“SECRETARY OF LABOR,Complainant,v.CONAGRA FLOUR MILLING CO.,Respondent.OSHRC Docket No. 88-1249_ORDER_On August 15, 1991, the Secretary filed a Notice of Withdrawal in theabove-captioned case. The Commission acknowledges receipt of theSecretary’s Notice of Withdrawal and sets aside the Judge’s Decision andOrder affirming the alleged violation of 29 C.F.R. ? 1910.1200(e)(1)(i).There being no matters remaining before the Commission requiring furtherconsideration, the Commission orders the above-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: August 30, 1991————————————————————————LYNN MARTIN, SECRETARY OF LABOR,Complainant,v.CONAGRA FLOUR MILLING CO.,and its SUCCESSORS,Respondent.OSHRC Docket No. 88-1249*SECRETARY’S NOTICE OF WITHDRAWAL OF CITATION*In a decision dated January 31, 1991, Administrative Law Judge David G.Oringer affirmed a citation for an other-than-serious violation of 29C.F.R. 1910.1200.(e)(1)(i) (Item 5, Citation No. 2). Respondent’ssubsequent petition for discretionary review of the judge’s decision wasgranted by the Commission and a briefing notice was issued on August 7,1991.After review of the record evidence, the Secretary hereby withdraws thecitation for a violation of 29 C.F.R. 1910.1200(e)(1)(i) and requeststhat the Commission set aside the ALJ’s decision as to this item.Respectfully submitted,DAVID G. FORTNEYDeputy SolicitorCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial LitigationORLANDO J. PANNOCHIAAttorney for theSecretary of Labor SECRETARY OF LABOR,Complainantv.CON AGRA FLOUR MILLING CO.,and its successors,Respondent.OSHRC DOCKET NO. _88-1249_APPEARANCES:_FOR THE COMPLAINANT_:Marshall H. Harris, Esq., Regional Solicitor;James E. Culp, Esq., of CounselU.S. Department of LaborOffice of the Solicitor_FOR THE RESPONDENT_:McGrath, North, Mullin & Kratz, P.C.Dean G. Kratz, Esq., of Counsel_DECISION AND ORDER_ORINGER, JUDGE: This is a proceeding brought under Section 10(c) of theOccupational Safety and Health Act of 1970, (84th Statute, 1590; 29U.S.C. ? 651, _et_ _seq_., (hereinafter sometimes referred to as \”theAct\”) to review citations issued by the Secretary of Labor pursuant to ?9(a) and a proposed assessment of penalties thereon issued pursuant to ?10(a) of the Act.This case arose as a result of citations served early in May 1988subsequent to an inspection on April 12 and April 28 of the same year.Respondent filed a timely notice of contest to the citations andnotification of proposed penalties.A hearing on the matter was held in Philadelphia, Pennsylvania on June5, 6, & 7, 1989, pursuant to due notice._STATEMENT OF THE CASE_At the commencement of the hearing the parties agreed to settle severalitems in that the respondent agreed to withdraw its notice of contest toother than serious citation No. 2, items numbered 1, 2, 3 and 4. (Tr. 6)After conferring with the tribunal the parties agreed to settle items 1aand 1b of serious citation No. 1 by consolidating the two items as asingle other than serious violation and for the Secretary to withdrawthe proposed penalty. In consonance therewith the Respondent agreed towithdraw its notice of contest to the amended item. (Tr. 8) The itemsremaining for resolution were items 2a(a) and 2a(b) alleging twoviolations of the standard set forth at 29 C.F.R. 1910.1200(g)(8) anditem 2b of citation No. 1, alleging a serious violation of the standardset forth at 29 C.F.R. 1910.1200(f)(5)(ii). In addition thereto the lastitem remaining for resolution is item 5 of citation No. 2 alleging another than serious violation of standard 29 C.F.R. 1910.1200(e)(1)(i).The allegation of violation of 29 C.F.R. 1910.1200(g)(8) found in item2a(a) of the serious citation alleged that the employer failed tomaintain material data sheets for Brutus A. welding rods and for OSHARed Industrial Enamel manufactured by Sherwin Williams Co. Item 2b ofserious citation No. 1 alleged a violation of the standard set forth at29 C.F.R. 1910.1200(f)(5)(ii) in that the employer did not ensure thateach container of hazardous chemicals in the work place was labeled,tagged or marked with appropriate hazard warnings.The respondent strongly defends in the first instance on the ground thatthe Brutus A. welding rods and the OSHA Red Industrial paint fall withinthe exemption of the requirements of 29 C.F.R. 1910.1200 found instandard 29 C.F.R. 1910.1200(b)(6)(VII). Inasmuch as the inspection tookplace from April 12, 1988 to April 28, 1988, it would appear that thecode of Federal Regulations compilation revised as of July 1, 1987 wouldbe the proper volume to examine. However, less than two months after thevolume was published, the Secretary promulgated a standard set forth at29 C.F.R. 1910.1200(b)(6)(VII) on August 24, 1987 which can be found inVol. 