UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,

v.

BAY STATE REFINING COMPANY. INC.,
Respondent.

Docket No. 88-1731

DECISION

BEFORE: FOULKE, Chairman. WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

This case arose out of an inspection of a brass and bronze ingot manufacturing facility operated by Respondent, Bay State Refining Company ("Bay State"), in Chicopee, Massachusetts. The Secretary, through the Occupational Safety and Health Administration ("OSHA"), cited Bay State for alleged violations of 29 C.F.R. §§ 1910.1000, 1910.1025, and 1910.95, standards dealing with exposure of employees to copper dust, exposure of employees to lead, and protection of employees from excessive noise levels. Administrative Law Judge Paul A. Tenney affirmed all of the citation items before him.

The Commission requested the parties to submit briefs in two issues. The first issue is whether the Secretary established Bay State's employees were exposed to lead within the meaning of 29 C.F.R. § 1919, which defines "lead" means metallic lead, all inorganic lead compounds, and organic lead soaps. Excluded from this definition are all other organic lead compounds. Second, we requested briefs on whether definition are all other organic lead compounds. Second, we requested briefs on whether the judge erred in concluding, that Bay State's violation of 29 C.F.R. § 1025(i)(3)(i), which requires the employer to "assure that employees who work in areas where their airborne exposure to lead is above the [permissible exposure limit] . . . shower at the end of the work shift," was willful in nature. For the reasons that follow we conclude that Bay State's employees were shown to be exposed to metallic lead or inorganic lead compounds. We decline to reach the second issue on which briefs were requested on the ground that Bay State has exhibited no interest in review on the question of the characterization of the violation of 29 C.F.R. § 1025 (i)(3)(l) [[1]]

FACTS

Bay State's employees process nonferrous, i.e., non-iron-bearing, scrap metal. The scrap is first sorted and then compressed into blocks, an operation known as "briquetting." The blocks are then put into a furnace where they are melted and the resultant material is poured into ingot molds. The ingots, that come out of these molds are sold to Bay State's customers, principally nonferrous foundries. Edward Powers, Bay State's Plant Manager, described Bay State's business as that of a brass and bronze ingot manufacturer.

Compliance officer WilIiam Hargraves conducted an inspection. Hargraves is it senior industrial hygienist for OSHA, who has a masters degree in public and environmental health and also has prior experience working with the lead standard as a hygienist in private industry before joining OSHA. He has conducted twenty-five to thirty inspections involving exposure to metal particulates. Victor O'Brien, Assistant Plant Superintendent for Bay State, informed Hargraves that one of Bay State's usual products. Product 125, contained 6 to 8 percent lead. At the time of the inspection, Product 125 was being produced two to three times a week. Hargraves took air samples of a number of Bay State's employees during the time that Product 125 was being produced. The OSHA laboratory analyzed these samples for thirteen different metals including lead. The test results showed that Bay State's employees were exposed to lead in concentrations well above the permissible exposure limit ("PEL") of 50µg/m³ specified in 29 C.F.R. § 1910.1025(c).

Hargraves testified that organic lead essentially consists of molecules containing lead combined with carbon and hydrogen. Inorganic lead is comprised of the element lead or oxide compounds of lead without any carbonaceous material. Organic lead has less "general" lead content than inorganic lead. Although the OSHA laboratory analyses. admitted into evidence, state that the samples were analyzed for "lead: inorganic fumes and dust," Ray Abel, the chemist in the OSHA laboratory who supervised the analysis of the samples, testified that the test results did not indicate what percent of each sample was organic and what percent was inorganic. When asked what conclusions could be drawn from the sampling results. Abel was equivocal:

Q. Now. can you tell from the figures that were generated, the figures that were reported, that you've analyzed. how much metallic lead was in any of the samples?
A. Yes. sir.
Q. How much?
A. In the one we just talked about. 44331, it was 0.0971 milligrams per cubic meter.
Q. Now. can you tell us in that sample how much of that lead was lead soap?
A. It's all elemental yes.
Q. Can you tell how much was organic as compared to how much was inorganic?
A. No, sir.
Q. Can you tell how much was metallic as compared to how much was nonmetallic?
A. Yes.
Q. How much?
A. Well, all the metallic was listed.

Melvin Cassady, the director of OSHA's Health Response Team, which assists employers in assessing and implementing engineering controls for air contaminants, conducted a discovery inspection of Bay State's facility to determine the feasibility of engineering controls. During this inspection, Cassady observed Bay State's employees processing scrap objects such as automobile radiators, wiring, fittings, and plumbing. Hargraves further testified that he determined that the airborne lead he sampled at Bay State's plant was inorganic by observing the material being processed. He noted, "[i]t was not a soap or a material that indicated anything but inorganic lead."

DISCUSSION AND ANALYSIS

A. Nature of the Lead in Bay State's Workplace

The judge noted that Cassady had mentioned the several sources of scrap used by Bay State (radiators, wiring, fittings, and plumbing) and that Hargraves had testified that this type of material would contain inorganic lead. Based on Hargraves' testimony, the judge found that "[t]here was lead in the air, and the lead was inorganic. It was metallic; it was not a soap or other organic material." The judge did not mention Abel's testimony. Bay State contends, in essence, that the judge's decision is contrary to the evidence because the judge disregarded Abel's testimony. We disagree.

Chemist Abel's testimony is at best equivocal and clearly does not establish that the lead detected in the samples was inorganic or metallic lead. Conversely, however, Abel's testimony fails to show that the lead was not of the type that would come within the standard. The most that can be deduced from his testimony is that the sampling results were not conclusive on the question of what type of lead was detected. However, hygienist Hargraves gave his opinion that the type of objects being processed were consistent with inorganic lead. Hargraves' qualifications show that he has some expertise in dealing with industrial lead exposure. Generally speaking, the opinion testimony of a qualified non-expert witness is entitled to weight if not rebutted. See StanBest, Inc., 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD ¶ 26,455, p. 33,620 (No. 76-4355, 1983). Bay State presented no evidence of its own to rebut Hargraves testimony. As the Commission held in Anaconda Aluminum Co., 9 BNA OSHC 1460, 1981 CCH OSHD 25,300 (No. 13102, 1981), an employer who contends that the Secretary's air samples contain substances in addition to the particular air contaminant in question must do more than merely raise the suggestion that the laboratory results may not properly reflect the employees exposure to the regulated substance. [[2]] Rather, once the Secretary, as in this case, has introduced evidence that the contaminant in question was present in the work area, the burden shifts to the employer to present evidence of its own showing that some other substance is present in sufficient quantity to render the Secretary's measurements unreliable Id. at 1465, 1981 CCH OSHD at p. 31,338. In the absence of any such evidence from Bay State, the record clearly supports Judge Tenney's finding that Bay State's employees were exposed to metallic or inorganic lead within the definition at § 1910.1025(b). [[3]]

Furthermore, when OSHA promulgated the lead standard, it determined, after extensive fact finding, that operations of the type conducted by Bay State expose employees to metallic or inorganic lead. Originally, OSHA regarded the brass and bronze ingot industry as part of the nonferrous foundry industry. In the preamble to the lead standard, OSHA stated that brass and bronze , (i.e. nonferrous) foundries exposed employees to inorganic or metallic lead:

The lead content of copper-based alloys, i.e. brass and bronze, may amount to as much as 20 percent by weight of the metal core. The lead content of copper based ingots averages 5 percent.

....
Exposure to airborne lead results from insufficient control of fumes from the melting and pouring of alloys. In copper-base alloy foundries, approximately 15 percent of the particulate matter ... from the melting of red and yellow brass is lead oxide...

43 Fed. Reg. 52,980 (1979) (Citations omitted). [[4]]

In accordance with a remand order of the Court of Appeals for the District of Columbia in United Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981), OSHA conducted additional rulemaking proceedings to determine whether the requirement of § 1910.1025(e)(l) that employers implement engineering or work practice controls to meet the PEL of 50µg/m³, [[4]] was feasible for certain industries, including nonferrous foundries. OSHA subsequently reaffirmed its original findings that compliance with this exposure level was feasible and issued a supplemental statement of reasons in support of that conclusion. 54 Fed. Reg. 29,142 (1989). In this supplementary statement OSHA identified "brass and bronze ingot production" as a separate industry. OSHA described the relationship between smelting, brass and bronze ingot manufacture, and nonferrous foundry work as follows:

The similarities between brass and bronze ingot production, secondary copper smelting and non-ferrous foundries are substantial. Ingot production is like secondary copper production in its scrap preparation and like non-ferrous foundries in its furnace and pouring operations. In addition, as discussed below, facilities in each of these pyro-metallurgical sectors have many operations and procedures in common.

