“Docket No. 90-1084 SECRETARY OF LABOR, Complainant, v. THOMAS LINDSTROM COMPANY, Respondent.OSHRC Docket No. 90-1084DECISION Before: FOULKE Chairman; WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:At issue in this case is whether Administrative Law JudgeMichael 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]] whichrequires that material safety data sheets (\”MSDSs\”) for hazardous chemicals be\”readily accessible\” to employees.Lindstrom, a structural steel erector, was building an additionto an existing department store at a construction site in Cherry Hill, New Jersey. Duringan inspection of the worksite, a compliance officer of the Occupational Safety and HealthAdministration (\”OSHA\”) asked Lindstrom’s onsite foreman — who had been usingoxygen and acetylene while welding — for the MSDSs for oxygen and acetylene. The foremancould not produce the MSDSs at that time because they were not at the worksite. The MSDSswere at Lindstrom’s central office, variously estimated to be between 10 and 45 minutesaway by car.Lindstrom argues that MSDSs are \”readily accessible\”within the meaning of 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 operated a communicationsprogram and delivery system by which foremen in the field could telephone Lindstrom’scoordinator for the MSDSs and have them delivered to the jobsite, which in this case wasonly about 10 minutes from the office where the MSDSs were kept.The Secretary argues that \”readily accessible\” asused in the cited standard means that the hazard information contained in MSDSs must be\”quickly available to employees at each worksite where they are exposed to hazardouschemicals.\” (Emphasis in original).[[2]] She contends that the judge correctlydiscerned the sense of immediacy underlying the cited standard when he stated in hisdecision:Under the standard cited, employees on the worksite faced witha hazardous chemical are entitled to have access to a material safety data sheet whichspells out not only the potential hazards but, more importantly, the safety precautions tobe taken and the procedures to be used in the event of a spill or leak. Employee safety isdiminished to the extent that employees have to wait for delivery of the informationneeded to protect them. Time could well be of the essence should there he a spill or leak.The Secretary points out that both oxygen and acetylene arehazardous chemicals as defined by the Hazard Communication Standard. Oxygen can promotecombustion in other material, thereby increasing the severity of fires: acetylene is ahighly flammable acid explosive chemical that should not be stored near oxygen.Our resolution of this question is governed by our recentdecision in Super Excavators Inc., OSHRC Docket No. 89-2253 (Oct. 18, 1991). In affirminga violation of section 1926.59 (g) (8) in that case, we held that an employer who did nothave the MSDSs on the worksite but claimed that it could get them \”within areasonable period of time\” was not in compliance. We conclude that becauseLindstrom’s MSDSs were located only at its central office the MSDSs were not \”readilyaccessible\” at the worksite and the company was not In compliance with the standard.Accordingly, we affirm the judge’s decision.Edwin G. Foulke, Jr. ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: November 20,1991SECRETARY OF LABOR, Complainant, v. THOMAS LINDSTROM COMPANY, INC., Respondent.Docket No: 90-1084APPEARANCES:For ComplainantAlan L. Kammerman, Esq. U.S. Department of Labor Office of the Solicitor For Respondent James F. Sassaman Director of SafetyGeneral Building Contractors AssociationBEFORE: MICHAEL H. SCHOENFELD JUDGE, OSHRCDECISION AND ORDERBackground and Procedural HistoryThis case arises under the Occupational Safety and Health Actof 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 Safetyand Health Administration conducted an inspection of a construction site on Route 38 inCherry Hill, New Jersey (Tr. 10-11) [[1]]. As a result of that inspection, on March 30,1990, a citation was issued to Respondent alleging that it had committed an other thanserious violation of the Act. Respondent timely filed a notice of contest. A complaint andanswer were duly filed and the case came on to be heard in Camden, New Jersey. No affectedemployees or representatives thereof entered an appearance. Both parties have filedposthearing briefs.Jurisdiction The Complaint alleges and Respondent does not deny that it is acorporation doing business in the State of New Jersey engaged in steel erection work andthat it uses materials and equipment originating in other states.I thus find that Respondent is engaged in a business affectingcommerce within the meaning of ? 3(3) of the Act and conclude that it is an employerwithin the meaning of ? 3(5) of the Act.Accordingly, the Occupational Safety and Health ReviewCommission has jurisdiction 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 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 operative facts are undisputed. Upon the CO’s request, anemployee of Respondent who had been using oxygen and acetylene for welding at theinspected work site could not produce a material safety data sheet at the site for eitherchemical. (Tr. 13) Material safety data sheets (\”MSDS\”) were kept atRespondent’s office and could have been delivered to the site within an hour. AlthoughRespondent had an employee safety training program, it never specifically informed itsemployees that material safety data sheets would be delivered to the work sites (as wereother supplies, materials and equipment). (Tr. 39-40)The sole issue in this case is whether the material safety datasheets must be physically located at each work site or may they be maintained at a centrallocation from where they are easily deliverable to the worksite.The requirement of the cited standard is one of \”readilyaccessible.\” Similar phrases have been interpreted as they are used in otherstandards. For example, copies of the OSHA injury log must \”be available\” ateach of a Respondent’s establishments. See, 29 C.F.R. ? 