“SECRETARY OF LABORComplainant,v.HACKNEY,INC.,Respondent.OSHRC Docket No. 88 -0391[[*]]*DECISION*BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, CommisionersBY THE COMMISSION:Hackney, Inc. operates a pipe ,manufacturing plant in West Memphis,Arkansas. Following a 1987 inispection of its facility, theOccupational Safety and Health Adminstration (\”OSHA\”) issued to Hackneya citation alleging four willful violations of the OSHA noise standard. Three of the items are before the Commission on review.Item 2 of the cotation alleged that Hackney violated the noise standardat 29 C.F.R. ? 1910.95 (g) (1) by failing to institute an audiometrictesting program for all employees exposed to noise levels above 8-hourtime weighted average (\”TWA\”) of 85 decibels. Item 3 charged Hackneywith volated 29 C.F.R. ? 19910.95(i)(5) by failing to properly superviseemployees in the correct use of hearing protectors. Finally, item 4alleged that Hackney violated 29 C.F.R. ? 1910.95(i)(5) by failing tocomply with the compliance officer’s request to turn over records ofmonitoring conducted in 1982. Penalties of $1000 were proposed for eachitem.The matter was heard before Review Commission Adminstrative Law JudgeLouis G. LaVecchia. The judge vacated item 4, but affirmed items 2 and3 as nonserious and assessed a penalty of $500 for each of the items. For the reasons that follow, we reverse the judge, vacate items 2 and 3,affirm item 4, and assess a penalty of $500.A. The alleged willful violations of section 1910.95(g)(1) and 1910.95(i)(5)During the inspection, Compliance Officer Linda Sullivan noticed thatseveral employees were wearing their hearing protectors, in this caseearmuffs, over knit caps and baseball caps. She testified that thisprevented the earmuffs from properly coverings the ears. The complianceofficer also testified that when she pointed out the condition to theearmuffs were worn properly. Following the, the Secretary cited Hackneyfor a willful violation of section 1910.95(g)(1)2 for its failure tohave an audiometric testing program.Hackney makes the threshold argument that the Secertary has failed toestablish that employees were exposed to an 8-hour time-weighted averageof 85 decibels or greater. Such a showing is a prerequiste torequirement to requiring an employer to comply with sections1910.95(g)(1) and 1910.95(i)(5). See sections 1910.95(g)(1) and1910.95(i)(5)3.The Secretary’s evidence of employee exposure comes from threefull-shift are noise samples the compliance officer took in Bay 4 of theplant, using a sound level meter and three dosimeters. The complianceofficer testified that she was not allowed to get closer than four feetfrom the employees of to talk to them. She therefore took area samplesrather than personals by placing dosimeters on metal structures orequipment near the employee workstations. The record does not show howfar away the dosimeters were from the employees. One of theworkstations sample registured a noise level of 90.1 dBA, which exceededthe action level of 85 dBA. The other two sample yielded results below85 dBA. The compliance officer admitted that placing the dosimeter onmetal sheveles subjected them to vibrational noise, but the record failsto disclose the extent to which this vibration might distort noise levelreadings.Judge LaVecchia found that the sample that showed exposure of 90.1 dBAestablished employee exposure to noise above the action level. Herejected Hackney’s claims that the sampling flawed because it was nottaken within the employees’ hearing zone. He also found that the recordshowed that Hackney prevented the compliance officer from conducting herdurveys within the hearing zone of it \\s employees and that Hackneycould not benefit from these actions.The Secretary argues that the judge’s finding that Hackney preventedpersonal sampling constitutes a credibility determination that isentitled to substantial weight and deference. \/Citing Trumid Constr.Co\/., 14 BNA OSHC 1784, 1787-88, 1990 CCH OSHD ? 29,078, p. 38,858 (No.86-1139, 1990), she contends that because she was prevented from takingpersonal samples, the Commission should look at the evidence in toto. The Secretary also points out that, in addition to the noise readingestablishing an 8-hour TWA exceeding 85dBA, Hackney admitted, in itsbrief before the Commission, that at times noise levels could exceed 85dBA. The Secretary contends that the best evidence she was allowed toobtain established and 8-hour TWA exceeding the 85-dBA limit.The Secretary’s argument that the judge’s finding constituted acredibility determination that deserves deference is not persuasive. The Commission normally will not disturb a judge’s credibility findingbecause it is the judge \”who has lived with the case, heard thewitnesses, and observed their demeanor.\” C. Kaufman, Inc., 6 BNA OSHC1295, 1297, 1977-78 CCH OSHD ? 22,481, p. 27,099 (No. 14249, 1978). However, to warrant Commission deference, the finding must specificallyresolve conflicting testimony or doubts as to credibility. Typically,such a finding would involve the identification of testimony that isconflicting and the providing of reasons for crediting the testimony ofone witness over another or for failing to credit a witness whosetestimony is neither contradicated nor impeached. P & Z Co.m 6 BNA OSHC1189, 1192, 1977-1978 CCH OSHD ? 