Like copper smelting, ingot production involves copper-based scrap, typically containing a substantial amount of lead, as the raw material, and depends upon refining to produce the finished product. Unlike copper smelting, ingot production does not involve smelting and therefore does not entail the high exposure levels associated with blast furnaces. In addition, unlike copper smelting the refining process in Ingot production is not aimed at removing all metals, like lead, to produce increasingly pure copper. Rather, the purpose in ingot production is to remove only those contaminants that do not meet particular alloy specifications. In these aspects, ingot production, as industry concedes...is similar to the process used by non-ferrous foundries that produce lead-containing alloy castings. Indeed, allow ingots are the primary raw material for the non-ferrous foundry industry. In both industries lead is present throughout the production of leaded alloys, and therefore the potential for lead exposure exists in nearly every operation, and is especially great in hot operations.

Id. at 29,154 (citation omitted). Specifically with response to brass and bronze ingot manufacturers, OSHA stated:

Raw materials used by brass and bronze ingot producers include a wide variety of copper-bearing scrap, such as faucets, automotive radiators, electrical cable and machinings. Typically, the lead content of the scrap varies. The lead content of the most common types of ingots produced is 5-7% (e.g., leaded red brass and semi-red brass). In some brass and bronze ingot producing facilities, no more than 20% of total tonnage is in high lead alloys (25% lead), which means that 80% of their tonnage is comprised of low-lead or unleaded alloys.

Id. at 29,150.

These findings clearly and unmistakably constitute a determination by the Secretary that the industries addressed in the rulemaking record, including the brass and bronze ingot manufacturing industry use lead in a metallic or inorganic form. [[5]] See Advance Bronze, Inc. v. Dole, 917 F.2d 944,951 (6th Cir. 1990) (citing the supplementary statement as authority for its conclusion that the lead standard applies to the nonferrous foundry industry). We recognize, as did OSHA in its rulemaking determinations, that the actual lead content of the material being processed by brass and bronze ingot manufacturers constantly varies and that some material may have no lead content whatever. However, Hargraves testified that he was informed that there was lead in the product Bay State was manufacturing at the time of the inspection, and Bay State presented no contrary evidence. We interpret OSHA's statements quoted above as establishing that ingot producers process scrap metal or metallic alloys; thus, while the materials may not always be lead-bearing, when lead is present, it will likely be metallic or inorganic in nature.

Considering the evidentiary record in this case together with the rulemaking history of the lead standard, we find no basis on which to disturb the judge's conclusion that Bay State's employees were exposed to metallic or inorganic lead within the definition at § 1910.1025(b).

B. Willfulness Issue

Judge Tenney found that Bay State did not require the employees exposed to lead in excess of the PEL to take showers at the end of their work shift and that its reason for failing to impose such a requirement was its view that showering was a matter of an individual employee's personal choice. The judge concluded that by substituting its own policy of employee preference for the mandatory requirement of 29 C.F.R. § 1910.1025(i)(3)(i). Bay State intentionally disregarded the provisions of the standard and therefore had committed a willful violation.

It is well-settled that a willful violation is one committed voluntarily with either an intentional disregard of the requirements of the Act or a plain indifference to employee safety. E.L. Jones & Son, 14 BNA OSHC 2129, 2113, 1991 CCH OSHD ¶ 29,264. p. 39,232 (No 87-8 1991). The issue of willfulness focuses on the employer's state of mind and requires proof of a greater degree of culpability on the part of the employer than simple knowledge or awareness of hazardous conditions that is a prerequisite for any violation. Carabetta Enterp.. No. 89-2007, slip op. at 7 (Dec. 18, 1991): Williams Enterp., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). In its trial brief before the judge. Bay State argued both that it had not violated 29 C.F.R. § 1910.1025(i)(3)(i) in the first instance and also that if a violation had occurred, the heightened degree of culpability necessary for willfulness to be established did not exist. In our briefing notice, we requested the parties to brief the issue of whether the judge erred in finding the violation to be willful. In response, Bay State disputed the merits of the violation itself, arguing that for a number of reasons the judge erred in finding that it had failed to comply with the cited standard. Bay State did not present any argument regarding the characterization of the violation; that is, Bay State failed to address the critical element of its state of mind or attitude toward employee safety. We interpret Bay State's silence on this point in its review brief after having previously argued willfulness to the judge as an indication that it has abandoned the issue of whether the violation was willful in nature. StanBest, 11 BNA OSHC at 1224-25 n.4. 1983-84 CCH OSHD at p. 33,618. Accordingly, we will not address the question of whether the judge erred in finding the violation of 29 C.F.R. § 1910.1025(i)(3)(i) to be willful In nature. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130, 1991 CCH OSHD ¶ 29,397. p. 39,576 (No. 89-2713, 1991) (Commission declines to address issues on which the aggrieved party indicates no interest).

C. Other Issues

We also decline to address Bay State's contentions regarding the merits of the violation of 29 C.F.R. § 1025(i)(3)(i). While the Commission has authority to consider any issues raised in a case directed for review. Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD ¶ 27,576 No. 83-308, 1986), the Commission at the same time has discretion to limit the scope of its review. Pennsylvania Steel Foundry & Machine Co. 12 BNA OSHC 2017, 2019 n.3, 1986-87 CCH OSHD ¶ 27,671, p.36,063 n.3 (No. 78-638, 1986), aff'd, 831 F.2d 1211 (3d Cir. 1987). Bay State's arguments that the judge erred in affirming the violation of 29 C.F.R. § 1910.1025(i)(3)(i) raise factual matters that the judge addressed in his decision. We conclude that they do not warrant review. See Dover Elevator Co., 15 BNA OSHC 1378, 1378 n.2 1991 CCH OSHD ¶ 29,524, p. 39,846 n.2 (No. 98-2642, 1991). [[6]]

For the reasons stated above the judge's decision is affirmed.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: January 17, 1992

IN THE MATTER OF:
ELIZABETH DOLE, SECRETARY OF LABOR,
Complainant.

v.

BAY STATE REFINING CO., INC.,
Respondent.

Docket No. 88-1731

APPEARANCES:

JOHN S. CASLER, ESQUIRE
U.S. Department of Labor

For the Complainant,

ROBERT D. MORAN, ESQUIRE
Cooter and Gel

For the Respondent,

DECISION AND ORDER

JUDGE TENNEY

PROCEDURAL BACKGROUND

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereinafter referred to as the "Act"). Pursuant to a search warrant, Mr. Hargraves, an Occupational Safety and Health Administration (hereinafter OSHA) Compliance Officer, inspected the Respondent's foundry in Chicopee, Massachusetts. Mr. Hargraves returned to the worksite several times in conducting the investigation and testing for exposure to lead. As a result of the investigation, the Respondent was issued with three citations, each containing multiple items. Citation No. 1 was classified as "Serious", and contained six items; a total proposed penalty of $3,740 was assessed. [[1]] Citation No. 2 was classified as "Willful", and contained two items; a total proposed penalty of $16,000 was assessed. Citation No. 3 was classified as "Other than Serious", and contained eight items with no penalty assessments. [[2]]

Bay State filed a timely notice of contest. After the filing of pleadings and the conduct of some discovery, a hearing was held on October 23 through 25, 1989, in Springfield, Massachusetts. Initial post-hearing briefs were filed and considered. In response to an invitation, the Secretary filed a reply brief which was considered; the Respondent declined to file a reply brief.

A. Reasonable Promptness

The Respondent contends that the citations were not issued in accordance with the Act or the applicable rules adopted thereunder. Respondent argues that the term "reasonable promptness" at 29 U.S.C. § 658(a) means 72 hours from the time the violation is detected by the inspector. [[3]] Respondent asserts that the latest date of. alleged noncompliance was April 21, 1988, but the citation was issued on June 29, 1988. Thus, since the citations were issued beyond the 72-hour-time period, then the citations must be vacated. The argument must fail for the following reasons.

Regardless of delay in issuance, up to the six-month statute of limitations in § 9(c) of the Act, a citation will not be vacated unless the employer was prejudiced to the delay. [[4]] See Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371, 4 BNA OSHC 1181 (7th Cir. 1976), Coughlan Construction Company. Inc., 3 BNA OSHC 1636 (Nos. 5303 and 5304, 1975). The Respondent does not allege prejudice as a result of the citations being issued in June. Unless the delay impaired an employer's ability to prepare and present a defense, the citation was deemed to have been issued in accordance with § 9(a) of the Act. Stripe-A-Zone, Inc., 10 BNA OSHC 1694, No. 79-2380, 1982).

B. Requests for Admissions

The Respondent filed a number of requests for admissions to the Secretary. It relies heavily on its requests for admissions to support its case. First, it argues that the requests for admissions were timely since they are not a discovery device and therefore not bound by the established prehearing discovery schedule. Second, it argues because the Secretary did not respond adequately, the requested responses must be considered admitted. The arguments are unpersuasive.

