THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH89264

		 Plaintiff		)  CITATION NO. G512902189

		vs.	 		)  


		 Defendant		)  OPINION AND ORDER

	Pursuant to notice, a hearing was convened and the record
closed on May 7, 1990, in Eugene, Oregon before Referee Black.
The proceedings were recorded by Wanda Gosda for Business
Support Services. The plaintiff, Oregon Occupational Safety and
Health Division, Department of Insurance and Finance, was
represented by Norman Kelley, Assistant Attorney General. The
employer/appellant, Safari Motor Coaches, Inc., was represented
by its attorney, E. Jay Perry.


	The case presents six issues pursuant to the employer's appeal
of a citation and notice of penalty issued August 2, 1989. they

(1) Did the employer violate OAR 437-155-025(1) concerning
Material Safety Data Sheets for ball bearing slides employed in
the fabrication of mobile homes?

(2) Did the employer violate OAR 437-155-030 in connection with
the provision of information and training concerning hazardous
chemicals in the work area?

(3) Did the employer violate OAR 437-155-020(5) in connection
with the uncovered storage of paint products in the work place?

(4) Did the employer violate OAR 437-123-120(4)(a) in connection
with storage of the same materials in a refrigerator?

(5) Did the employer violate OAR 437-1-705(1) in connection with
the log and summaries of injuries and illnesses for the year

(6) Did the employer violate OAR 437-1-715 concerning record
keeping and injury claim filing requirements with respect to the
Edward Nelson injury of May 20, 1988?

                         FINDINGS OF FACT

	The manufacturing facility operated by Safari Motor Coaches,
Inc. in Eugene, Oregon was inspected by David Gerry, an OROSHA
inspector, on June 22, 1989. Following inspection in June of
1987, the employer had been cited for violation of OAR
437-155-025(1) in connection with Material Safety Data Sheets.
OAR 437-155-030 concerning employee information and training
concerning hazardous chemicals in the work area; OAR
437-155-020(4) concerning labeling of hazardous chemicals; OAR
437-123-120(4)(a) concerning flammable liquids kept in uncovered
containers. (See Ex. A-5, 6, & 7).

	Among conditions found at the plant on June 22, l989 were the

1. As a part of the manufacturing process, metal strips bearing
the trade name Accuride Precision Ball Bearing Slide (also Model
C2008 CRT keyboard slide), were being spot or electro-welded
into position in the battery compartment in motor homes. The
Accuride strips are a manufactured product consisting of base
ferrous metal with a zinc surface which is finished in a chromic
and nitric acid bath. The product is manufactured in California
and consists of two longitudinal pieces of metal that travel
inside each other on bearings. (See Ex. 7-10 & 11). Welding
(burning) the strips was releasing chromium and iron oxide fumes
in trace amounts. The employer had no Material Safety Data
Sheets (MSDS's) for the Accuride slides. None had been supplied
to it by the manufacturer.

2. The employer does have regular procedures for distributing
Material Safety Data Sheets as they are received from
manufacturers or distributors of products used by it. The
employer also had a functioning plant safety committee at the
time and generally was active in advising employees of chemicals
and risks within work areas. The employer was unaware of the
significance of any trace fumes in the welding process. Accuride
Precision Ball Bearing Slides are intended to be screw mounted
rather than welded in place. Accordingly, the manufacturer does
not supply Material Safety Data Sheets as the slides are not
deemed a hazardous chemical when used as intended. (See Ex. 712).

	At least one Safari employee had become concerned about
symptoms (headache, nausea) from exposure to welding fumes and
had asked his supervisor about exposures. He was told that the
strips did not contain zinc. The supervisor was unable as were
the employees to consult any MSDS materials. Eventually a
complaint was filed with OROSHA.

