“SECRETARY OF LABOR,Complainant,v.THOMAS LINDSTROM COMPANY,Respondent.OSHRC Docket No. 90-1084DECISIONBefore: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:At issue in this case is whether Administrative Law Judge Michael H.Schoenfeld erred in affirming a citation issued to Thomas Lindstrom Co.(\”Lindstrom\”) alleging a violation of 29 C.F.R. ? 1926.59(g)(8), [[1]]which requires that material safety data sheets (\”MSDSs\”) for hazardouschemicals be \”readily accessible\” to employees.Lindstrom, a structural steel erector, was building an addition to anexisting department store at a construction site in Cherry Hill, NewJersey. During an inspection of the worksite, a compliance officer ofthe Occupational Safety and Health Administration (\”OSHA\”) askedLindstrom’s onsite foreman — who had been using oxygen and acetylenewhile welding — for the MSDSs for oxygen and acetylene. The foremancould not produce the MSDSs at that time because they were not at theworksite. The MSDSs were at Lindstrom’s central office, variouslyestimated to be between 10 and 45 minutes away by car.Lindstrom argues that MSDSs are \”readily accessible\” within the meaningof the standard if they can be supplied at any time during the workshift in which a request for them is made. It contends that it operateda communications program and delivery system by which foremen in thefield could telephone Lindstrom’s coordinator for the MSDSs and havethem delivered to the jobsite, which in this case was only about 10minutes from the office where the MSDSs were kept.The Secretary argues that \”readily accessible\” as used in the citedstandard means that the hazard information contained in MSDSs must be\”quickly available to employees at each worksite where they are exposedto hazardous chemicals.\” (Emphasis in original).[[2]] She contends thatthe judge correctly discerned the sense of immediacy underlying thecited standard when he stated in his decision:Under the standard cited, employees on the worksite faced with ahazardous chemical are entitled to have access to a material safety datasheet which spells out not only the potential hazards but, moreimportantly, the safety precautions to be taken and the procedures to beused in the event of a spill or leak. Employee safety is diminished tothe extent that employees have to wait for delivery of the informationneeded to protect them. Time could well be of the essence should therehe a spill or leak.The Secretary points out that both oxygen and acetylene are hazardouschemicals as defined by the Hazard Communication Standard. Oxygen canpromote combustion in other material, thereby increasing the severity offires: acetylene is a highly flammable acid explosive chemical thatshould not be stored near oxygen.Our resolution of this question is governed by our recent decision inSuper Excavators Inc., OSHRC Docket No. 89-2253 (Oct. 18, 1991). Inaffirming a violation of section 1926.59 (g) (8) in that case, we heldthat an employer who did not have the MSDSs on the worksite but claimedthat it could get them \”within a reasonable period of time\” was not incompliance. We conclude that because Lindstrom’s MSDSs were located onlyat its central office the MSDSs were not \”readily accessible\” at theworksite and the company was not In compliance with the standard.Accordingly, we affirm the judge’s decision.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: November 20,1991————————————————————————SECRETARY OF LABOR,Complainant,v.THOMAS LINDSTROM COMPANY, INC.,Respondent.Docket No: 90-1084APPEARANCES:For ComplainantAlan L. Kammerman, Esq.U.S. Department of LaborOffice of the SolicitorFor RespondentJames F. SassamanDirector of SafetyGeneral Building Contractors AssociationBEFORE: MICHAEL H. SCHOENFELDJUDGE, OSHRCDECISION AND ORDERBackground and Procedural HistoryThis case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. ? 