SECRETARY OF LABOR,
Complainant,

v.

BAY STATE MELTING CO., INC.,
Respondent.

OSHRC Docket Nos. 80-0344 & 80-1968

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Two issues are before the Commission.  The first is whether the administrative law judge erred in concluding that Bay State Smelting ("Bay State") did not commit a willful violation of the portion of the lead standard that prohibits prophylactic chelation of employees.[[1]]  The judge's ruling affirming the violations as serious is not before us for review.[[2]] The second issue is whether the Judge erred in vacating the citation which alleged a nonserious violation of the posting requirements of 29 C.F.R. 1903.16.[[3]]

The Secretary contends that Bay State consistently and willfully disguised the problem of the overexposure of its employees to lead by resorting to chelation rather than limiting employee exposure through the use of engineering
controls or respirators. In order to prove a willful violation, the Secretary must establish that the violation was committed "with either an intentional disregard of, or a plain indifference to, the Act's requirements." D.A. & L. Caruso, Inc., 84 OSAHRC , 11 BNA OSHC 2138, 1984 CCH OSHD (P) 26,985 (No. 79-5676, 1984); Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BHA OSHC 1052, 1981 CCH OSHD (P) 25,713 (No. 77-2100, 1981).
The administrative law judge found that the record did not support a willful violation. The judge found that "in a situation calling for medical judgment, the Respondent's actions were in reliance on the opinions of physicians."
(ii) If therapeutic or diagnostic chelation is to be performed by any person in paragraph (j)(4)(i), the employer shall assure that it be done under the supervision of a licensed physician in a clinical setting with thorough and appropriate medical monitoring and that the employee is notified in writing prior to its occurrence.


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Chairman Buckley would vote to affirm the Judge's findings. In each of the instances where the Secretary established that chelating drugs were distributed to Bay State employees, the drugs were prescribed by physicians. The record does not support a finding that Bay State willfully acted to cause these physicians to prescribe chelating agents for prophylactic rather than therapeutic or diagnostic purposes. Bay State also set up a program to monitor employees' blood lead levels and arranged medical help for employees who exhibited high levels. Given these circumstances, Chairman Buckley would not say that Bay State showed "a plain indifference" to the requirements of the standard or the safety of its workers.
Commissioner Cleary would find that the facts of this case disclose a pattern of conduct in violation of the cited standard to the extent that a willful violation of the lead standard is clearly indicated. The standard forbids prophylactic chelation of any employee at any time. It only permits therapeutic or diagnostic chelation under the supervision of a licensed physician in a clinical setting with medical monitoring, and the employee mist be notified in writing prior to its occurrence. At the time of this inspection, Bay State had been previously cited for violation of the lead standard and had not contested it. Prior to the subject Inspection, Bay State obtained prescriptions for chelation from a doctor with the understanding that the employee should appear subsequently for medical examinations. The employees were not sent for the medical , and Bay State was warned by the doctor of the adverse medical effects of chelation. After the initial doctor ceased treatment, a second doctor informed Bay State of a high blood lead level of one employee who needed hospitalization. Subsequently, Bay State


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sought a third doctor, and informed him that the drug, penicillamine, had been prescribed by a doctor no longer available. The third doctor contacted yet another doctor and, without seeing the patient, prescribed penicillamine, which was administered to Bay State employees who were encouraged to take it.
In Commissioner Cleary's opinion, the evidence would indicate that Bay State manipulated the doctors into prescribing a drug for prophylactic chelation, and that Bay State was warned on several occasions of the adverse effect of chelating drugs by several doctors. The facts of the case establish that Bay State exhibited, at the very least, a plain indifference to the requirements of the standard.
Concerning the alleged posting violation, Chairman Buckley would affirm the administrative law judge's dismissal of this citation. Chairman Buckley notes that the testimony of Bay State's foreman, Mr. Bond, that each page of the citation was posted separately next to the time clock was never directly contradicted. There is no dispute that this satisfies the posting requirements of the standard and it is therefore unnecessary to consider whether Bay State's posting of the citation at a second site, the incinerator, also satisfied the standard's requirements.
Commissioner Cleary notes that when the compliance officer returned to the Bay State workplace she saw only one citation posted. The citation was barely visible and the three-page document was taped down on all sides. According to Commissioner Cleary, this kind of display does not meet the standard's require


