E. Smalis Painting CO., Inc., Docket No. 94-1979

SECRETARY OF LABOR,
Complainant,
v.	OSHRC Docket No. 94-1979
E. SMALIS PAINTING CO., INC.,
Respondent.

Jordana W. Wilson, Attorney; Nicholas J. Levintow and Kenneth A. Hellman, Senior Trial Attorneys; Joseph M. Woodward, Associate Solicitor; J. Davitt McAteer, Acting Solicitor, U.S. Department of Labor, Washington, DC

In July 1992, E. Smalis Painting Co. (“Smalis”) entered into a contract with the Pennsylvania Department of Transportation (“PennDOT”) to repaint the Tarentum Bridge, which spans the Allegheny River in Pennsylvania and is located in both Allegheny County and Westmoreland County. The project required Smalis to perform abrasive blasting to remove lead-based paint from the bridge, followed by repainting.

The Occupational Safety and Health Administration (“OSHA”) first inspected the bridge worksite in September 1992, shortly after Smalis had begun blasting and repainting on the Allegheny County side. Based on that inspection, OSHA issued Smalis citations alleging various violations of the Occupational Safety and Health Act of 1970 (“Act” or “OSH Act”), 29 U.S.C. §§ 651-678, relating primarily to Smalis’s failure to adequately protect its employees from airborne lead exposure. In the settlement agreement resolving those citations, which became a final order of the Commission in October 1993, Smalis admitted to all of the alleged violations and agreed to pay a total penalty of $50,000.

OSHA conducted a second inspection of this worksite in December 1993, after blasting and painting operations had reached the Westmoreland County side of the bridge and the project was near completion. This inspection led to the two citations at issue here. In these citations, the Secretary alleged four serious and 202 willful violations of the Act, primarily under the newly promulgated Lead in Construction Standard (“LICS”), 29 C.F.R. § 1926.62, and the recordkeeping regulation, 29 C.F.R. § 1904.2(a), and proposed a total penalty of $5,008,500.

The late Administrative Law Judge Michael H. Schoenfeld affirmed approximately half of these violations and assessed a total penalty of $2,293,834.

On review are numerous challenges from both parties, including those related to the reliability of OSHA’s air monitoring results and the probative value of expert testimony concerning lead exposure levels, the applicability of various provisions in the LICS, and the Secretary’s per-employee citation authority under the training and medical surveillance provisions of the standard. As discussed below, we find OSHA’s sampling results and expert testimony sufficiently reliable to establish the levels of lead exposure that existed under the monitored conditions. We resolve specific items based on our overexposure findings for each cited condition, as well as other evidentiary and legal bases. We also conclude the Secretary permissibly cited the medical surveillance and training provisions of the standard on a per-employee basis and, in so doing, overrule the contrary portion of the Commission majority’s decision in Eric K. Ho, 20 BNA OSHC 1361, 2002-04 CCH OSHD ¶ 32,692 (No. 98-1645, 2003) (consolidated), aff’d sub nom. Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005). For the violations that we affirm, we assess a total penalty of $1,092,750.

In August 1992, Smalis began the process of removing lead-based paint from the Tarentum Bridge, followed by repainting. During the removal process, Smalis used a suspended scaffold covered by tarps to encapsulate each section of the bridge. Attached to the encapsulated area—known as the containment—were dust collectors that comprised an exhaust ventilation system. Within the containment, a group of Smalis employees, classified as abrasive blasters, sprayed steel grit at high velocity from blasting hoses to remove paint from bridge surfaces and prepare them for repainting. Another group of Smalis employees, classified as sand suckers, worked alongside the blasters to vacuum up the steel grit for reuse as the blasting work progressed. Each employee who worked inside the containment during blasting was provided a Bullard Model 88 blasting hood (“Bullard hood”) with an integrated respirator.

On December 9, 1993, two OSHA compliance officers (“CO”), John Morris and Maria Javorsky, conducted an inspection of Smalis’s worksite, which included monitoring six Smalis employees for lead exposure. This inspection, which CO Morris characterized as a follow-up to the OSHA inspection conducted in September 1992, concluded that same day. Nearly six months later, on June 3, 1994, OSHA issued one serious and one willful citation to Smalis. The citations include allegations of lead overexposure, as well as failures to have a lead compliance program, maintain employee injury and illness records, provide OSHA with access to employee medical records, implement proper engineering and work practice controls, and monitor for overexposure. In addition, OSHA cited Smalis for failing to provide its employees with training, adequate respiratory protection, hygiene facilities/practices, medical surveillance, medical removal protection and benefits, and notification of blood lead levels (“BLLs”) and removal benefits.

On December 9, 1993, during the day shift, COs Morris and Javorsky conducted personal air monitoring of five employees who worked inside the bridge containment, and one employee who worked immediately outside of it (“topside”). The results of the sampling showed that those working inside the containment were exposed to an eight-hour time weighted average (“TWA”) of lead between 12,604 μg/m³and 33,458 μg/m³—between 252 to 669 times the 50 μg/m³permissible exposure limit (“PEL”)—and the employee working topside was exposed to an eight-hour TWA of 908 μg/m³—more than eighteen times the PEL.

Like the judge, we reject Smalis’s contention that deficiencies in the COs’ sampling methods invalidated OSHA’s results. Evidence in the record does show the COs did not fully comply with several guidelines in the OSHA Technical Manual, and “we do not condone [the COs’] departure from best-practice sampling methods.” Manganas Painting Co., 21 BNA OSHC 1964, 1972, 2007 CCH OSHD ¶ 32,908, p. 53,390 (No. 94-0588, 2007).

Nonetheless, the degree of overexposure measured during OSHA’s inspection of the Smalis worksite is simply unprecedented. Moreover, the sampling results themselves consistently show overexposure, and the departures from the Technical Manual’s requirements do not undermine the reliability of these results. In such circumstances, we find the COs’ methodology and results sufficiently reliable to determine whether employees were overexposed to lead. Id., 2007 CCH OSHD at p. 53,390 (finding monitoring results reliable despite failure to fully comply with compliance manual, where overexposure was admitted for previous similar work performed under similar conditions, and degree of overexposure was “exceedingly high”).

In preparation for the December 9, 1993 sampling, CO Javorsky separately pre-calibrated six sampling pumps and, in accordance with Technical Manual procedures, used a cellulose estic filter and properly set the flow rate. CO Morris then duct-taped the pump tubing to the pump inlets and the cassettes in order to keep them secure while employees worked inside the containment. Once at the worksite, the COs either clipped the sampling pump to a particular employee’s clothing or placed it inside his pocket, and then attached a sampling cassette facing downward within the employee’s breathing zone. The COs explained to the employees how the sampling equipment functioned, assured them that they would not be financially liable for any equipment damage, and instructed them to tell either a CO or supervisor about any problems they might have with the sampling equipment. Also, the COs told each employee that, upon entering the containment and affixing the Bullard hood, he should reattach the cassette to the top of his shoulder, or wherever the employee could best attach it, point the cassette in “a slightly down position” if possible, and keep the cassette within his breathing zone. Nonetheless, despite receiving these instructions, one employee admitted that he reattached his cassette in an upward position.

Once the pumps were activated, the sand suckers and abrasive blasters entered the containment. The COs, however, refrained from entering the containment in order to avoid potential overexposure. Accordingly, the COs were unable to follow Technical Manual guidelines recommending that pumps be checked “every two hours,” and that employees be monitored “throughout the work day to insure that sample integrity is maintained and activities and work practices are identified.” The COs left the worksite but returned to the bridge deck later that morning. As the employees exited the containment for lunch, the COs removed the sampling equipment, turned off the pumps, recorded the deactivation time, and visually examined the equipment. During this examination, the COs noted that the duct tape was still in place, none of the shrink bands around the cassettes appeared disturbed, and the pumps, tubing, and cassettes were no dirtier than expected, though CO Morris did see loose material in some of the cassettes.

Before the cassettes were reattached following lunch, Mr. Smalis informed the COs that the employee working topside may have bumped his cassette on a piece of equipment, causing some material to inadvertently fall into the cassette. Exercising caution, the COs changed the employee’s cassette during the lunch break even though the used cassette was no dirtier than normal and its shrink band was intact. Once all of the pumps and cassettes were reattached for the afternoon session, the COs left the site for a few hours. At the end of the shift, as employees exited the containment, the COs detached the sampling equipment, recorded the deactivation times, and inserted plugs into the filters; examined the shrink bands, cassettes, and duct tape, finding everything intact; and secured the equipment in a bag before leaving the site. Although none of the five monitored employees who worked inside the containment reported problems to the COs at that time, four of them testified that their sampling pumps and/or cassettes had fallen off during the sampling period. The fifth employee testified, however, that he had no problems with the sampling equipment. The following morning, CO Morris post-calibrated the pumps at the OSHA office, and found that any differences from the pre-calibration flow rates were within an acceptable range.

Smalis principally argues the monitoring results for employees working inside the containment should be invalidated because (1) some employees reattached the sampling cassettes in an upward position, (2) the COs did not observe the employees during the sampling period, and (3) certain employees dropped the sampling equipment onto surfaces inside the containment. Despite the judge’s contrary finding, we note the evidence indicates that a sampling cassette’s upward orientation can affect its measured intake. CO Javorsky explained that it is OSHA policy to place cassettes facing downwards in order to avoid contamination, and expert industrial hygienist Robert Leighton testified that if positioned upwards, lead dust could fall into the cassettes, making it impossible to quantify the precise concentration of airborne lead. Nonetheless, contrary to Smalis’s assertion, only one of the monitored employees testified that he reattached his cassette in an upward position, and his measured exposure was consistent with the other monitoring results.

Additionally, Smalis has not shown that the COs’ failure to observe the employees while they were inside the containment during the sampling period, or to check the sampling equipment more frequently, undermined the reliability of the monitoring results. Manganas Painting Co., 21 BNA OSHC at 1973, 2007 CCH OSHD at p. 53,391 (noting CO’s location outside containment was consistent with expert’s recommended “alternative procedures” for avoiding hazardous conditions). The COs observed no problems during the lunchtime and end-of-shift equipment checks,

and found no significant discrepancies in pump flow rates following post-calibration. Finally, even though the sampling equipment attached to several employees may have fallen onto containment surfaces during the sampling period, their measured exposures were consistent with the exposure level associated with an employee whose equipment remained attached.

We also reject Smalis’s contention that air monitoring results for the topside employee, whose cassette may have been bumped and was changed between shifts, should be invalidated because the COs combined the sampling results from both cassettes. There is no evidence the cassette used during the morning session was actually contaminated. Indeed, CO Morris’s visual inspection of the cassette revealed no abnormalities. Moreover, the calculated sampling result for the combined shifts—eighteen times the PEL—appears reasonable, especially considering the employee’s location immediately outside the containment where interior airborne lead levels were at least 250 times the PEL and reached 669 times the PEL.

Finally, we reject Smalis’s additional contention that the COs should have positioned the sampling equipment inside, rather than outside, the employees’ blasting hoods. The standard plainly contemplates that the operative exposure assessment is calculated “without regard to the use of respirators.” See, e.g., 29 C.F.R. § 1926.62(b) (defining “action level” as “employee exposure, without regard to the use of respirators, to an airborne concentration of lead of” 30 μg/m³ calculated as an 8-hour TWA); 29 C.F.R. § 1926.62(d)(1)(ii) (noting that, under paragraph (d), “employee exposure is that exposure which would occur if the employee were not using a respirator”); 29 C.F.R. § 1926.62(g) (applying PPE requirements “[w]here an employee is exposed to lead above the PEL without regard to the use of respirators”); 29 C.F.R. § 1926.62(i) (applying hygiene requirements “where employees are exposed to lead above the PEL without regard to the use of respirators”).

In these circumstances, we conclude the evidence supports the judge’s finding that “the reported results of exposures to airborne lead as an eight hour time weighted average . . . are reliable and appropriate measures upon which a determination of the violations . . . may rest.” See Manganas Painting Co., 21 BNA OSHC at 1973, 2007 CCH OSHD at p. 53,391 (finding air sampling “reasonably reliable” where measured overexposure was extremely high and results were consistent overall).

The Secretary’s lead abatement expert, John Cignatta, developed a model to simulate the containment conditions that existed at Smalis’s worksite on December 9, 1993.

Cignatta based his simulation on information collected from a visit to the Tarentum Bridge, analysis of the COs’ photos, interviews of PennDOT engineers and a review of their worksite measurements, and OSHA interviews of Smalis employees. Based on this evidence, Cignatta made a number of conservative assumptions in analyzing the working conditions inside the containment. He assumed that the containment dust collectors were operating at maximum capacity and there were only nine blasters working inside the containment at one time, rather than the twelve he knew the three abrasive recycling machines could support. Additionally, because he did not know the actual length of the containment, Cignatta ran the simulation with several different estimated lengths. Based on his simulation, Cignatta calculated that airborne lead concentrations within the containment during blasting on December 9, 1993 ranged from 20,000 μg/m³ to 30,000 μg/m³, except for areas near gaps in the tarps—where the record shows employees were unlikely to be working—that could have been below 5,000 μg/m³. These concentrations are similar to those OSHA obtained from its December 9, 1993 employee monitoring, which revealed lead exposure levels inside the containment between 12,604 μg/m³and 33,458 μg/m³.

