Docket No. 81-0263

SECRETARY OF LABOR,
Complainant, v.

KECO INDUSTRIES, INC.,
Respondent.

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, LOCAL LODGE NO. 162,
DISTRICT LODGE NO. 34,

Authorized Employee
Representative.

OSHRC Docket No. 81-0263

DECISION

Before: BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). 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. ї 659(c).

Keco Industries, Inc., produces equipment for military and aerospace systems at its plants in California and Ohio. During the relevant time period, employees at its Cincinnati, Ohio, plant were manufacturing 300-ton, mobile air conditioning units. To complete this project, Keco had built a garage-like facility where abrasive blasting operations could be performed.[[1]] Beginning in November 1980, OSHA conducted an inspection of Keco's Cincinnati plant that focused on its abrasive blasting operations. The inspection was conducted under a warrant issued by magistrate of the United States District Court for the Southern District of Ohio. Before us on review are three items of two citations that were issued as a result of this inspection. [[2]] Commission Administrative Law Judge Joe D. Sparks affirmed all three of these items. However, he rejected the Secretary's classification of two of the items and reduced the penalties proposed by the Secretary accordingly.

Citation 2, Item 1: 29 C.F.R. ї 1904.7, Access to Injury and Illness Logs

Item 1 of citation 2 alleged that Keco violated 29 C.F.R. ї 1904.7 and that the violation was "willful." The regulation provides in part:

ї 1904.7 Access to records.

(a) Each employer shall provides upon request, records provided for ї 1904.2, 1904.4, and 1904.5 [including form OSHA No. 200, the log and summary of recordable occupational injuries and illnesses], for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the act . . . .

[(b)](3) Access to the log provided under this section shall pertain to all logs retained under the requirements of ї 1904.6.

The referenced regulation provides as follows:

ї 1904.6 Retention of records.

Records provided for in її 1904.2, 1904.4 and 1904.5 (including form OSHA No. 200 and its predecessor forms OSHA No. 100 and OSHA No. 102) shall be retained in each establishment, for 5 years following the end of the year to which they relate.

Judge Sparks found that Keco violated the regulation, held that the violation was willful, and assessed a $200 penalty.

It is undisputed that, during the two-month period covered by OSHA's inspection, the OSHA compliance officers repeatedly asked Keco's representatives to make available to them the occupational injury and illness logs for the five-year period preceding the inspection. It is also undisputed that Keco complied with the request only in part. It turned over its form OSHA No. 200 for the current year (1980), but refused to let the compliance officers examine and copy its logs for the four preceding years (1976-1979). Keco did this because OSHA had refused the demand made by Keco that OSHA put its request in writing and include in its request the reasons it wished to see the records. Keco claims that it was entitled to make that demand because OSHA had previously examined and copied the same records it wished to see again. Keco also claims that the Secretary was required to issue a subpoena for the records.

We conclude that Keco violated section 1904.7. Notwithstanding the language of the regulation, an employer may refuse to comply with an oral request by OSHA for access to its injury records; it may instead assert its right under the fourth Amendment by demanding that OSHA present it with compulsory legal process--an inspection warrant or an administrative subpoena--that authorizes OSHA to examine its records. See Kings Island, Div. of Taft Broadcasting Co., OSHRC Docket No. 82-1016 (March 18, 1987). In this case, however, OSHA made its repeated requests for access to Keco's injury records after it had already presented Keco with an inspection warrant, Keco had moved to quash the warrant, and the magistrate had denied Keco's motion. The warrant authorized OSHA not only to conduct a physical examination of the worksite but also to examine all of Keco's records that were pertinent to the inspection. Therefore, once OSHA presented Keco with the warrant and orally requested access to its injury records, Keco was required to comply with section 1904.7 by affording OSHA unconditional access to the requested records. See Thermal Reduction Corp., 85 OSAHRC ___, 12 BNA OSHC 1264, 1984-85 CCH OSHD І 27,248 (No. 81-2135, 1985). As Judge Sparks stated:

After having lost its motion to quash the warrant, [Keco] was not entitled to prescribe the conditions under which the inspection could be conducted so long as it [the inspection] complied with the Act and the conditions of the warrant. [Keco] was not entitled to impose what it considered to be "a businesslike condition." It certainly could ask that its needs be considered but [once OSHA had rejected its demand, it] could not refuse the request for [access to] records which are required to be kept and produced for inspection and copying.