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ment to post the citation "in a prominent place" where it is "readily observable."
The two Commission members are divided on whether the judge erred in his disposition of the two issues in this case. To resolve this impasse and to permit the litigation to proceed to a conclusion, the members have agreed to affirm the judge's decision but accord it the precedential value of an unreviewed judge's decision.[[4]] See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD (p) 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).
FOR THE COMMISSION
EXECUTIVE SECRETARY
DATED: AUG 31 1984
[[4]]As established by the Act, the Commission is composed of three members. Section 12(a), 29 U.S.C. {sec} 661(a). Under section 12(f) of the Act, 29 U.S.C. {sec} 661(e), official action can be taken by the Commission with the affirmative vote of atleast two members. Because there is a vacancy, the Commission currently has only two members.


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SECRETARY OF LABOR,
Complainant V.
BAY STATE SMELTING CO., INC., Respondent
OSHRC DOCKET NOS. 80-344, 80-1968
APPEARANCES: David L. Baskin, Esq., for Complainant
Walter H. McLaughlin. Sr., and William F. York, Esqs., for Respondent
DECISION This case arose under 29 USC, sec. 651 et seq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the Occupational Safety and Health Administration [OSHA] of the Respondent's premises on November 8, 1979 - February 15, 1980 and November 8, 1979 -December 28, 1979, Citations were issued on or about January 8, 1980, and on
or about March 28, 1980, charging that Respondent violated sec. 5 (a)(2) of the Act.
The January 8th Citation #1 alleged the serious violation of items # 1 - 3, and Citation #2 alleged the willful violation of item #1.
The March 28th Citation #1 alleged the serious violation of items # 4 - 6; Citation #2 alleged the willful violation of item #2; and Citation #3 alleged the other than serious violation of item #1 and 2.


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Citation #1 alleged the serious violation of the standards at 29 CFR 1910.1025(j)(2)(IV)(a); (j)(2)(IV)(b); (j)(3)(i)(a); (j)(1)(i); (j)(3)(i)(b); (n)(2)(i); (d)(4); (j)(2)(i)(a); (j)(2)(i)(b); (j)(3)(IV)(a); (1)(1)(i); (1)(1)(ii); (1)(1)(iii); (1)(1)(V)(a); (1)(1)(V)(d); (1)(1)(V)(g); (1)(2)(ii); and (n)(3)(i) in, respectively, items #1a, 1b, 1c, 4a, 1d, 2, 3, 4b, 4c, 4d, 5a, 5b, 5c, 5d, 5e, 5f, 5g, and 6.
Citation #2 alleged the willful violation of the standards at 29 CFR 1910.1025(j)(4)(i) and (k)(2)(i) in, respectively, items #1 and 2.
Citation #3 alleged the other than serious violation of the standards at 29 CFR 1903.16(a) and 1904.7, in, respectively, items #1 and 2.
On or about April 7, 1980, the Respondent filed Notice of Contest to all items of the Citations and the penalties proposed therefor.
The pertinent sections of the Act and the standards are appended to this decision under appropriate titles.
The Respondent contended that the Citations of March 28th were issued primarily to harass the Respondent into settling the charges brought against it in the January 8th Citations. No testimony was taken on that accusation and, regardless of why the Citations were issued, the decision must be based on the evidence adduced at the hearing.
The evidence made it very clear that the blood lead level of employees exceeded permissible limits and that employees were exposed to lead that exceeded the limits permitted by the cited standards. It was stipulated that the laboratory analysis figures showing exposure to lead were authentic and accurate. Converting those stipulated figures into those required by the various standards, it is established that at least some of the Respondent's employees were exposed to excessive lead...Tr. 858-866, Exh. C-9.