Wright and Miller notes that requests for admissions are "strictly speaking" not a discovery procedure. [[5]] The Respondent takes that statement one step further and contends that the requests for admissions are not a discovery device within the scope of my January 18, 1989, order which closed discovery. I disagree. The Commission's rules control. The Commission rules specifically refer to requests for admissions as a discovery device at Rule 52(a)(l)(ii). [[6]]

Respondent's requests for admissions were served on May 12, 1989. Under my order of January 18, 1989, the time for discovery had been closed on April 15, 1989. I reiterated the date discovery was closed in my April 26, 1989, order. [[7]] Thus, the requests for admissions were untimely as the period of discovery had been closed. Moreover, the Complainant served denials to the requests under Commission Rule 54(b)(2). The denials are in any event sufficient.

Also, Respondent never applied for relief to determine the sufficiency of the responses. Further, if the Respondent had timely objected to their sufficiency, there has been no burden sustained in justification of the objection. [[8]]

C. Whether the Lead Standard Applies to Bay State Foundry

The Respondent argues that the entire lead standard is inapplicable. The respondent is mistaken.

On November 14, 1978, OSHA published the lead standard that is published at 29 C.F.R. section 1910.1025 which limited occupational exposure to airborne concentrations of lead to 50 µg/m³ (micrograms of lead per cubic meter of air). 43 Fed. Reg. 53,007 (1978); United Steelworkers of America. AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1202 (1980). Employers were required to achieve the "permissible exposure level" (hereinafter PEL) of 50µg/m³ by means of engineering and work practice controls. However, in the Steelworkers decision there was a stay placed on § 1910.1025(e)(1) in the nonferrous foundries.

The Respondent argues that there is nothing in the Steel-workers decision holding that any of the lead standard in issue are enforceable for the nonferrous foundry industry, of which the Respondent is a member. (Respondent's Brief, p. 15). The lead standard in issue was published at 29 C.F.R. 1910.1025 limiting occupational exposure to airborne concentrations of lead to 50 µg/m³ (micrograms of lead per cubic meter of air).

43 Fed. Reg. 53,007.

At the time of the Steelworkers opinion the parties were operating under a partial stay issued on March 1, 1979. See 647 F.2d at 1311. In that Order the Court stated:

On consideration of the papers filed by the parties, and the discussions at conference, a partial stay of the standard will be ordered. The objective of the stay is to defer the requirements that employers undertake the expense of engineering controls, revision of work practices, and construction of facilities pending determination of their challenge to the standard. At the same time, the Court has concluded that portions of the standard which will provide protection to employees during the pendency of judicial review should go into effect, as set forth in the order.

The March 1 Order, as subsequently amended at 647 F.2d at 1311, is the only "stay" applicable to the lead standard. That stay was sharply modified in Steelworkers:

We remand the record to the Secretary of Labor for reconsideration, in the light of this opinion, of the feasibility of the standard for the industries listed in the previous paragraph. The Secretary shall return the record on the feasibility of the standard for these industries, with sufficient evidence and fuller explanation, within six months of the issuance of this opinion. In the interim one portion of our March 1, 1979 partial stay of the lead standard shall remain in effect: For those industries listed in the previous paragraph the stay of Section 1910.1025(e)(l) of the standard, which requires compliance with the PEL by engineering and work practice controls, shall remain in effect. These industries, however, shall be immediately required to meet the PEL of 50 µg/m³ by some combination of engineering, work practice, and respirator controls.

All other provisions of the March 1, 1979 partial stay are hereby lifted... (Underscoring added). 647 F.2d at 1311.

As to the issue of engineering controls, which is the subject of section 1910.1025(e)(l), the original stay stated that:

(3) The motion to stay the application of 29 C.F.R. 1910.1025(e)(l), which provides for compliance by engineering and work practice controls, is granted. During the period of this stay respondent's present lead exposure standard, 29 C.F.R. section 1910.1000, Table Z-2, shall remain in effect. The motion to stay the application of 29 1910.1025(e)(2), which provides for respiratory protection, is denied except that the reference to paragraph (f) shall incorporate only those portions of that paragraph not stayed by this order. The provisions of 29 C.F.R. 1910.1025(e)(3), governing written compliance programs, are stayed except for paragraph (f). The remaining portions of 29 C.F.R. 1910.1025(e) are stayed.

This aspect of the stay as to engineering controls was continued in Steelworkers.

For those industries listed in the previous paragraph the stay of Section 1910.1025(e)(l) of the standard, which requires compliance with the PEL by engineering and work practice controls, shall remain in effect. These industries, however, shall be immediately required to meet the PEL of 50 µg/m³ by some combination of engineering, work practice, and respirator controls.

All other provisions of the March 1, 1979 partial stay are hereby lifted... (Underscoring added). 647 F.2d at 1311.

Further, read together, the March 1, 1979, Order and the Steelworkers decision establish that (l) all parts of section 1910-1025, except paragraph (e), are in full force and effect, and (2) as to engineering controls, the level of 200 µg/m³, taken from 29 C.F.R. 1910-1000, Table Z-2, judicially mandated to remain in effect.

Also, the Secretary's position regarding engineering controls is not solely a litigation position taken in this case. The same interpretation formed the subject of contemporaneous rulemaking. See the interpretation published at 46 Fed. Reg. 60,758 (Dec. 11, 1981). Moreover, to construe the standard differently would have afforded less protection with respect to engineering controls than existed before the adoption of the revised lead standard in 1978. There is no indication that such a result was intended by the Secretary in his rulemaking or the D.C. Circuit in Steelworkers.

In short, Secretary's interpretation is entitled to deference. The lead standard at 29 C.F.R. § 1910.1025, except paragraph (e)(1), was in full force and effect. Also, as to engineering controls, the level of 200 µg/m³, taken from 29 C.F.R. 1910.1000, Table Z-2 is considered to be judicially and administratively mandated to remain in effect. Finally, under Steelworkers the Respondent is plainly required to meet a PEL of 50 µg/m³ by some combination of engineering, work practice, and respirator controls.

The Respondent also argues that the lead standard does not apply because the Secretary did not establish the presence of airborne lead in Respondents workplace. (Respondent's Brief, p. 17). Mr. Melvin E. Cassady, a Senior Industrial Hygienist with OSHA, testified that he had experience with "lead scrap", and that although he could not identify the type of scrap which was used at Bay State, it probably came from a variety of sources, such as radiators, wiring, fittings, and plumbing. There was lead in the air, and the lead was inorganic. It was metallic; it was not a soap or other organic material. Testimony of Mr. Hargraves (Tr. 146).

D. The Validity of 29 C.F.R. § 1910.1000

The Respondent argues the standard at 29 C.F.R. section 1910.1000 is invalid as to copper. The Respondent presents four arguments. First, there was no copper standard in effect at the time of the section 6(a) promulgation. Second, the Walsh-Healey source standard did not set a TWA (Time Weighted Average) for copper exposure. Third, OSHA made a substantive change in its May 1971 publication pursuant to section 6(a), when it first published 1910.93 with a reference to the 1970 ACGIH TLV's. Fourth, the source standard had undergone numerous changes in the absence of required notice and public procedure in rulemaking.

The arguments lack persuasion. In analyzing the standard the focus is on whether there are significant differences in language between the source standard and the OSHA standard. Deering Milliken, Inc., Unity Plant v. OSHRC, 630 F.2d 1094, 9 BNA OSHC 1001 (5th Cir. 1980) (validity of 1910.1000). OSHA is not required to promulgate verbatim the source standards. Rather, the proper inquiry is whether the Secretary made substantial modifications in the source standard.

The Secretary had under the Walsh-Healey Public Contracts Act effectively incorporated by reference the 1968 American Conference of Government Industrial Hygienists (ACGIH) document which established threshold limit values (TLV's) for numerous airborne contaminants including copper dust. 40 C.F.R. 50-204.50. The Walsh-Healey incorporation fully complied with the Federal Register rules for incorporation by reference published at that time at 1 C.F.R. 20.10 - .12. After an initial mistaken publication of a reference to 1970 ACGIH values, a correction was made to show the 1968 values. 36 Fed. Reg. 15,101 (Aug. 13, 1971).

Thus, the 1968 ACGIH values were successfully incorporated into the standard. The ACGIH document specifically stated that all of the levels contained therein, unless notated with a "C", are TWA's or time-weighted average threshold limit values. The level for copper dust is a TWA.

But Respondent argues that OSHA made a substantive change when in May 1971 pursuant to section 6(a) of the Act it initially published a reference to the 1970 ACGIH TLV's. As noted above, the reference was corrected in August 1971 when section 2920.93 was "revised in its entirety in the interest of greater intelligibility and accuracy." 39 Fed. Reg. 25,101 (Aug. 13, 1971). At that time, OSHA republished the 1968 ACGIH values, and corrected its mistaken reference to the 1970 ACGIH document. The Secretary is not foreclosed from correcting inadvertent administrative errors without including advance notice and public procedure in his rulemaking. American Trucking Associations, Inc. v. Frisco Transportation Co., 358 U.S. 133, 145 (1958).