3. Motor homes are spray painted in a paint booth area. Paint is
mixed right at the work site and poured directly into the
containers on the spray guns and applied. Pigments and solvents
are purchased by the employer from manufacturers in 50-gallon
drums. Smaller quantities of paint components (generally enough
for a single shift) would be removed from the drums and stored
in unlabeled and lidless 5-gallon containers. (See Ex. 10). The
principal substances involved, xylene, ethyl glycol and butyl
acetate, are highly flammable and tend to evaporate rapidly.

4. These solvents were kept in a refrigerator near the paint
booth to slow down the evaporative process. Several paint crew
workers would move back and forth from their painting and mixing
duties to these interim storage containers on a regular basis
during the work day. The refrigerator in use appears to be a
conventional household type of unit. When the inspector opened
the door of the unit, he was confronted with a powerful odor of
evaporated solvents.

	Although the potential for fire and explosion, as rated by the
inspector, was low, the consequences would have been substantial
and serious had such occurred. The situation also presented a
mixed toxicological problem: workers would get a strong dose of
evaporants at the refrigerator, but the refrigerator had the
effect of isolating the materials in the work area otherwise.

5. Examining the employer's injury and illness records, the
inspector found complete entries for the year 1988. The
inspector took exception to the fact that the log entries were
not separated by year. A page of the employer's log simply goes
from the last 1987 to the first 1988 entries without any
editorial notation or other pagination or break to catch the
eye. (See Ex. 721).

6. An accident form for an employee named Ed Nelson (see Ex. 7,
p. 27) provides that the individual sustained a rib injury
because he was "set on garbage dumpster by employee". The
inspector deemed this injury description cryptic and inadequate.
An entry in the log (see Ex. 27, p. 23), describes the processes
of that of "electric shock".


1. The employer did not violate OAR 437-155-025. The
administrative rule in question requires that "(Chemical
manufacturers and importers shall obtain or develop a Material
Safety Data Sheet for each hazardous chemical and producer in
port. Employers shall have a Material Safety Data Sheet for each
hazardous chemical which they use."

	OAR 437-155-005(20) defines a hazardous chemical as "any
chemical which is a physical hazard or a health hazard". OAR
437-155-005(31) defines a physical hazard as