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As concerns item #1A of Citation #1, the employee Johnson testified that he never received any written notification of his excessive blood lead level. I was very impressed with Johnson's honesty; moreover, his statement to that effect was not contradicted...Tr. 31, 37, 45, 57, 58, 75, 552, 773. I find that the Respondent was not in compliance with the standard at
29 CFR 1910.1025(j)(2)(IV)(a).
As concerns item #1B of Citation #1, the employee Johnson testified that he never received any written notification of temporary medical removal or benefits. His statement was not contradicted. Industrial Hygienist Tremblay's testimony was to the same effect...Tr. 44, 45, 778, 779, 782.
I find that the Respondent. was not in compliance with the standard at 29 CFR 1910.1025(j)(2)(IV)(b).
As concerns items #1C and 1D of Citation #I, Industrial Hygienist Tremblay testified that the only medical examinations and consultations for employees were those requested by Dr. Nemkof. That testimony was not contradicted ...
Tr. 783. I find that the Respondent was not in compliance with the standards at 29 CFR 1910.1025(j)(3)(i)(a) and (j)(3)(i)(b).
As concerns items #2 and 6 of Citation #1, Industrial Hygienist Tremblay testified that there were no records kept for the years 1978 and 1979; and that the Respondent's supervisor (Bond) was not able to provide her with
any ... Tr. 744, 813, 884, 885. That testimony was not challenged. Item #6 was withdrawn [See Complainant's brief, page 16].
I find that the Respondent was not in compliance with the standard at 29 CFR 1910.1025(n)(2)(i).
As concerns item #3 of Citation #1, the evidence of all the witnesses clearly established the possibility of employee exposure at or above the action level. Industrial Hygienist Tremblay testified that the Respondent's


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supervisor (Bond) told her there had been no monitoring since March 27, 1978 ... Tr. 745, 818. That testimony was not contradicted. I find that the Respondent was not in compliance with the standard at 29 CPR 1910.1025(d)(4).
As concerns item #4A of Citation #1, Industrial Hygienist Tremblay testified that the medical surveillance program described by the Respondent's supervisor (Bond) was merely "representative"....Tr. 871. That testimony was not contradicted. I find that the Respondent was not in compliance with the standard at 29 CFR 1910.3.025(j)(1)(i).
As concerns items #4B and 4C of Citation #1, employee Johnson's testimony established that biological monitoring was not made available as required. Industrial Hygienist Tremblay testified that any biological monitoring conducted by the Respondent was done on a "representative" basis. That testimony was not contradicted....Tr. 31, 40, 58. 69, 83, 779, 871. I find that the Respondent was not in compliance with the standards as required 29 CFR 1910.1025(j)(2)(i)(a) and (j)(2)(i)(b).
A3 concerns item #4D of Citation #1, the Respondent did not provide any physician with the information required. I find that the Respondent was not in compliance with the standard at 29 CPR 1910.1025(j)(3)(IV)(a).
As concerns items #5A, 5D, 5E, and 5F, the Respondent's employees were not provided with the required information. The testimony of employee Johnson and Industrial Hygienist Tremblay to that effect was not contradicted... Tr. 31-45, 773-782, 878-881. I find that the Respondent was not in compliance with the standards at 29 CPR 1910.1025(1)(1)(i). (1)(l)(V)(a), (1)(1)(V)(d), and (1) (1) (V) (g).
As concerns items #5B and 5C of Citation #1, there was no training program of any kind. I find that the Rospondent was not in compliance with the standards at 29 CFR 1910.1025(l)(1)(ii) and (1)(1)(iii).