Another series of Respondent's arguments is based on the fact that the text of section 1910.1000 is different from that contained in 41 C.F.R. 50 - 204.50(a). Respondent specifically points to three changes which it believed are significant: (a) in lieu thereto states "shall not be exceeded," thereby changing a TLV into a time-limited PEL; (b) section 1910.1000 omits the protective equipment "option" provided in 41 C.F.R. 50-204 by dropping an "or" and (c) section 1910.1000 compounds the protective equipment omission only dropping the "by inhalation, in question etc." text.

None of these changes are substantive modifications. Deering Milliken 9 DNA OSHC at 1008. See also Bunge Corporation, 1986 CCH OSHD Par. 27,565 (Rev. Com. 1986) at 35,804; Smith Steel Casting Co., 1988 CCH OSHD Par, 28,110 (ALJ).

E. Hearsay

The Respondent argues error in the admission and reliance upon the out-of-court statements made by its former Assistant Plant Superintendent, Mr. Victor O'Brien and its Plant Manager, Mr. Ed Powers to the Compliance officer as inadmissible hearsay. See Respondent's Brief pages 98, 99, 136.

The statements by both Mr. O'Brien and Mr. Powers were admissions and therefore not hearsay. [[9]] Both Mr. O'Brien and Mr. Powers held supervisory positions within Bay State and were responsible for the production operations which are the subject of the violations cited herein. Mr. O'Brien's position of responsibility is particularly evidenced by his participation in the opening and closing conferences, and the walkaround inspection as an authorized representative of Bay State.

F. Specific Findings of Fact and Conclusions of Law

1. Respondent, Bay State Refining Co., Inc., (hereinafter Bay State) is a corporation with a principal place of business at 8 Montgomery Street, Chicopee, Massachusetts.

2. Bay State is within a nonferrous industry engaged in the operation of secondary smelting and the manufacture of brass and bronze ingots. The Commission has jurisdiction because Bay State utilizes tools, equipment, machinery, materials, goods and supplies which have originated in whole or in part from locations outside the state of Massachusetts. (Pleadings). Thus, Bay State is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5).

3. Mr. Hargraves. an OSHA compliance officer, conducted the inspection of Bay State's workplace pursuant to a search warrant between April 12, 1988, and June 8, 1988. The compliance officer was accompanied by Bay State's Assistant Superintendent O'Brien. (Tr. 66, 72). Bay State had between 30 and 35 employees at the foundry. As a result of the inspection, Bay State was issued Serious Citation No. 1, Willful Citation No. 2, and Other Citation No.3.

4. Serious Citation No. 1 deals with employee excessive exposures to copper dust, an air contaminant listed in Table Z-1 of 29 C.F.R. § 1910.1000 (a) (2) and exposure to excessive lead under 29 C.F.R. § 1910.1025. The main sources of exposure in ingot production are dust emitted during sorting, briquetting of scrap and fumes emitted during charging of the furnace and other operations.

5. In order to determine the level of exposure in each of the instances, the compliance officer obtained airborne samples. These samples were in turn sent by certified mail to the Occupational Safety and Health Laboratory in Salt Lake City. Testimony of Mr. Abel (Tr. 246).

6. The air contaminant samples were picked up at the post office by a laboratory aide; delivered to the laboratory where they were handled under careful standard operating procedures culminating with the entry of the test results on the form 91B's. Testimony of Mr. Abel (Tr. 232-242; 252-253). The testing was a technique known by its acronym of ICP, Inductively Coupled Plasma, done with an atomic emission spectrophotometer. (See Complainant's Ex. 14).

7. Respondent argues that there is no assurance that proper procedures were followed. But there is not evidence that proper procedures were not followed. What we have is evidence of routine practice by the testing laboratory which is relevant in proving the conduct of that organization in the testing of the Bay State samples.

SERIOUS CITATION NO. 1

Item 1(a) and Item 1(b)
alleged violation of 29 C.F.R. § 1910.1000(a) (2) and 29 C.F.R. § 1910.1000 (e)

8. Item 1(a) alleged three instances of an overexposure to copper dust in violation of 29 C.F.R. § 1910.1000 (a) (2). The compliance officer observed three employees preparing scrap for processing in respondent's furnaces. The employees were the Logeman Briquette Operator, the D&J Briquette Operator and the Sorter at the composition table, testing revealed PEL's of 8.61 µg/m³, 2.23 µg/m³, and 2. 55 µg/m³ respectively. Testimony of Mr. Hargraves (Tr. 121-127; Complainant's Ex. 3).

9. Mr. Hargraves described the duties of the three affected employees. The Logeman Briquette Operator places the automotive radiators into the briquette machine. (Complainant's Ex. 2, Photos taken April 13, 1988, Frames 16-18; Photos taken May 31, 1989, Roll 1, Frames 2-6). The operator activates the cycle of the briquette machine to compress the automotive radiator into a 14-inch block of scrap material. He then loads the radiator into the briquette machine, walks over to the operating panel, cycles the machine and returns to the ejection area, takes the block and stacks it. (Tr. 121-2). The exposures to lead and copper occurred when the automotive radiators are handled in three places during this operation: (1) when the scrap is put into the machine; (2) when the scrap is removed from the ejection area; and, (3) when the scrap is stacked onto the pallet. Testimony of Mr. Hargraves (Tr. 122).

10. The D&J Briquette Operator has duties similar to the Logeman Briquette Operator, although there is automatic handling of the scrap in that operation. Testimony of Mr. Hargraves (Tr. 122); (Complainant's Ex. 2, Photos taken April 13, 1988, Frames 13-15; Photos taken May 31, 1989, Roll 1, Frames 8-17). There were two times of potential dust exposure; (1) when a radiator was loaded from the floor to the Logeman Briquette machine; and, (2) when the scrap was ejected from the machine. Testimony of Mr. Hargraves (Tr. 124-125.).

11. A Sorter sorts scrap at a vibratory table which, when activated, shakes the material toward the Sorter where he can determine the type of scrap and which barrel it will go into. Testimony of Mr. Hargraves (Tr. 126-7); (Complainant's Ex. 2, Photos taken April 13, 1988, Frames 4-6).

12. The penalty in this item was group with the following Item, 1(b). The compliance officer's decision to group the violations was in pursuance of the Field Operations Manual. The citation was considered "serious" because of the ineffectiveness of the respiratory protection program in conjunction with the overexposure to lead and copper. Testimony of Mr. Hargraves (Tr. 127).

13. Item 1(b) alleged a violation of 29 C.F.R. 1910.1000(e) for a failure to determine and implement feasible administrative or engineering controls to reduce the employee exposure to copper dust to the permissible exposure limit. The Secretary suggested implementing and testing control methods including an exhaust ventilation and job rotation.

14. The Respondent advances several arguments concerning Item 1(b). Respondent argues that: (1) the standards are invalid, (2) the Secretary did not establish the presence of copper dust, (3) the Secretary did not consider the respirator protection factor, (4) there is no evidence of any hazard, (5) there is no evidence of employer knowledge, and finally, that the Secretary failed to establish controls were technologically and economically feasible.

15. The Respondent's argument concerning the validity of 29 C.F.R. 1910.1000 has been earlier considered in this decision.

16. Bay State's argument that the Secretary did not establish the presence of copper dust, rests upon the testimony of Mr. Abel who stated that he could not determine by the analytical technique the difference between copper dust and copper fumes in the sample. (Post-hearing brief at 26; Tr. 275-76).

17. The argument is unpersuasive. Mr. Hargraves observed the nature of the work, which was sorting and briquetting. He was sampling for copper dust. There was no source of copper fumes near the employees involved. (Tr. 486). Mr. Hargraves testimony is credited. The samples of elemental copper represent copper dust.

18. The Respondent relies on its use of respirators. But Bay State did not have an effective respirator program in place at the time of the inspection. (See ¶¶ 40-47). In describing the requirements for an effective respirator program, both the lead standard and the applicable air contaminant standard for copper refer to section1910.134(b).See sections 1910.1025(b) (4) and 1910.1000(e). The protection factor of the respirators was properly not considered.

19. The health effects of excessive copper exposure include mild irritation of the skin, eye, nose and throat. However, exposure to excessive copper in conjunction with excessive lead has a greater adverse effect than for copper alone. (Complainant's Ex. 17; Testimony of Mr. Hargraves, Tr. 127-130).

20. As to Bay State's knowledge of employee exposure to excessive copper dust, it is found that the employer had at least constructive knowledge. Bay State is a brass and bronze ingot manufacturer. Testimony of Mr. Powers (Tr. 553). It is officially noticed that, both brass and bronze are copper alloys. The nature of the work, the sorting and briquetting of scrap in the manufacturing process produced copper dust. Testimony of Mr. Hargraves. (Tr. 486). It is perhaps for these reasons that respondent relies heavily in this argument upon the wearing of respirators by employees. (Respondent's Brief, pp. 39-40). However, given the problems of the respirator program elsewhere described in this opinion it is found that with reasonable diligence Bay State should have known of the excessive copper dust.