Smalis argues that Cignatta’s assumptions were erroneous and the simulation, therefore, “did not reflect the actual work situation or engineering controls that existed at the time of the inspection.”

Smalis does not dispute, however, that its dust collectors had the maximum capacity that Cignatta identified. Moreover, we note Cignatta’s assumption that the dust collectors operated at maximum efficiency works in Smalis’s favor, as less efficient operation would lead to an increased concentration of lead-containing dust and greater exposure levels. With respect to the containment’s length, although Cignatta incorrectly assumed a single large interior space, the size of the containment sub-compartment in which employees worked on December 9, 1993 was within, or near, the range of lengths Cignatta used in his analysis. Additionally, Cignatta found that the varying lengths he entered into the simulation did not significantly affect the predicted concentration of airborne lead inside the containment. Finally, with respect to Cignatta’s assumption that nine blasters worked inside the containment, the record shows this was most likely the minimum number of blasters who worked there on December 9. Accordingly, we find Cignatta’s assumptions in formulating his simulation were either on target or gave Smalis the benefit of any doubt, and therefore conclude that the simulation provides a probative model of conditions inside the containment during blasting activities on December 9, 1993.

A number of the citation items at issue on review are predicated on employee exposure to lead above the 50 μg/m³ PEL or 30 μg/m³ action level. The judge determined the Secretary established the required level of lead overexposure only for the six day-shift employees OSHA monitored on December 9, 1993, and any unmonitored employee classified as a sand sucker or blaster who also worked the day shift on that date. He excluded all unmonitored employees whose alleged overexposure occurred during the night shift on December 9, 1993, or during any shift on any other day. For the reasons that follow, we find the judge’s overexposure analysis excluded some employees for whom there is sufficient overexposure evidence, and included others for whom the overexposure evidence is insufficient. We also agree with Smalis’s argument that even if OSHA’s monitoring is reliable, it would not be representative of lead exposure for unmonitored employees absent consideration of job assignment and employee location. Accordingly, although we adopt the judge’s findings for the six monitored employees whose results showed exposures substantially above the PEL, we do not adopt his overexposure analysis for unmonitored employees.

In addition to the six employees monitored on December 9, 1993, the Secretary alleged that fourteen other employees who worked at the bridge that day were also overexposed to lead. We agree with the judge’s finding that Cignatta’s expert testimony based on his simulation is reliable evidence of lead overexposure for similarly situated employees who worked inside the containment during blasting operations on that day. Unlike the judge, however, we also find OSHA’s sampling results, showing lead exposure inside the containment at exceedingly high and relatively uniform levels, are reliable evidence of overexposure for similarly situated unsampled employees. See A.G. Mazzocchi, Inc., 22 BNA OSHC 1377, 1380 (No. 98-1696, 2008) (finding lead overexposure in conditions similar to those where representative air monitoring showed overexposure and high-risk presumption applied).

In order to establish overexposure for any particular unsampled employee, we find the evidence must also show the individual worked inside the containment during blasting. The judge relied primarily on job classification to infer that any employee classified as either a blaster or sand sucker must have worked inside the containment. However, the record shows that Smalis employees spent as little as twenty percent of their time at the worksite engaged in abrasive blasting. Employees spent the remainder of their time—notwithstanding their job classification—performing other activities, such as rigging, painting, cleaning, controlling traffic or operating rescue boats. In these circumstances, we reject the judge’s principal reliance on job classification to establish overexposure for the unsampled employees working the day shift on December 9, 1993, and find overexposure only where direct evidence shows an unsampled employee worked inside the containment during blasting operations.

The Secretary also cited Smalis for alleged lead-related violations pertaining to employees who worked the day shift on days other than December 9, 1993. The judge rejected the Secretary’s overexposure claim for these citation items, finding no direct evidence to establish employee overexposure for the relevant time periods. Moreover, he noted that Cignatta’s computer model had not been “claimed nor shown to be applicable to any other day or set of circumstances” beyond December 9, 1993, and emphasized that the variability in containment configuration, weather, and bridge size precluded extrapolating the “quantification of exposure to airborne lead” beyond the monitored conditions on that day. We disagree.

As noted above, the Commission recently found that, in appropriate circumstances, the Secretary’s representative monitoring under the LICS may establish exposure levels on other days or at other areas of the worksite under similar conditions. Id. at 1381. Here, the evidence shows that, beyond December 9, abrasive blasting occurred at the bridge on December 10, 11, and 13 to 17, 1993.

In addition, the number of employees performing abrasive blasting inside the containment on these days remained constant, as did the nature of the work, the size and location of the containment, and the bridge surface material. The record also shows that the engineering controls in use on December 9, 1993, did not change over this period. Moreover, given the nature of the tarp enclosure located around and below the entire steel framework, we find any changes in weather would not have affected the levels of employee exposure inside the containment. In these circumstances, we find that any unsampled employee shown by direct evidence to be present inside the containment during blasting operations on any one day during the period December 9 to 11, and 13 to 17, 1993, was overexposed to lead. Id.

Finally, the Secretary issued a number of citation items alleging violations pertaining to employees who worked at the bridge during the night shift. The judge vacated such items stating there “is no evidentiary basis upon which it can be inferred that these men were exposed to any particular level of airborne lead . . . .” We agree. It is undisputed that no blasting ever occurred during the night shift. Nor is there any evidence of ambient lead level measurements at any work area on the jobsite in the absence of ongoing abrasive blasting. Thus, with respect to employees who worked during non-blasting times, there is no lead exposure data for locations either inside or outside the containment to assess employee exposure levels. Accordingly, we find the Secretary failed to establish that employees who worked the night shift were overexposed to lead.

Items 1(b) to 20(b): 29 C.F.R. § 1926.62(e)(1) (engineering, work practice, and administrative controls)

For each of Items 1 to 20, the Secretary issued two grouped sub-items, (a) and (b), and proposed a single grouped penalty. Under each sub-item (a), she alleged that the named employee was overexposed to lead,

and under each sub-item (b), she alleged that Smalis failed to implement adequate engineering, work practice, and administrative controls.

The judge affirmed grouped Items 1 to 6, pertaining to the six sampled employees, based on his findings that OSHA’s sampling results established exposure above the PEL and Smalis failed to implement sufficient engineering controls. He also affirmed grouped Items 8 to 12, and 14 to 19, pertaining to unsampled day shift employees, based on his findings that Cignatta’s testimony and other record evidence established the requisite overexposure and insufficiency of engineering controls. For the following reasons, we vacate Items 1(a) to 20(a), 7(b) to 9(b), 11(b) to 16(b), and 18(b) to 20(b), and find Smalis violated 29 C.F.R. § 1926.62(e)(1) with respect to Items 1(b) to 6(b), 10(b), and 17(b).

As a threshold matter, we find the (a) overexposure sub-items are duplicative of other citation items. Under Commission precedent, citation items involving the same abatement are duplicative. See Capform, Inc., 13 BNA OSHC 2219, 2224, 1987-90 CCH OSHD ¶ 28,503, p. 37,778 (No. 84-0556, 1989). The Secretary did not specify any particular means of abatement for the (a) sub-items here, but she grouped them with the (b) sub-items, for which she sought only one of the two forms of abatement specified under the cited provision—the implementation of engineering, work practice and administrative controls. With respect to the use of appropriate respiratory protection, the second form of abatement specified in the cited provision, the Secretary separately issued a number of citations under the discrete provision of the LICS that pertains exclusively to respiratory protection, 29 C.F.R. § 1926.62(f). In these circumstances, the abatement sought for the (a) sub-items is engineering, work practice, and administrative controls, which is the same as that sought for the (b) sub-items. Accordingly, we vacate Items 1(a) to 20(a) as duplicative. Manganas Painting Co., 21 BNA OSHC at 1975, 2007 CCH OSHD at p. 53,392 (vacating citation item alleging overexposure violation as duplicative of item alleging failure to use respirator).

Turning to Items 1(b) to 20(b), we find the Secretary established that Smalis failed to provide sufficient controls to reduce overexposure with respect to eight of the named employees, in violation of § 1926.62(e)(1). OSHA’s sampling results show that the six sampled employees referenced in Items 1(b) to 6(b) were exposed well above the PEL. As to all but one of the remaining fourteen employees, Smalis’s payroll records indicate that, following December 9, 1993, they worked the day shift on at least some days when blasting occurred.

Direct evidence, however, places only the employees referenced in Items 10(b) and 17(b) inside the containment on any of those days. Based on this evidence, we find the requisite overexposure is established for the six sampled employees referenced in Items 1(b) to 6(b) and the two unsampled employees referenced in Items 10(b) and 17(b).

In terms of noncompliance, the record shows that following the 1992 inspection, Smalis increased the number of dust collectors from two to three, and subdivided the containment into smaller sections, but did not reduce the number of blasters who worked in each compartment. In fact, despite Smalis’s knowledge—based upon its prior experience in Allegheny County

—that the number of blasters working inside the containment was directly correlated to airborne lead concentration, it increased the number of blasters once work progressed to the Westmoreland County side of the bridge. We agree with the judge that Smalis’s meager compliance efforts were plainly inadequate. Indeed, unrebutted expert testimony establishes that Smalis failed to institute a number of additional engineering and work practice controls that were feasible and could have substantially reduced the measured exposure levels, such as: (1) replacing the existing “pure dilution” ventilation system with a “forced ventilation” system; (2) altering the size and configuration of the containment into smaller, sub-divided areas with only two or three employees working in each area; (3) reducing the number of blasters working at one time; (4) using localized exhaust vacuum shrouded power tools; and (5) using dust collectors with a greater capacity to draw air out of the containment.

Moreover, Mr. Smalis admitted he “knew that inside the containment, that the [lead] concentration was high,” and knew from the prior OSHA inspection that the engineering controls and work practices were inadequate to reduce it sufficiently. See Conie Constr. Inc., 16 BNA OSHC 1870, 1872, 1993-95 CCH OSHD ¶ 30,474, p. 42,090 (No. 92-0264, 1994) (imputing owner’s knowledge to the corporation), aff'd, 73 F.3d 382 (D.C. Cir. 1995). Nonetheless, Smalis failed to take reasonable and necessary steps to address the known hazard. In these circumstances, we find Smalis had actual knowledge of the violative condition. Accordingly, with regard to Items 1(b) to 6(b), 10(b) and 17(b), we find Smalis failed to provide adequate engineering, work practice, and administrative controls, in violation of 29 C.F.R.
§ 1926.62(e)(1), and we vacate Items 7(b) to 9(b), 11(b) to 16(b), and 18(b) to 20(b) for lack of proof.

Under this item, the Secretary alleged that “[w]here employees were over-exposed to lead, a written compliance program had not been established.” The cited provision states that “[p]rior to commencement of the job each employer shall establish and implement a written compliance program to achieve compliance with paragraph (c) of this section.” 29 C.F.R. § 1926.62(e)(2)(i). The judge vacated this item. Noting that the LICS became effective after the commencement of the job, and the cited provision “requires that certain actions be taken ‘before the onset of work,’” he found the provision could “not possibly apply to the work Respondent was performing.” We also vacate this item, but on different grounds.

The LICS became effective on June 3, 1993, and compliance with the cited provision was required “no later than 60 days from the effective date.” 29 C.F.R. § 1926.62(p), (r). Smalis, however, began blasting and painting the Tarentum Bridge in August 1992, well before either the effective date of the provision at issue, or the date upon which compliance was required. We recently addressed the identical issue in Manganas Painting Co., where, as here, the employer had commenced its paint removal operations at the cited worksite prior to the effective date of the LICS, and was cited for a violation of this particular provision. In that case, we found that although the “plain meaning” of § 1926.62(e)(2)(i) indicates the provision would not apply to work that commenced prior to the effective date of the standard, such a result would be “absurd.” Manganas Painting Co., 21 BNA OSHC at 1976-77, 2007 CCH OSHD at p. 53,394. We explained that adherence to a plain meaning approach would render another provision of the LICS—requiring revisions and updates to an employer’s compliance program—“inapplicable regardless of how long the work continued after the standard’s effective date, as it would be anomalous to require updating a program that had never been required in the first place.” Id., 2007 CCH OSHD at p. 53,394. Nonetheless, we vacated the citation in Manganas because the employer there “lacked fair notice that the written program requirement applied” in light of “the complexity of the issue and exception to the usual ‘plain meaning’ interpretation.” Id., 2007 CCH OSHD at p. 53,394.

In these circumstances, we find that although the written compliance program provision was applicable to Smalis during the time covered by the citation, Smalis lacked fair notice that the requirement applied. Accordingly, we vacate Item 22.

Under these grouped items, the Secretary cited Smalis for two conditions under separate paragraphs of the standard. Under Item 23(a), the Secretary alleged that the referenced employee, whose lead exposure measured 908 μg/m³,orover eighteen times the PEL, “was wearing a half mask air purifying respirator approved for exposure levels not in excess of 10 times the PEL.” The judge affirmed this item based on (1) OSHA’s sampling result for the employee at issue, (2) testimony identifying the type of respirator this employee used, and (3) the respirator criteria set out in Table 1 of the standard. For the following reasons, we affirm the judge.

