respondent is a large employer, with over 100 employees (Tr.61). There is nothing in the record to indicate bad faith or past history of violations ofthe hazard communication provisions (Tr. 62).\u00a0 Although the cited violation at itscentral location approximately 30 minutes from the work site.\u00a0 Therefore, the gravityof the violation is deemed to be low.\u00a0 For the reasons set forth above, the proposed penalties aredeemed to be appropriate.Section 1926.251(b)(l) The cited standard requires that \”welded alloy steel chainslings shall have permanently affixed durable identification stating size, grade, ratedcapacity and sling manufacturer.\”Respondent admits that at the time of the inspection there wasno tag on the subject sling (Tr. 16).\u00a0 Respondent’s superintendent indicated to theco that the sling had been used but did not say when or for what purpose (Tr. 69, 104).\u00a0 The co assumed that pipe was being lowered into the trench by means of the slingsince it was attached to the crane and ready for use (Tr. 50).\u00a0 The co testified thatchains should be inspected on a yearly basis and visually checked daily (Tr. 49).\u00a0 Hedid not know and made no attempt to ascertain how long the tag had been missing (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 evidence that (1)the cited standard applies, (2) there was a failure to comply with the cited standard, (3)employees had access to the violative condition and (4) the cited employer either knew orcould have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 786247, 1981).The Secretary’s prima facie case fails to demonstrate employerknowledge of the cited standard. Even assuming that reasonable diligence requires dailyinspection of chain slings, as is urged by the Secretary, this judge cannot conclude thatrespondent failed to exercise same. The record is devoid of any evidence establishing thatrespondent’s inspection 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 LawAll findings of fact and conclusions of law relevant andnecessary to a determination of the contested issues have been found specially and appearin the decision above.ORDER Based upon the findings of fact and conclusions of law setforth herein it is ORDERED:1. Citation 1, items I and 2 are AFFIRMED as Serious violationsand a penalty of $240.00 is hereby ASSESSED.2. Citation 2, item 1 together with the proposed penalty ishereby VACATED.Benjamin R. Loye Judge, OSHRCDated: May 25, 1990FOOTNOTES: [[1\/]] That standard provides:(e) Written hazard communication program. (1) Employers shalldevelop, implement, and maintain at the workplace, a written hazard communication programfor their workplaces which at least describes how the criteria specified in paragraphs(f), (g), and (h) of this section for labels and other forms of warning, material safetydata sheets, and employee information and training will be met, and which also includesthe following:(i) A list of the hazardous chemicals known to be present using an identity that isreferenced on the appropriate material safety data sheet (the list may be compiled for theworkplace as a whole or for individual work areas); and,(ii) The methods the employer will use to inform employees of the hazards of non-routinetasks (for example, the cleaning of reactor vessels), and the hazards associated withchemicals contained in unlabeled 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 asa matter of course at any time before a responsive pleading is served or, if the pleadingis one to which no responsive pleading is permitted and the action has not been placedupon the trial calendar, the party may so amend it at any time within 20 days after it isserved. Otherwise a party may amend the party’s pleading only by leave of court or bywritten consent of the adverse party; and leave shall be freely given when justice sorequires. A party shall plead in response to an amended pleading within the time remainingfor response to the original pleading or within 10 days after service of the amendedpleading, whichever period may be the longer, unless the court otherwise orders.[[3]] Section 10(c), 29 U.S.C. ? 659(c), states in pertinentpart: (c) If an employer notifies the Secretary that he intends tocontest a citation issued under section 9(a) . . . the Secretary shall immediately advisethe Commission of such notification, and the Commission shall afford an opportunity for ahearing (in accordance with section 554 of title 5, United States Code, but without regardto subsection (a)(3) of such section). The Commission shall thereafter issue an orderbased on findings of fact, affirming, modifying, or vacating the Secretary’s citation orproposed penalty, or directing other appropriate relief, and such order shall become finalthirty days after its issuance….[[4]] The company suggests that it comes within the purview ofsection (g)(9) because its worksite was not fixed but moved as the trenching progressed.As the standard speaks of employees traveling, not worksites traveling, we reject thissuggestion.[[5]] According to those definitions, \”Workplace\”means an establishment, job site, or project, at one geographical location containing oneor more work areas. \”Work area\” means a room or defined space in a workplacewhere hazardous chemicals are produced or used, and where employees are present.\u00a0[[1]] In any event, respondent’s reliance on this argument ismisplaced. The issues in this case were stipulated for trial. ? 1926.59’s applicabilitywas not among them. Respondent may not now take advantage of the Secretary’sunderstandable failure to put on evidence or present argument on the issue.”