22,413, p. 27,024 (No. 76-431, 1977).The judge’s conclusion that Hackney’s officials interfered with theinspection meets none of these criteria. Here, the judge’s findingrests solely on statements from the compliance officer that she was notallowed to talk to employees or do personal sampling. Those statements,however, do not demonstrate that Hackney’s management officials stoppedher from talking to the employees or taking personal samples. In fact,it was brought out at oral argument that these circumstances may havebeen due to the employees’ choice.[[4]] Moreover, the judge never statedthat his conclusion involved a credibility finding. Rather, it wouldappear that his conclusion was based on his subjective assessment of theprobability of events. Therefore, we conclude that the judge’sconclusion was not a credibility finding, All Purpose Crane, Inc., 13BNA OSHC 1236, 1239, 1986-87 CCH OSHD ? 27,877,p. 36,550 (No. 82-284,1987), and we decline to defer to it. Archer-Western Contrac. Ltd., 15BNA OSHC 1013, 1016, 1991 CCH OSHD ? 29,317, p. 39,377 (No. 87-1067,1991), petition for review filed, No. 91-1311 (D.C. Cir. July 1, 1991).The evidence of interference with the compliance officer’s ability toconduct the inspection was limited to nonspecific statements thatindicated only that the compliance officer was not allowed to talk withemployees or attach dosimeters to them. There was no showing that theprohibition was enforced or induced by Hackney’s management, nor isthere a basis from which to draw such an inference. Therefore, weconclude that the evidence is insufficient to establish that Hackneyobstructed the inspection.Given the Secretary’s failure to establish that Hackney obstructed theinspection, we must determine whether the record evidence establishesthat Hackney’s employees were exposed to the threshold noise levels. Tobe valid, sound measurements generally must be taken within theemployee’s hearing zone. See Collier-Keyworth C., 13 BNA OSHC 1208,1211, 1986-87 CCH OSHD ? 27,867, p. 36,510 (No. 80-2848-1987). Thereadings here were not taken within the \”hearing zone\” of the twoemployees identified at thtat station. Rather, the dosimeter was locatedon a metal shelf at an unknown distance from the employees exposed tothe noise. Moreover, the compliance officer conceded that the vibrationsfrom the metal could affect the integrity of the sample. Because thesample was not take in the employee’s hearing zone and could have beendistorted by vibrations from the metal shelf, we cannot conclude thatthe hearing zone noise levels exceeded 85 dBA.We also do not find that Hackney’s statement, made in its initial briefon review that, at certain times, noise levels would exceed 85 dBA,supports the Secretary’s contention that employees were exposed to theaction level. An admission that employees were exposed to occasionaltransient noise levels exceeding 85 dBA does not establish that the timeweighted average of noise exposure would exceed a TWA of 85 dBA over an8-hour period. The record reveals neither the duration of the noiseabove 85 dBA nor the actual noise levels above 85 dBA. Without adequatesampling, which we do not have, the record does not establish thatHackney’s employees were exposed to an 8-hour TWA of 85 dBA orgreater.[[5]] Accordingly, items 1 and 2 must be vacated.B. The alleged willful violation of section 1910.95(m)(4)[[6]]During the 1987 inspection, the compliance officer requested copies ofthe results of a noise survey conducted at the Hackney facility in 1982.Hackney’s Environmental and Safety Director, Jerry Riddles, stated thatHackney had the monitoring results, and told the compliance officer onthree separate occasions that the company’s attorney would have to becontacted before they would be released. However, Hackney did not make acopy of the noise survey available during the inspection, and for thatreason, the Secretary cited Hackney for a willful violation of section1910.95(m)(4).The judge vacated the item on the grounds that section1910.95(m)(3)(i)[[7]] provides that the noise records must be retainedfor only two years. Citing Erie Bottling Corp. v. Donovan, 539F.Supp.600.606-07 (W.D.Pa. 1982), the judge held that the Secretary isnot entitled to records that are not required to be maintained. He alsonoted that the records were provided during discovery.The Secretary argues that the judge ignored the last sentence of thestandard that incorporates section 1910.20(a)-(e) and (g)-(i). She notesthat section 1910.20(b)(2)[[8]] specifically includes employmentexposure records among those to which employers must provide accessregardless of whether they are required to be maintained under specificstandards. Because section 1910.20(b)(2) is incorporated in section1910.95(m)(4), the Secretary contends that failure to provide the noisesurvey records when requested constituted a violation of the cited standard.Hackney maintains that section 1910.20(b)(2) is inapplicable. Itpoints out that section 1910.20(d) states that \”[u]nless a specificoccupational safety and health standard provides a different period oftime, each employer shall assure the preservation and retention ofrecords as follows….\” Hackney claims that because section1910.95(m)(3)(i) sets its own two-year period for record retention, theprovisions of section 1910.20 by its own terms do not apply.We agree with the Secretary that, under section 1910.20(b)(2), Hackneywas required to make available to the Secretary all monitoring recordsthat it had in its possession, regardless of whether it was under aregulatory duty to maintain the records. Even though the records wereturned over during discovery, Hackney’s refusal to make them availablewhen the compliance officer requested them during the inspection was aclear violation of the standard.Hackney’s argument that the record retention periods of section 1910.20do not apply because they were preempted by a noise standard thatapplied specifically to retention periods for noise monitoring recordsis correct as far as it goes. However, Hackney is not being cited forfailing to maintain records. The Secretary alleges that Hackney failedto make avaialble those employee exposure records that it had in itspossession. There is no specifically applicable noise standard thatpreempts the applicability of section 1910.95(m)(4), set forth Hackney’sobligation to make its noise records available to the Secretary \”whetheror not the records are mandated by specific occupational safety andhealth standards.