“Docket No. 88-2458 SECRETARY OF LABOR,Complainant,v.WESTINGHOUSE HAZTEC INC.,Respondent.OHSRC Docket No. 88-2458ORDERThe parties in the above-cited action entered into a writtenStipulation and Settlement Agreement which was filed by the Secretary of Labor with theCommission on March 12, 1990. In filing the Stipulation and Settlement Agreement, theSecretary of Labor certified that the Agreement disposed of all pending issues subject tothe aforementioned action. As part of the Stipulation and Settlement Agreement, theRespondent requested that its previously filed Notice of Contest in this action bewithdrawn.Having fully reviewed the Stipulation and Settlement Agreement,attached hereto, it is found that the aforementioned Agreement has disposed of all issuespresently pending before the occupational Safety and Health Review Commission. Therefore,pursuant to a delegation of authority to the Executive Secretary, 41 Fed. Reg. 37173(1976), amended at 44 Fed. Reg. 7255 (1979), the parties’ Stipulation and SettlementAgreement is approved and the Notice of Contest in the above-cited action is dismissed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: March 28, 1990ELIZABETH 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 thisproceeding, it is hereby stipulated and agreed by and between the Complainant, Secretaryof Labor, and the Respondent, Westinghouse Haztech, Inc., that:1. Respondent represents that the alleged violations have beenabated;2. Complainant hereby agrees to reduce the penalty assessed forthe alleged violation from $100.00 to $0;3. Respondent hereby withdraws the Notice of Contest previouslyfiled in this case;4. Complainant agrees that the citation affirmed as a result ofRespondent’s withdrawal of its notice of contest will not be used as a basis for arepeated violation in any subsequent proceeding involving the same or substantiallysimilar violation or hazard;5. Respondent hereby certifies that a copy of this settlementagreement was posted at its workplace on this 8th day of March, 1990;6. Each party agrees to bear its own fees and other expenses incurred by such party inconnection with any stage of this proceeding;7. The parties have entered into this stipulated settlementsolely to avoid protracted and expensive litigation. This settlement is not to beconstrued as an admission of fault or liability of any violation of the OccupationalSafety and Health Act or regulations or standards promulgated thereunder of any other law,regulation or standard. The parties have entered into this stipulated settlement with theintent and on the basis that it is related solely to the disposition of this case and isdeterminative of issues in this case only. It shall not be binding in any subsequentactions, proceedings or events consistent with the terms of this agreement and it in noway affects any rights, defenses, or remedies which may be available in the future toRespondent or any other party.8. There are no affected employees or authorized employeerepresentatives.James R. Attaway, Jr. Attorney for Westinghouse,Haztech, Inc.Westinghouse Environmentaland Geotechnical Services, Inc.ANTONY F. GILAttorney for theSecretary of LaborSECRETARY 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 ORDERSPARKS, Judge:\u00a0\u00a0\u00a0\u00a0 On August 8, 1988,Westinghouse Haztech, Inc., was called to participate in cleanup operations at thederailment of a CSX train at Middleton, Georgia. Five tank cars containing xylene, ahazardous substance, had derailed causing a spillage in excess of 50,000 gallons.Following an inspection by two industrial hygienists from theOccupational Safety and Health Administration, a citation for a serious violation of 29C.F.R. ? 1910.120(d)(2) [[1]] was issued alleging the following conditions:At the train derailment spill response site, Middleton, GA,where a site map was not available and where the work zone boundaries were incompletelyestablished or delineated, on or about August 10, 1988, exposing employees to possibleignition of flammable xylene from ruptured tank cars and decomposition products fromspilled polyurethane pellets.Respondent does not dispute the significant facts but contendsthat its operations were not subject to the standard cited.FINDINGS OF FACT1. Respondent, Westinghouse Haztech, Inc., maintains itsprincipal place of business at 5280 Panola Industrial Boulevard, Decatur, Georgia. It isengaged in providing environmental services throughout the eastern United States.2. Respondent is an employer engaged in a business affectingcommerce.3. On August 8, 9, and 10, 1988, respondent was one of several employers engaged in thecleanup of hazardous materials at the site of the derailment of a CSX train near Elberton,Georgia. Respondent was primarily engaged in removing xylene from the ground andtransferring xylene from railroad tank cars to tanker trucks. Overall control of the sitewas maintained by CSX Transportation.4. The work was performed pursuant to an agreement called an\”Emergency Contract\” which provided for cleanup services for a period of threedays after work commenced.5. Industrial Hygienists Ken Smith and James White conducted aninspection of respondent’s cleanup operations between 4:00 p.m., August 9, 1988, and 11:00a.