The cited provision states that “[w]here respirators are used under this section the employer shall select the appropriate respirator or combination of respirators from Table I below.” 29 C.F.R. § 1926.62(f)(2)(i) (1993). The CO testified that he observed the employee tending equipment topside wearing a half-mask style cartridge respirator that fit over the lower portion of the face and nose, and had screw-cartridges. The employee similarly testified that he wore a half-mask respirator pieced together from parts he found in the foreman’s truck. Table I of the LICS limits use of this type of respirator to environments where the airborne lead level does not exceed 500 µg/m³. Because this employee was exposed to lead at a level of 908 μg/m³,which exceeds the allowable level for that respirator, we find Smalis failed to select an appropriate respirator.

With respect to knowledge, the record lacks evidence that Smalis knew this employee was exposed to airborne lead in excess of ten times the PEL and, therefore, that his respirator was inadequate. We find, however, that the company could have known of this violative condition with the exercise of reasonable diligence. See Pride Oil Well Serv., 15 BNA OSHC 1809, 1814, 1991-93 CCH OSHD ¶ 29,807, p. 40,583 (No. 86-692, 1992) (finding constructive knowledge where employer “could have known of the condition with the exercise of reasonable diligence”); Par Elec. Contractors, Inc., 20 BNA OSHC 1624, 1627, 2002 CCH OSHD ¶ 32,709, p. 51,793 (No. 99-1520, 2004) (noting that reasonable diligence involves “a consideration of several factors,” including employer’s obligation to have adequate work rules and training programs, adequately supervise employees, anticipate employee exposure to hazards, and take measures to prevent violations). Smalis admitted that lead levels at the worksite were “high,” and was specifically aware that lead levels in areas outside of the containment were high based on its prior experience in Allegheny County. Yet, the company failed to monitor this employee or otherwise monitor the levels of airborne lead topside to ensure the selection of an adequate respirator. In these circumstances, we find Smalis failed to exercise reasonable diligence, and had constructive knowledge of its failure to provide this employee with an appropriate respirator. Accordingly, we affirm Item 23(a).

Under Item 23(b), the Secretary alleged that Smalis failed to perform qualitative fit tests for employees wearing half mask respirators. The cited provision states as follows:

Employers shall perform either quantitative or qualitative face fit tests at the time of initial fitting and at least every six months thereafter for each employee wearing negative pressure respirators. The qualitative fits tests may be used only for testing the fit of half-mask respirators where they are permitted to be worn, and shall be conducted in accordance with appendix D of this section. The tests shall be used to select facepieces that provide the required protection as prescribed in Table I.

29 C.F.R. § 1926.62(f)(3)(ii) (1993). The judge affirmed the violation based upon his finding that there was “specific evidence of record” that several Smalis employees had not been fit tested for their half-mask respirators, and any fit testing provided by Smalis was “haphazard.” We affirm the judge.

In response to fit-test citations issued in 1992, Smalis had an outside contractor conduct on-site fit testing once in March 1993 for “whatever employees were there,” and provide training to its supervisors so they could perform fit testing for other employees. Nevertheless, the unrebutted testimony of five employees establishes that Smalis never fit tested their respirators at this project. Although another employee testified that he was “fit tested” by his trained supervisor, he was told only to “hold my hands up and make sure I wasn’t going to breathe anything in.” This approach fails to conform to even the basic protocol set forth in Appendix D of the standard. 29 C.F.R § 1926.62 App. D (requiring, inter alia, that the test subject don the respirator mask several times and move the head side-to-side and up and down slowly while taking deep breaths and, for negative pressure testing, that the respirator is checked to ensure it retains its tight seal on inhalation for at least ten seconds). Accordingly, we find Smalis failed to properly fit test employees as required by the cited provision.

In addition, we find Smalis could have known of the violative condition with the exercise of reasonable diligence. Pride Oil Well Serv., 15 BNA OSHC at 1814, 1991-93 CCH OSHD at p. 40,583. The record shows Smalis had a safety rule stating that “[p]rior to wearing a respirator, a fit test must be performed by a qualified person,” but the company failed to take measures to enforce the rule which, if followed, would have prevented the violation. Indeed, at least five employees were never fit tested and one was not properly fit tested. That Smalis’s trained supervisor failed to properly fit test the employee who testified further demonstrates lax enforcement of Smalis’s work rule. Active Oil Serv., Inc., 21 BNA OSHC 1184, 1187, 2005 CCH OSHD ¶ 32,803, p. 54,498 (No. 00-0553, 2005) (holding foreman’s failure to comply with company’s confined space procedures was strong evidence of lax enforcement). Moreover, despite its awareness of previous fit-test violations, there is no evidence Smalis ever monitored this supervisor’s compliance with fit-testing requirements or disciplined him for his failure to properly conduct fit testing. Id., 2005 CCH OSHD at p. 54,498 (finding constructive knowledge where work rules unenforced). Under these circumstances, we find Smalis had constructive knowledge of the violative condition, and affirm Item 23(b).

4. Items 25(a) and 25(b): 29 C.F.R. § 1926.62(j)(1)(i) (medical surveillance—initial biological monitoring)

Under these grouped items, the Secretary cited Smalis for two conditions under the same provision. This provision requires the employer to “make available initial medical surveillance to employees occupationally exposed on any day to lead at or above the action level.” 29 C.F.R. § 1926.62(j)(1)(i). Such surveillance “consists of biological monitoring in the form of blood sampling and analysis for lead and zinc protoporphyrin [(“ZPP”)] levels.” Id. The Secretary alleged under Item 25(a) that Smalis failed to make blood lead level testing available to eight employees, and under Item 25(b) that Smalis failed to make ZPP testing available to any employee. The judge vacated Item 25(a) based on his finding that the record did not establish the requisite overexposure for any of the eight identified employees. He affirmed Item 25(b), however, based on his finding that the record established the requisite overexposure for other employees, and the undisputed fact that Smalis “neither offered nor had [ZPP] testing conducted on its employees at any [time] relevant . . . to this citation.” We affirm the judge.

With respect to Item 25(a), payroll records show that three of the eight referenced employees did not work the day shift on days when blasting occurred, and two employees did not work at all on the Tarentum Bridge during these days. Although the three remaining employees worked one or more of these shifts, there is no direct evidence placing them inside the containment on any of these days. We therefore conclude the Secretary failed to establish the requisite overexposure for any of the referenced employees, and vacate Item 25(a).

With respect to Item 25(b), the record establishes that the six employees OSHA sampled on December 9, 1993 were exposed to airborne concentrations of lead well above the PEL, and shows that several other employees were similarly overexposed while working inside the containment during the days thereafter when blasting occurred. Moreover, Smalis knew the blood testing it made available to its employees was limited to BLLs, and it is undisputed such testing did not include ZPP levels. Accordingly, we find Smalis knowingly failed to make available ZPP testing, and affirm Item 25(b).

5. Items 25(c), 26, 27, 72 and 73: 29 C.F.R. § 1926.62(j)(2)-(3) (medical surveillance—provisions applicable where employee exposure is at or above the action level for more than 30 days in any consecutive 12 months)

Under these items, the Secretary alleged violations of various medical surveillance provisions that are applicable only where employees “are or may be exposed by the employer at or above the action level for more than 30 days in any consecutive 12 months.” 29 C.F.R. § 1926.62(j)(1)(ii). The judge vacated these items, finding the Secretary failed to establish the requisite exposure for any Smalis employee. We affirm the judge.

Regardless of their job classification, Smalis employees performed a variety of tasks. Those classified as abrasive blasters and sand suckers, for example, also painted and performed rigging activities. Thus, the mere fact that Smalis’s payroll records specify that an employee worked as an abrasive blaster or sand sucker on a particular day, does not necessarily establish the employee performed only that particular work. Indeed, two abrasive blasters testified that, between August 1993 and January 1994, they spent only twenty to twenty-five percent of their work time blasting inside the containment, and other evidence indicates that blasting and painting generally would not occur at the same time. No other evidence indicates how often blasting occurred.

Even if we assume that blasting occurred once every fourth day—i.e., twenty-five percent of the time—the record fails to support a finding that any employee was, or could have been, exposed “at or above the action level for more than 30 days in any consecutive 12 months.” 29 C.F.R. § 1926.62(j)(1)(ii). The payroll records in evidence date back only to July 1993. Using those records to calculate the total number of days that each listed employee worked between July 1993 and January 1994, and then dividing that number by four, results in only one Smalis employee being on site for more than thirty days when blasting presumably occurred. This employee, a foreman at the worksite, worked 156 days during this time period, for a total of thirty-nine blasting days while he was on site. There is no evidence, however, that his work activities as foreman subjected him to the same working conditions as those who worked inside the containment and were monitored by OSHA. In fact, the record suggests the foreman was not permitted to enter the containment due to his high BLL and, while CO Javorsky testified that she observed the foreman “working in and amongst equipment topside” during the inspection, she admitted that neither she nor CO Morris observed the foreman during most of that day. No other evidence in the record establishes the amount of time the foreman worked at the bridge each day, or his proximity to the containment while on the bridge. In the absence of any proof that a Smalis employee was or may have been exposed “at or above the action level for more than 30 days in any consecutive 12 months,” the medical surveillance obligations set forth under the cited provisions are not applicable here.

Accordingly, we vacate these citation items.

6. Items 28 and 29: 29 C.F.R. § 1926.62(j)(2)(i)(C) (medical surveillance—biological monitoring of removed employees)

Under these items, the Secretary alleged, on a per-employee basis, that Smalis failed to make available the required follow-up biological monitoring to two employees who had BLLs of 67 μg/dl and 68 mg/dl on December 9, 1993. The cited provision states as follows:

The employer shall make available biological monitoring in the form of blood sampling and analysis for lead and zinc protoporphyrin levels to each employee covered under paragraphs (j)(1)(i) and (ii) of this section on the following schedule: . . . (C) For each employee who is removed from exposure to lead due to an elevated blood lead level at least monthly during the removal period.

29 C.F.R. § 1926.62(j)(2)(i)(C). The judge affirmed both items based on his findings that (1) the two employees had been exposed to lead at or above the action level on the date of the inspection; (2) both employees “had a reasonable expectation of continued employment with Smalis at the time that they were laid off”; and (3) “the job was at a point where at least 30 more days of painting/blasting would be required to complete it,” meaning that under the cited provision, Smalis was required to make at least one monthly blood test for BLL and ZPP available to these employees. We affirm the judge.

As discussed above, the referenced employees—who were also the subject of Items 5(b) and 10(b)—were exposed to lead well above the action level on at least one day and, therefore, qualified as “covered” employees under paragraph (j)(1)(i). 29 C.F.R. § 1926.62(j)(1)(i) (requiring that employer “make available initial medical surveillance to employees occupationally exposed on any day to lead at or above the action level”). Additionally, it is undisputed Smalis prohibited these employees from working at the bridge solely due to their elevated BLLs—which we find constitutes removal under § 1926.62(j)(2)(i)(C)—and failed to make ZPP testing available to them at any time. Finally, payroll records and employee testimony show that the Tarentum Bridge project continued for at least a month after Smalis removed the two employees. In view of Smalis’s knowledge that it removed these employees due to elevated BLLs, and that the biological monitoring made available did not include ZPP testing, we find Smalis had actual knowledge of the violative conditions. Accordingly, we affirm Items 28 and 29.

7. Items 30 to 50: 29 C.F.R. § 1926.62(j)(2)(iv)(A) (medical surveillance— employee notification of blood test results)

Under these items, the Secretary alleged, on a per-employee basis, that Smalis failed to provide employees with their written individual BLL test results. The cited provision states, in pertinent part, that “[w]ithin five working days after the receipt of biological monitoring results, the employer shall notify each employee in writing of his or her blood lead level.” 29 C.F.R. § 1926.62(j)(2)(iv)(A). The judge affirmed twelve of the twenty-one items based on his overexposure analysis.

Based on our overexposure analysis, which differs from that of the judge, we affirm eight citation items.

It is undisputed that Smalis failed to provide individual written BLL results to any of its employees. CO Morris testified that, when questioned, “[i]n no case did an employee [identified in these items] state that they had received a written result of the blood test taken.” Although Mr. Smalis testified, and a Smalis employee confirmed, that Smalis posted the BLL results in the worksite trailer and employees also received their results verbally, either from Mr. Smalis or from the PennDOT project manager, Mr. Smalis admitted that he did not provide the results in writing to any employee.

However, the obligation set out in the cited provision is limited, as relevant here, to those “employees occupationally exposed on any day to lead at or above the action level.” See 29 C.F.R. § 1926.62(j)(1)(i). As previously discussed, we find the Secretary established the requisite overexposure for the six sampled employees, who are referenced in Items 34, 37, 41, 43, 45 and 49. As to the remaining fifteen employees, direct evidence places only two of them—the employees referenced in Items 36 and 47—inside the containment during the December 9, 1993 day shift, or on any subsequent day when blasting occurred. Under the cited provision, Smalis was therefore required to provide written BLL results to the six sampled employees and these two additional employees.

Accordingly, we affirm Items 34, 36, 37, 41, 43, 45, 47, and 49, and vacate Items 30 to 33, 35, 38 to 40, 42, 44, 46, 48, and 50.