\” ? 1910.20(b)(2).Contrary to the judge’s holding, Erie Bottling does not control thedisposition of this item. In Erie Bottling, the court declined to orderan employer to turn over private employee medical records that were notrequired to be maintained under the Act, specifically because of itsconcern for employee privacy. 539 F. Supp. at 607. Here, there is noteven a suggestion that employee privacy concerns might be compromised byrequiring Hackney to \”provide upon request\” these plant noise records. Thus, Erie Bottling is inapposite. Accordingly, the judge is reversedand the item affirmed.WillfulnessAlthough Hackney failed to comply with the standard, we find that therecord fails to support a conclusion that the violation was willful. Aviolation iw willful if committed \”with intentional, knowing orvoluntary disregard for the requirements of the Act or with plainindiffernece to employee safety.\” Williams Enterp., 13 BNA OSHC 1239,1256, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987); AsbestosTextile Co., 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ? 27,101, p.34,948(No. 79-3831, 1984). A willful violation is differentiated from anonwillful violation by a heightened awareness — of the illegality ofthe conduct or conditions — and by a state of mind — consciousdisregard or plain indifference. General Motors Corp., Electro-MotiveDiv., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD ? 29,240, p. 39,168 (No.82-630,1991)(consolidated); Williams, 13 BNA at 1256-57, 1086-87 CCHOSHD at p. 36,589. The willfulness charge relates to the employer’sunderlying state of mind when it committed the violation. GeneralMotors, 14 bna OSHC at 2069, 1991 CCH OSHD at p. 39,168. However, aviolation is not willful if the employer shows that it had a good faithopinion that the cited condition did not violate the standard. MelJarvis Constr. Co., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ? 25,713,p.32,060 (No. 77-2100,1981).Here, there is no evidence that Hackney’s underlying motive for notproviding the records to the compliance officer was willful. Thecompliance officer testified that Riddles, Hackney’s environmental andsafety director, told him that he wanted to contact Hackney’s attorneybefore turning over the records. Although Riddles did not act withdispatch in securing the opinion of Hackney’s attorney, we cannot saythat this lack of diligence establishes that the violation was willful. See Marmon Group, Inc., 11 BNA OSHC 2090, 2092, 1984 CCH OSHD ? 26,975,p. 34,643 (No. 79-5363, 1984). Moreover, although it appears to havebeen an afterthought and not the reason Hackney turned down the request,Hackney’s argument that is was not required to provide the recordsbecause section 1910.95(m)(3)(i) no longer required that they beretained is not unreasonable and would have provided an objective goodfaith basis for Hackney to believe it was excused from compliance. SeeMonfort of Colorado, Inc., 14 BNA OSHC 2055, 2062-63, 1991 CCH OSHD ?29,246, p. 39,188-87) (No. 87-1220, 1991)(good faith belief must existat time of violation). Accordingly, we conclude that under thesecircumstances, the Secretary has failed to establish that Hackney’sunderlying motive in not providing the records was willful.Order and PenaltyHackney is a large corporation that employed approximately 68 employeesat this facility at the time of the inspection. Hackney’s failure tomake employee noise exposure records available to the Secretary duringthe inspection could have deprived the Secretary of information vital tothe proper conduct of the inspection and, therefore, could haveadversely affected her ability to fulfull her obligation to ensureemployee safety. Under these circumstances, we find a penalty of $500 tobe appropriate.Accordingly, the judge’s decision is reversed. Items 2 and 3 of thewillful citation are vacated. Item 4 is affirmed as other-than-serious,and a penalty of $500 is assessedEdwin G. Foulke,ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: March 6, 1992 SECRETARY OF LABORComplainant,v.HACKNEY,INC.,Respondent. APPEARANCES: Daniel Curran, Esquire Dallas, Texas For the ComplainantRobert E. Rader, Jr., Esquire Dallas, TexasFor the Respondent._DECISION AND ORDER_LaVecchia, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et. seq.(\”the Act\”). Respondent contests four alleged willful violations of theoccupational noise standard, which are discussed below.The case arose after the Occupational Safety and Health Administration(\”OSHA\”) inspected Hackney’s West Memphis, Arkansas plant. Hackney isa division of Trinity Industries, Inc. The West Memphis plantmanufactures pipe and has 68 employees. )Tr. 28-29; 37). Theinspection began on February 24, 1983, but was not completed untilNovember 20, 1987, because Hackney initially resisted it. See _Donovanv. Trinity Industries, Inc._, 824 F.2d 634 (8th Cir. 1987).As a result of the inspection, OSHA issued two citations. The firstalleges willful violations of 29 C.F.R. ?? 