651-678 (1970) (\”the Act\”).On March 8, 1990, pursuant to a general inspection schedule, Bernard F.DeZalia, a Compliance Officer (\”CO\”) of the U.S. Occupational Safety andHealth Administration conducted an inspection of a construction site onRoute 38 in Cherry Hill, New Jersey (Tr. 10-11) [[1]]. As a result ofthat inspection, on March 30, 1990, a citation was issued to Respondentalleging that it had committed an other than serious violation of theAct. Respondent timely filed a notice of contest. A complaint and answerwere duly filed and the case came on to be heard in Camden, New Jersey.No affected employees or representatives thereof entered an appearance.Both parties have filed posthearing briefs.JurisdictionThe Complaint alleges and Respondent does not deny that it is acorporation doing business in the State of New Jersey engaged in steelerection work and that it uses materials and equipment originating inother states.I thus find that Respondent is engaged in a business affecting commercewithin the meaning of ? 3(3) of the Act and conclude that it is anemployer within the meaning of ? 3(5) of the Act.Accordingly, the Occupational Safety and Health Review Commission hasjurisdiction over the parties and subject matter.Citation No. 1 Item 1Alleged violation of 29 C.F.R. ? 1926.59 (g) (8)The cited standard provides: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 area(s).The operative facts are undisputed. Upon the CO’s request, an employeeof Respondent who had been using oxygen and acetylene for welding at theinspected work site could not produce a material safety data sheet atthe site for either chemical. (Tr. 13) Material safety data sheets(\”MSDS\”) were kept at Respondent’s office and could have been deliveredto the site within an hour. Although Respondent had an employee safetytraining program, it never specifically informed its employees thatmaterial safety data sheets would be delivered to the work sites (aswere other supplies, materials and equipment). (Tr. 39-40)The sole issue in this case is whether the material safety data sheetsmust be physically located at each work site or may they be maintainedat a central location from where they are easily deliverable to theworksite.The requirement of the cited standard is one of \”readily accessible.\”Similar phrases have been interpreted as they are used in otherstandards. For example, copies of the OSHA injury log must \”beavailable\” at each of a Respondent’s establishments. See, 29 C.F.R. ?1904.2 (b) (2) (1990). Noting that \”available\” could mean either presentand ready for immediate use or accessible or obtainable, thisAdministrative Law Judge held there to he no violation of the standardwhere an employer with a chain of supermarkets maintained the recordscentrally but had an established system, of which the employees werespecifically informed, for delivery of a requested log within 48 hours.Price Chopper Supermarkets, A Golub Corporation, BNA OSHC (No. 90-0552,December 21, 1990). On the other hand, a violation of 29 C.F.R. ?1926.352(d) (1990), requiring fire extinguishing equipment to be\”immediately available\” was found where the evidence raised theinference that the nearest fire extinguisher known to the welder was onthe floor below his workplace. Cornell and Company, 14 BNA OSHC 1887(No. 89-2127, 1990). Judge Burroughs has held that logs of tests made onequipment were not \”available for inspection in the immediate vicinityof the affected operation\” as required by 29 C.F.R. ? 1915.7(c)(2)(1990), where a company safety director kept the log with him when heleft the work site. Oil Recovery Co. of Alabama, Inc., 14 BNA OSHC 2013(No. 89-3445, 1990).Respondent essentially asserts two arguments: first, their policy ofmaintaining the MSDS at its office was adequate because of their methodof delivery to the field; second, the cited standard \”establishes theapplicable duration [of delivering the MSDS] as \”each work shift\” andnot a matter of minutes.\” (Respondent’s Brief pp. 7-8) Respondent ismistaken.The Secretary correctly points to another section of the standard, 29C.F.R. ? 