We also agree with the judge's conclusion that the violation was willful. A violation of the Act is willful if "it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety." Simplex Time Recorder Co., 85 OSAHRC ___, 12 BNA OSHC 1591, 1595, 1985 CCH OSHD І 27,546, p. 35,571 (No. 82-12, 1985). Here, Keco was well aware of the requirements of section 1904.7. It had previously been cited for violating this same regulation approximately 17 months before the issuance of the citation that is now before us. Indeed, this earlier citation involved a denial of access to some of the same records--Keco's 1976 and 1977 logs--that are at issue in this case. In addition, the repeated requests that OSHA made for the records during the inspection gave Keco several opportunities to conform its conduct to the regulation's requirements. Under these circumstances, Keco's continued refusal to produce the records can only be characterized as an intentional disregard of the known requirements of section 1904.7.

Nor is there any indication that Keco acted on a good faith belief that its conduct conformed to the law. Keco argues before us that the Secretary was required to obtain an administrative subpoena compelling production of the records, but it did not demand a subpoena at any time during the inspection and it was in fact presented with alternative legal process--an inspection warrant--authorizing access to tie records. See Kings Island; Thermal Reduction. Although Keco received the advice of counsel throughout the inspection, it makes no claim that it was basing its actions on that advice when it refused to turn over the records unless the compliance officer first submitted a signed, written request detailing the reasons he wished to see the records. Nor does it argue that this demand should be construed as an inartful request for an administrative subpoena. In fact, the first reference Keco made to a subpoena during the course of these proceedings was in its brief on review.

Although he found the violation to be willful, Judge Sparks assessed a penalty of $200 instead of the $1000 proposed by the Secretary. On review, the Secretary does not take exception to the judge's penalty assessment. Accordingly, we affirm the judge's assessment of a $200 penalty.

Citation 2, Item 2: 29 C.F.R. ї 1910.94(a)(5)(ii)(a) & (c),
Abrasive-Blasting Respirators

Item 2 of citation 2, as amended at the hearing, alleged that Keco violated section 1910.94(a)(5)(ii)(a) & (c). It also alleged that the violation was willful. The standard provides:

ї 1910.94 Ventilation.

(a) Abrasive blasting--
(5) Personal protective equipment.
(ii) Abrasive-blasting respirators shall be worn by all abrasive-blasting operators:

(a) When working inside of blast-cleaning rooms, or

(c) Where concentrations of toxic dust dispersed by the abrasive blasting may exceed the limits set in ї 1910.1000 and the nozzle and blast are not physically separated from the operator in an exhaust-ventilated enclosure.

Judge Sparks affirmed this citation item as amended, held that the violation was nonserious rather than willful, and assessed a $250 penalty.

There is no dispute that, on November 26, 1980, Keco's abrasive blasting operator, Richard Kraft, was not wearing an "abrasive-blasting respirator." The Secretary alleged, and Judge Sparks found, that two subparagraphs of section 1910.94(a)(5)(ii) required the wearing of such a respirator:

--Subparagraph (a), because employee Kraft performed his work inside a "blast-cleaning room," and
--Subparagraph (c), because during abrasive blasting operations Kraft was exposed to levels of dust that exceeded the permissible level stated in 29 C.F.R. ї 1910.1000 but was not physically separated from the nozzle and blast by an exhaust-ventilated enclosure.

If we were to adopt either of these two findings, we would conclude, as the judge did, that under the terms of section 1910.94(a)(5)(ii), Keco had a duty to require Mr. Kraft to wear an abrasive-blasting respirator. However, Keco disputes both of these findings, and it also argues that other standards, sections 1910.94(a)(5)(iii) and 1910.94(a)(5)(iii)(a), permitted Mr. Kraft to wear a dust-filter respirator instead of an abrasive-blasting respirator. After setting forth some of the background to this dispute, we will consider each of these arguments in turn.