21. Engineering controls were technologically and economically feasible for copper dust under section 1910.1000 (e). [[10]] The Secretary of Labor relies upon testimony as to the feasibility of engineering controls for lead dust as controlling for copper dust. It is argued that the same engineering controls would eliminate excessive exposure to each because copper and lead dusts are generated at the same time and by the same processes. Testimony of Mr. Hargraves (Tr. 80-82, 118). Similarly, in arguing the deficiencies of engineering controls for copper, Bay State asserts that the deficiencies for controls for lead well illustrate those for copper. (Respondent's Brief, p. 41). As described in paragraphs 35- 39, engineering controls are economically and technologically feasible.

22. Three employees were exposed to excessive copper dust; each exceeded the permissible exposure limit. (Complainant's Ex. 3). These were the exposures for the Logeman Briquette Operator (8.61 µg/M³), D&J Briquette Operator (2.23 µg/M³), and Sorter Composition Table 2.55 µg/M³).

Item 2,
alleged violation of 29 C.F.R. § 1910.1025(c)(l).

23. This item alleges that Bay State exposed employees to lead in concentrations more than 50 micrograms per cubic meter of air averaged over an eight-hour period. Nineteen separate instances were cited. The standard states that:

the employer shall assure that no employee is exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50 gg/ 1-m3) averaged over an 8-hour period.

24. As a result of the stay at the time of the inspection of paragraph (e)(l) for Bay State's industry, under Steelworkers, that industry was:

(I)mmediately required to meet the PEL of 50 µg/m³ by some combination of engineering work practice, and respirator control. 647 F.2d at 1311.

25. Critical in assessing what happened in this case regarding Item 2 of the citation is the text of paragraph (c)(3), which provides:

When respirators are used to supplement engineering and work practice controls to comply with the PEL and all the requirements of Paragraph (f) have been met, employee exposure, for the purpose of determining whether the employer has complied with the PEL, may be considered to be at the level provided by the protection factor of the respirator for those periods the respirator is worn...[Emphasis added].

26. The nineteen specific instances are proved. OSHA forms 91B, Complainant's Exhibit 3, Complainant's Exhibit 6. This is from the sampling of inorganic lead. Testimony of Mr. Hargraves (Tr. 145-146). It is undisputed that the employees involved were wearing Model 9920 disposable dust respirators which are manufactured by the 3M Company. These respirators had a protection factor of ten. Testimony Mr. Hargraves (Tr. 155-156). Except for one instance (a Logeman Briquette Operator sampled on April 13, 1988) would a factor of ten times the PEL be exceeded. The Secretary of Labor's case turns on whether the protection factor should be applied. This depends on whether all the requirements of paragraph (f) of the section 1910.1025 have been met.

27. For the reasons stated in paragraphs 40-47, all the requirements in paragraph (f) have not been met, and the respondent is not entitled to the ten-point protection factor. The Secretary has thus established a violation of Item 2.

Item 3(a) and Item 3(b),
alleged violation of 29 C.F.R. § 1910.1025(d)(8)(i) and 1910.1025(d)(8)(ii).

28. Under 29 C.P.R. § 1910.1025(d)(8)(i), the employer is required to notify each employee in writing within five working days of receipt of lead exposure monitoring results of exposure of the employee. The Respondent conducted air sampling before the inspection on November 18, 1985, August 20, 1986, January 5, 1988, and March 24, 1988. (Complainant's Ex. 4).

29. Item 3(b), alleged a violation of 29 C.F.R. § 1910.1025(d)(8)(ii) which states whenever exposure monitoring indicates the representative employee exposure, without regard to respirators, exceeds the PEL, the employer is required to notify affected employees in a written statement that the PEL was exceeded and provide a description of the corrective action taken or to be taken to reduce exposure to or below the PEL.

30. The Respondent argues; (1) the citation extends beyond the six-month statute of limitations as some air monitoring results were in 1985 and 1986, (2) there was no obligation to conduct monitoring or if testing was done, no obligation to notify employees of the results, (3) it is unclear as to which PEL. 200 µg/m³ or 50 µg/m³, OSHA regards as the trigger for this standard.

31. To the extent that the cited items concern air monitoring results in 1985 and 1986, Bay State persuasively argues that the allegations extend beyond the six-month statute of limitations prescribed in 29 U.S.C. section 658(c). However, the argument that there was otherwise no obligation to notify employees of the monitoring results on the ground that the Secretary had not proved any requirement for initial or additional monitoring ignores the plain wording of the cited standards and is less consistent with the purposes of the Occupational Safety and Health Act. 29 U.S.C. section 651(b). The final argument, that the citation does not mention the PEL said to trigger the standard is rejected for the same reason.

32. Except as to the aforementioned monitoring results in 1985 and 1986, the citation items are proved. Testimony of Mr. Hargraves (Tr. 162); Complainant's Ex. 4; O'Brien Deposition, Complainant's Ex. 9 (p 17).

33. The significance of proper notification of employees under these standards is stressed in the testimony of Mr. William Revoir, an impressive expert on respirators. (Tr. 507- 517). In his opinion, receiving information on potential hazards motivates an employee to exercise care in the use of his respirator. (Tr. 509).

34. Bay State was in violation of Items 3(a) and 3(b), except for what has been noted concerning the statute of limitations.

Item 4,
alleged violation of 29 C.F.R. § 1910.1025(e)(l).

35. The Respondent was cited for a lack of engineering controls at four work stations for the Logeman Briquette Operator, the D&J Briquette Operator, and the Sorters at the composition table and brass table. As discussed elsewhere in this opinion, the applicable PEL for this purpose was 200 µg/m³. The descriptions of the first three positions (the briquette operators and the sorter at the composition table) are described in paragraphs 9-11. The Sorter at the brass table stands in front of a stationary table, sorts brass according to type, and places it in an appropriate bin. Testimony of Mr. Hargraves (Tr. 132); Complainant's Ex. 2 (Photos taken April 13, 1988, Frames 10-12).

36. Mr. Hargraves and Mr. Cassady, well qualified witnesses, testified on the feasibility of reducing the levels of lead through the use of at the Bay State Foundry. Each recommended a "step" increase type of control. That is, start with controls or practices costing the least. Mr. Hargraves suggested three possible ways to control the exposure. First, a dust suppressant mist system which cost about $800 per unit could reduce the dust level significantly. (Tr. 179-181). Second, a piece of equipment to electrostatically charge mist particles which cost about $2,400 to $3,000 per unit. Finally, the next step would be a push-pull vacuum, system at about $5,000 per unit. (Tr. 180-85).

37. Mr. Cassady first recommended a simple reexamination of housekeeping efforts, such as a vacuum cleaning system, a water wetdown system, or the use of pine-treated sawdust. (Tr. 23-24). Second, a fine mist dust-suppressant system at a cost of $2,500 per unit could be utilized. (Tr. 26-27). Finally, the most expensive alternative, a push-pull ventilation system, which could run from $10,000 to $20,000 per table, depending upon whether a new "baghouse (collection) capacity was necessary.

38. Both witness offered numerous suggestions which were reasonably priced. The Secretary has proved that engineering controls are both economically and technologically feasible.

39. The Respondent should have known of its responsibility under section 1910.1025(e) to meet the 200 microgram per cubic meter level through the use of engineering controls; this goes back to the March 1, 1979, order in Steelworkers and the Secretary's 1981 Federal Register publication.
Items 5(a) through 5(c), alleged violation of 29 C.F.R. §§ 1910.1025(f)(2.(i), 1910-1025(f)(3)(ii), 1910.1025(f)(4)(i) and 1910.134(b), (d), (e), and (f).

40. These items deal with the proper selection and use of respirators. Under 29 C.F.R. § 1910.1025(f)(2)(i) the employer is required to select an appropriate respirator for its employees. The complaint alleges that the Logeman Briquette Operator was not wearing an appropriate respirator. The sampling revealed that the Logeman Briquette Operator was exposed at an 8-hour time weighted average (hereinafter TWA) of 1.05 µg/m³, or 21 times the PEL. (Complainant's Ex. 3). The 3M respirator which the Logeman Briquette Operator used has a maximum protection factor of only 10 times the PEL. The respirator was perforce inappropriate.

41 Section 1910.10-125(f)(3)(ii) dealing with respiratory protection requires that the employer perform quantitative and qualitative face fit tests at the time of initial fitting and at least every six months thereafter. The violation of this standard was conceded during the inspection and O'Brien deposition. Testimony of Mr. Hargraves (Tr. 297); O'Brien Deposition, Complainant's Ex. 9 (pp. 21-25). As to the degree of failure to comply with the standard, see the testimony of Mr. Revoir. (Tr. 507-511).