1904.2 (b) (2) (1990). Notingthat \”available\” could mean either present and ready for immediate use oraccessible or obtainable, this Administrative Law Judge held there to he no violation ofthe standard where an employer with a chain of supermarkets maintained the recordscentrally but had an established system, of which the employees were specificallyinformed, for delivery of a requested log within 48 hours. Price Chopper Supermarkets, AGolub Corporation, BNA OSHC (No. 90-0552, December 21, 1990). On the other hand, aviolation of 29 C.F.R. ? 1926.352(d) (1990), requiring fire extinguishing equipment to be\”immediately available\” was found where the evidence raised the inference thatthe nearest fire extinguisher known to the welder was on the floor below his workplace.Cornell and Company, 14 BNA OSHC 1887 (No. 89-2127, 1990). Judge Burroughs has held thatlogs of tests made on equipment were not \”available for inspection in the immediatevicinity of 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 he left the work site. OilRecovery Co. of Alabama, Inc., 14 BNA OSHC 2013 (No. 89-3445, 1990).Respondent essentially asserts two arguments: first, theirpolicy of maintaining the MSDS at its office was adequate because of their method ofdelivery to the field; second, the cited standard \”establishes the applicableduration [of delivering the MSDS] as \”each work shift\” and not a matter ofminutes.\” (Respondent’s Brief pp. 7-8) Respondent is mistaken.The Secretary correctly points to another section of thestandard, 29 C.F.R. ? 1926.59 (g) (9), which addresses the issue of allowing an employerto keep MSDS at a central location. That situation is not present in this case. Lindstromemployees do not travel between workplaces during a workshift. Moreover, even if thecentrally located MSDS policy was correct, the delivery system was inadequate to ensureavailability immediately in an emergency. The record evidence indicates that Lindstrom didnot have a specific program for delivering the MSDS to its employees in the field. Noexpress instructions were given its employees regarding the MSDS delivery system, theywere merely implied based on their \”corporate culture\”. (Respondent’s Brief, p.5) This is not sufficient to establish compliance with the standard.Respondent’s second argument establishes that it has failed tosee the purpose of maintaining pertinent MSDS at the worksite. While Respondent wouldallow delivery as \”each work shift\” and not a matter of minutes, it fails torecognize the need for accessibility in ensuring the safety of its employees. \”Thepurpose of the standard is to have MSDS’s available for employees who must work withhazardous chemicals. MSDS’s provide emergency first-aid procedures in the event ofoverexposure to the chemicals, and, in an emergency, a delay of five to ten minutes couldbe fatal.\” Voss-Jorgensen- Schueler Co., 14 BNA OSHC 1987, 1988 (1990) (affirming aviolation of 29 C.F.R. ? 1926.59(g)(1)).In Brice Chopper no particular urgency could be reasonably readinto the requirement to make available information about injuries which had alreadyoccurred. In both Cornell and Oil Recovery, however, the speed with which the equipment orlog could be retrieved was important to the safety of the employees involved. Such is thecase here. Under the standard cited employees on the worksite faced with a hazardouschemical are entitled to have access to a material safety data sheet which spells out notonly the potential hazards but, more importantly, the safety precautions to be taken andthe procedures to be used in the event of a spill or leak. [[2]] Employee safety isdiminished to the extent that employees have to wait for delivery of the informationneeded to protect them. Time could well be of the essence should there be a spill or leak.Reading the standard’s requirement in the context of the natureof the hazards sought to be prevented, I conclude that delivery of material safety datasheets to a worksite within an hour of the time requested does not constitute having thesheets \”readily accessible\” as required by the cited standard. Accordingly,Citation No. 1, Item 1 is AFFIRMED.Considering the size or Respondent, its good faith, history andthe gravity of the violation under ? 17 (j) of the Act, 29 U. S. C. ? 666 (i), I findthat the imposition of no penalty is appropriate.FINDINGS OF FACTFindings of fact relevant and necessary for a determination ofall issues have been made above. Fed. R. Civ. P. 52 (a). All proposed findings of fact andconclusions of law inconsistent with this decision are hereby denied.CONCLUSIONS OF LAW1. Respondent was, at all times pertinent hereto, an employerwithin the meaning of ? 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C.? 651-678 (1970).2. The Occupational Safety and Health Review Commission has jurisdiction over the partiesand the subject matter.3. Respondent failed to comply with the standard at 29 C.F.R. ? 1926.59(g)(8) (1990) asalleged.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 of section 5(a)(2) of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ? 651-678 (1970).5. Pursuant to ? 17(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651-678 (1970) a monetary penalty of $ 0 for the above violation is appropriate.ORDER1. Citation No. 1, Item 1 is AFFIRMED. No penalty is assessed.Michael H. Schoenfeld Judge, 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 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).[[2]] The Secretary points out in her brief that an enforcementdirective she published as OSHA Instruction CPL 2-2.38C (Oct. 22, 1990). provides thatMSDSs or electronically accessible MSDS(s) must be available at each worksite. Sheobserves that the record here is devoid of evidence that Lindstrom’s jobsite was equippedwith any means of receiving electronicalIy transmitted copies of MSDSs (such as bycomputers with printers, microfiche machines or telefax machines), so as to trigger theadministrative exception created in Instruction CPL 2-2.38C.[[1]]\u00a0 Reference to the official record in this case areas follows.\u00a0 TR, Transcript of Proceedings; CX, Complainant’s Exhibit, RX,Respondent’s Exhibit.[[2]] Requirements for the contents of material safety datasheets are found at 29 C.F.R. ? 1926.50 (g) (2) (1990).”