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As concerns item #5G of Citation #1, the Respondent had no materials to provide ... Tr. 881. I find that the Respondent was not in compliance with the standard at 29 CFR 1910.1025(1)(2)(ii).
As concerns item #6 of Citation #1, it was withdrawn by the Complainant (see Complainant's brief, page 16).
As concerns item #1 of Citation #2, the employee Johnson testified that the Respondent's supervisor (Bond) gave him pills to take so he "wouldn't get no lead poisoning". Supervisor Bond corroborated that testimony ... Tr. 40, 58, 68, 69, 77, 79, 538, 552- 558. The witness Mrs. Johnson's testimony was to the same effect...Tr. 105, 109, 112. The witness Dr. Karlin testified that, at the request of the Respondent's supervisor (Bond) and vice- president (Sach), he had prescribed penicillimine, a chelating agent, to two employees of the Respondent before examining either...Tr. 355, 363, 364.
"Chelation" refers to treatment by which a drug combines with metal in the body and the substance is then excreted. Prophylactic (or preventive) chelation occurs when the chelating drug is administered before, or in the absence of, symptoms of lead toxicity.
On the evidence here, I find that at least one of the Respondent's employees was administered chelating drugs before he showed signs of lead toxicity; and supervisory personnel of the Respondent either participated in such administration or at least condoned it. As a result, I find that the Respondent did not "assure" that any of its employees did not "engage in prophylactic chelation of any employee at any time." I find that the Respondent was not in compliance with the standard at 29 CFR 1910.1025(j)(4)(i).
As concerned item #2 of Citation #2, it was withdrawn by the Complainant (See Complainant's brIef, page 16).
As concerns item #1 of Citation #3, employee Johnson testified that some "official-looking forms" were posted near the time clock in September, 1979...


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Tr. 97. The Respondent's supervisor (Bond) testified that the citations were posted next to the time clock and on the side of the incinerator control panels ... Tr. 560. The Respondent's vice-president (Sach) testified the citations were so posted on the advice of the Respondent's attorney... Tr. 1166, 1177. Although Industrial Hygienist Tremblay testified that there was nothing posted at the time clock, she did acknowledge that the citation was posted on the incinerator control panel. She said it couldn't be seen when entering the room, and only one page was visible because the other pages were taped behind it ... Tr. 881-884.
On that evidence, I find that the Respondent had posted the citation "unedited" and "in a prominent place" where it was "readily observable". I base that finding on the testimony of the witnesses and the probability that the Respondent would have followed its attorney's advice about posting.
The fact that the pages of the Citation were not posted individually does not invalidate the posting. It is not always possible to post every page in a place by itself and, in the conditions here, the Respondent had posted in a practical and sufficient way to be available to the perusal of employees.
I find that the Respondent was in compliance with the standard at 29 CFR 1903.16(a).
As concerns item #2 of Citation #3, Industrial Hygienist Tremblay testified that the Respondent's supervisor (Bond) admitted there were no records [log and summary] of occupational injuries and illnesses for the years 1978 and 1979. That testimony was not contradicted ... Tr. 884, 885. 1 find that the Respondent was not in compliance with the standard at 29 CPR 1904. 7/.
WILLFUL
Although some courts require a showing of malice on the part of the Respondent before there can be a finding of willful misconduct, I believe the


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better reasoned cases are to the contrary. However, all courts require something more than a mere showing that a standard has been violated.
To constitute a willful violation, the Complainant must show more than an intentional act by the Respondent. There must be conduct that would constitute complete indifference to the law, utter disregard of the consequences, or similar behavior.
A violation is willful in character if it was committed "with either an intentional disregard of, or plain indifference to the Act's requirements" [See St. Joe Minerals Corp.. v. OSHRC, 647 F(2) 840 and the Kus-Tum Builders case (76-2644 in 10 OSHC 1128)].
As the Review Commission said in the Mel Jarvis case (77-2100 in 10 OSHC 1052); "The test of an employer's good faith, for purposes of determining willfulness, is an objective one., i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard, reasonable under the circumstances."
In fact, even knowledge of a standard and a subsequent violation of it, are not sufficient in themselves to prove a willful violation. For example, in the Wright & Lopez case (8 OSHC 1261) even though the Respondent had been cited for violations of the applicable standards on four previous occasions, and had discussed the standards with OSHRC officials, the Review Commission held that there was not a willful violation because the facts established the Respondent had made a good faith attempt at compliance.
Conduct that would constitute "complete indifference" or "utter disregard of the consequences" or similar behavior does not appear to be present in this case where, in a situation calling for medical judgment, the Respondent's
actions were in reliance on the opinions of physicians.