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 theDepartment of Transportation at 49 C.F.R. ? 172.101.8. The Site Safety and Health Plan maintained at the site didnot contain a site map. A complete plan was later furnished OSHA which contained a sitemap.9. The work zones were not clearly delineated so as todistinguish between safe and contaminated work areas.10. More than 50,000 gallons of xylene spilled from the tankcars some of which had collected on the ground in pools.11. Employees of respondent were exposed to the xylene. Additional findings of fact arecontained in the following discussion.DISCUSSION As the site control program did not contain a site map normarked work zones as required by 29 C.F.R. ? 1910.120(d)(2), the principal issue fordecision is whether respondent’s operations at the time of the inspection were subject tothe cited provision. To decide that issue the question becomes whether, at the time of theinspection, respondent’s operation was solely an emergency response operation which doesnot require a site map and marked work areas, or post-emergency operations which dorequire such safety features.The pertinent definitions are contained in the standard.Section 1910.120 entitled \”Hazardous waste operations and emergency response\”covers several facets of waste treatment and control, including \”emergency responseoperations\” which is defined as follows:(v) Emergency response operations for releases of orsubstantial threats of 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 coordinatedresponse effort by employees from outside the immediate release area or by outsideresponders (i.e., mutual aid groups, local fire departments, etc.) to an occurrencewhich results, or is likely to result, in an uncontrolled release of a hazardoussubstance. Responses to incidental releases that can be absorbed, neutralized, orotherwise controlled at the time of release by employees in the immediate release area arenot considered to be emergency responses within the scope of this standard. Responses toreleases of hazardous substances where the concentration of hazardous substance is belowthe established permissible exposure limits are not considered to be emergency responses.Section 1910.120(a)(2) makes all paragraphs applicable topost-emergency response operations, but only paragraph (1) applies to the followingconditions:(iv) Paragraph (1) of this section applies to emergencyresponse operations for releases of or substantial threats of releases of hazardoussubstances.There can be no doubt that xylene is classified as a hazardoussubstance (Ex. C-3; Tr. 22, 35). Neither can there by any question but that large amounts,in excess of 50,000 gallons, had been released into the environment from the leaking tankcars. Although the parties argue whether employees could be contaminated, it is clear thatthe hazard of such contamination was present.Respondent contends that only emergency response operations ofthe type described above were conducted at the wreck site at the time of the inspectionand that it was not, therefore, subject to the cited standard.The compliance officer testified that the \”TechnicalSupport people\” of OSHA took the position that the entire section applied toemergency response operations not just subparagraph 1.[[2]] The plain language of thestandard does not appear to support that interpretation, and counsel for the Secretarydoes not urge that position in tier brief. Rather, she contends that the emergency portionof respondent’s activities had ended and that, at the time of the inspection, respondentwas engaged in post-emergency cleanup and removal of hazardous substance. She argues asfollows (brief pp. 5-6):Therefore, it is agreed that respondent’s initial reaction uponarriving at the site may have been in response to such an emergency (Tr. 63, 65, 70).However, by the time of the OSHA inspection, respondent’s activities involved merely thecleanup and removal of the xylene (Tr. 11, 12, 13, 24). Section 1910.120 (1)(5) providesthat \”Upon completion of the emergency response, if it is determined that it isnecessary to remove hazardous substances, health hazards and materials contaminated. . . ,then such operations shall meet all the requirements of paragraph (b) through (n) of thissection.\” Thus, since respondent’s emergency response had ceased, the requirements at? 1910.120(d) would be applicable to respondent at the time of the OSHA inspection.(Footnote omitted.)It would seem that the standard envisions that the emergencyresponse would not be delayed while a site map is prepared and the work zones delineated.