8. Items 51 to 71: 29 C.F.R. § 1926.62(j)(2)(iv)(B) (medical surveillance—employee notification of Medical Removal Protection (“MRP”) benefits)

Under these items, the Secretary alleged, on a per-employee basis, that Smalis failed to notify each employee with a BLL in excess of 40 μg/dl that the LICS requires temporary medical removal with MRP benefits. The cited provision states that “the employer shall notify each employee whose blood lead level exceeds 40 μg/dl that the standard requires temporary removal with [MRP] benefits when an employee’s blood lead level exceeds the numerical criterion for medical removal under paragraph (k)(1)(i) of this section.” 29 C.F.R. § 1926.62(j)(2)(iv)(B). The judge affirmed five of the twenty-one citation items based on his overexposure analysis.

Based on our overexposure analysis, we affirm two citation items.

Mr. Smalis admitted that he failed to notify any of the employees at issue here of the temporary medical removal requirement with MRP benefits, even though the record shows they all had BLLs in excess of 40 μg/dl while working at the bridge. In addition, CO Morris testified that none of the employees identified in these items indicated they were aware, or had been informed, of this particular requirement, and testimony from five of the employees at issue here confirms that none received such notification.

However, the obligation to provide such notification is limited, as relevant here, to “employees occupationally exposed on any day to lead at or above the action level.” See 29 C.F.R. § 1926.62(j)(1)(i). The Secretary established that only two of the twenty-one employees at issue satisfied this requirement: the employee referenced in Item 62 was shown to be overexposed by OSHA’s sampling on December 9, 1993, and direct evidence in the record places the employee referenced in Item 57 inside the containment during that day shift.

Moreover, Mr. Smalis specifically testified he knew these two employees had BLLs above 40 μg/dl and, as previously discussed, he also knew that lead concentrations inside the containment were high. Based on this evidence, we find Smalis failed to provide these employees with required notice of the information set forth in the cited provision. Accordingly, we affirm Items 57 and 62, and vacate Items 52 to 56, 58 to 61, and 63 to 71.

Under these items, the Secretary alleged, on a per-employee basis, that each employee “was transferred to a job duty where it had not been determined by [Smalis] that exposure levels to lead were below the action level.” The judge vacated all of these items, except Item 76. For the following reasons, we vacate all of these citation items.

The cited provision states that “[t]he employer shall remove an employee from work having an exposure to lead at or above the action level on each occasion that a periodic and a follow-up blood sampling test conducted pursuant to this section indicate that the employee’s blood lead level is at or above 50 μg/dl.” 29 C.F.R. § 1926.62(k)(1)(i). Payroll records show that three of the eleven referenced employees did not work the day shift on days when blasting occurred. Although the eight remaining employees worked on one or more of these day shifts, the record lacks direct evidence that any of them worked inside the containment during this time. The Secretary, therefore, failed to establish that any of the employees referenced in Items 74 to 84 were, at any time, engaged in “work having an exposure to lead at or above the action level.” 29 C.F.R. § 1926.62(k)(1)(i). Accordingly, we vacate Items 74 to 84.

Under these items, the Secretary alleged, on a per-employee basis, that Smalis failed to provide seventy-one employees with “lead training as per OSHA’s Lead in Construction Standard and its appendices.” The judge found the cited standard applied only to those employees shown to have been actually exposed to lead at or above the action level. Based on this finding, the judge affirmed eleven items, and vacated the remaining sixty items.

We reject the judge’s interpretation of the cited provision, affirm twenty-seven items, and vacate forty-four items, as follows.

The cited provision states that, “[f]or all employees who are subject to exposure to lead at or above the action level on any day . . . , the employer shall provide a training program in accordance with paragraph (l)(2) of this section and assure employee participation.” 29 C.F.R. § 1926.62(l)(1)(ii) (emphasis added). In addition, the next paragraph of the training provision requires “[t]he employer [to] provide the training program as initial training prior to the time of job assignment.” 29 C.F.R. § 1926.62(l)(1)(iii) (emphasis added). Based on the “subject to” wording of the cited provision, and requirement that training be provided “prior” to employee exposure to the hazardous conditions, we find the training requirement applies here to any employee who: (1) was hired to perform work that would have exposed him to lead at or above the action level, and (2) was present at the worksite at a time when he could have been called upon to perform that work. Consequently, we reject the judge’s finding that the training requirement applies only where actual overexposure is shown. See 29 C.F.R. § 1926.62 App. B, pt. X (“All employees must be trained prior to initial assignment to areas where there is a possibility of exposure over the action level”); cf. Occupational Exposure to Lead, 43 Fed. Reg. 52,952, 53,005 (Nov. 14, 1978) (noting in reference to training provision of general industry lead standard, which also covers employees “subject to exposure to lead at or above the action level,” that “the training program is required to be completed . . . for all new employees at the time of initial assignment to areas where there is a possibility of exposure over the action level,” because “it is important to train employees as soon as possible in order to maximize the benefits of the training program”). See also Gen. Motors Corp. (“GM”), 22 BNA OSHC 1019, 1030, 2007 CCH OSHD ¶ 32,928, p. 53,611 (No. 91-2834E, 2007) (consolidated) (concluding, under lockout/tagout training standard, “it would be unreasonable to require that an employee be exposed to a hazard before requiring that he be trained to recognize and avoid that hazard”).

As previously discussed, the Secretary established that employees who performed abrasive blasting, or sand sucking while blasting was ongoing, were exposed to lead well above the action level. Thus, Smalis was required to provide each employee hired to perform one of these job tasks with the training required under § 1926.62(l)(1)(ii). In addition to abrasive blasters and sand suckers, the record establishes that those hired as a groundsman, watchman, or laborer could also have been assigned sand sucking duties. The only enumerated employee not included in one of these job classifications—the individual referenced in Item 117—was an apprentice, and there is no evidence that his responsibilities included job tasks that could result in overexposure.

Of the seventy employees assigned to a job classification that included sand sucking or blasting as one of its duties, the payroll records show that only twenty-seven employees—those referenced in Items 88, 92 to 94, 102 to 104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155, and 158—worked on the bridge on any one day when blasting occurred. The record evidence also shows Smalis failed to provide the required training to all twenty-seven employees. Indeed, none of the twenty-seven employees attended the union-sponsored class held in October 1993, and it is undisputed that these employees did not receive any compliant lead training. Moreover, by his own admission, Mr. Smalis knew the union-sponsored class could only accommodate twenty individuals, and that a second class would not be held until February 1994. Smalis also knew that almost all of the employees working on the bridge—many more than the twenty individuals who could participate in the union class—were assigned to job classifications that could have required them to perform sand sucking or abrasive blasting, which would have subjected them to lead overexposure.

In these circumstances, we find Smalis knowingly failed to provide required training to the referenced twenty-seven employees. Accordingly, we affirm Items 88, 92 to 94, 102 to 104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155, and 158. We vacate the remaining items, Items 89 to 91, 95 to 101, 105 to 107, 109, 110, 112 to 118, 122, 129, 131 to 136, 139 to 141, 144, 146, 148 to 154, 156, and 157, for lack of proof.

11. Item 159: 29 C.F.R. § 1926.62(l)(2)(v) (training program—engineering controls and work practices)

Under this item, the Secretary alleged that Smalis failed to assure that the nineteen employees who attended the union-sponsored class received “training in the engineering controls and work practices specific to their job assignments.” The judge vacated this item, concluding that the alleged violation “is unnecessarily redundant in that it is a lesser included violation within [the other training] violations.”

We disagree, and affirm the violation.

The cited provision states that “[t]he employer shall assure that each employee is trained in . . . [t]he engineering controls and work practices associated with the employee’s job assignment including training of employees to follow relevant good work practices described in Appendix B” of the standard. 29 C.F.R. § 1926.62(l)(2)(v). It is undisputed the union-sponsored class included a review of the LICS. Nonetheless, the class instructor admitted that, “[o]ther than being asked specific questions by those in attendance,” there was no “special information that pertained only to the Tarentum Bridge worksite that was included in the course,” and the course material, which was admitted into evidence, includes no discussion of engineering controls and works practices specific to the worksite. Although the record does not show Smalis knew of this deficiency, reasonable diligence requires an employer to make some effort to determine whether the class satisfied the standard’s requirements. Par Elec. Contractors, Inc., 20 BNA OSHC at 1627, 2002 CCH OSHD at p. 51,793 (noting that reasonable diligence involves “a consideration of several factors,” including employer’s obligation to have adequate work rules and training programs, adequately supervise employees, anticipate employee exposure to hazards, and take measures to prevent violations). Here, there is no evidence Smalis made any effort to discover whether the union-sponsored course fully complied with the requirements of the standard. We find, therefore, that Smalis failed to provide adequate training in violation of the cited provision, and had constructive knowledge of the violation. See Pride Oil Well Serv., 15 BNA OSHC at 1814, 1991-93 CCH OSHD at p. 40,583. Accordingly, we affirm Item 159.

The judge characterized all of the items he affirmed as willful. Based on our review of the record evidence and applicable legal precedent, we characterize the majority of the items we affirm as willful, but conclude that a number of them are not willful, as follows.

“The hallmark of a willful violation is the employer’s state of mind at the time of the violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . . plain indifference to employee safety.’” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181, 2000 CCH OSHD ¶ 32,134, p. 48,406 (No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).

[I]t is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation . . . . A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference . . . .

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, pp. 41,256-57 (No. 89-433, 1993). This state of mind is evident where “‘the employer was actually aware, at the time of the violative act, that the act was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would not care.’” AJP Constr. Inc. v. Sec’y, 357 F.3d 70, 75 (D.C. Cir. 2004) (emphasis and citations omitted). A willful characterization is not justified, however, if an employer has “‘a good faith, albeit mistaken, belief that particular conduct is permissible.’” Manganas Painting Co., 21 BNA OSHC at 1991, 2007 CCH OSHD at p. 53,406 (citation omitted).

The record here shows that from the very start of the Tarentum Bridge project, Smalis was made aware of the lead hazards associated with its work activities and of its obligation to protect employees exposed to such hazards. Indeed, the July 1992 contract with PennDot required Smalis to implement health protection measures in accordance with the general industry lead standard, 29 C.F.R. § 1910.1025, as well as “all applicable OSHA General and Construction Standards,” in order to “protect workers from overexposure to lead-containing dust.” The contract further required that Smalis: (1) submit various documents, including a copy of its training program and work rules, to ensure compliance with OSHA’s and PennDOT’s requirements, and “not expose workers to lead-containing dust until such information has been deemed acceptable by the District Engineer”; (2) “[p]rovide the services of a reputable, experienced third party, acceptable to the District Engineer, to monitor the quality of the air being breathed by workers within the containment area, in conformance with OSHA requirements”; (3) provide employees working within the containment area, or handling lead-contaminated items, with washing facilities, changing areas, and separate storage for work and street clothes; and (4) test the BLL of each employee working in the containment area prior to the first day of work, retest after no more than 120 hours of exposure and again at intervals relative to each employee’s BLL increase rate, and assure that an employee is removed from further exposure if his BLL reaches 40 μg/dl.

The record also shows that prior to the December 1993 inspection at issue here, Smalis was further informed through its interactions with OSHA of its obligation to protect employees working in high-exposure areas and, more specifically, of the newly promulgated Lead in Construction Standard’s applicability to activities on the Tarentum Bridge. OSHA first inspected the bridge worksite in September 1992, soon after Smalis commenced work there. At that time, OSHA’s air monitoring inside the containment showed that employee exposure to airborne lead exceeded an eight-hour TWA of 1,100 μg/m³. On December 17, 1992, OSHA issued Smalis three citations for various lead-related violations (“1992 Citations”). These citations included allegations that Smalis had overexposed two sand suckers and an abrasive blaster to airborne lead, and had failed to perform other required tasks identical or substantially similar to requirements at issue here under the LICS, such as conducting personal air monitoring to determine employee exposure, implementing feasible administrative or engineering controls, informing employees of their BLL results as soon as possible, and instructing employees exposed to airborne lead about its potential hazards. Smalis was also cited for failing to take various required personal hygiene and protective measures, such as providing employees with appropriate respirators and removing an abrasive blaster with a BLL of 153

Mr. Smalis personally attended the August 9, 1993 hearing regarding the contested 1992 Citations, at which the only witness was an expert in lead training and abatement methods. Addressing employer obligations prior to promulgation of the LICS, the expert identified specific elements of a comprehensive lead training course and explained how abrasive blasting inside a containment could result in extraordinarily high levels of airborne lead. Following that testimony, the parties agreed to settle the case, whereupon the judge exhorted Smalis to properly train its employees in accordance with OSHA standards. The order in that case, which became a final order of the Commission on October 19, 1993, affirmed all of the December 17, 1992 citations, and instructed Smalis to “provide suitable and appropriate training for its affected employees,” which “shall be provided by any certified source to be selected at the sole discretion of [Smalis].”