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Whether the judgment of any physician was good or bad, the advice sound or unsound, the conduct proper or improper, are questions for a forum other than this; and I make no finding on such medical questions.
I merely find that any chelation involving the Respondent's employees was done with the advice or consent of one or more physicians.
Dr. Milligan, who was experienced in lead-related medical conditions, testified by deposition that in 1975 and 1976 she was in charge of a program at Central Hospital that she had been led to believe was for the lead screening of employees of the Respondent...Deposition 8, 9. After she saw the elevated lead levels of several employees, she agreed to Bond's request that they be prescribed Penicillimine ... Deposition 17. She limited it to a 30 day trial because it was a chelating agent that might work or not ... Deposition 18-20.
She told Bond that the routine administration of chelating agents is a dangerous practice; and employees with elevated lead levels should be kept out of the lead environment ... Deposition 22. She testified that, when she told Bond about the dangers of Penicillimine, "he did not appear to understand"...Deposition 35, 36. Her testimony about Penicillimine was that it has "very little therapeutic value", has "limited therapeutic value", and "could be therapeutic"... Deposition 60 - 63. She pointed out that, for "Penicillimine therapy to he effective", it has to be continued for a long period of time and when the patient is no longer in a lead enviroment ... Deposition 64. She said that "Penicillimine might have been enough to chelate" the Respondent's employees if they were taken out of the lead environment ... Deposition 67. She concluded that Penicillimine is "definitely a chelating agent" with certain advantages and disadvantages compared to other chelating agents...Deposition 62 - 64. She testified that she would not issue a prescription unless she thought it "medically advisable"; and that the prescriptions she gave "were not prophylactic chelation therapy"... Deposition 75, 79. Her final opinion about prophylactic chelation was that she


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is "not sure that any such thing exists". ..Deposition 83, 84.
Dr. Karlin testified that, when he told the Respondent's supervisor (Bond) and vice-president (Sach) he planned to consult a specialist in illnesses concerning lead, the Respondent's officers agreed with that decision...Tr. 358, 359, 363, 364. The Respondent's supervisor (Bond)
made the appointment for the employee, Johnson, to see a toxicology specialist and for the Respondent to pay all medical bills ... Tr. 499 , 500. Bond testified he had unsuccessfully sought expert medical advice at the Massachusetts General and the Peter Bent Brigham Hospitals as well as from Dr. Karlin, the personal physician of the vice-president of the Respondent ... Tr. 546. That testimony was not contradicted.
The testimony of the Respondent's vice-president (Sach) that lead sweating was stopped after November 8, 1979, and lead cable was sent out to be processed, also indicates that the Respondent was not indifferent to the consequences... Tr. 1136.
HAZARD As testified to by the witness Dr. Baker, the hazard here included the possibility of anemia, damage to the nervous system, kidney damage, renal failure, and cancer ... Tr. 613-615.
WITNESS GARCIA
Because of the confusion about the Garcia name, together with the witness' discharge from employment, I thought it best not to make any findings based on his testimony.
FINDINGS OF FACT
Having heard the testimony, observed the witnesses, and examined the exhibits, the following additional Findings of Fact are made:
1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.


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2. As concerns items #1A-5G of Citation #1 and item #1 of Citation #2, the conditions described exposed the Respondent's employees sustaining serious of fatal harm because of the hazard of lead poisoning.
3. The conditions described in item #2 of Citation #3 exposed the Respondent's employees to sustaining harm because of the hazard of excessive lead.
4. The Respondent's conduct in item #1 of Citaion #2 was not willful.
5. One or more officers or supervisory personnel of the Respondent knew that employees were exposed to such hazards.
CONCLUSIONS OF LAW
1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety & Health Review Commission has jurisdiction over the subject matter and the parties.
2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations.
3. On the dates in question, the Respondent was no in compliance with the standards cited in items #1A-5G of Citation #1, and item #1 of Citation #7 and item #2 of Citation #3, and the Complainant has sustained the burden of proving the Respondent violated sec. 5(a)(2) of the Act (sec. 654).
4. The Complainant has not sustained the burden of proving the Respondent violated item #6 of Citation #1, or item #2 of citation #2, or item #1 of citation #3.
5. The Complainant has not sustained the burden of proving the Respondent willfully violated item #1 of CItation #2.
ORDER
The whole record having been considered, and due consideration having been given to 29 U.S.C., sec. 666(j), and also taking into account the Respondent's