1910.95(d)(3), 1910.95(g)(l),1910.95(i)(5) and 1910.95(m)(4), and proposes a penalty of $1,000 foreach violation. The second alleges \”other\” violations of ?? 1904.2(a)and 1910.1200 (f) (4) (i) , which were withdrawn at the hearing. (Tr.3-4). The hearing took place on December 9, 1988. No additional personsintervened._29 C.F.R. 1910.95(d) (3) _ The cited standard provides as follows: Monitoring shall be repeated whenever a change in production, process, equipment or controls increases noise exposures….The subject standard, as well as the other contested standards, supra,are required by 29 C.F.R. 1910.95(c)(l), which provides that an\”employer shall administer a … hearing conservation program …whenever employee noise exposures equal or exceed an 8-hourtime-weighted average sound level (TWA) of 85 decibels….\” (Tr. 15) .The four contested standards apply to Hackney’s West Memphis plant,therefore, only if the evidence demonstrates its employees were exposedto action-level noise.Linda Holt Sullivan is the OSHA compliance officer (\”CO\”) who inspectedRespondent’s West Memphis plant. She has been an industrial hygienist COsince 1985 and has had extensive training with OSHA. She has a master’sdegree in biological sciences. Her undergraduate studies includedexperiments in the physics of sound in mock industrial settings. (Tr.29-35). She testified about her inspection, which took place fromNovember 18 through November 20, 1987. She met with managementofficials, conducted a walkaround and took full-shift noise samplings.(Tr. 36; 40; 56-57; 74).Sullivan used a sound level meter to screen noise levels in various baysin the plant during her walkaround on November 19. Her screeningindicated levels ranged from the low 70’s up to 102 decibels. Sullivanexplained that screening determines areas that need full-shift sampling.She calibrated the meter before and after the screening to ensure itsaccuracy. (Tr. 45-57; Exh. C-1; Exh. C-2).Sullivan conducted three full-shift area samplings in Bay 4 on November20, using her sound level meter and three dosimeters. She recorded herfindings on noise survey report forms. She explained that sound levelmeter readings, which are like spot checks, must be taken to ensurecorrelation with dosimeter data, which are accumulated readings, butthat citation information can only be based on dosimeter data. The soundlevel meter readings she took were within an acceptable range of thedosimeter readings. (Tr. 46; 56-61; 64-65; 68-71; Exh. C-3; C-4).Two of Sullivan’s samplings did not demonstrate action-level noise, andshe did not recommend citations on the basis of those samplings. Shetook her third sampling in the area of a compressor and other operatingequipment in Bay 4, where employees David Granger and J. C. Gary wereworking. She placed a dosimeter on a shelf near their work station,where she took accumulated readings over a seven hour and 49 minuteperiod. She also took frequent sound level meter readings of the areaduring this period. Sullivan recommended a citation on the basic of thissampling because the dosimeter reading showed an eight-hour TWA of 90.1decibels on the A scale (\”dbA\”) and because Granger and Gary wereexposed to the condition. Although she did not testify about how muchtime Gary spent at the work station, she said Granger was \”pretty much\”at the station the entire day. (Tr. 51-52; 56-69; 76-82; 121-22; 134;139-40; 149-152; 155-61; 164; 171; Exh. C-3; C-4; C-6; C-7).Sullivan’s third noise sampling is the only one that establishesemployee exposure to action-level noise. Its findings appear on ExhibitC-5. Sullivan testified that she calibrated the dosimeter she used bothbefore and after taking the third sampling and that it was workingproperly. There were lines drawn through the dosimeter calibrationinformation on Exhibit C-5. Sullivan not know why the lines were drawn;she did not do it and did not know who had. (Tr. 47-48; 62-63; 123; 137-39).Sullivan further testified that the fact lines were drawn through theinformation did not affect any of the calibration data. If the dosimeterhad not been working properly, she would have drawn lines across theentire front of the form to show the sampling was invalid. She hasexclusive custody of her dosimeters and is responsible for calibratingthem and sending them for their yearly checks. She would have known ifthere had been a problem with them. She still has the dosimeter she usedin the third sampling; there are no problems with it. (Tr. 136-39; 148;165-66).The undersigned judge did not admit Exhibit C-5 into evidence, but didallow Sullivan to testify about the findings of her third sampling. Hertestimony was credible and her expertise in conducting occupationalnoise surveys was. apparent. On balance, Sullivan’s testimonydemonstrates the dosimeter used in the third sampling was workingproperly and accurately recorded noise levels in the surveyed area. Theevidence demonstrates her sound level meter was also working properly. Ifind the results of the third sampling show that employee Granger wasexposed to action-level noise and that the contested standards apply toRespondent’s West Memphis plant. (Tr. 131-32; 139; 149-164; Exh. C-3; C-4).Having found the standards apply, I must now decide whether the evidencedemonstrates a violation of 1910.95(d) (3). Sullivan testified thatduring the walkaround, her sound level meter readings indicated animpact drill was running at about 101 to 102 decibels. She saw the drilloperating for about ten minutes on the walkaround and said it was notoperating very consistently the day she took her samplings. JerryRiddles, Trinity’s corporate safety environmental director, told