42. Section 1910-1025(f)(4)(i) requires that the employer institute a respiratory protection program in accordance with section 1910.134(b), (d), (e), and (f). Concerning Item 5(c), the Complaint in Paragraph V (I)(2) alleges the following:

(1) written standard operating procedures governing the selection and use of respirators w ere not established (1910.134-134(b) (1): and

(2) respirators were worn when conditions such as growth of beard, side burns, a skull that projected under the facepiece, or temple pieces on glasses, prevented a good face seal. Employees who were determined to exceed the permissible exposure limit of 0.05 µg/m³ as listed in Serious Citation #1, Item #2 in a number of cases were allowed to wear beards and facial hair when wearing a single use negative pressure respirator (3M 9900) (1910.134(e)(5)(i)).

43. Written standard operating procedures were not made available to the compliance officer, and he otherwise did not see any. Testimony of Mr. Hargraves (Tr. 198, 471). On cross-examination it was brought out that the compliance officer did not look at all of the walls to see if any instructions were posted. (Tr. 470). However, there is no evidence indicating that any instructions were posted or otherwise existed. The compliance officer's inference as to their non-existence is credited. As a matter of previous history, the Secretary notes that this condition had previously existed, and Bay State had reported to OSHA in 1982 that the matter had been corrected. Complainant's Ex. 19 (Nov. 1, 1982, letter to Area Director from Paul Rothery).

44. Three to five employees had excess facial hair and this interfered with the protective seal of the respirators. Testimony of Mr. Hargraves (Tr. 198-199, 474, 475).

45. Facial hair passing between the respirator and the wearer's face increases the penetration of contaminants into the interior of the respirator. Growth even in the first one to three days has been shown to practically eliminate the protection factor of the respirator. Testimony of Mr. Revoir (Tr. 511-512).

46. A representative of the 3M company refused to certify employees with facial hair to wear 3M respirators. Testimony of Mr. Hargraves (Tr. 414); that of Mr. Powers (Tr. 605).

47. On the matter of employer knowledge and whether the violations under Item 5 were serious, as elsewhere discussed in this opinion, Bay State was aware of the high blood lead levels of its employees. This establishes employer knowledge that the respirator program was ineffective and that the resulting hazard was serious. R.S.R. Corp. v. Donovan, 747 F.2d 294, 304 (5th Cir. 1984).

Item 6
alleged violation of 29 C.F.R. § 1910.1025(g)(2)(viii).

48. The cited standard requires that:

the employer shall prohibit the removal of lead from protective clothing or equipment by blowing, shaking or any other means which dispenses lead into the air.

49. On April 13, 1988, a briquette operator used compressed air to clean himself before leaving the work area. Testimony of Mr. Hargraves (Tr. 203); O'Brien Deposition, Complainant's Ex. 9 (p. 30) . Compressed air was also used to clean equipment. Complainant's Ex. 9 (p. 31).

WILLFUL CITATION NO. 2

Item 1,
alleged violation of 29 C.F.R. § 1910.1025(i)(3)(i).

50. The cited paragraph, requires that:

the employer must assure that employees who work in areas where their airborne exposure to lead is above the PEL, without regard to the use of respirators, shower at the end of the work shift.

51. Employees were not required to shower at the end of a shift, and all employees did not take a shower. Testimony of Mr. Hargraves (Tr. 98, 104, 304, 306, 379). One employee who did not shower was Richard Turgeon, whose lead exposure exceeded 50 micrograms per cubic meter. Complainant's Ex. 4 (Tr. 379).

52. Bay State did not enforce the shower rule because it felt that showering was a matter of personal choice. Testimony of Mr. Hargraves (Tr. 476-477). Bay State contends that there was established no feasible means for it to comply with the standard. Under Steelworkers, the burden of proof of any lack of feasibility at this stage would be on the employer. Moreover, the standard was clearly enforceable by a stringent work rule. Testimony of Mr. Hargraves (Tr. 476-477).

53. In pursuing its own rule of personal choice, Bay State acted in intentional disregard of cited standard's requirements. The violation is found to be willful. Ensign-Bickford Co. v. Occupational Safety and Health, 717 F.2d 1419 (D.C. Cir. 1982) ; F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701,702 (1st Cir. 1974).

54. On the issue of willfulness, Bay State argues that there was uncertainty in Steelworkers as to the application of the lead standard to it's industry. Respondent's Brief (p. 107). This is reflected in, the advice of counsel as described in Mr. Powers' testimony. (Tr. 588, 589). The assertion of counsel at the hearing in this regard is at Tr. 623. The text of Steelworkers as to its application to Bay State's industry is clear. Under the authorities cited in pages 19-23 of Complainant's brief, there is no justification for excusing the willful conduct of the employer for this reason; to do so would indeed be a signal to other employers to ignore clear OSHA mandates at the expense of employees intended to be protected by the Act.

Item 2, as amended (Tr. 390-91)
alleged violation of 29 C.F.R. § 1910.1025(j)(3)(i)(A).

55. On October 19, 1981, Bay State was issued a serious citation for violations of section 1910.1025(j)(3)(i)(A):

Medical examinations and consultations for lead were not made available annually for each employee for whom a blood sampling test conducted during the preceding 12 months indicated a blood-lead level at or above 40 µg/100 g.

56. The Citation set forth an abatement date of February 22, 1982. This item was one of two items contested by Bay State. A settlement was reached containing the following language:

(4)...(a) The abatement date set for item 4, citation No. 1 - 29 C.F.R. 1910.1025-(j)(3)(i)(A) is extended from February 22, 1982, to October 15, 1982. Respondent agrees to furnish a progress report to the Area Director on or before July 15, 1982 and a final report on or before October 15, 1982.

(6) Respondent certifies that the violations alleged have abated or will be abated by the abatement dates as shown in the citation as amended and that the penalty, as amended, has been paid. Respondent agrees to comply with the Act in all respects in the future. Complainant's Ex. 19.

57. The settlement was approved by an administrative law judge's order of April 26, 1982; this was subsequent to the Steelworkers, decision. In a November 1, 1982, progress report signed by Bay State's President the following representation was made concerning the aforementioned Item No. 4:

Medical examinations and consultations for lead for each employee with a blood-lead level at or above 40 µg/100 g. are now being arranged. Complainant's Ex. 19.

It further represented that the action would be taken by the end of 1982.

58. Complainant's Exhibit 7 shows 85 readings for 28 separate employees with blood-lead readings at the action level; these were obtained by Bay State from January 1986 to April 1988. Except for two employees with readings at the medical removal levels (Tr. 605), no medical examinations were made available. Testimony of Mr. Powers (Tr. 605-607). See also the O'Brien Deposition, Complainant's Ex. 9 (pp. 26-29); and the testimony of Mr. Hargraves, (Tr. 107-225, 302-303).

59. The above-described circumstances demonstrate an intentional disregard of the requirements of the cited standard. Bay State's argument that the cited standard does not apply because of its limitation to employees covered by section 1910.1025(j)(l)(i) is unpersuasive. While there is no evidence reciting in haec verba the prerequisite of paragraph (j)(l)(i), the described settlement history, and the cited testimony of Mr. Powers are implicit admissions of the applicability of the standard.

OTHER THAN SERIOUS CITATION NO. 3

Item 1,
29 C.F.R. § l910.95 (c) (l).

60. The Complaint charges the Respondent with failure to administer a continuing, effective hearing conservation program for employees whose noise exposure equaled or exceeded an 8-hour time-weighted average sound level (TWA) of 85 dba in accordance with 29 C.F.R. § 1910.95(c)(l). The Complaint alleges that about 10 employees were exposed to this condition, including the Knockout Operators for furnaces #I and #2, the Sorter at the composition table and the D&J Briquette Operator. The sample results are contained in Complainant's Exhibit No. 6. They support the allegation of excessive noise triggering the requirement for a continuing, effective hearing conservation program.

61. For example, on OSHA 92, #15419575, a Briquette operator, was sampled for 393 minutes with an equivalent exposure of 85.9 dba. The hearing conservation amendment (HCA) calculation under paragraph (c) of the standard is 87.6 dba. The Knockout Operator at Furnace #1 was sampled for 218 minutes with an equivalent exposure of 94.0 dba; with regard to the HCA, the noise level was 89.0 dba. Complainant's Ex. 6 (Sampling No. 16010837). The Knockout Operator at Furnace #2 was sampled for 272 minutes and had an equivalent exposure of 90.9 dba; under the HCA the noise level was 88.3 dba. Complainant's Ex. 6 (Sampling No. 15419591). Finally, the Sorter at the composition table was  tested for 425 minutes and had an equivalent exposure of 85.1 dba with an HCA noise level of 87.2 dba. complainant's Ex. 6 (Sampling No. 15419559).