"A chemical for which there is scientific valid evidence that it is a combustible liquid, a compressed gas, an explosive, flammable, and organic peroxide, an oxidizer, pyrophoric, unstable (reactive) or water reactive". Section (22) of the same rule defines a health hazard as "A chemical for which there is statistically significant evidence based on at least one study in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. The term 'health hazard' includes chemical which are carcinogens, toxic or highly toxic agents or reproductive toxins, corrosives, sensitizers***and agents that damage the lungs, skin, eyes and mucous membranes".
I conclude that citation does not lie in connection with the ball bearing slides because they are an "article" not subject to OAR 437 Division 155 on hazard communication. OAR 437-155-004(6) states that the Division does not apply to articles. An article is defined in OAR 437-155-005(2) as a manufactured item "which has end use functions dependent in whole or in part on its shape or design during end use" and "which does not release, or otherwise result in exposure to, a hazardous chemical. under normal conditions of use". The mounting of the slides by a welding or burning process is not a normal condition of use of this article. This is clear both from the description of the article and the manufacturer's representations concerning it in Exs. 710, 11 & 712. 2. The employer did not violate OAR 437-155-030(1) & (2). These administrative rule sections require employee training "at the time of their initial assignment" concerning hazardous chemicals in the work area. OROSHA does not appear to contend that the employer did not have a hazardous communication program in general or that the program had been allowed to lapse. As I understand the record concerning this issue, the question reduces to this: Was the fact that the complaining welder was unaware of the contents of the slides and unable to obtain materials concerning them a violation of OAR 437-155-030? I hold that the circumstances do not evidence violation of rule requirements. The record does not prove by a preponderance of the evidence that employees, at the time of assignment or thereafter, were not being advised and trained with respect to hazardous chemicals in their work area. This result, of course, depends on the result in the foregoing issue concerning whether the metal slide, per se, constituted a hazardous chemical. If the latter, there was a violation. The Referee shares the concern of OROSHA that harmful chemicals were being put into the work environment, albeit in trace amounts, without specific avenues by which employees might confront the problem and protect themselves at the work site level. However, application of the hazardous communication provisions in this instance is not the appropriate sanction. 3, 4. The employer did violate both portions of the flammable materials rules for which it was cited. OAR 437-155-020(5) and (7) require that each container of hazardous chemicals be labeled or otherwise plainly identified in writing as to the contents and hazards. Section (8) of the rule, however, states that the "employer is not required to label portable containers into which hazardous chemicals transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer" . I conclude that storage of unlabeled portions of paint components in a refrigerator alongside the painting station is one step short of immediate use. Both the fact that it is kept out of the immediate work area and kept in a closed space militate against a sense of immediacy. If this were not enough, OAR 437-155-005(24) provides that immediate use means that "the hazardous chemical will be under the control of and used by the person who transfers it from a labeled container and only within the workshift in which it is transferred." Because several employees are involved in the painting operation, the immediate use exemption is not established. In connection with failure to cover these same chemicals, incidental use storage rules (see OAR 437-123-004(9)) apply. They require that flammable liquids be kept in covered containers when not actually in use. OAR 437-123-120(4)(a). I see no serious argument that the chemicals found uncovered in the refrigerator were actually in use at the time. A clear violation of this provision is established. These are both violations of provisions for which this employer was cited in 1987. 5. OAR 437-01-705(1) requires that employers keep a "log of summary of all recordable occupational injuries and illnesses for that establishment, and enter each recordable injury or illness on the log and summaries as early as practicable but no later than six working days after receiving information***". The rule requires that OSHA Form 200 "or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used". The employer's log and summary in evidence at Ex. 7, pp. 21 through 27, appears to meet these requirements. The Referee can find no requirement that years be kept on a separate or compartmentalized basis. The employer's listing of the incidents on a correct and chronological basis is readable and comprehensible. 6. OAR 437-1-715 requires in addition that the employer keep a supplementary record for each occupational injury or illness. Obvious compliance with the rule would be to keep copies Of 801 forms for the events listed on the "log and summary," which is what the employer has done here. The difficulty arises when the employer, in Item 46 (see Ex. 7, p. 27) simply parrots the comments of the worker that "another employee picked me up and set me on a garbage dumpster." The form does indicate that a rib injury was involved in the nature of a bruise. The same incident is listed without date between June 13 and June 15, 1988 on the log and summary (claimant signed the 801 form on 6/13). There it is described as an electric shock. In connection with both record keeping provisions, OAR 437-01-740 provides for a nonserious violation penalty of $100 to $1000 where the employer "fails to maintain the records, post the summaries or make the reports". Insofar as the 801 form itself is concerned, it is not ideally informative. It is not qualitatively worse, however, than many 801 forms encountered in the system. The absence of a date on the log may well reflect the fact that the actual date of the occurrence was substantially earlier than the date on the form. This appears to be no more than inadvertence on the employer's part. The Referee declines to assess a penalty in connection with either infraction. ORDER Citation No. G512902189 is modified. Penalties for violation of OAR 437-155-025(1) and OAR 437-155-030 are deleted. Penalties for violation of OAR 437-155-020(5) and OAR 437-123-120(4)(a) are affirmed. The penalties for violation of OAR 437-1-705(1) and 437-1-715 are deleted. NOTICE TO ALL PARTIES: You are entitled to judicial review of this Order. Proceedings for review are to be instituted by filing a petition in the Court of Appeals, Supreme Court Building, Salem, Oregon 97310, within 60 days following the date this Order is entered and served as shown hereon. The procedure for such judicial review is prescribed by ORS 183.480 and ORS 183.482. ENTERED at Eugene Oregon JUN 8 1990 WORKERS' COMPENSATION BOARD By Bruce K. Black Referee