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testimony about the expenditure of $250,000 for plant improvement [Tr. 1184] that will be helpful in protecting the health of employees, it is ordered:
1. Items #1A, 1B, 1C, 1D, 2, 3, 4A, 4B, 4C, 4D, 5A, 5B, 5C, 5D, 5E, 5F, 5G of Citation #1 are all affirmed; and the following penalties are assessed: $100 for item #1A, $400 for item #2, $360 for item #3, $100 for item #4A, $200 for item #5C, and $500 for item #5F.
2. Item #1 of Citation #2 is affirmed as a serious violation, and a penalty of $100 is assessed therefor.
3. Item #2 of Citation #3 is affirmed, and a penalty of $100 is assessed therefor.
4. Item #6 of Citation #I, item #2 of Citation #2, and item #1 of Citation #3 are vacated, together with any penalties proposed therefor. SO ORDERED.
FOSTER FURCOLO Judge, OSHRC
Dated: February 1, 1982 Boston, Massachusetts


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APPENDIX THE ACT
Section 654 [section 5(a)(2)] Employer "...shall comply with occupational safety and health standards..."
Section 666 [section 17(b)] "...employer who has received a citation for a serious violation ... of this Act ... shall be assessed
a civil penalty of up to $1,000 for each such violation." Section 666 [section 17(c)] "...employer who has received a citation for
a violation of..this Act...specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation."
Section 666 [section 17(j)] "...assess all civil penalties ... giving due consideration to ... the size of the business ... gravity of the violation, the good faith of the employer, and the history of previous violations."
Section 666 [section 17(k)] "...a. serious violation shall be deemed to exist ... if there is a substantial probability that death or serious physical harm could result ... unless the employer did not, and could not-know of the presence of the violation."
STANDARDS The Standards at 29 CFR 1910.1025 as cited in Citation I (serious), Items 1a - 6
(j)(2)(IV)(a) "Within 3 working days after the receipt of biological monitoring results, the employer shall notify in writing each employee whose blood lead level exceeds 40 ug/100 g: (A) of that employee's blood lead level..."
(Item la)
(j)(2)(IV)(b) "Within 5 working days after the receipt of biological monitoring results, the employer shall notify in writing each employee whose blood lead level exceeds 40 ug/100 g: (B) 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 under paragraph (k)(1)(i) ... "
(Item lb)
(k)(1)(i) "During .:he first year following the effective date of the standard, the employer shall remove an employee from work having a daily 8 hour TWA exposure to lead at or about 100 ug/m3 on each occasion that a periodic and a follow-up blood sampling test ... indicate that the employee's blood lead level is at or above 80 ug/100 g of whole blood..."


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(j)(3)(i)(a) "The employer shall make available medical examinations and consultations to each employee covered under paragraph (j)(1)(i) ... : (A) At least annually for each employee for whom a blood sampling test conducted at any time during the proceding 12 months indicated a blood lead level at or above 40 ug/100 g..."
(Item lc)
(j)(1)(i) "The employer shall institute a medical surveillance program for all employees who are or may be exposed above the action level for more than 30 days per year."
(Item 4a)
[Action level: exposure to airborne concentration of lead of 30 micrograms per cubic meter of air (30 ug/m3 ) averaged over an 8 hour period]
(j)(3)(i)(b) "The employer shall make available medical examinations and consultations to each employee covered under paragraph (j)(1)(i)...: (B) Prior to assignment for each employee being assigned for the first time to an area in which airborne concentrations of lead are at or above the action level ... "
(Item ld)
(n)(2)(i) "The employer shall establish and maintain an accurate record for each employee subject to medical surveillance..."
(Item 2)
(d)(4) "Where a ... possibility of any employee exposure at or above the action level, the employer shall conduct monitoring..."
(Item 3)
(j)(2)(i)(a) "The employer shall make available biological monitoring in the form of blood sampling and analysis ... to each employee covered under paragraph (j)(1)(i)...(A) At least every 6 months to each employee covered under paragraph (j)(1)(i)..."
(Item 4b)
(j)(2)(i)(b) "The employer shall make available biological monitoring in the form of blood sampling and analysis ... to each employee covered under paragraph (j)(1)(i) ... (B) At least every 2 months for each employee whose last blood sampling and analysis indicated a blood lead level at or above 40 ug/100 g of whole blood..."
(Item 4c)
(j)(3)(IV)(a) "The employer shall provide an initial physician conducting a medical examination or consultation...with the following information:..." [The lead regulation and appendices; a description of employee's duties; the employee's exposure level to lead; personal protective equipment to be used; prior blood lead determinations; prior written medical opinions concerning employee]
(item 4d)


