“SECRETARY OF LABOR,Complainant,v.WESTINGHOUSE HAZTEC INC.,Respondent.OHSRC Docket No. 88-2458_ORDER_The parties in the above-cited action entered into a written Stipulationand Settlement Agreement which was filed by the Secretary of Labor withthe Commission on March 12, 1990. In filing the Stipulation andSettlement Agreement, the Secretary of Labor certified that theAgreement disposed of all pending issues subject to the aforementionedaction. As part of the Stipulation and Settlement Agreement, theRespondent requested that its previously filed Notice of Contest in thisaction be withdrawn.Having fully reviewed the Stipulation and Settlement Agreement, attachedhereto, it is found that the aforementioned Agreement has disposed ofall issues presently pending before the occupational Safety and HealthReview Commission. Therefore, pursuant to a delegation of authority tothe Executive Secretary, 41 Fed. Reg. 37173 (1976), amended at 44 Fed.Reg. 7255 (1979), the parties’ Stipulation and Settlement Agreement isapproved and the Notice of Contest in the above-cited action is dismissed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: _March 28, 1990_————————————————————————ELIZABETH DOLE,SECRETARY OF LABOR,Complainant,v.WESTINGHOUSE HAZTECH, INC.,Respondent.OSHRC Docket No. 88-2458STIPULATION AND SETTLEMENT AGREEMENTIn full settlement and disposition of the issues in this proceeding, itis hereby stipulated and agreed by and between the Complainant,Secretary of Labor, and the Respondent, Westinghouse Haztech, Inc., that:1. Respondent represents that the alleged violations have been abated;2. Complainant hereby agrees to reduce the penalty assessed for thealleged violation from $100.00 to $0;3. Respondent hereby withdraws the Notice of Contest previously filed inthis case;4. Complainant agrees that the citation affirmed as a result ofRespondent’s withdrawal of its notice of contest will not be used as abasis for a repeated violation in any subsequent proceeding involvingthe same or substantially similar violation or hazard;5. Respondent hereby certifies that a copy of this settlement agreementwas posted at its workplace on this _8th_ day of _March, _1990;6. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding;7. The parties have entered into this stipulated settlement solely toavoid protracted and expensive litigation. This settlement is not to beconstrued as an admission of fault or liability of any violation of theOccupational Safety and Health Act or regulations or standardspromulgated thereunder of any other law, regulation or standard. Theparties have entered into this stipulated settlement with the intent andon the basis that it is related solely to the disposition of this caseand is determinative of issues in this case only. It shall not bebinding in any subsequent actions, proceedings or events consistent withthe terms of this agreement and it in no way affects any rights,defenses, or remedies which may be available in the future to Respondentor any other party.8. There are no affected employees or authorized employee representatives.James R. Attaway, Jr.Attorney for Westinghouse,Haztech, Inc.Westinghouse Environmentaland Geotechnical Services, Inc.ANTONY F. GILAttorney for theSecretary of Labor————————————————————————SECRETARY OF LABOR,Complainant,v.WESTINGHOUSE HAZTECH, INC.,Respondent.OSHRC Docket No. 88-2458APPEARANCES:Ken S. Welsch, Esquire, and Stephen J.Simko, Jr. Esquire, Office of theSolicitor, U. S. Department of Labor, onbehalf of complainant.James R. Attaway, Jr., Esquire, S&ME,Inc., Raleigh, North Carolina, on behalfof respondent._DECISION AND ORDER_SPARKS, Judge: On August 8, 1988, Westinghouse Haztech, Inc., wascalled to participate in cleanup operations at the derailment of a CSXtrain at Middleton, Georgia. Five tank cars containing xylene, ahazardous substance, had derailed causing a spillage in excess of 50,000gallons.Following an inspection by two industrial hygienists from theOccupational Safety and Health Administration, a citation for a seriousviolation of 29 C.F.R. ? 1910.120(d)(2) [[1]] was issued alleging thefollowing conditions:At the train derailment spill response site, Middleton, GA, where a sitemap was not available and where the work zone boundaries wereincompletely established or delineated, on or about August 10, 1988,exposing employees to possible ignition of flammable xylene fromruptured tank cars and decomposition products from spilled polyurethanepellets.Respondent does not dispute the significant facts but contends that itsoperations were not subject to the standard cited._FINDINGS OF FACT_1. Respondent, Westinghouse Haztech, Inc., maintains its principal placeof business at 5280 Panola Industrial Boulevard, Decatur, Georgia. It isengaged in providing environmental services throughout the easternUnited States.2. Respondent is an employer engaged in a business affecting commerce.3. On August 8, 9, and 10, 1988, respondent was one of several employersengaged in the cleanup of hazardous materials at the site of thederailment of a CSX train near Elberton, Georgia. Respondent wasprimarily engaged in removing xylene from the ground and transferringxylene from railroad tank cars to tanker trucks. Overall control of thesite was maintained by CSX Transportation.4. The work was performed pursuant to an agreement called an \”EmergencyContract\” which provided for cleanup services for a period of three daysafter work commenced.5. Industrial Hygienists Ken Smith and James White conducted aninspection of respondent’s cleanup operations between 4:00 p.m., August9, 1988, and 11:00 a.m., August 10, 1988.6. The health hazards of xylene include central nervous system,depression, nausea, and eye, nose and throat irritation. In addition,xylene is flammable.7. Xylene appears on the list of substances regulated by the Departmentof Transportation at 49 C.F.R. ? 