hernoise level monitoring had been done in 1982. He also told her he feltnoise levels were probably less at the time of the inspection becauseproduction was down. Sullivan asked him if monitoring had been donesince the drill had been installed; he said it had not. She recommendedthe citation because Hackney had added a piece of equipment with thepotential to increase noise and had not remonitored noise levels. (Tr.39; 72-75; 86-87).Although the record demonstrates Respondent did not remonitor soundlevels after the installation of the impact drill, it does notdemonstrate noise levels at the plant increased after the drill wasinstalled. Sullivan herself testified the drill was operatinginconsistently while she was there. Moreover, there was no evidence tocontrovert Riddles’ statement that noise levels were probably lower atthe time of the inspection than they were in 1982. Because the evidencedoes not establish a violation of 1910.95(d)(3), this item of thecitation must be vacated._29 C.F.R, 1910,95(g)(l)_ The cited standard provides as follows: The employer shall establish and maintain an audiometric testing program as provided in this paragraph by making audiometric testing available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels.Respondent does not dispute that it does not provide audiometrictesting. It contends, rather, that the Secretary failed to proveemployee exposure to action-level noise. It points out that Exhibit C-5,the basis of the Secretary’s citation, was not admitted into evidence.Notwithstanding, as discussed above, the undersigned judge has foundthat Sullivan’s testimony about her third sampling demonstrates employeeexposure to action-level noise.Respondent further contends that Sullivan’s third sampling was flawedbecause it was not taken within the employees’ \”hearing zone,\” which theOSHA Industrial Hygiene Technical Manual defines \”as a sphere within atwo foot diameter surrounding the head.\” Chapter VI, E.l.d.(1). It notesthe Commission has held that sound measurements must be taken within theemployee’s hearing zone, by either holding a sound level metermicrophone within the employee’s hearing zone, or by having the employeewear a dosimeter throughout the workday. _Collier-Keyworth Co.,_ OSAHRC, 13 BNA OSHC 1208, 1211, 1987 CCH OSHD 27,867 (No. 80-2848, 1987),vacated on other grounds, 13 BNA OSHC 2165, 1989 CCH OSHD 28,515 (1989).Respondent points out that Sullivan conducted her third sampling byplacing the dosimeter on metal shelving some feet away from Granger andGary, and that no measurements were taken within their hearing zone. Itnotes Sullivan testified that when dosimeters are placed on metal,vibrational noise can cause a higher reading. (Tr. 122-23). Respondentalso points out there was no evidence regarding how long Granger andGary worked in the surveyed area during the day or how long they wereexposed to any particular noise level.Respondent’s arguments must be considered in light of the circumstancesunder which Sullivan conducted her surveys. Sullivan testified there aretwo kinds of noise samples – area samples and personal samples. Sheacknowledged Respondent’s employees were moving around in the areas shesurveyed and said that when employees are extremely mobile it isadvisable to conduct personal samplings. She conducted area samples,however, because she could not conduct personal samples. Respondent didnot allow her to get within four feet of its employees or to talk tothem. She therefore had very little choice in her sampling areas. (Tr.57-58; 117; 123; 126; 158; 171; 176; 182). Since the record showsRespondent prevented Sullivan from conducting her surveys within thehearing zone of its employees, it may not now benefit from its conductby complaining that her surveys are flawed for that reason.Moreover, even though Respondent asserts there is no evidence about howlong Granger and Gary worked in the surveyed area, Sullivan testifiedGranger was \”pretty much\” at the surveyed work station the entire day.(Tr. 171). Respondent’s argument that Sullivan’s third sampling wasflawed is therefore rejected.Respondent’s final argument is that its hearing conservation programexceeds the standard because, unlike the standard, it does not waituntil employees suffer a hearing loss before requiring them to wearprotection. Jerry Riddles, Trinity’s corporate safety environmentaldirector, has been responsible for the West Memphis plant’s hearingconservation program since 1976. He testified the program’s action levelis 82 decibels and requires that all plant employees wear hearingprotection and undergo training. He said the hearing protectionemployees use ensures they are seldom exposed to over 70 decibels. (Tr.4-8; 17; 22-27; Exh. R-1; R-2; R-3; R-4). Sullivan testified Riddlestold her hearing protection use was mandatory at levels above 82decibels and that training was conducted at the facility. Sheacknowledged that all plant employees wore approved hearing protection.