In March 1993, OSHA inspected another Smalis bridge project, located in Jacksonville, Florida, involving the removal of lead-based paint. The resulting August 19, 1993 citations (“1993 Citations”) included repeat violations alleging that Smalis failed to comply with respirator training and program requirements, and failed to conduct air monitoring to determine employee exposure. During a closing conference on August 18, Mr. Smalis asked the Assistant Area Director (“AAD”) for Health Compliance in the Jacksonville Area Office whether OSHA would be enforcing the LICS, and Mr. Smalis was told that, “if they were at the jobsite August 3rd of 1993 or thereafter, [OSHA] would be fully enforcing the new standards.” Mr. Smalis mentioned that his contract with the Florida Department of Transportation did not cover the extra cost of complying with the new standard, but the AAD “advised him that any extra costs would be between him and DOT.” The AAD also “briefed” Mr. Smalis on the revised PEL, action level, engineering controls, work practice controls, and medical surveillance program that would be required under the LICS, and immediately mailed Smalis a copy of the LICS and a respiratory protection pamphlet.

Finally, the record shows that, through various communications with Mercy Hospital (“Mercy”), Smalis received notice of its medical surveillance obligations, including those arising under the LICS. In March 1993, Smalis entered into a service agreement with Mercy to provide BLL screenings for Smalis employees. The service agreement specified that test results, as well as medical recommendations, would be sent to Smalis for each employee, and that, where an individual employee did not accept Mercy’s referral for further medical treatment, Smalis had to “provide written verification to [Mercy] that the individual did receive appropriate follow-up medical care for the existence of lead in the blood system.” Mr. Smalis’s wife signed this agreement on behalf of the company, accepting its terms.

In accordance with their agreement, Mercy corresponded numerous times with Smalis over the next four months, providing not only employee BLL results but also addressing the importance of medical surveillance for employees working in high lead-exposure areas and highlighting Smalis’s obligations arising under the new LICS. In an April 1993 letter, for instance, Mercy’s Account Executive informed Smalis that the hospital had verbally provided Smalis’s office with BLL results pertaining to fourteen of its employees and faxed written recommendations from Mercy’s occupational physician regarding those results. These recommendations, communicated to Smalis’s office manager, addressed the need to remove three Smalis employees with BLLs over 60 μg/dl from lead exposure work, as well as the need for a specialist to evaluate them before returning to such work. The Account Executive stressed that because ten of the fourteen employees had tested in the “abnormal” range, it was important for the hospital “to know that these results were shared with [the test subjects] and that proper follow-up recommendations have been provided and hopefully followed.” At the request of the Account Executive, Smalis provided Mercy with a statement—again signed by Mr. Smalis’s wife—confirming that these actions had been taken.

Soon thereafter, in a June 1993 letter to Smalis’s office manager, the Account Executive expressly stated that the newly promulgated LICS, which was not yet in effect, required testing for both ZPP and blood lead levels. The Account Executive also stated that Mercy’s occupational physician was “curious as to the medical follow up . . . being provided for the individuals with high lead levels,” and had recommended providing physicals to a number of employees “that include . . . ZPP lab tests.” About a month later, in a letter sent to Mr. Smalis, Mercy’s physician outlined certain requirements of the LICS that, in “his medical opinion,” were important to Smalis’s “medical monitoring decisions.” The physician specifically referenced the action level and the revised PEL under the new standard, and summarized what type of medical surveillance program he believed the standard required, touching upon BLL and ZPP testing, medical examinations, and medical removal.

In addition to this correspondence, after the LICS went into effect, Mercy revised the form its physician used to communicate medical recommendations to include certain requirements of the new standard.

A copy of the form, titled “LEAD LEVELS UNDER 29 CFR 1926 (FOR CONSTRUCTION TRADES),” was included with each employee BLL test result sent to Smalis on or after October 25, 1993. The form set forth detailed information about the medical surveillance requirements of the LICS, such as increased monitoring for employees whose BLLs ranged from 40 μg/dl to 49 μg/dl, and medical removal requirements for employees whose BLLs were 50 μg/dl or higher. The form also added a line for the physician to record ZPP test results, and quoted directly from the lead standard’s provision requiring employers to notify all tested employees of their BLL test results in writing.

At the hearing, Mr. Smalis denied seeing any of the letters from Mercy before the issuance of the citations in this case, and claimed that no one in his office had brought the letters to his attention. Further, no evidence in the record indicates whether anyone at Smalis reviewed the medical recommendations from Mercy’s physician. To the extent the record lacks direct evidence that Smalis managerial personnel reviewed these documents, we find that any such failure to review is consistent with Smalis’s overall cavalier attitude towards its employees’ medical needs. Indeed, at the very least, it appears likely that Smalis’s office received the three letters from Mercy—the record shows that Mr. Smalis’s wife responded to the April 1993 letter, and all three letters were sent to an address that Mr. Smalis himself identified as the company’s official mailing address. Manganas Painting Co., 21 BNA OSHC at 1985, 2007 CCH OSHD at p. 53,400 (noting presumption that postal service personnel “properly discharge their official duties”). Moreover, based on their written service agreement, Smalis was aware that Mercy would be sending medical recommendation forms which, in some cases, required action on the part of Smalis, yet Smalis did nothing to ensure that its office personnel transmitted these forms to a company official.

Taken together, we find this evidence establishes Smalis had a heightened awareness that its work activities at the Tarentum Bridge exposed many of its employees to high concentrations of airborne lead, posing a significant risk of lead toxicity. We also find this evidence—particularly Mr. Smalis’s conversation with the AAD in Jacksonville—establishes that Smalis had knowledge of the existence of the LICS and confirmation that, as of August 3, 1993, the LICS was applicable to any projects that involved abrasive blasting of lead-based paint. See Conie Constr. Inc., 16 BNA OSHC at 1872, 1993-95 CCH OSHD at p. 43,090 (imputing owner’s knowledge to corporation). Finally, we find this evidence shows that Smalis either had actual knowledge of various LICS requirements, or failed to avail itself of several opportunities to learn of these specific requirements, including those pertaining to medical surveillance. See United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir. 1998) (noting that “‘actual knowledge and deliberate avoidance of knowledge are the same thing’”—“[b]ehaving like an ostrich supports an inference of actual knowledge” (citation omitted)); NLRB v. Regal Aluminum, Inc., 436 F.2d 525, 527-28 (8th Cir. 1971) (“It is well-settled law that a party to a transaction, where his rights are liable to be injuriously affected by notice, cannot willfully shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received.” (quoting The Lulu, 77 U.S. 192, 201 (1869))).

Smalis’s heightened awareness of its employees’ lead exposure and its compliance obligations under the Act, paired with its pervasive failure to provide employees with some of the most basic required protections, generally evinces a willful state of mind. Hern Iron Works, Inc., 16 BNA OSHC at 1214, 1993-95 CCH OSHD at pp. 41,256-57 (“A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference.”). Unlike the judge, however, we find that Smalis’s state of mind is not “equally applicable” to each of the citation items we affirm. See A. E. Staley Mfg., 19 BNA OSHC 1199, 1212-13 & n.28, 2000 CCH OSHD ¶ 32,220, pp. 48,908-09 & n.28 (No. 91-0637, 2000) (consolidated) (finding employer’s heightened awareness of combustible dust hazard sufficient to support willfulness for all related violations throughout the plant, but rejecting a solely “general evidence” approach for other violations where employer’s hazard awareness was not “equally applicable” to all of them), aff'd, 295 F.3d 1341 (D.C. Cir. 2002). Thus, in considering the characterization of these items, we examine the evidence relevant to each item in concert with our above findings. Our discussion below is divided into three sections—section (a) pertains to items where we find Smalis demonstrated a conscious disregard for the requirements of the Act, GM, 22 BNA OSHC at 1044, 2007 CCH OSHD at p. 53,622; section (b) pertains to items where we find Smalis possessed a state of mind such that if it were informed of the pertinent requirements and the violative conditions, it would not have cared, AJP Constr. Inc., 357 F.3d at 74; and section (c) pertains to items where we find Smalis lacked a willful state of mind.

a. Items 1(b) to 6(b), 10(b), 17(b), 21, 24(c), 88, 92 to 94, 102 to 104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155, and 158

Items 1(b) to 6(b), 10(b), and 17(b) pertain to Smalis’s failure to implement engineering and work practice controls, in violation of § 1926.62(e)(1). Smalis was previously cited for a similar failure to implement engineering controls following OSHA’s 1992 inspection of the same worksite. See A.J. McNulty & Co. v. Sec’y of Labor, 283 F.3d 328, 338 (D.C. Cir. 2002) (“[P]rior citations for identical or similar violations may sustain a violation’s classification as willful.”); E.L. Davis Contracting Co., 16 BNA OSHC 2046, 2051-52, 1993-95 CCH OSHD
¶ 30,580, p. 42,342 (No. 92-35, 1994) (affirming violation as willful where employer was previously cited for similar violative conduct and city inspector warned of hazard). Specifically, the 1992 Citations alleged that, in violation of 29 C.F.R. § 1926.55(b), feasible administrative or engineering controls, such as increasing the ventilation in contamination areas and eliminating shot clean-up in the contaminate area during blasting, were not implemented to reduce employee exposure to lead. Smalis admitted to these allegations in the October 1993 settlement agreement, but failed to implement adequate engineering or work practice controls for overexposed employees working on the same bridge and performing the same types of activities in December 1993. See Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1127, 1993-95 CCH OSHD ¶ 30,048, p. 41,284 (No. 88-572, 1993) (affirming violations as willful where employer failed to protect employees from lead hazards in disregard of consultant’s advice and its own safety program).

Following the 1992 inspection, Smalis reconfigured the containment, purchased additional dust collectors, and required that employees entering the containment wear blasting hoods—all measures which, we note, did not slow its work progress and were visible to any outside observers. Nonetheless, Smalis continued to unnecessarily expose employees engaged in sand sucking by sending them to work inside the containment during abrasive blasting. Moreover, despite Allegheny County’s request that Smalis reduce the number of blasters inside the containment to minimize lead debris, Smalis chose to increase the number of blasters once operations crossed the county line. In these circumstances, we conclude that Smalis’s failure to implement necessary and effective engineering and work practice controls was willful. See GM, 22 BNA OSHC at 1044, 2007 CCH OSHD at p. 53,622 (affirming violation as willful where evidence established “a conscious disregard for the requirements of the Act”); Revoli Constr. Co., 19 BNA OSHC 1682, 1686, 2001 CCH OSHD ¶ 32,497, p. 50,378 (No. 00-315, 2001) (finding employer’s “failure to have taken action previously when the prior citations left no doubt about what should be done” supports willful characterization).

Item 21, the merits of which are not on review, pertains to Smalis’s failure to conduct representative personal full-shift air sampling to determine whether any employee may have been exposed above the action level, in violation of 29 C.F.R. § 1926.62(d)(1)(iii). Mr. Smalis admitted that he performed no personal air monitoring either inside or outside of the containment, but also admitted that he knew lead concentrations inside the containment were “high.” At the hearing, Mr. Smalis indicated that he performed no personal air monitoring because, during “[t]he inspection in 1992, the compliance officer did some monitoring and we knew what the exposure was.” At that time, however, OSHA monitored only employees working inside the containment during blasting, which would not have determined exposure levels for each job classification in other work areas, as required by the cited provision.

Moreover, Smalis was well aware of its obligation to conduct air monitoring, as OSHA had twice before cited Smalis for failures to monitor for lead exposure, the second of which alleged a repeat violation.

See A.J. McNulty & Co., 283 F.3d at 338. In these circumstances, and particularly in light of Mr. Smalis’s admitted knowledge that lead concentrations at the worksite were high, we find it implausible for Smalis to have believed that OSHA’s limited monitoring was sufficient to comply with the company’s obligation to collect representative samples. In fact, had Mr. Smalis actually relied upon OSHA’s 1992 monitoring at the Tarentum Bridge, Smalis would have been required to continue monitoring on a regular basis. 29 C.F.R.
§ 1926.62(d)(6)(ii), (iii). Smalis’s failure to conduct this additional monitoring belies its contention that it relied upon OSHA’s monitoring to satisfy its obligation here. Accordingly, we affirm this violation as willful.

Item 24(c), the merits of which are not on review, pertains to Smalis’s failure to conduct air monitoring to determine whether employees who wore half-mask respirators while performing certain job tasks were adequately protected, in violation of 29 C.F.R.
§ 1910.134(b)(8) (1993). Despite OSHA’s issuance of two prior citations to Smalis for violating the identical standard, Smalis made no attempt to properly comply with the requirements of this provision. See E.L. Davis Contracting Co., 16 BNA OSHC at 2051-52, 1993-95 CCH OSHD at p. 42,342. Indeed, Smalis conducted no monitoring during the entire Tarentum Bridge project, other than to collect samples from the clean air lines of employee blasting hoods in August 1992. Accordingly, we affirm this violation as willful.

Items 88, 92 to 94, 102 to 104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155, and 158 pertain to Smalis’s failure to provide training to its employees, in violation of § 1926.62(l)(1)(ii). Mr. Smalis attended the August 9, 1993 hearing in the 1992 case, the transcript of which was admitted into evidence here. At the hearing, the judge emphasized that lead training is critically important:

What’s important in the case is what’s going to happen to the guys who are painting for Smalis Painting Company next week and next year and two years from now. That’s what I have to look out for and that’s my main responsibility. The dollars are second to me.

In this light, Mr. Smalis has agreed as part of his settlement agreement to abide by the OSHA rules and regulations and to be responsible for the proper training of employees and the proper enforcement of his own rules and regulations. . . .