52, No. 163, Page 31878. It also appears in the volume that wasrevised as of July 1, 1988. This amendment reads as follows:29 C.F.R. 1910.1200(b)(6) This section does not apply to: (VII) anyconsumer product or hazardous substance, as those terms are defined inthe Consumer Product Safety Act (15 U.S.C. 2051 _et_ _seq_.) and FederalHazardous Substances Act (15 U.S.C. 1251 _et_ _seq_.) respectively,where the employer can demonstrate it is used in the work place in thesame manner as normal consumer use, and which use results in a durationand frequency of exposure which is not greater than exposuresexperienced by consumers;…The compliance officer testified that respondent’s material safety datasheets did not adequately indicate the ingredients of the welding rod orthe health hazards associated therewith (Tr. 14). He further testifiedthat the deficiency in recording was the failure to list chromium andnickel as ingredients of the Brutus A. welding rods. Item 2a(b) claimsthat the material data sheet for OSHA Red Industrial Enamel wasdeficient in that there was no representation of the adverse healthaffects that might be associated with exposure to lead. (Tr. 45) Thecompliance officer was of the opinion that this was a serious hazard andthat exposure could cause death or serious physical harm to employees.(Tr. 50)Item 2b of serious citation No. 1 alleges that the hazard warning on thecontainer of Brutus A. welding rods was inadequate and did not warn theemployees of the hazards associated therewith. (Tr. 54, 55) The hazardwarning which was considered inadequate stated, inter alia, \”Welding mayproduce fumes and gases hazardous to your health. Avoid breathing thesefumes. Use adequate ventilation\”. (Tr. 56) The Secretary’s witness, Mr.Renner, was of the opinion that the target organ must be reflected inthe warning and, in addition thereto, this respondent separated itsadmonitions to employees with the terms \”caution\”, \”warning\” and\”danger\” and, in this case, they used \”caution\” which was inadequate,given the company’s definition of caution in its training program.While this may be dicta I find that the target organ must be included onthe warning. See _Secretary of Labor, Complainant v. Hilton DavisChemical Co_., respondent and International Chemical Workers union andits Local 342, authorized employee representative, Docket No. 86-494, 13BNA OSHC 1182 (a first impression opinion by my brother, JudgeBurroughs) (1987).The first salient question before me is whether or not these allegationsof violation under 1200 came within the purview of the exemptionpreviously referred to. Under the exemption the employer mustdemonstrate that the product is used in the work place in the samemanner as in normal consumer use and such use results in a duration andfrequency of exposure no greater than exposures experienced by consumersusing the same materials. Inasmuch as this is an exception, the burdenrests with the respondent to prove that it is of the same duration ofexposure and used similar to that in consumer use.During cross-examination the respondent asked the compliance officer totell him how respondent used the Brutus A. rods and paint differently inthat facility from the manner and for the duration that a consumer woulduse them. His question went on as follows \”… you’re saying they’reusing the welding rods differently in that facility than the consumerwould use them\” and the compliance officer answered in the affirmative.The next question was \”alright, how? In what way?\” \”I know of noconsumers in my personal acquaintance that do welding work, repairwelding work around their homes,\” was the answer.During cross-examination counsel went on to ask, _inter_ _alia_,…\”Nowlet’s take the paint. What is your basis for saying that they use paintdifferently at this facility than a consumer would use it?\” Answer-\”well, the paint that’s being used in this facility contains lead, andleaded paints are not available for consumer usage.\” While thecross-examination was interesting and not objected to, the burden ofproof insofar as whether or not this was a consumer product was with therespondent in this case, not the complainant, in that it is anaffirmative defense and an exception given by the Secretary and in factspecifically makes the exemption contingent upon \”where the employer candemonstrate it is used in the work place in the same manner as normalconsumer use and which use results in a duration and frequency ofexposure which is not greater than exposures experienced byconsumers;…\” Therefore the question before me is not whether Mr.Renner, the compliance officer, proved greater use than consumer use;rather the question is, did this respondent affirmatively prove that theuse was not greater than consumer use? Unfortunately for the complainantthe compliance officer apparently did not investigate the duration ofthe exposure to these materials and what we have is the uncontrovertedtestimony of Mr. Bray an employee of the company called by the Secretaryand Mr. Bellinger, called by respondent. Mr. Renner testified that hedid not ascertain the duration of exposure in the facility.The government called one, Robert Bray, a Millwright, who worked at theworksite in question for 11 1\/2 years. (Tr. 177) He stated that theBrutus A. welding rods are used only to weld dissimilar types of steelto each other such as an alloy steel, something like stainless orwelding cast iron or tempered steel, to a mild steel. (Tr. 178) Hetestified that he does such welding once a month, approximately. UnderMr. Culp’s redirect examination he testified that a very smallpercentage of his welding time is spent with the Brutus A. welding rod.