(Tr. 39; 103; 114-15; Exh. C-2).Respondent urges that because it already enforces hearing protection,the ultimate remedy of the occupational noise standard, there is noreason to conduct audiometric testing since it would add nothing to thesafety or health of its employees. Respondent asserts its programcomplies with the purpose of the standard, which is to prevent hearingloss. It also asserts the likelihood its employees would suffer hearingloss is remote, since they are never exposed to noise in excess of 70decibels. Respondent concludes that since its failure to conductaudiometric testing has no direct or immediate relationship to safety orhealth, and since the possibility of injury is remote, any violationmust be classified as _de minimus_.The Secretary, however, contends Respondent is estopped from arguing itis not in violation of the standard because of a previous decisioninvolving Hackney’s Enid, Oklahoma, facility. Hackney. Inc., 88 OSAHRC22\/A3, 13 BNA OSHC 1901, 1988 CCH OSHD 1 28,279 (Botkin, J., No.86-1322, 1988), aff’d, 895 F.2d 1298 (10th Cir. 1990).In that case, which involved the same hearing program at issue in thiscase, the First Circuit affirmed Judge Botkin’s holding that Hackney wasin nonserious violation of the noise standard because it failed to giveits employees the audiometric testing the standard requires. The Courtrejected Respondent’s claim that its program was superior to thestandard, finding it lacked a means of determining whether employeeswere complying with the program or whether the protection was effective.The Court also found Respondent’s program deprived both the employer andOSHA of the information necessary to ascertain if employees’ hearingremained undamaged by workplace noise. _Id_. at 1301. In light of thisdecision, Respondent’s contention that the citation must be classifiedas _de minimus_ cannot succeed.Based on the foregoing, I find that Respondent’s failure to conductaudiometric testing violated 1910.95(g) (1). The Secretary urges theviolation should be classified as willful. I will address thecharacterization of the violation infra, after determining whetherRespondent was in violation of the two remaining contested standards._29 C.F.R. 1910.95(i)(5) _ The cited standard provides as follows: The employer shall ensure proper initial fitting and supervise the correct use of all hearing protectors.Sullivan testified she recommended the subject citation because duringher inspection she saw three employees wearing earmuffs improperly, withthe tops of the muffs resting on the tops of caps they were wearing. Shesaw one employee wearing his muff improperly during her walkaround, butdid not photograph him or mention him to management. She saw two moreemployees, David Granger and David Busby, wearing muffs improperly thenext day. She photographed them and mentioned them to a managementofficial, who responded that employees were told how to wear muffscorrectly. She did not remember which manager it was, but said it wasRiddles, Grey Hays or Neil Foreman, since they were the ones thataccompanied her that day. To her knowledge, the manager did not correctthe situation. Sullivan said it is \”quite obvious\” if earmuffs are notbeing worn properly. (Tr. 36; 76-78; 80-85; 123-26; Exh. C-6; C-7; C-8).Respondent contends that to establish a violation of the subjectstandard, the Secretary must prove both (1) that employees were exposedto action-level noise, and (2) that they had suffered a significantthreshold shift (\”STS\”) in hearing, such that they were required to wearhearing protection. 29 ? C.F.R. S 1910.95(g)(8)(A). It concludes thatsince the Secretary proved neither, she has not established a violation.As I have already found the evidence demonstrates employee exposure toaction-level noise, I need not address Respondent’s first argument.However, I will address its second.The standard does require that employees use protection only after theyhave suffered an STS in hearing, and there is no evidence of this in therecord. However, Respondent’s failure to conduct audiometric tests madeit impossible for OSHA to determine if any employee had undergone anSTS. _Hackney_, _supra_, at 1301. Respondent may not, therefore, benefitfrom its own failure to conduct audiometric tests by complaining thatthe Secretary did not prove employees had suffered an STS in hearing.Respondent further contends, however, that the three instances ofimproper earmuff use Sullivan observed were isolated instances ofemployee misconduct. It points out Sullivan herself testified sheobserved the condition \”in an isolated type incident on the walkaround.\”(Tr. 83). It also points out Sullivan testified Hackney’s programrequired all employees to wear hearing protection and that they did infact wear protection. (Tr. 103: Exh. C-2). It notes Riddles testified,and Sullivan acknowledged, that the program was enforced and employeeswere trained. (Tr. 17; 39).Respondent asserts there is no evidence that management took nocorrective action after Sullivan called the condition to its attention.She did not mention the first employee she observed to management atall. And, while she did mention the other two employees to management,she did so outside of Bay 4. She had no knowledge whether managementcorrected the situation, and did not testify that employees continued towear protectors incorrectly after she brought them to management’sattention. (Tr. 83-84).Respondent urges the citation should be vacated, since it did not knowand could not have foreseen that two or three employees, out of 68,would wear their protectors improperly. In support of its position, itcites to _The Duriron Co., Inc.,_ 83 OSAHRC 22\/A2, 8 BNA OSHC 1575,1578, 1978 CCH OSHD 22,918 (Brenton, J., No. 77-2847, 1978). In thatcase, Judge Brenton vacated the citation as an isolated incident becausethe evidence showed the employer required hearing protection and allemployees except one were wearing protection.To prove that a violation is the result of unpreventable employeemisconduct, Respondent must show that it both established andeffectively communicated work rules designed to prevent the violation._Jensen Construction Co.,_ 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1479, 1979CCH OSHD 23,664 (No. 76 1538, 