I don’t feel it would be proper for me to specify who has to supply certain equipment or who has to do certain training programs. If a training program is conducted and it’s properly trained employees, that’s why we’re here, to protect those employees. If a training program is done and it’s not proper, no matter who did it, the employees are at risk. . . .

The way to protect the employees is, as in this case, is for the company to agree that the employees will be trained as required by the OSHA regulations, and I believe that the parties are ready and willing to stipulate to that. . . .

Moreover, the judge’s subsequent settlement order specified that Smalis “provide suitable and appropriate training for its affected employees.”

Nonetheless, despite Mr. Smalis’s knowledge that the union-sponsored class attended by Smalis employees in October 1993 had a twenty-person limit, and that a second class was not scheduled until February 1994, he made no effort to train any other employees working on this project, including the twenty-seven individuals referenced in these citation items. Moreover, based on their job classifications, Smalis knew that these employees had the potential to work inside the containment during blasting operations, and that such work would expose them to high levels of airborne lead. In these circumstances, we find that Smalis’s failure to assure its employees’ participation in a training program shows a conscious disregard for the requirements of the standard. See GM, 22 BNA OSHC at 1044, 2007 CCH OSHD at p. 53,622 (affirming violation as willful where evidence established “a conscious disregard for the requirements of the Act”); A. G. Mazzocchi, Inc., 22 BNA OSHC at 1388 (affirming willful characterization despite partial compliance, because employer’s “incomplete efforts” did not negate its decision to knowingly withhold required information); see also Kaspar Wire Works, Inc., 268 F.3d at 1127-29 (affirming violation as willful, court emphasized “actual malice is not required; it is sufficient that there be substantial evidence of voluntary and intentional disregard for or indifference to the law”). Accordingly, we affirm these citation items as willful.

b. Items 23(a), 23(b), 24(a), 24(c), 24(e), 24(f), 25(b), 28, 29, 57, 62, and 85 to 87

This group of citation items includes violations pertaining to respiratory protection, medical surveillance, and medical removal and benefits under the LICS. For reasons previously discussed, we find that the evidence establishes Smalis had a heightened awareness of the lead hazards associated with the conditions underlying these items. We also find that Smalis, in some cases, had a heightened awareness of the particular requirements of the cited LICS provisions, and that where such awareness was lacking, Smalis failed to avail itself of several opportunities to learn of the requirements. See Ladish Malting Co., 135 F.3d at 488 (noting that deliberate avoidance of knowledge and actual knowledge are the same). Although Smalis may not have appreciated in each circumstance that it was violating the Act, we find the evidence shows that, had Smalis been informed of its noncompliance with the applicable rule, it would not have cared. See AJP Constr. Inc., 357 F.3d at 74 (stating that willfulness may be found in absence of actual knowledge where evidence shows that employer “possessed a state of mind such that if it were informed of the standard, it would not care”). Accordingly, as further discussed below, we affirm these items as willful.

Items 23(a) and 23(b) pertain to Smalis’s failure to provide an appropriate respirator to one of its employees and perform qualitative fit tests on a number of its employees, in violation of 29 C.F.R. § 1926.62(f)(2)(i) and (3)(ii) (1993), respectively. Items 24(a), 24(b), 24(e), and 24(f), the merits of which are not on review, pertain to Smalis’s failure to institute an appropriate respiratory protection program, instruct employees “in the proper use of respirators and their limitations,” provide “fitting instructions including demonstrations and practice in how the respirator should be worn, how to adjust it, and how to determine if it fits properly,” and provide an adequate program for “for maintenance and care of respirators,” in violation of 29 C.F.R.
§ 1926.62(f)(4)(i) (1993), and 29 C.F.R. § 1910.134(b)(3), (e)(5)(i), and (f)(1) (1993).

The evidence does not establish that Smalis knew the precise exposure level of the employee referenced in Item 23(a). Therefore, Smalis may have been unaware that the half-mask air purifying respirator he used was inadequate. However, Smalis’s lack of knowledge was a direct result of its conscious and deliberate failure to comply with the exposure assessment and monitoring provisions of the standard. In addition, the evidence shows Smalis was well aware that OSHA standards required it to provide employees with adequate respiratory protection. Although Smalis may not have had specific knowledge of the “program” requirement in
§ 1926.62(f)(4)(i), both the 1992 and 1993 Citations show it had a heightened awareness of many of the respiratory protection requirements set forth in § 1910.134. With respect to Smalis’s failure to comply with fit-testing requirements, the 1992 and 1993 Citations alleged violations under § 1910.134(b)(3) and (e)(5)(i), two of the provisions at issue here. Moreover, the 1992 Citations alleged a violation under § 1910.134(e)(5) for Smalis’s failure to provide any fit testing to employees who wore respirators.

Despite this specific knowledge of respiratory protection requirements, as well as Smalis’s general understanding that it was obligated to protect employees from lead exposure hazards, the record shows that Smalis made little effort to ensure its employees were fully protected. After Smalis trained its supervisors in the rudiments of fit testing following the 1992 Citations, these supervisors failed to fit test many of the employees, in contravention of the requirements in Smalis’s own safety program. Indeed, the foreman in charge of discipline at the worksite was one of the individuals responsible for failing to fit test employees, and there is no evidence that Mr. Smalis, or anyone else, ever monitored or disciplined him. Further, Smalis’s supervisors were aware that the air supply to the Bullard hoods would repeatedly “freeze up” during cold weather, sometimes forcing employees to remove their respirators while still inside the containment. Even if Smalis lacked specific knowledge of the respirator maintenance requirements of § 1910.134(f)(1), common sense dictates that failing to properly maintain the air compressors during cold weather, after repeated freeze warnings, would deprive workers inside the containment of uncontaminated air, and that storing respirators inside the lead-contaminated containment would undermine their effectiveness. Considering these circumstances, as well as other evidence discussed above, we find that the supervisors’ noncompliance with the OSHA standard and the company’s safety program reflects Smalis’s lax approach to respiratory protection. N & N Contractors, Inc., 18 BNA OSHC 2121, 2125-26, 2000 CCH OSHD ¶ 32,101, p. 48,242 (No. 96-606, 2000) (finding foremen’s participation in violative conduct showed that “safety program was lax”), aff’d, 255 F.3d 122 (4thCir. 2001); CECO Corp., 17 BNA OSHC 1173, 1176, 1993-95 CCH OSHD ¶ 30,742, p. 42,703 (No. 91-3235, 1995) (“[W]e have found that a supervisor's failure to follow the safety rules and involvement in the misconduct is strong evidence that the employer's safety program was lax.”).

Based on the foregoing evidence, we find that had Smalis known of its noncompliance with the cited provisions, it would not have cared. See AJP Constr. Inc., 357 F.3d at 74. Accordingly, we affirm, as willful, Items 23(a), 23(b), 24(a), 24(b), 24(e), and 24(f).

Item 25(b) pertains to Smalis’s failure to make testing for ZPP levels available to any of its employees, and Items 28 and 29 pertain to Smalis’s failure to make testing for both blood lead and ZPP levels available at least monthly to two employees who were removed from exposure due to an elevated BLL, in violation of 29 C.F.R. § 1926.62(j)(1)(i) and (2)(i)(C). As discussed above, Mercy sent two letters to Smalis discussing, in detail, the medical surveillance requirements of the LICS, and emphasizing that Smalis should make ZPP testing available to its employees. Moreover, the hospital’s occupational physician sent Smalis a recommendation form for each tested employee, including the ones at issue in Items 28 and 29. This form included a line at the top of the page to record ZPP test results and, as to any patient with an elevated BLL, advised that “follow-up by a physician familiar with lead poisoning should be taken even if the employee reports no complaints.” As we have found, even if Smalis managerial personnel did not review these documents, any such failure is consistent with Smalis’s failure to avail itself of several opportunities to learn of its specific obligations under the LICS and reflects its overall cavalier attitude towards its employees’ medical needs. See Ladish Malting Co., 135 F.3d at 488. Finally, with respect to the employees referenced in Items 28 and 29, Smalis knowingly removed them due to elevated BLLs, and knew it failed to make biological monitoring available to them thereafter. Based on its contract with PennDOT, and its prior dealings with OSHA, Smalis also understood blood tests were an important part of any lead program and that these two employees had dangerously high BLLs.

Thus, the record shows Smalis was well aware of the lead hazards at its worksite and its obligation generally to make available required blood tests to its overexposed employees. Moreover, Smalis had in its possession information that, had it chosen to look, would have alerted it to the specific requirements at issue here. Id. In these circumstances, we find that even if Smalis had known of its noncompliance with the cited provisions, it would not have cared. See AJP Constr. Inc., 357 F.3d at 74. Accordingly, we affirm Items 25(b), 28, and 29 as willful.

Items 57 and 62 pertain to Smalis’s failure to notify its employees of medical removal protection benefits, and Items 85 to 87, the merits of which are not on review, pertain to Smalis’s failure to provide such benefits to three employees who were removed, in violation of 29 C.F.R. § 1926.62(j)(2)(iv)(B) and (k)(2)(i). Each medical recommendation sent by Mercy’s physician to Smalis explained that, within five working days, the “[e]mployer must notify . . . each employee whose value exceeded 40 μg/dl[] that the standard requires temporary medical removal with Medical Removal Protection benefits when an employee’s blood lead level exceeds the numerical criterion for medical removal.” While there is no direct evidence that Smalis reviewed these recommendations, as noted, any ignorance is consistent with the company’s overall disregard for compliance with the LICS and the health of its exposed employees. See Ladish Malting Co., 135 F.3d at 488. Indeed, given the economic concerns that Mr. Smalis expressed to the Jacksonville AAD and Smalis’s emphasis on productivity over employee safety as evidenced by its decision to increase the number of blasters after crossing the Allegheny County line, we find that Smalis would not have complied with either the notification or provision of benefits requirements, even had it known of its obligations. See AJP Constr. Inc., 357 F.3d at 74. Smalis’s dismissive attitude toward employee safety was particularly apparent when, upon calling Smalis’s office following his removal, the employee referenced in Item 87 was simply told to “collect unemployment.” Under these circumstances, we affirm Items 57, 62, and 85 to 87 as willful.

Items 34, 36, 37, 41, 43, 45, 47, and 49 pertain to Smalis’s failure to “notify each employee in writing” of his BLL, in violation of 29 C.F.R. § 1926.62(j)(2)(iv)(A). The employees referenced in these items received oral notification of their BLLs, and Smalis posted the written BLL results in the worksite trailer, apparently believing that the posting satisfied the standard’s requirements. We find that Mr. Smalis could have believed in good faith that by posting the BLLs in this fashion, he satisfied the standard’s requirement for “written” notification. Thus, we conclude the record does not support a finding of willfulness. See Manganas Painting Co., 21 BNA OSHC at 1991, 2007 CCH OSHD at p. 53,406 (noting violation is not willful where employer has “‘a good faith, albeit mistaken, belief that particular conduct is permissible’” (citation omitted)). Moreover, we affirm these items as unclassified violations, noting that their characterization will not “affect the abatement requirements or penalty, and none of the parties’ rights will be adversely affected.” Foster-Wheeler Constructors Inc., 16 BNA OSHC 1344, 1349, 1993-1995 CCH OSHD ¶ 30,183, p. 41,526 (No. 89-287, 1993).

Item 159 pertains to Smalis’s failure to train employees in “engineering controls and work practices associated with [their] job assignment,” in violation of 29 C.F.R.
§ 1926.62(l)(2)(v). The employees referenced in this item all attended a lead training course sponsored by the union. The Secretary identified only one deficiency in the course—the failure to include engineering and work practice controls, as required by the standard. As there is no evidence Smalis actually knew of this deficiency, Smalis’s negligence in this regard does not support a finding of willfulness. See Trinity Indus., Inc., 20 BNA OSHC 1051, 1068, 2002 CCH OSHD ¶ 32,666, p. 51,414 (No. 95-1597, 2003) (finding violation not willful where “the Secretary introduced no evidence that Trinity knew that its training program failed to comply with OSHA standards or that Trinity would have failed to correct deficiencies in its program had it known of the duty to do so”), aff’d without publication, 107 Fed. App. 387 (5th Cir. 2004). We conclude, however, that this violation was serious because, as explained by the CO at the hearing, if employees utilize proper engineering controls and work practices, their work activities will likely result in lower lead exposure to themselves and their coworkers. See 29 U.S.C.
§ 666(k) (defining serious violation as one in which “there is a substantial probability that death or serious physical harm could result”); Stanley Roofing Co., 21 BNA OSHC 1462, 1466, 2005 CCH OSHD ¶ 32,792, pp. 52,430-31 (No. 03-0997, 2006) (finding violation serious rather than willful where seriousness was evident from the record).