172.101.8. The Site Safety and Health Plan maintained at the site did notcontain a site map. A complete plan was later furnished OSHA whichcontained a site map.9. The work zones were not clearly delineated so as to distinguishbetween safe and contaminated work areas.10. More than 50,000 gallons of xylene spilled from the tank cars someof which had collected on the ground in pools.11. Employees of respondent were exposed to the xylene. Additionalfindings of fact are contained in the following discussion._DISCUSSION _As the site control program did not contain a site map nor marked workzones as required by 29 C.F.R. ? 1910.120(d)(2), the principal issue fordecision is whether respondent’s operations at the time of theinspection were subject to the cited provision. To decide that issue thequestion becomes whether, at the time of the inspection, respondent’soperation was solely an emergency response operation which does notrequire a site map and marked work areas, or post-emergency operationswhich do require such safety features.The pertinent definitions are contained in the standard. Section1910.120 entitled \”Hazardous waste operations and emergency response\”covers several facets of waste treatment and control, including\”emergency response operations\” which is defined as follows:(v) Emergency response operations for releases of or substantial threatsof releases of hazardous substances and post-emergency responseoperations for such releases.\”Emergency response\” is defined in section 1910.120 (a)(3) as follows:_\”Emergency response\”_ means a coordinated response effort by employeesfrom outside the immediate release area or by outside responders(_i.e._, mutual aid groups, local fire departments, etc.) to anoccurrence which results, or is likely to result, in an uncontrolledrelease of a hazardous substance. Responses to incidental releases thatcan be absorbed, neutralized, or otherwise controlled at the time ofrelease by employees in the immediate release area are not considered tobe emergency responses within the scope of this standard. Responses toreleases of hazardous substances where the concentration of hazardoussubstance is below the established permissible exposure limits are notconsidered to be emergency responses.Section 1910.120(a)(2) makes all paragraphs applicable to post-emergencyresponse operations, but only paragraph (1) applies to the followingconditions:(iv) Paragraph (1) of this section applies to emergency responseoperations for releases of or substantial threats of releases ofhazardous substances.There can be no doubt that xylene is classified as a hazardous substance(Ex. C-3; Tr. 22, 35). Neither can there by any question but that largeamounts, in excess of 50,000 gallons, had been released into theenvironment from the leaking tank cars. Although the parties arguewhether employees could be contaminated, it is clear that the hazard ofsuch contamination was present.Respondent contends that only emergency response operations of the typedescribed above were conducted at the wreck site at the time of theinspection and that it was not, therefore, subject to the cited standard.The compliance officer testified that the \”Technical Support people\” ofOSHA took the position that the entire section applied to emergencyresponse operations not just subparagraph 1.[[2]] The plain language ofthe standard does not appear to support that interpretation, and counselfor the Secretary does not urge that position in tier brief. Rather, shecontends that the emergency portion of respondent’s activities had endedand that, at the time of the inspection, respondent was engaged inpost-emergency cleanup and removal of hazardous substance. She argues asfollows (brief pp. 5-6):Therefore, it is agreed that respondent’s initial reaction upon arrivingat the site may have been in response to such an emergency (Tr. 63, 65,70). However, by the time of the OSHA inspection, respondent’sactivities involved merely the cleanup and removal of the xylene (Tr.11, 12, 13, 24). Section 1910.120 (1)(5) provides that \”Upon completionof the emergency response, if it is determined that it is necessary toremove hazardous substances, health hazards and materials contaminated.. . , then such operations shall meet all the requirements of paragraph(b) through (n) of this section.\” Thus, since respondent’s emergencyresponse had ceased, the requirements at ? 1910.120(d) would beapplicable to respondent at the time of the OSHA inspection. (Footnoteomitted.)It would seem that the standard envisions that the emergency responsewould not be delayed while a site map is prepared and the work zonesdelineated. [[3]] However, once the emergency conditions had beenabated, those portions of the site plan are required. The rationale forsuch distinction may be that priority would be given to reducing theemergency hazards, but the safety provisions of the site plan would beimplemented as expeditiously as possible. The interpretation of theSecretary is consistent with the language [[4]] and purpose of the standard.The question is whether, at the time of the inspection, respondent’soperations had changed from \”emergency response\” to \”post-emergencyresponse\” operations.Robert Kemp, respondent’s Operations Supervisor in Atlanta, testified hewas first notified of the CSX train wreck about 4:00 p.m., August 8,1988 (Tr. 57-58). At that time, he was instructed to obtain