1979). The record demonstrates Respondentrequired its employees to wear hearing protection. However, it does notdemonstrate Respondent instructed employees to not wear earmuffs overcaps or hats or otherwise specifically trained them about the proper useof earmuffs.Riddles testified Hackney trained its employees. Sullivan testifiedmanagement told her employees were trained and \”told how to correctlywear\” earmuffs. Riddles told her \”training was done\” at the plant. (Tr.17; 39; 83). However, these statements do not constitute evidence thatRespondent gave specific instructions that would have prevented theviolations. Therefore, Respondent has not shown the violations were theresult of unpreventable employee misconduct. Further, Respondent’sreliance on _Duriron_, _supra_, is misplaced. While the case wasdirected for review, the portion of the case that dealt with hearingprotection was not reviewed by the Commission and has no precedentialvalue. Consequently, a violation of 1910.95(i)(5) has been shown._29 C.F.R. 1910.95(m)(4) _ The cited standard provides as follows: All records provided by this section shall be provided upon request to employees, former employees, representatives designated by the individual employee, and the Assistant Secretary.Sullivan testified she recommended the subject citation because Riddlesdid not give her access to the West Memphis plant’s 1982 noisemonitoring results, even though he had them. (Tr. 85-86).Respondent, however, points out that 1910.95(m)(4) is modified by1910.95 (m)(3) , which provides that records of noise exposuremeasurements shall be retained for two years. It contends that since itconducted its survey in 1982, and since such records need only be keptfor two years, then under the standard it had no duty to provide or evenhave the records when Sullivan requested them. _Erie Bottling Corp, v.Donovan_, 539 F. Supp. 600, 606-07 (W.D. Pa. 1982). That case held theSecretary is not entitled to records that are not required to bemaintained by the Act.Respondent also points out Riddles was not sure he should turn therecords over when Sullivan requested them. (Tr. 86). He told her hewould have to check with Hackney’s counsel, who gave the records to theSecretary in response to her request for production of documents.Respondent asserts the Secretary should have withdrawn the citationafter it gave her the records.Since Respondent was not required to keep noise monitoring results formore than two years, it was not required to have its 1982 records whenSullivan requested them and, accordingly, had no duty to provide them toher. _Erie Bottling Corp._, _supra_. Further, even though Respondentinitially did not give OSHA its records, its counsel apparently providedthe records to the Secretary during discovery. Since the record does notshow a violation of 1910.95(m)(4), this item of the citation must bevacated._Whether the Violations were Willful_Having found Respondent in violation of ?? 1910.95(q)(l) and1910.95(i)(5), the undersigned judge must now decide whether theviolations were willful. To prove a willful violation, the Secretarymust show it \”was committed with intentional disregard of the Act’srequirements or plain indifference to workers’ safety.\” _R. D. AndersenConstr. Co., Inc_., 86 OSAHRC 6\/A14, 12 BNA OSHC 1665, 1669, 1986-87 CCHOSHD 41 27,500 (No. 81-1469, 1986) ; _United States Steel Corp._, 86OSAHRC 8\/B2, 12 BNA OSHC 1692, 1703, 1986-87 CCH OSHD 27,517 (No.79-1998, 1986).Riddles testified he was aware of the occupational noise standard at thetime of the inspection. He knew it stated that hearing conservation wasto be implemented without regard to attenuation. He admitted that inspite of that language, he made a conscious decision to implementTrinity’s program, which measures noise exposure by subtracting theattenuation hearing protection affords from the actual noise level. Healso admitted he knew OSHA’s position was that it would enforce thestandard without regard to attenuation, but said he did not know thisuntil an earlier case which involved Hackney’s Enid, Oklahoma, facility.After that decision, Hackney applied for a variance because it believedit would be infeasible to follow the standard. It also believed it wasin compliance since it felt its program exceeded the standard. (Tr. 5-7;13-21; 28).Sullivan testified she recommended the violations be classified asnonserious because. of an OSHA directive that provides seriousviolations will not be issued except for noise levels that reach aneight-hour TWA of 92 dbA. She found the severity of the violations to be\”zero,\” based on criteria set out in the OSHA Field Operations Manual.She acknowledged the West Memphis plant had a safety program in effectthat included safety meetings, a corporate safety manual and an employeesafety manual. She did not take Riddles’ interpretation of the standardas indifference, or feel that Hackney’s program showed a consciousdisregard for employee safety. (Tr. 106-13; 120; 133-34; 164; Exh. R-5).Although Hackney has been found to have violated two requirements of theoccupational noise standard, its conduct does not demonstrate theintentional disregard or plain indifference required for a willfulviolation. On the contrary, the evidence shows it has a safety programwhich includes safety meetings, a corporate safety manual and anemployee safety manual.Respondent asserts there is a difference of opinion between the partiesregarding the interpretation and application of the standard. However,as it points out, this does not establish a willful violation. _C. N,Flagg & Co., Inc_., dba Northeastern Contracting Co., 75 