(Tr. 186) This is consonant with his testimony that he uses itapproximately 5 minutes a month. Even if that is a minimization of thetime, and it was ten minutes a month, it would still approximate theequivalent of consumer use. Mr. Bray also testified that insofar as theOSHA Red paint is concerned it was used one week in approximately 11 1\/2years that he was employed and it was only used to paint the top rung ofsome step ladders as a hazard warning not to stand above the ladders.The respondent’s main witness was Wayne Bellinger, the Safety Directorfor Con Agra, who has been the incumbent in this position forapproximately 15 years and is responsible for safety and accidentprevention at approximately 2500 Con Agra facilities and has visited thecited facility between 25 and 35 times. (Tr. 192-194) Similar to thecompliance officer he is heavily experienced in safety. Respondent’sExhibit R16 is a photograph, taken on February 11, 1989, showing theinside of the Mid American Welding Supply Store in Omaha, Nebraska whichdisclosed several shelves of welding rods for sale including Brutus A.welding rods which are sold to the general public. (Tr. 239) While thiswas taken on February 11, 1989, long subsequent to the inspection, itstill discloses that these items are sold to the general public and areconsumer products in that they can be purchased by the public. Thequestion remains whether the use in this case is compatible to that of aconsumer.On February 11, 1989, a photograph was taken of another store whichshowed hundreds of cans of paint all of which have warnings about leadsimilar to that found on OSHA Red. Mr. Bellinger visited SherwinWilliams stores, all in Omaha, Nebraska and was able to purchase OSHARed Enamel in all of these stores. (Tr. 245, 246) AccordingIy, therespondent has proven that it can be purchased by the general public andby consumers.While Mr. Renner stated that the purchase of the items in a retail storemay make them consumer products, that alone is not definitive. The proofmust be that the exposure and the use is comparable to that of a consumer.The testimony is uncontroverted insofar as the duration of exposure toeach of these two items, inasmuch as the compliance officer did notinquire into the time of exposure of employees to each of the productsin question.I find that even given two welders and a total of ten to twenty minutesa month, and one use of OSHA Red paint in 11 1\/2 years to paint the toprungs of ladders, the use in each case, is equivalent to consumer useand thus comes within the purview of the exemption.If in a further inspection OSHA can show a greater duration, then, andin such case, of course, it could cite this respondent again. Given theproof of record in this case I must find in favor of the respondent.First of all the uncontroverted testimony of Mr. Bellinger reveals thatthese items may be purchased in retail stores by the general public whoare consumers and the duration of use, considering the testimony of thewitnesses, is no more than that of the average consumer who would usethese products. Accordingly, both products, as used it this facility,come within purview of the exemption set forth at 29 C.F.R.1910.1200(b)(6)(VII) and thus the allegations of violation must fall.Insofar as the other than serious citation item No. 5 is concerned,alleging a violation of the standard set forth at 29 C.F.R.1910.1200(e)(1)(i), different criteria exists. There the applicableSection (e) reads as follows:_Written Hazard Communication Program _(1) employer shall develop,implement, and maintain at the work place, a written hazardcommunication program for their work places which at least describes howthe criteria specified in ? (f), (g), (h) of this section for labels andother forms of warning, materials safety data sheets, and employeeinformation and training will be met, and which also includes thefollowing: 1. A list of the hazardous chemicals known to be presentusing an identity that is referenced on the appropriate material safetydata sheet (the list may be complied for the work place as a whole orfor individual work areas); and…This list contained an extra hazardous chemical, to wit Benzene, whichwas not at the facility. Mr. Renner argues that this is a violation. TheSecretary argues and its witness, Mr. Renner, the compliance officer,testified that in the event of an emergency it would be difficult forpersons responding to an emergency in that they would lose timesearching