apreliminary site specific health and safety plan from the company’sindustrial hygienist including material safety data sheets for thechemicals to be encountered and to gather other needed equipment (Tr.58). They arrived at the scene of the wreck at approximately 7:00 p.m.where they met representatives of CSX and EPA and executed a contract at8:00 to 9:00 p.m. (Ex. R-3; Tr. 63-64). The OSHA compliance officersarrived at tile scene the following day at about 4:00 p.m., August 9,1988 (Tr. 24). Work had been suspended pending the arrival of a crane toupright the tank cars which would permit the xylene to be pumped fromthe derailed cars. The OSHA representatives were at the site the nextday, August 10, 1988, between 6:45 a.m. and 11:00 a.m. At the time ofthe first visit to the site on August 9, 1988, about 20 hours afterrespondent’s arrival at the scene, the compliance officers found thatthere was no site map showing major features and danger areas (Tr. 26).The compliance officers also concluded that the work zones had not beensufficiently delineated. Respondent’s supervisor described everythingnorth of a sheet of plastic, designated as a decontamination area, as ahot zone (Tr. 32).The OSHA representatives expressed an opinion that barricade tape,traffic cones or similar devices were necessary to mark the varioushazardous and safe areas at the site (Tr. 29).After arrival at the scene and giving, instructions to employees,respondent monitored the site. Although there was a strong odor, thereadings were low (Tr. 69-71). They continued monitoring the sitebecause the air temperature of 77 F. was at the explosive limit (Tr.75-706) although the level of vapors was far below the minimum (Tr. 70).Mr. Kemp, respondent’s supervisor, testified that first priority wasgiven to removing xylene off the ground which he the greatest hazard. Heestimated there was 200 considered gallons under one of the cars.Secondly, they began pumping xylene from the tanks (Tr. 65-66, 77). Thatis consistent with the with the secretary’s understanding of the events(Tr. 12, 14).The Secretary offers little help as to the exact time or event whichchanged respondent’s operations from an emergency response to apost-emergency cleanup and it is difficult to pinpoint a precise time.By the time of the second visit of the compliance officers on August 10,1988, respondent had cleaned up the ground and. was pumping out the tankcars. It is concluded that respondent’s activities had been reduced toroutine cleanup activities indicative of post-emergency operations. Inthat phase of operations, respondent was required to comply with (b)through (n) of section 1910.120, but a site map had not been preparednor had the work areas been marked with sufficient clarity. Respondentbegan to mark the work areas with barricade tape after the OSHArepresentative brought it to the employers attention, but the attemptwas inadequate as it did not completely mark off the hot areas (Tr.39-40). The information was available and respondent had had ample timeto complete the map and mark the work areas. The evidence establishes aviolation of the standard charged.Respondent had a total of about 20 employees working in shifts at thesite. Although the hazards of xylene can cause serious injury or death,the monitoring of conditions, partial removal of the xylene, andprotective clothing worn by employees indicate that the employees werenot exposed to conditions capable of causing serious injury. The itemscited are found to be other than serious.The overall impression of respondent’s operations, as drawn from therecord, shows it to be an efficient, well-managed and skilledorganization. Considering the gravity of the violations, and the size,good faith and history of the respondent, a penalty of $100 is appropriate._CONCLUSIONS OF LAW_1. Respondent is an employer engaged in interstate commerce which issubject to the Act and this proceeding.2. Respondent violated 29 C.F.R. ? 1910.120(d)(2) under conditionsconstituting an other than serious violation.3. A penalty of $100 is reasonable and appropriate._ORDER _It is hereby ORDERED:1. The citation is affirmed as an other than serious violation.2. A penalty of $100 is assessed.Dated this 7th day of June, 1989.JOE D. SPARKSJudge————————————————————————FOOTNOTES:[[1]] Sections 1910.120(d)(1) and 1910.120(d)(2) of 29 C.F.R. state asfollows:(d) _Site-control._ (1) A site control program for preventingcontamination of employees shall be developed during the planning stagesof a hazardous waste operation clean-up.(2) The site control program shall, as a minimum include: A site map,site work zones; the use of a \”buddy system\”; site communications; thestandard operating procedures or safe work practices; and,identification of nearest medical assistance.[[2]] Compliance officer Smith testified as follows (Tr. 46):A Right, but it was my understanding, I reviewed this was our TechnicalSupport people, that that paragraph is taken to mean, that paragraph Lrefers to emergency sites only, it does not mean that paragraph L aloneand not any other part of the standard refers to hazardous waste sites,or rather to emergency clean up operations.In other words, I don’t know if I am making myself clear, paragraph Lrefers to emergency clean up sites, but the remainder of the standardalso applies, it is my understanding, as I prepared the citation.[[3]] Section 1910.120 (1)(ii) does not require a site map or marking ofwork areas as elements of an emergency response plan.section 1910.120 (2)(ii) provides as follows:All paragraphs of this section except paragraph (0) apply to . . .post-emergency response operations . . . .”