OSAHRC 32\/C6, 2BNA OSHC 1539, 1541, 1974-75 CCH OSHD 19,251 (No. 1409, 1975).In that case, the Commission stated: [T]here is a difference of opinion between Flagg and Labor as to whether a violation existed on the facts. Certainly an employer is entitled to have a good faith opinion that his conduct conforms to regulatory requirements in a given factual situation. And such conduct should not be construed as constituting a willful violation of the Act merely because Labor holds a contrary opinion on the facts and advises the employer of that opinion._Id_. at 1541.The record in this case does not support a finding of willfulviolations. Moreover, on the basis of Sullivan’s testimony, it does notsupport a finding of serious violations. However, a showing ofnonserious violations has been made. Therefore, items 2 and 3 ofcitation number 1, alleging violations of 1910.95(g) (l) and 1910.95(i)(5), respectively, are affirmed as nonserious.I turn now to the assessment of an appropriate penalty. The Secretaryproposed a penalty of $1,000 for each of the four alleged willfulviolations. However,two of the violations have been vacated, and theremaining two have been affirmed as nonserious. I conclude that apenalty of $500 is appropriate for each nonserious violation, for atotal penalty of $1,000. This reflects Respondent’s size, history, goodfaith and gravity of the violations._Conclusions of Law_1. Respondent, Hackney, Inc., is engaged in a business affectingcommerce and has employees within the meaning of ? 3(5) of the Act. TheCommission has jurisdiction of the parties and of the subject matter ofthis proceeding.2. On November 20, 1987, Respondent was in nonserious violation of 29C.F.R. ?? 1910.95(g)(l) and 1910.95(i)(5). Respondent was not inviolation of 29 C.F.R. ?? 1910.95(d)(3) and 1910.95 (m) (4)._ORDER_On the basis of the foregoing Findings of Fact and Conclusions of Law,it is ORDERED that:1 . Items 1 and 4 of willful citation number 1 and the proposedpenalties therefore are VACATED.2. Items 2 and 3 of willful citation number 1 are AFFIRMED as nonseriousand a penalty of $500 for each item is assessed.Louis G. LaVecchiaAdministrative Law JudgeDATE: September 13, 1990FOOTNOTES[[*]]Because of certain common issues, this case was consolidated withTrinity Industries, Nos. 88-1545 and 88-1547 for purposes of the oralargument heard before the Commission on November 13, 1991. However, thecases remain separate for decisional purposes.[[1]] The standard provides:? 1910.95 Occupational noise exposure…..(i)Hearing protectors…..(5) The employer shall ensure proper initial fitting and supervise thecorrect use of all hearing protectors [[2]] The standard provides:? 1910.95 Occupational noise exposure…..(g) Audiometric testing program. (1) The employer shall establish andmaintain an audiometric testing program as provided in this paragraph bymaking audiometric testing available to all employees whose exposuresequal or exceed an 8-hour time-weighted average of 85 decibels.[[3]] Under section 1910.95(i)(l), employers are only required to makehearing protectors available to \”employees exposed to an 8-hourtime-weighted average of 85 decibels or greater.\”[[4]] COMMISSIONER MONTOYA: With respect to the noise levels at Hackney,I want to know whateveidence is there that supports your assertion thatHackney has interfered with the inspection….MR. CONNELL: Well, the compliance officer testified that she wasprohibited from getting within four feet of the employees. That she wasnot allowed to put personal monitoring equipment on the employees.Now this was a subject of dispute or it’s a subject of dispute now. Theadministrative Law Judge made a credibility determination in creditingher testimony to this effect.CHAIRMAN FOULKE: Well, she didn’t specifically state in her testimonywhat specific actions Hackney did to interfere with hertaking–interfered with th einspection or taking the measurements.MR. CONNELL: That’s correct. The testimony–when you read her testimony,she sort of speaks in terms of almost like this wasn’t a matter ofdispute. That it was clear from the beginning that she wasn’t allowed toput on personal monitoring devices.CHAIRMAN FOULKE: So why didn’t she just say the plant manager saidno…. As far as we know, the employees may have made a personaldecision that they didn’t want the monitoring and told her that. And shemay have inferred that that was something from the company.MR. CONNELL: Well, unfortunately her testimony is not as specific asthat. That’s true.[[5]] In view of our disposition we need not address HJackney’sunpreventable employee misconduct and de minimis arguments.[[6]] The standard provides:? 1910.95 Occupational noise exposure…..(m) Recordkeeping….(4) Access to records. All records reqruied by this section shall beprovided upon request to employees, former employees, representativesdesignated by the individual employee, and the Assistant Secretary. Theprovisions of 29 C.F.R. 1910.20(a)-(e) and (g)-(i) apply to access torecords under this section.[[7]] The standard provides:? 1910.95 Occupational noise exposure…..(m) Recordkeeping….(3) Record Retention. The employer shall retain records required in thisparagraph(m) for at least the following periods.(i) Noise exposure measurements records shall be retained for two years.[[8]] The standard provides:? 1910.20 Access to employee exposure and medical records…..(b) Scope and application…..92) This section applies to all employee exposure and medical records,and analyses thereof, of such employees, whether or not the records aremandated by specific occupational safety and health standards. “