for something like Benzene, which was not in the facility andin addition it would be a burden on the compliance officers. I find thatthe inclusion of a hazardous chemical that does not exist on thepremises is a hazard. Certainly if respondent listed a non-existenthazardous chemical it certainly would be confusing to anyone searchingand I think it could be certainly detrimental to the safety program ofthe Secretary in that is wastes the time of the compliance officer andcould be dangerous in case of an emergency or accident.Accordingly, I find that the Secretary has proven an other than seriousviolation of the standard set forth at 29 C.F.R. 1910.1200 (e)(1)(i)._FINDINGS OF FACT_1. The respondent is a conglomerate with approximately 60,000 employeesand 2500 facilities. It operates a flour milling facility at MartinsCreek, Pennsylvania, the worksite in question herein.2. The respondent’s facility was inspected by Mr. Renner an industrialhygienist for the Occupational Safety and Health Administration fromApril 12, 1988 to April 28, 1988.3. The respondent was cited for violations of various sections of thestandards set forth at 29 C.F.R. 1910.1200.4. At the commencement of the hearing the respondent agreed to withdrawits notice of contest to other than serious citation No. 2, items 1, 2,3, and 4.5. After conferencing with the Judge, the parties agreed to settleserious citation No. 1, items 1a and 1b thereof, by consolidating thoseitems as a single other than serious violation and deleting the proposedpenalty.6. Burtus A. welding rods can be purchased by a member of the public anda consumer at retail hardware stores.7. Burtus A. welding rods are used infrequently, approximately 5 minuteseach month by each welder at respondent’s facility, which use iscomparable to consumer use.8. Leaded paints including OSHA Red paint may be purchased by consumersin retail paint stores.9. The record reveals that OSHA Red pain had been used on one occasiononly at the respondent’s facility in 11 1\/2 years for the purpose ofpainting the top rung of ladders, as a caution indication. This iscomparable to no more than consumer use.10. The complainant failed to ascertain the duration of exposure ofemployees to each of those items and the uncontroverted testimony in therecord discloses the durations given above.11. The listing of Benzene when there is no Benzene in the facility is ahazard and is a violation of the affected standard.12. The list of hazardous chemicals maintained at the facility had asufficient inadequacy in that Benzene was included as a chemical on thelist and such item did not exist in the plant. The additional reportingof a chemical such as Benzene might result in delaying the emergencyresponse of those responding to the emergency to take unnecessaryprecautions and to waste time. In addition it affects the properutilization of OSHA resources and wastes time in conducting properinspections._CONCLUSIONS OF LAW_1. The respondent, Con Agra, is engaged in a business that affectscommerce and is subject to the Act and the jurisdiction of this Tribunal.2. The standard set forth at 29 C.F.R. 1910.1200 does not apply toBrutus A. welding rods and OSHA Red paint as utilized in this plantinasmuch as they come within the exemption for consumer products as setforth at 29 C.F.R. 1910.1200(b)(6)(VII).3. Respondent was not in violation of 29 C.F.R. 1910.1200(g)(8) forfailing to maintain a material safety data sheet for Brutus A. welding rods.4. The respondent was not in violation of 29 C.F.R. 1910.1200(g)(8) forfailing to maintain a material safety data sheet for OSHA Red IndustrialEnamel paint.5. The respondent was not in violation of 29 C.F.R. (f)(v)(ii) forfailing to provide an appropriate hazard warning on a container ofBrutus A. welding rods.6. The respondent was in other than serious violation of the standardset forth at 29 C.F.R. 1910.1200(e)(1)(i) by failing to maintain anadequate list of hazardous chemicals present at the worksite._ORDER_In view of the foregoing, good cause appearing therefor, it is ordered that:1. The allegation of other than serious violations by this respondent ofthe standards set forth at 29 C.F.R. 1910.95(d)(1), 29 C.F.R.1910.95(g)(1), 29 C.F.R. 1910.95(k)(2), 29 C.F.R. 1910.95(1)(i) and 29C.F.R. 1910.1200(e)(1)(i) are all affirmed and no penalty is assessedtherefor.2. Items 1a and 1b of serious citation No. 1, alleging seriousviolations of the standards set forth at 29 C.F.R. 1910.134(f)(2)(ii)and 29 C.F.R. 1910.134(f)(2)(IV) are consolidated and are affirmed as another than serious violation and no penalty is assessed therefor.3. Items 2a(a) and 2a(b) alleging violations of the standard set forthat 29 C.F.R. 1910.1200(g)(8) are vacated.4. Item 2b of serious citation No. 1 alleging a violation of thestandard set forth at 29 C.F.R. 1910.1200(f)(5)(ii) is vacated. Nopenalties are assessed.It is so Ordered.DAVID G. ORINGER,JUDGE OSHRCDated: _February 22, 1991_Boston, Massachusetts”