Items 160 to 201, the merits of which are not on review, pertain to Smalis’s failure to record injuries and illnesses, in violation of 29 C.F.R. § 1904.2(a) (1993). The space reserved for listing injuries and illnesses on Smalis’s recordkeeping forms provided to OSHA contained only the word “none.” The evidence shows, however, that each of the employees referenced in these items had a BLL above 50 μg/dl, which should have been recorded as an illness on Smalis’s log. Johnson Controls, Inc., 15 BNA OSHC 2132, 2139, 1991-93

CCH OSHD ¶ 29,953, p. 40,965 (No. 89-2614, 1993) (finding elevated BLL constitutes recordable “illness”). There is no evidence, however, that Smalis knew an elevated BLL constituted an “illness” under the standard. Moreover, given the fact that Smalis maintained employee BLL results and provided them to OSHA, the evidence does not establish that Smalis would have failed to record these illnesses had it known of its duty to do so. Accordingly, we affirm these violations as other-than-serious. See Kaspar Wire Works, Inc., 18 BNA OSHC at 2185, 2000 CCH OSHD at p. 48,410 (affirming non-willful recordkeeping items as other-than-serious).

Item 202, the merits of which are not on review, pertains to Smalis’s failure to comply with a subpoena requiring production of certain medical records, in violation of 29 C.F.R. § 1910.20(e)(3). OSHA issued a subpoena to Smalis requesting, inter alia, “all records relating to the medical surveillance of employees.” Smalis failed to produce the physician’s recommendations it received from Mercy, but there is no evidence Smalis had actual knowledge of their contents. In these circumstances, we find the evidence insufficient to establish that Smalis’s failure to provide all of the requested records to OSHA was willful. Additionally, we affirm this item as an unclassified violation, noting that its characterization will not “affect the abatement requirements or penalty, and none of the parties’ rights will be adversely affected.” Foster-Wheeler Constructors Inc., 16 BNA OSHC at 1349, 1993-1995 CCH OSHD at p. 41,526.

The Secretary cited, and the judge affirmed, a number of violations on a per-employee basis with individual penalties assessed for each item. The judge found these citations were “appropriately identified as separate violations of the Act because the clear language of each of the standards . . . contemplates protection for each employee covered by the standard.” Smalis argues that such instance-by-instance citation is inappropriate based on its contentions that the cited provisions can be resolved by a single method of abatement and the violations do not present a unique set of facts specific to the identified employees. For the following reasons, we find that the Secretary properly cited the items we affirm on a per-instance basis, as follows.

The Commission has consistently adhered to the general legal principle that “‘per-instance violations and penalties are appropriate when the cited regulation or standard clearly prohibits individual acts rather than a single course of action.’” GM, 22 BNA OSHC at 1046, 2007 CCH OSHD at p. 53,625 (citations omitted). “‘The key . . . [is] the language of the statute or the specific standard or regulation cited.’” Id. (citation omitted). Applying this principle in numerous cases, the Commission has addressed the appropriateness of per-instance citations to various regulations and standards, including those pertaining to recordkeeping, fall protection, medical removal, and respiratory protection. E.g., Caterpillar Inc., 15 BNA OSHC 2153, 2172, 1991-93 CCH OSHD ¶ 29,962, p. 41,005 (No. 87-0922, 1993) (upholding per-instance recordkeeping violations); J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213, 1991-93 CCH OSHD ¶ 29,964, p. 41,033 (No. 87-2059, 1993) (upholding per-instance fall protection violations); Manganas Painting Co., 21 BNA OSHC at 1995, 1999, 2007 CCH OSHC at pp. 53,409-10, 53,413 (finding LICS medical removal and respirator provisions susceptible to per-employee citation).

With respect to training, however, the Commission has specifically addressed the appropriateness of per-employee citation in just three cases. Under a construction training standard prescribing that an employer must “instruct each employee,” the Commission stated that the cited provision “clearly may be read to permit . . . separate violations based on the failures to train individual employees.” Andrew Catapano Enters., Inc., 17 BNA OSHC 1776, 1780, 1995-97 CCH OSHD ¶ 31,180, p. 43,607 (No. 90-0050, 1996) (consolidated) (affirming only one citation, as multiple citations were not based on number of untrained employees, but number of inspection days the same group of untrained employees worked). Similarly, under the lockout/tagout training standard prescribing that “[e]ach authorized employee shall receive training,” the Commission found the employer’s duty to train “runs to each [individual] employee.” GM, 22 BNA OSHC at 1046-48, 2007 CCH OSHD at pp. 53,626-27. In contrast, the Commission found in a split decision that the general industry asbestos training standard prescribing a “training program for all employees,” required only “one program for all employees” and, therefore, affirmed only one violation for the employer’s failure to train all eleven of its employees. Eric K. Ho, 20 BNA OSHC at 1373-75, 2002-04 CCH OSHD at pp. 51,581-82 (consolidated).

Although the disparate results in these cases might be reconciled based on the differences among the cited training provisions’ precise wording, we are nonetheless troubled by the appearance of inconsistency and the possibility that the approach taken by the Commission majority in Ho has proved unworkable in subsequent cases with respect to training. We note that the training provision at issue here is virtually indistinguishable from the training provision at issue in Ho. In addition, we note that in its split decision affirming the result in Ho, the Fifth Circuit employed a different legal analysis from that applied by the Commission, stating that “unlike the Commission, which found the standard to be stated solely in inclusive terms, we agree with the Secretary that the language of the asbestos training standard allows the Secretary, in her discretion, to reasonably [issue citations] on a per-employee basis.” 401 F.3d at 372.

Cf. Reich v. Arcadian Corp., 110 F.3d 1192, 1198-99 (5th Cir. 1997) (stating individual employee may be unit of violation where “regulated condition or practice is unique to the employee (i.e., failure to train or remove a worker)”). Finally, both the Commission’s and court’s decisions in Ho engendered well reasoned dissents. Based on the numerous views expressed by the Commission and the Fifth Circuit, as well as the disparity among the Commission’s own decisions addressing per-employee training violations, we conclude that our precedent warrants reconsideration of this issue. As the instant case provides the first opportunity to reassess the viability of the Ho decision with respect to the appropriateness of per-employee citation under a similarly-worded training standard, we find it necessary and appropriate to do so at this time. See Kenny Niles, 17 BNA OSHC 1940, 1942, 1995-97 CCH OSHD ¶ 31,300, p.43,999 (No. 94-1406, 1997) (finding reconsideration of prior decision “necessary and appropriate” where called into question by intervening precedent); Payne v. Tennessee, 501 U.S. 808, 827 (1944) (stating that “when governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent’” (citation omitted)).

The Commission and courts have long recognized that a fundamental goal of the Act is to “prevent the first accident.” Arcadian Corp., 20 BNA OSHC 2001, 2008, 2005 CCH OSHD ¶ 32,756, p. 52,074 (No. 93-0628, 2004); Mineral Indus. & Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981). The vital role training plays in achieving this objective is apparent from the following statement contained in the preamble to the LICS, the standard at issue here:

Information and training are an essential aspect of the overall protection of employees who can do much to protect themselves if they are informed of the nature of the hazards in the workplace. To be effective an employee education system must apprise the employee of the specific hazards associated with his work environment, protective measures which can be taken, and his rights under the standard.

58 Fed. Reg. 26,590, 26,606 (May 4, 1993). Accordingly, many OSHA training standards specifically require an employer to ensure that prescribed information is provided to and/or understood by “each” individual employee. E.g., 29 C.F.R. § 1926.1101(k)(9)(viii) (asbestos training program must be “conducted in a manner that the employee is able to understand . . . [and] the employer shall insure that each such employee is informed”); 29 C.F.R.
§ 1926.62(l)(1)(ii) (employer must “assure employee participation” in lead in construction training program and “assure that each employee is trained”); 29 C.F.R. § 1910.147(c)(7)(i) (employer must provide lockout/tagout training “to ensure that the purpose and function of the energy control program are understood by employees” and “[e]ach” authorized and affected employee shall receive the requisite training). See also Danis Shook, 19 BNA OSHC 1497, 1500, 2001 CCH OSHD ¶ 32,397, p. 49,864 (No. 98-1192, 2001) (noting that under the construction industry general training standard, “‘a reasonably prudent employer would attempt to give instructions that can be understood and remembered by its employees, and would make at least some effort to assure that the employees did, in fact, understand the instructions’” (citation omitted)), aff’d, 319 F.3d 805 (6th Cir. 2003). Nonetheless, the Secretary’s use of different wording among the various OSHA training standards, particularly in the placement of the requirement to assure “each” employee’s participation and comprehension, has led to apparent confusion as to whether the employer’s duties also differ.

With respect to the three training standards previously considered by the Commission in decisions involving per-employee citations, those at issue in Catapano and GM explicitly describe the threshold training duty at the outset of the cited provisions as directed to “each employee.” In Catapano, the cited provision initially states that “[t]he employer shall instruct each employee [with respect to job hazards and applicable regulations].” 17 BNA OSHC at 1780, 1995-97 CCH OSHD at p. 43,607. Similarly, in GM, the cited provision initially states “[t]he employer shall provide training to ensure that the purpose and function of the energy control program are understood by employees and that the [requisite knowledge and skills] are acquired by employees,” and prescribes that “[t]he training shall include” that “[e]ach” authorized and affected employee receive the requisite training. 22 BNA OSHC at 1047, 2007 CCH OSHD at p. 53,626. Indeed, it is the placement of this language in the lockout/tagout training provision cited in GM that the Commission relied upon to distinguish the provision from that cited in Ho. Id., 2007 CCH OSHD at p. 53,626 (“As with the training standard addressed in Catapano, and in contrast to the training standard addressed in Ho, the specific language of the
. . . provision cited here identifies the subject of the training obligation as ‘[e]ach authorized employee.’”). Accordingly, the Commission concluded in GM that the lockout/tagout standard imposes a duty to train that runs to each employee, regardless whether the employer chooses to provide the required training individually or collectively. Id., 2007 CCH OSHD at p. 53,626.

The first part of the asbestos training standard cited in Ho, however, provides only that “[t]he employer shall . . . institute a training program for all employees . . . and shall insure their participation in the program.” 20 BNA OSHC at 1373, 2007 CCH OSHD at p. 51,583 (quoting 29 C.F.R. § 1926.1101(k)(9)) (emphasis added). The Commission majority interpreted this language to require “one program” for all employees, finding the “focus of the standard is on the employer’s duty to train and impart information to employees generally, and the workplace condition to which the standard is directed is the absence of the appropriate training program.” Id. at 1374, 2002-04 CCH OSHD at 51,583. The majority decision also found that “contrary to the Secretary’s contention,” the additional citation to paragraph (k)(9)(i), which requires the program be conducted “in a manner that the employee is able to understand” and prescribes that “each such employee is informed of [prescribed information],” “does not demonstrate that these provisions define the relevant workplace conditions in terms of exposure of individual employees.” Id., 2002-04 CCH OSHD at p. 51,583. In our view, this interpretation elevates form over substance by emphasizing the coincidental placement of particular wording, and ignores the basic principle of statutory construction that regulations should be read as a consistent whole. 2A Norman J. Singer, Statutes and Statutory Construction § 46:05 (6th ed. 2000) (“A statute is passed as a whole . . . and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section . . . [and] it is not proper to confine interpretation to the one section to be construed.”).

In recognition of the overall purpose of training as an integral component of each employee’s ability to protect himself or herself from workplace hazards and prevent the first accident, and the specific inclusion in the asbestos training standard of language establishing the individualized duty found to exist in the standards at issue in Catapano and GM, we disagree with the majority holding in Ho that per-employee citation under the asbestos training standard is impermissible. Rather, we find that when read in its entirety and in context, the asbestos training standard imposes a duty that runs to each employee. A unit of violation must reflect the substantive duty that a standard imposes, and therefore “any failure to train would be a separate abrogation of the employer’s duty to each untrained employee.” GM, 22 BNA OSHC at 1047. Accordingly, we hereby overrule the portion of the majority’s decision in Ho which holds that the training provisions of the asbestos standard are not susceptible to per-employee citation.

Turning to the citation at issue here, the training provision under the LICS begins by stating that “the employer shall provide a training program in accordance with paragraph (l)(2) of this section and assure employee participation.” 29 C.F.R. § 1926.62(l)(1)(ii). The incorporated paragraph specifies that “[t]he employer shall assure that each employee is trained” in a list of eight enumerated topics, including the nature of the operations that could result in lead overexposure; proper selection, fitting and use of respirators; the medical surveillance program and health effects of lead overexposure; and engineering controls and work practices associated with the employee’s particular job assignment. 29 C.F.R. § 1926.62(l)(2)(i)-(viii). Based on the language of the entire provision, which is nearly identical to that under the asbestos training standard at issue in Ho, we hold the cited training standard imposes a specific duty on the employer to train each individual employee. In these circumstances, we conclude this provision may be cited on a per-employee basis. GM, 22 BNA OSHC at 1048, 2007 CCH OSHD at p. 53,626 (upholding per-employee training citations where standard implicates protection of individual employees). Accordingly, we separately affirm each of the twenty-seven citation items discussed above, and assess an individual penalty for each item.