62. With respect to the content of the OSHA 92, see also the testimony of Mr. Hargraves (Tr. 208). All continuous intermittent and impulsive sound levels from 80 to 130 decibels are integrated into the noise measurements. See paragraph (d) (2) (i) of the standard.
63. While there was some type of hearing protection, most likely a type of earplug, there was no audiometric testing. Testimony of Mr. Hargraves (Tr. 212). Bay State argues that the evidence is insufficient to establish knowledge of the cited condition. The availability of some form of hearing protection suggests an awareness of a problem of excessive noise.

Item 3,
2,9 C.F.R. § 1910.1025(g)(2)(vii).

64. The cited standard requires a specific caution label for lead-contaminated clothing.

65. There was no such label at Bay State's facility. Testimony of Mr. Hargraves (Tr. 213-214).

Item 4,
29 C.F.R. § 1910.1025(i)(4)(iv).

66. The Complaint alleges that the Respondent allowed employees who were exposed to lead above the PEL to enter the lunchroom without, removing surface lead dust from protective work clothing by vacuuming, downdraft booth or other cleaning methods.

67. Employees entered the lunchroom without removing surface lead. The concern here is with the potential ingestion of dust that may contain Iead, thereby the blood levels of the employees. Testimony of Mr. Hargraves (Tr. 213-214).

Item 5,
29 C.F.R. § 1910.1025 (j)(3)(iv)(A)(1-6).

68. The Complaint alleges that the respondent failed to provide physicians conducting medical examinations or consultations under 29 C.F.R. section 1910.1025 with:

1. a description of the affected employee's duties as they relate to the employee's exposure:
2. the employee's exposure level or anticipated exposure level to lead and to any other toxic substance applicable;
3. a description of any personal protective equipment used or to be used;
4. prior blood lead determinations; and
5. all prior written medical opinions concerning the employee in the employer's possession or control.

69. According to Mr. O'Brien, since no routine physicals were given there was no reason to forward the information to Dr. Burns. Testimony of Mr. Hargraves (Tr. 214). Company policy was to not offer physical examinations. (¶¶ 55-59).

Item 6,
29 C.F.R. § 1910.1025(l)(l)(iv).

70. The Complaint alleges that the Respondent failed to provide training at least, annually for each employee subject to lead exposure at or above the action level, or for whom the possibility of skin irritation existed.

71. The training was not provided. Testimony of Mr. Hargraves (Tr. 216-217); that of Mr. Powers (Tr. 589-92). Training is significant in providing information on potential hazards to employees; it motivates them to exercise care in the use of respirators. Testimony of Mr. Revoir (Tr. 509).

Items 7(a) through 7(e),
29 C.F.R. § 1910.1025(n), subparagraphs (l)(ii)(A) through (E)

72. Each of these items deal with recordkeeping violations under 29 C.F.R. § 1910.1025(n). Item 7(a) alleges a violation of section 1910.1025(n)(l)(ii)(A) requiring that exposure monitoring dates, number, duration location and results of each of the samples taken, including a description of the sampling procedure used to determine representative employee exposure where applicable be included in the required records.

73. Item 7(b) alleges a violation of section 1910.1025(n)(l)(ii)(B) because the respondent failed to establish and maintain a description of the sampling and analytical methods used in monitoring required under 29 C.F.R. § 1910.1025(d), and evidence of the accuracy of said methods.

74. Item 7(c) alleges the Respondent failed to record the type of respiratory protective devices, if any, worn by employees sampled for lead exposure pursuant to 29 C.F.R. section 1910- 1025(d).

75. Item 7(d) alleges a violation of section 1910.1025(n)(l) (ii) (D), because the Respondent failed to record the name, social security number, and job classification of each employee monitored for lead exposure pursuant to 29 C.F.R. § 1910.1025 (d), as well as of all other employees whose exposure said monitoring was intended to represent.

76. Item 7(e) charges that the respondent violated section 1910.1025 (n)(l) (ii) (E), when monitoring for lead exposure pursuant to 29 C.F.R. and failed to record environmental variables that could have affected the measurement of employee exposure.

77. The extent of the Respondent's recordkeeping on the above-noted matters was submitted on Complainant's Exhibit 4. It is incomplete. See the testimony of Mr. Hargraves (Tr. 218-219).

Item 8(a) through 8(d)
29 C.F.R. § 1910.1025(n), subparagraghs (2)(ii)(A) through (D).

78. Item 8 also deals with recordkeeping violations under section 1910.1025(n). Item 8(a) charges the Respondent with a violation of 29 C.F.R. section 1910.1025(n)(2)(ii)(A), and alleges the Respondent failed to record the social security number and a description of the duties of employees monitored for blood lead level pursuant to 29 C.F.R. § 1910.1025(j).

79. Item 8(b) charges the respondent with a violation of section 1910.1025 (n) (2) (ii) (B), and alleges the Respondent failed to include the written opinions in the record of employees monitored for blood Ievels pursuant to 29 C.F.R. § 1910.1025(j).

80. Item 8(c) alleges a section 1910.1025(n)(2)(ii)(c) violation because the Respondent failed to include with the record of medical surveillance performed pursuant to 29 C.F.R. § 1910.1025(j) the result of any airborne exposure monitoring done for the employee and the representative exposure levels supplied to the physician.

81. Item 8(d) alleges the respondent violated the standard set forth at 29 C.F.R. § 1910.1025(n)(2)(ii)(D) in that it failed to include any employee medical complaints related to lead in the medical surveillance for lead exposure conducted pursuant to 29 C.F.R. § 1910.1025(j).

82. The Respondent failed to maintain a proper amount of information on the blood lead results. Mr. O'Brien provided Mr. Hargraves copies of blood lead results that were incomplete under the standard. Testimony of Mr. Hargraves (Tr. 221); Complainant's Ex. 7, (last fourteen pages). Again, a review of the referenced pages shows that the required information was not kept.

G. Penalties

83. The determination of what constitutes an appropriate penalty is within the discretion of the Review Commission. Long Manufacturing Co., v. OSHRC, 554 F.2d 902 (8th Cir. 1977). In determining the penalty, the Commission is required to give due consideration to the size of the employer, the employer's good faith, history of previous violations and the gravity of the violation

84. The gravity of the offense is the principal factor to be considered Nacirema Operating Co., 1. BNA .1 (Rev. Com. 1972). With respect to Items 1(a) and (b), concerning exposure to excess copper dust and the failure to determine and implement feasible administrative or engineering controls, the hazards and therefore the consequent gravity, are those described in Complainant's Exhibit 17, a NIOSH document entitled "Occupational Health Guideline for Copper Dusts and Mists." The short-term effects and long-term effects are the following:

1. Short-term Exposure: Powdered copper or dusts or mists of copper salts may cause a feeling of illness similar to the common cold with sensations of chills and stuffiness of the head. Small copper particles may enter the eye and cause irritation, discoloration, and damage.
2. Long-term Exposure: Repeated or prolonged exposure to copper dusts or mists may cause skin irritation or discoloration of the skin or hair. p. 1.

In this case is the added factor of concern for the combined effect of exposure to excessive amounts of copper with excess lead. Testimony of Mr. Hargraves (Tr. 129).

85. The harmful effects of excessive amounts of airborne lead have been well documented. As noted in Steelworkers:

. . . OSHA amassed voluminous evidence of the specific harmful effects of lead at particular blood-lead levels and correlated these blood-lead levels with air-lead levels. By this means OSHA was able to describe the actual harmful effects of lead on a worker population at both the current PEL and the new PEL. In its proof of significant harm from lead at the current PEL and the careful measurement of the likely reduction in that harm at the new PEL the lead standard stands in marked contrast to the benzene standard struck down by the Supreme Court.

United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1202 (1980): cert den. Sub Nom. Lead Industries Assn. v. Donovan, 453 U.S. 913 (1981).

86. At pages 1238 through 1267 Steelworkers specifically accepted OSHA's findings as to the adverse health effects of lead, including particularly, damage to the blood system, the nervous system, the kidneys, and the reproductive system. The described gravity of exposure to excessive concentrations of lead is high and "serious" for purposes of penalty assessment under Citation 1 and Citation 2.

87. As previously discussed, the two violations in Citation 2 have been found to be willful violations. There is also some history of previous violations referenced in Complainant's Exhibit 19. As to the size of the company, Bay State has 30 to 35 employees. Pleadings. There is no persuasive evidence of good faith upon the part of the employer. The testimony of the plant manager that Bay State acted on the advice of counsel that the "lead standard" did not apply to its industry (Tr. 577, 588-89) is not considered to support a finding of "good faith" upon the part of Bay State for the same reasons that it was not considered to immunize the employer from responsibility for its own actions with respect to Citation 2.

88. Against this background regarding the gravity of the violations, the size of the employer, and the absence of good assessments of the Secretary of Labor are affirmed except for Citation 1, Item 3, for which some penalty reduction is made because of a vacation of a portion of the citation.