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(1) (1) (i) "Each employer...shall inform employees of the content of
Appendices A and B of this regulation."
(Item 5a)

(1) (1) (ii) "The employer shall institute a training program for...all employees who are subject to exposure to lead at or above the action level..."
(Item 5b)
(1) (1) (iii) "The employer shall provide initial training..."
(Item 5c)
(1) (1) (V) (a) "The employer shall assure that each employee is informed
of...The content of this standard..."
(Item 5d)
(1) (1) (V) (d) "The employer shall assure that each employee is informed
of...The purpose and a description of the medical surveillance program,
and the medical removal protection program..."
(Item 5e)
(1) (1) (V) (g) "The employer shall assure that each employee is informed
of...Instructions to employees that chelating agents should not routinely
be used to remove lead from their bodies and should not be used at all
except under the direction of a licensed physician..."
(Item 5f)
(1) (2) (11) "The employer shall provide, upon request, all materials
relating to the employee information and training program to the
Assistant Secretary and the Director."
(Item 5g)
(n) (3) (i) "The employer shall establish and maintain an accurate record
for each employee removed from current exposure to lead pursuant to
paragraph (k) ... "
(Item 6)
The Standards at 29 CFR 1910.1025 as cited in
Citation II (willful), Items 1 and 2
(j) (4) (1) "The employer shall assure that any person whom he retains, employs, supervises or controls does not engage in prophylactic chelation of any employee at any time."
(Item 1)
(k) (2) (i) "The employer shall provide to an employee up to eighteen (18)
months of medical removal protection benefits on each occasion that an
employee is removed from exposure to lead..."
(Item 2)


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"Other" citations
29 CFR 1903.16(a) "...the employer shall immediately post such citation... at or near each place an alleged violation ... occurred ... Where, because of the nature of the employer's operations, it is not practicable to post the citation at or near each place ... such citation shall be posted, unedited, in a prominent place where it will be readily observable...

(Item 1)
29 CFR 1904.7 "Each employer shall provide, upon request, records provided for in sections 1904.2, 1904.4, and 1904.5 for inspection ... by any representative of the Secretary of Labor..." [log and summary of occupational injuries and illnesses]

(Item 2)

FOOTNOTES:

[[1]] The portion of the lead standard which pertains to chelation, 29 C.F.R. {sec} 1910.1025(j)(4), states:
(i) The employer shall assure that any person whom he retains, employs, supervises or controls does not engage in prophylactic chelation of any employee at any time.

[[2]] Bay State did not seek review of the judge's ruling that it was in serious violation of 29 C.F.R. 1910.1025(j)(4), nor does Bay State take exception to the judge's penalty assessment.

[[3]] 29 C.F.R. 1903.16 provides, in pertinent part:
(a) Upon receipt of any citation under the Act, the employer shall immediately post such citation, or a copy thereof, unedited, at or near each place an alleged violation . . . occurred . . . [or if] it is not practicable . . . such citation shall be posted, unedited, in a prominent place where it will be readily observable by all affected employees...
The employer shall take steps to ensure that the citation is not altered, defaced, or covered by other material.