Under well-settled Commission precedent, per-employee citation is permissible where the cited standard requires an evaluation “under certain unique circumstances peculiar to each employee.” Sanders Lead Co., 17 BNA OSHC 1197, 1200-03, 1993-95 CCH OSHD ¶ 30,740, pp. 42,695-96 (No. 87-260, 1995) (finding instance-by-instance citation permissible under MRP and respirator fit-test requirements of general industry lead standard). The medical surveillance and MRP violations we affirm—Citation 2, Items 28, 29, 34, 36, 37, 41, 43, 45, 47, 49, 57, and 62—were cited under provisions of the LICS that plainly impose obligations specific to each referenced employee. 29 C.F.R. § 1926.62(j)(2)(i)(C) (requiring biological monitoring be made available to “each” employee with the requisite lead exposure); 29 C.F.R. § 1926.62(j)(2)(iv)(A) (requiring notification to “each employee in writing of his or her blood lead level” test results); 29 C.F.R. § 1926.62(j)(2)(iv)(B) (requiring medical removal protection benefits notification to “each employee whose blood lead level exceeds 40 μg/dl”). Moreover, the provisions at issue here also address obligations triggered by “circumstances peculiar to each employee,” including each employee’s specific lead exposure level, each employee’s individual written blood test report, and each employee’s specific BLL. Under these circumstances, we find that the language of the above-noted provisions of the LICS permits citation on a per-employee basis. Manganas Painting Co., 21 BNA OSHC at 1995, 2007 CCH OSHD at p. 53,409 (finding permissible per-employee citation for failure to remove enumerated employees with requisite elevated BLL under MRP provision of LICS). Accordingly, we separately affirm each of these citation items and assess an individual penalty for each item.

Under Citation 2, Items 160 to 201, the Secretary cited Smalis on a per-instance basis for violation of the OSHA recordkeeping regulation, 29 C.F.R. § 1904.2(a) (1993). As we have previously noted, “it is now well-settled Commission precedent that the Secretary has discretion to cite each recordkeeping error as a separate violation, and that the Commission has discretion to assess penalties for such violations on a per instance basis.” Kaspar Wire Works, Inc., 18 BNA OSHC at 2185, 2000 CCH OSHD at p. 48,410. Accordingly, we separately affirm each of these citation items and assess an individual penalty for each item.

The Secretary proposed a total penalty of $5,008,500. She accorded Smalis no credit for size, history or good faith. The judge considered all four statutory factors—size, history, good faith, and gravity—and adopted the Secretary’s proposed penalty amounts for each of the violations that he affirmed, for a total assessed penalty of $2,293,834. OSH Act § 17(j), 29 U.S.C. § 666(j). On review, Smalis contends the judge failed to make an “appropriate” penalty assessment, and failed to properly consider size, good faith and gravity.

The Secretary contends the judge’s penalty assessments are appropriate, particularly in view of Smalis’s “disregard of known obligations, its utter disregard for employee health, and its determination to avoid the costs of compliance.”

As the judge correctly explained, “due consideration” must be given to the statutory penalty factors, with gravity accorded the greatest weight. Contour Erection & Siding Sys. Inc., 22 BNA OSHC 1072, 1075 (No. 06-0792, 2007) (recognizing that Commission continues to view “gravity as the primary element for consideration” in determining penalty amount). Based on the circumstances here, the judge found Smalis was not entitled to any credit for size, good faith, or history. He also found that due to the serious health effects of lead absorption, the gravity of all of the violations he affirmed was “exceptionally high.” Based on our analysis of the penalty factors with respect to each category of violations, we modify the judge’s penalty assessments as follows.

Smalis employed ninety workers on the Tarentum Bridge between the end of July 1993 and early January 1994. Citing legal fees and lost business, Smalis asserts that the penalty amounts should be reduced because a “penalty assessment should not be such that it puts an employer out of business.” The record, however, fails to substantiate Smalis’s financial claims and, in fact, indicates it had ongoing prior contracts and a steady income. Accordingly, we reject Smalis’s contention that its financial condition warrants a penalty reduction for size. Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624, 1993-95 CCH OSHD ¶ 30,363, p. 41,884 (No. 88-1962, 1994) (finding employer was not entitled to penalty reduction where its claim of financial harm was unsubstantiated).

We also reject Smalis’s contention that it is entitled to good faith credit based on its efforts to provide employees with respiratory protection and its compliance efforts since the 1992 inspection. The record shows Smalis failed to enforce portions of its own safety program prescribing the use and proper maintenance of respiratory protection equipment which, according to employee testimony, was often stored inside the lead-contaminated containment overnight. See Ed Taylor Constr. Co., 15 BNA OSHC 1711, 1718, 1991-93 CCH OSHD ¶ 29,764, p. 40,483 (No. 88-2463, 1992) (balancing “commendable measures” such as establishing a safety program with “clearly inadequate” implementation in denying good faith credit). Moreover, rather than increasing its compliance following the 1992 inspection, the record shows Smalis failed to take necessary and recommended steps to protect its employees despite being aware of its legal obligations and the hazards posed by lead exposure. In these circumstances, we agree with the judge that Smalis “vividly demonstrated lack of good faith.”

With respect to gravity, the Commission generally considers factors such as “the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.” See J.A. Jones Constr. Co., 15 BNA OSHC at 2214,

1993 CCH OSHD at p. 41,033. We agree with the judge that the items in Citation 2 that pertain to Smalis’s failure to comply with provisions of the LICS prescribing engineering controls, personal air monitoring, respirator selection and fit testing, a respirator program, follow-up blood sampling for medically removed employees, medical removal benefits, and employee training, are of the highest gravity. See Manganas Painting Co., 21 BNA OSHC at 2000, 2007 CCH OSHD at p. 53,414 (finding high gravity for various violations affirmed under the LICS, including medical surveillance and training, based on evidence of “high ambient exposure readings” and elevated BLLs). Indeed, those violations had the greatest adverse impact on employee safety and health. Smalis’s reliance on engineering controls of questionable efficacy, combined with its increase in blasting and sand sucking activities, resulted in extraordinary levels of employee overexposure to lead, even outside the containment. Moreover, because Smalis did not conduct personal air monitoring, and failed to adequately enforce proper respirator maintenance, use, and selection, the protection afforded by respirators was significantly diminished.

The employee health consequences of Smalis’s non-compliance with these provisions is demonstrated by testimony from toxicologist Dr. Thomas Martin linking the high BLLs and lead poisoning of a Smalis employee, who was “very close to the threshold of developing encephalopathy,” to his January 1994 overexposure at the Tarentum Bridge. With respect to medical surveillance and removal benefits, Dr. Martin testified that these measures are essential to reduce risk of injury from lead overexposure because “you wouldn’t be able to detect . . . continued elevations or failure of levels to drop and therefore the patients would be at greater risk of having toxicity or permanent damage from lead poisoning.” See L & L Painting Co., 22 BNA OSHC 1346, 1349, 2008 CCH OSHD ¶ 32,978, p. 54,054 (No. 05-0050, 2008) (noting the purpose of MRP benefits “is to provide employees with a financial incentive to participate in medical surveillance”). Finally, we agree with the judge’s finding that Smalis’s failure to provide its employees with the required training deemed “essential” to employee protection is also of the highest gravity.

Unlike the judge, however, we find the items in Citation 2 concerning initial biological monitoring in the form of ZPP testing, written BLL notification, insufficient training, and OSHA medical records access are of lesser gravity. Indeed, the record shows Smalis took some actions that mitigated the risks associated with these violations. Although Smalis failed to make ZPP testing available to its employees, it did make initial BLL testing available, the purpose of which overlaps with that of ZPP testing, thereby reducing the likelihood of injury. As for Smalis’s failure to provide written BLL results, it is undisputed all of the employees at issue orally received their test results, which reduced the likelihood of any injury or illness from Smalis’s failure to provide them in writing. Similarly, in accord with Commission precedent, we find Smalis’s failures to provide medical removal benefits notification and comply with recordkeeping requirements to be of lesser gravity. See Sanders Lead Co., 17 BNA OSHC at 1204, 1993-95 CCH OSHD at p. 42,696 (finding only moderate gravity regarding incorrect notification of predicate to medical removal); Hern Iron Works, Inc., 16 BNA OSHC at 1216, 1993-95 CCH OSHD at p. 41,259 (applying Commission precedent that has long “categorized the gravity of recordkeeping as low”).

With regard to job specific training, the record shows that Smalis provided the nineteen employees at issue with comprehensive lead training that excluded only information regarding engineering controls. The likelihood of adverse health effects directly related to this one deficiency, while serious, was relatively less substantial. Finally, with regard to medical records access, the record shows Smalis provided OSHA with summary lists of employee BLLs, and Mercy later forwarded more complete records to OSHA. Because the information provided to OSHA could have alerted it to any compliance failures, the gravity associated with this violation was also somewhat diminished. Under these circumstances, we find these particular violations were of lesser gravity.

Finally, we address the serious items in Citation 1 that are on review only as to penalty. These items concern shower use, the provision of lunchroom facilities/eating area, and medical removal record maintenance, and we find they are of moderate gravity. With regard to Smalis’s failure to assure shower use by employees exposed above the PEL, the record shows Smalis had a rule requiring daily showers, and its foreman was directed to, and sometimes did, monitor the showers for compliance. See Manganas Painting Co., 21 BNA OSHC 2043, 2056, 2008 CCH OSHD ¶ 32,945, p. 53,808 (No. 95-0103, 2007) (consolidated) (finding moderate gravity for failure to ensure exposed employees showered where employer “made some efforts to comply”), rev’d on other grounds, 540 F.3d 519 (6th Cir. 2008). With regard to Smalis’s failure to provide lunchroom facilities or an eating area, the record shows employees ate in an area located seventy-five feet away from the containment, and Smalis provided a washing facility. Moreover, Smalis somewhat enforced, and some employees followed, its work rule requiring that employees wash their hands and faces, as well as remove overalls, before eating. All of these measures reduced the risk of illness associated with this violation. Finally, with regard to Smalis’s failure to maintain proper medical removal records, the evidence shows Smalis did, in fact, record much of the required information, including the reasons for and location of transfers, BLL results and the dates of testing, and subsequent work assignments. See 58 Fed. Reg. at 26,607 (stating purpose of the cited requirement “is to enable . . . the Secretary to assess the operation of, and an employer’s compliance with the medical removal protection program”).

Based on the foregoing discussion, we find the following penalties appropriate.

For those Citation 2 items that we affirm as willful and find to be high gravity, we assess the following penalty amounts: Items 1(b) to 6(b), 10(b), and 17(b) - $70,000; Item 21 - $35,000; Items 23(a-b) - $35,000 (grouped); Items 24(a-c), 24(e-f) - $35,000 (grouped); Items 28 and 29 - $70,000 each; Items 85 to 87 – $70,000 each; and Items 88, 92 to 94, 102 to 104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155 and 158 - $17,500 each. For those Citation 2 items that we affirm as willful and find to be of lesser gravity, we assess the following penalty amounts: Item 25(b) - $25,000; and Items 57 and 62 - $10,500 each. For the Citation 2 item that we affirm as serious and find to be of lesser gravity, we assess the following penalty amount: Item 159 - $3,500. For those Citation 2 items that we affirm as other-than-serious and find to be of lesser gravity, we assess the following penalty amounts: Items 160 to 201 - $625 each. For those Citation 2 items that we affirm as unclassified and find to be of lesser gravity, we assess the following penalty amounts: Items 34, 36, 37, 41, 43, 45, 47, and 49 - $1,000 each; Item 202 - $1,000. For those Citation 1 items we affirm as serious and find to be of moderate gravity, we assess the following penalty amounts: Item 2 - $3,500; Item 3 - $3,500; and Item 4 - $3,500.

We vacate Citation 2, Items 1(a) to 20(a), 7(b) to 9(b), 11(b) to 16(b), 18(b) to 20(b), 22, 25(a), 25(c), 26, 27, 30 to 33, 35, 38 to 40, 42, 44, 46, 48, 50, 51 to 56, 58 to 61, 63 to 71, 74 to 84, 89 to 91, 95 to 101, 105 to 107, 109 to 110, 112 to 118, 122, 129, 131 to 136, 139 to 141, 144, 146, 148 to 154, 156 and 157. We affirm Citation 2, Items 1(b) to 6(b), 10(b), 17(b), 21, 23(a–b), 24(a-c), 24(e-f), 25(b), 28, 29, 57, 62, 85-87, 88, 92-94, 102-104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155, and 158 as willful violations. We affirm Citation 2, Item 159 as a serious violation. We affirm Citation 2, Items 160 to 201 as other-than-serious violations. We affirm Citation 2, Items 34, 36, 37, 41, 43, 45, 47, 49, and 202 as unclassified violations. We affirm Citation 1, Items 2, 3, and 4 as serious violations. Accordingly, for the items we affirm herein, we assess a total penalty of $1,092,750, as follows:

Citation 2: Items 1(b) to 6(b), 10(b), and 17(b) - $70,000; Item 21 - $35,000; Items 23(a–b) - $35,000 (grouped); 24(a-c), 24(e–f) - $35,000 (grouped); 25(b) - $25,000; 28 and 29 - $70,000 each; 34, 36, 37, 41, 43, 45, 47, and 49 - $1,000 each; 57 and 62 - $10,500 each; 85 to 87 - $70,000 each; 88, 92 to 94, 102 to 104, 108, 111, 119 to 121, 123 to 128, 130, 137, 138, 142, 143, 145, 147, 155 and 158 - $17,500 each; 159 - $3,500; 160 to 201 - $625 each; 202 - $1,000.

Finally, we order Smalis to pay medical removal benefits to the three employees at issue under Items 85 to 87 in the following amounts, which are not disputed on review: employee #18 - $3,121; employee #2 - $4,428; employee #43 - $1,588.