ORDER

IT IS HEREBY ORDERED THAT:

SERIOUS CITATION No. 1

1. Items 1(a) and 1(b), violations of 29 C.F.R. § 1910.1000 (a) (2) and 29 C.F.R. § 1910.1000 (e) with a penalty of $480 are affirmed.
2. Item 2, a violation of 29 C.F.R. § 1910.1025(c)(l) with a penalty of $780 affirmed.
3. Items 3(a) and 3(b), violations of 29 C.F.R. section 1910.1025(d)(8)(i) and 29 C.F.R. § 1910.1025(d)(8)(ii) are affirmed in part, and a penalty of $400 is assessed.
4. Item 4, a violation of 29 C.F.R. § 1910.1025(e)(l) with a penalty of $640 is affirmed.
5. Items 5(a), 5(b), and 5(c), violations of 29 C.F.R. section 1910.1025(f)(2)(i), 29 C.F.R. § 1910.1025(f)(3)(ii), 29 C.F.R. § 1910.1025(f)(4)(i) and 1910.134(b), (d), (e), and (f) with a penalty of $560 are affirmed.
6. Item 6, a violation of 29 C.F.R. § 1910.1025(g)(2)(viii) with a penalty of $640 is affirmed.

WILLFUL CITATION NO. 2

7. Item 1, a violation of 29 C.F.R. § 1910.1025(l)(3)(i) with a penalty of $8,000 is affirmed.
8. Item 2, as amended, a violation of 29 C.F.R. section 1910.1025 (l) (3) (i) A with a penalty of $8,000 is affirmed.

OTHER THAN SERIOUS CITATION NO. 3

9. Item 1, 29 C.F.R § 1910.95(c)(l) is affirmed.

10. Item 3, 29 C.F.R. § 1910.1025(g)(2)(vii) is affirmed.

11. Item 4, 29 C.F.R. § 1910.1025(i)(4)(iv) is affirmed.

12. Item, 5, 29 C.F.R. § 1910.1025(j)(3)(iv)(A)(1-6) is affirmed.

13. Item 6, 29 C.F.R. § 1910.1025(l)(l)(iv) is affirmed.

14. Items 7(a) through 7(e), 29 C.F.R. § 1910.1025(n), subparagraphs (1)(ii)(A) through (E) are affirmed.

15. Item 8 (a) through 8(d), 29 C.F.R. § 1910.1025(n), subparagraphs (2)(ii)(A) through (D) are affirmed


Paul A. Tenney
Judge, OSHRC

DATED: May 21, 1990
Washington, D.C.


FOOTNOTES:

[[1]] Bay State also makes other arguments involving the lead standard the allegations exposure to excessive levels of copper dust under 29 C.F.R. § 1910.1000. These arguments raise issues which we did not ask the parties to brief and which, in our judgement are without merit. Bay State's major contention--that the decision in United Steelworkers v. Marshall. 647 F.24 1189 (D C. Cir. 1980).cert. denied, 453 U.S. 913 (1981), renders the entire lead standard unenforceable has been rejected in other cases. Advance Bronze, Inc. v. Dole. 917 F.2d 944 (6th Cir. 1990); Cleveland Aluminum Casting Co., 83 OSAHRC 21 B5 (No. 84-198, 1985) (ALJ). aff'd without published opinion, 788 F.2d 38 (DC Cir. 1986) Both decisions predate Bay States briefs in this case. As to Bay State's contention that the Secretary has the burden to establish that employees have actually ingested the air contaminants in question lead and copper dust, the Commission has previously rejected similar arguments.. See Titanium Metals Corp of America. 6 BNA OSHC 1760, 1763-64 & n.11, 1978 CCH OSHD ¶ 22,836, p. 27,615 & n.11 (No. 15411 1978) (in order to establish exposure to an air contaminant above the exposure limit, the Secretary need only measure the level of containment in the employee's breathing zone, and such measurements may even be taken before the air is processed by the employee's respirator). The only citation items in which actual ingestion of the toxic substance is an explicit element of the alleged violation are those that involve certain provisions of the lead standard dealing with the level of lead in an employee's bloodstream. Bay State, however does not point to any specific error on the judges findings that employees in fact had excessive blood lead measurements

[[2]] While as Bay State points out Abel testified that an analysis is required in order to distinguish inorganic from organic lead, that remark was made in the abstract. Abel was responding to hypothetical questions posed by Bay State's counsel on cross-examination. For example, after testifying that motor vehicle emission contain lead, Abel was asked "do you know from your knowledge, education and experience whether the lead in the air in Main Street, Springfield, Massachusetts is organic or inorganic." He replied that neither he nor anyone else could make that determination "without analysis." Abel's views regarding the need for analyses in certain conditions were not directed to the circumstances presented in this case, nor was Abel asked to comment on Hargraves' opinion that the inorganic nature of the lead produced in Bay State's operations could be determined by means other than actual chemical analysis Thus, Abel's testimony does not establish that it would be necessary to conduct an analysis specifically for inorganic lead if it were already known that the substance being tested was inorganic in nature

[[3]] Bay State's reliance on our decision in Collter-Kenworth Co., 13 BNA OSHC 1208, 1986-87 CCH OSHD ¶ 27,867 (No. 80-2848, 1987). vocated by population. 13 BNA OSHC 2165 1987-90 CCH OSHD ¶ 28,515 (1989), and Spring Air Mattress Co. 2 BNA OSHC 1416, 1974-75 CCH OSHD ¶ 19,146 (No. 1422,1974) is misplaced. Both cases are factually distinguishable because they involved situations in which there was actual evidence that OSHA's exposure measurement included substances or physical agents other than those covered by the cited standards. Furthermore, Spring Air Mattress was subsequently overruled to the extent it held that the burden is on the Secretary to prove that extraneous substances are not present in sufficient quantity to render her exposure measurements Anaconda Aluminum Co., BNA OSHC 1460, 1465 n.15, 1981 CCH OSHD ¶ 25,300, p. 31,338 n.15 (No 13102. 1981).

[[4]] An "alloy" is defined as a material that is mixed with one or more metals of a metallic in nature. Webster's Third New International Dictionary 58 (1971).

[[5]] Bay State objects that the supplemental statement of reasons is irrelevant here because it postdates the citations at issue. The supplemental statement, however, reaffirms the conclusions, OSHA reached when it first promulgated the lead standard. While it appears that OSHA did not identify brass and bronze ingot manufacturing as a separate industry until after the citations were issued here. OSHA nevertheless has consistently regarded operations of the type conducted by Bay State as presenting a hazard of lead exposure within the scope of § 1910.1025. Cf. Smith Steel Casting Co., 15 BNA OSHC 1901, 1008, 1991 CCH OSHD ¶ 29,314. p. 39,367 (No. 80-2069, 1991) (consolidated) (tracing history of 29 C.F.R. § 1910.1000 to establish that the Secretary had never altered an exposure limit from its original promulgation).

[[6]] We also decline to consider two other arguments Bay State raises concerning matters on which we did not ask for briefs. Bay State takes exception to the judge's ruling that it did not timely file its requests for admissions. That ruling, however, was within the judges discretion. Bay State also claims that the judge's factual findings do not correctly identify its industry. Even assuming the judge erred by failing to find that Bay State is a member of the brass and brass ingot manufacturing industry, Bay State has failed to show that it was prejudiced by the judge's failure to make the appropriate factual finding

[[1]] Items 7(a) and 7(b) of Citation No. 1 were withdrawn. (Tr. 205).
[[2]] Item 2 of Citation No. 3 was withdrawn.
[[3]] Section 9 (a) of the Act, 29 U.S.C. § 658 (a) , reads, in pertinent part:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of the Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer...
[[4]] Section 9(c) of the Act, 29 U.S.C. § 658(c), reads:
No citation may be issued under this section after the expiration six months following the occurrence of any violation

[[5]] 8 C Wright & A. Miller, Federal Practice and Procedure, § 2253 at 706 & n. 26 (1970).
[[6]] § 2200.52 General provisions governing discovery.
(a) General.
(1) Methods and limitations.
(ii) requests for admission to the extent provided in § 2200.54;

[[7]] A copy of my January 18, 1989, and April 26, 1989, orders are appended hereto as Appendix A.

[[8]] 8 C Wright & A. MiIler, Federal Practice and Procedure, 2263 at 736-737 (1970)

[[9]] 29 C.F.R. 2200.71 Federal Rule of Evidence 801(d) in pertinent part states a statement is not hearsay if:
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or ...

[[10]] Section 1910.1000(e) contemplates that exposure to excessive levels of toxic substances will be abated by engineering and administrative controls and that personal protective equipment will be used only in the event that such controls are not feasible or fail to reduce levels to the permissible limit. It is the Secretary's burden to establish that controls are technologically and economically feasible. A control is technologically feasible if it can be adapted to the employer's operation and is capable of producing a significant reduction in exposure to the particular toxic substance. Samson Paper Bag Co.. v. OSHC, 8 BNA OSHC 1515 (No. 76-222, 1980).