[[3]] However, once the emergency conditions had been abated, those portions of the siteplan are required. The rationale for such distinction may be that priority would be givento reducing the emergency hazards, but the safety provisions of the site plan would beimplemented as expeditiously as possible. The interpretation of the Secretary isconsistent with the language [[4]] and purpose of the standard.The question is whether, at the time of the inspection,respondent’s operations had changed from \”emergency response\” to\”post-emergency response\” operations.Robert Kemp, respondent’s Operations Supervisor in Atlanta,testified he was 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 a preliminary site specific healthand safety plan from the company’s industrial hygienist including material safety datasheets for the chemicals 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 metrepresentatives of CSX and EPA and executed a contract at 8:00 to 9:00 p.m. (Ex. R-3; Tr.63-64). The OSHA compliance officers arrived at tile scene the following day at about 4:00p.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 from the derailed cars.The OSHA representatives were at the site the next day, August 10, 1988, between 6:45 a.m.and 11:00 a.m. At the time of the first visit to the site on August 9, 1988, about 20hours after respondent’s arrival at the scene, the compliance officers found that therewas no site map showing major features and danger areas (Tr. 26). The compliance officersalso concluded that the work zones had not been sufficiently delineated. Respondent’ssupervisor described everything north of a sheet of plastic, designated as adecontamination area, as a hot zone (Tr. 32).The OSHA representatives expressed an opinion that barricadetape, traffic cones or similar devices were necessary to mark the various hazardous andsafe areas at the site (Tr. 29).After arrival at the scene and giving, instructions toemployees, respondent monitored the site. Although there was a strong odor, the readingswere low (Tr. 69-71). They continued monitoring the site because the air temperature of 77F. was at the explosive limit (Tr. 75-706) although the level of vapors was far below theminimum (Tr. 70). Mr. Kemp, respondent’s supervisor, testified that first priority wasgiven to removing xylene off the ground which he the greatest hazard. He estimated therewas 200 considered gallons under one of the cars. Secondly, they began pumping xylene fromthe tanks (Tr. 65-66, 77). That is consistent with the with the secretary’s understandingof the events (Tr. 12, 14). The Secretary offers little help as to the exact time or eventwhich changed respondent’s operations from an emergency response to a post-emergencycleanup and it is difficult to pinpoint a precise time. By the time of the second visit ofthe compliance officers on August 10, 1988, respondent had cleaned up the ground and. waspumping out the tank cars. It is concluded that respondent’s activities had been reducedto routine cleanup activities indicative of post-emergency operations. In that phase ofoperations, respondent was required to comply with (b) through (n) of section 1910.120,but a site map had not been prepared nor had the work areas been marked with sufficientclarity. Respondent began to mark the work areas with barricade tape after the OSHArepresentative brought it to the employers attention, but the attempt was inadequate as itdid not completely mark off the hot areas (Tr. 39-40). The information was available andrespondent had had ample time to complete the map and mark the work areas. The evidenceestablishes a violation of the standard charged.Respondent had a total of about 20 employees working in shiftsat the site. Although the hazards of xylene can cause serious injury or death, themonitoring of conditions, partial removal of the xylene, and protective clothing worn byemployees indicate that the employees were not exposed to conditions capable of causingserious injury. The items cited are found to be other than serious.The overall impression of respondent’s operations, as drawnfrom the record, shows it to be an efficient, well-managed and skilled organization.Considering the gravity of the violations, and the size, good faith and history of therespondent, a penalty of $100 is appropriate.CONCLUSIONS OF LAW1. Respondent is an employer engaged in interstate commercewhich is subject to the Act and this proceeding.2. Respondent violated 29 C.F.R. ? 1910.120(d)(2) underconditions constituting 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. SPARKS JudgeFOOTNOTES: [[1]] Sections 1910.120(d)(1) and 1910.120(d)(2) of 29 C.F.R.state as follows:(d) Site-control. (1) A site control program forpreventing contamination of employees shall be developed during the planning stages of ahazardous waste operation clean-up.(2) The site control program shall, as a minimum include: Asite map, site work zones; the use of a \”buddy system\”; site communications; thestandard operating procedures or safe work practices; and, identification of nearestmedical assistance.[[2]] Compliance officer Smith testified as follows (Tr. 46):A Right, but it was my understanding, I reviewed this was ourTechnical Support people, that that paragraph is taken to mean, that paragraph L refers toemergency sites only, it does not mean that paragraph L alone and not any other part ofthe 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 L refers to emergency clean up sites, but the remainder of the standard alsoapplies, it is my understanding, as I prepared the citation.[[3]] Section 1910.120 (1)(ii) does not require a site map ormarking of work 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 . . . .”