1926.59 (g) (9), which addresses the issue of allowing anemployer to keep MSDS at a central location. That situation is notpresent in this case. Lindstrom employees do not travel betweenworkplaces during a workshift. Moreover, even if the centrally locatedMSDS policy was correct, the delivery system was inadequate to ensureavailability immediately in an emergency. The record evidence indicatesthat Lindstrom did not have a specific program for delivering the MSDSto its employees in the field. No express instructions were given itsemployees regarding the MSDS delivery system, they were merely impliedbased on their \”corporate culture\”. (Respondent’s Brief, p. 5) This isnot sufficient to establish compliance with the standard.Respondent’s second argument establishes that it has failed to see thepurpose of maintaining pertinent MSDS at the worksite. While Respondentwould allow delivery as \”each work shift\” and not a matter of minutes,it fails to recognize the need for accessibility in ensuring the safetyof its employees. \”The purpose of the standard is to have MSDS’savailable for employees who must work with hazardous chemicals. MSDS’sprovide emergency first-aid procedures in the event of overexposure tothe chemicals, and, in an emergency, a delay of five to ten minutescould be fatal.\” Voss-Jorgensen- Schueler Co., 14 BNA OSHC 1987, 1988(1990) (affirming a violation of 29 C.F.R. ? 1926.59(g)(1)).In Brice Chopper no particular urgency could be reasonably read into therequirement to make available information about injuries which hadalready occurred. In both Cornell and Oil Recovery, however, the speedwith which the equipment or log could be retrieved was important to thesafety of the employees involved. Such is the case here. Under thestandard cited employees on the worksite faced with a hazardous chemicalare entitled to have access to a material safety data sheet which spellsout not only the potential hazards but, more importantly, the safetyprecautions to be taken and the procedures to be used in the event of aspill or leak. [[2]] Employee safety is diminished to the extent thatemployees have to wait for delivery of the information needed to protectthem. Time could well be of the essence should there be a spill or leak.Reading the standard’s requirement in the context of the nature of thehazards sought to be prevented, I conclude that delivery of materialsafety data sheets to a worksite within an hour of the time requesteddoes not constitute having the sheets \”readily accessible\” as requiredby the cited standard. Accordingly, Citation No. 1, Item 1 is AFFIRMED.Considering the size or Respondent, its good faith, history and thegravity of the violation under ? 17 (j) of the Act, 29 U. S. C. ? 666(i), I find that the imposition of no penalty is appropriate.FINDINGS OF FACTFindings of fact relevant and necessary for a determination of allissues have been made above. Fed. R. Civ. P. 52 (a). All proposedfindings of fact and conclusions of law inconsistent with this decisionare hereby denied.CONCLUSIONS OF LAW1. Respondent was, at all times pertinent hereto, an employer within themeaning of ? 3(5) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651-678 (1970).2. The Occupational Safety and Health Review Commission has jurisdictionover the parties and the subject matter.3. Respondent failed to comply with the standard at 29 C.F.R. ?1926.59(g)(8) (1990) as alleged.4. Respondent’s failure to comply with the standard at 29 C.F.R. ?1926.59(g)(3) (1990) constituted an other than serious violation ofsection 5(a)(2) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651-678 (1970).5. Pursuant to ? 17(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ? 651-678 (1970) a monetary penalty of $ 0 for the aboveviolation is appropriate.ORDER1. Citation No. 1, Item 1 is AFFIRMED. No penalty is assessed.Michael H. SchoenfeldJudge, OSHRCDated: APR 09, 1991 Washington, D.C.————————————————————————FOOTNOTES:[[1]] Section 1926.59(g)(8) provides:? 1926 .59 Hazard communication.(g) Material safety data sheets.(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).[[2]] The Secretary points out in her brief that an enforcementdirective she published as OSHA Instruction CPL 2-2.38C (Oct. 22, 1990).provides that MSDSs or electronically accessible MSDS(s) must beavailable at each worksite. She observes that the record here is devoidof evidence that Lindstrom’s jobsite was equipped with any means ofreceiving electronicalIy transmitted copies of MSDSs (such as bycomputers with printers, microfiche machines or telefax machines), so asto trigger the administrative exception created in Instruction CPL 2-2.38C.[[1]] Reference to the official record in this case are as follows. TR, Transcript of Proceedings; CX, Complainant’s Exhibit, RX,Respondent’s Exhibit.[[2]] Requirements for the contents of material safety data sheets arefound at 29 C.F.R. ? 1926.50 (g) (2) (1990).”