The inspection that precipitated the present citation began with an opening conference and a walkaround tour on November 18. However, no abrasive blasting was being performed on that date. Accordingly, compliance officers Steve Messinger and Jim Sweeney stated their intention to return at a later date for the purpose of observing the abrasive blasting operations and conducting environmental monitoring. The compliance officers asked Keco's president, George Andrews, "to let us know when the next average, or usual or normal amount of abrasive blasting would be performed so that we could return on that day and perform monitoring for noise and dust." Mr. Andrews selected November 26 as a normal day for abrasive blasting.

On November 26, abrasive blasting operator Kraft performed blasting operations, for four hours and forty minutes (excluding a lunch break). During this time, Mr. Kraft performed abrasive blasting on two large metal chassis.[[3]] Approximately two-thirds to three-fourths of this work time was spent actually blasting the workpieces. The remainder of the time was spent on related tasks and work areas.

During this 280-minute sampling period, OSHA took several environmental (air contaminant) samples, including both personal samples (devices attached to operator Kraft) and area samples. The samples taken measured the concentration levels of (a) respirable dust inside the operator's blasting hood, (b) total dust just outside the hood, and (c) total dust just outside of the abrasive blasting facility. These measured concentrations were then used to calculate the following eight-hour time weighted averages (TWA's):

Respirable dust, inside hood 7.74 mg/M3

Total dust, outside hood 414 mg/M3

Total dust, outside facility 24.0 mg/M3

The samples taken inside the operator's blasting hood showed exposure to dust levels exceeding the permissible level for respirable inert or nuisance dust. The samples taken outside the blasting hood showed dust levels approximately 28 times the permissible level for total inert or nuisance dust.[[4]]

During the blasting, operator Kraft wore a blasting hood or helmet that covered his head, neck and shoulders. The hood was not air-supplied, but instead had screened openings that blocked most of the dust while allowing the air in the room to move in and exhaled air to move out. Beneath the hood, Mr. Kraft wore a half-mask respirator with replaceable cartridges, commonly known as a dust-filter respirator. According to Keco's expert witness, Nicholas Corbo, at the levels of dust measured by OSHA during the inspection, the respirator worn by operator Kraft would provide adequate protection for slightly less than three hours. Keco did not make available (and apparently did not own) an "abrasive-blasting respirator" as defined by section 1910.94(a)(1)(ii), that is, a continuous-flow, air-supplied respirator that protects the head, face, neck and shoulders.

We first analyze whether Mr. Kraft was working inside a blast-cleaning room. The garage-like facility that Keco had built at its plant was used primarily for abrasive blasting of the chassis of the 300-ton, mobile air conditioning units. These chassis were sufficiently large that it was necessary to use a forklift to transport them between the production area and the blasting facility. Like a garage, the facility was open on one side, allowing easy ingress and egress by the forklift with its load. However, during abrasive blasting operations, the open side was fully covered by a plastic tarpaulin so that the dust created during the operation would be contained within the facility. Judge Sparks found that the garage-like facility used by Keco in its abrasive blasting operations was a "blast-cleaning room" within the meaning of section 1910.94(a)(5)(ii)(a) and concluded that operator Kraft therefore should have been wearing an abrasive-blasting respirator. Keco argues that the judge erred because its facility was not a "blast-cleaning room."

We conclude that Keco's abrasive blasting facility was a "blast-cleaning room" as that term is defined in section 1910.94(a)(1)(iv), i.e., "[a] completed enclosure in which blasting operations are performed and where the operator works inside of the room to operate the blasting nozzle and direct the flow of the abrasive material." Only one part of this definition raises any problem. The parties disagree as to whether Keco's blasting facility is a "complete enclosure" within the meaning of section 1910.94(a)(1)(iv). Although one side of the enclosure consisted of a plastic tarpaulin rather than a wall, and although one or more sides contained a window, we conclude that Keco's facility was a "complete" enclosure.

Enclosing the room was the primary reason for covering its entrance with the plastic tarpaulin. As stated by Keco in its brief on review, "When blasting operations are under way, the doorway is covered with a large plastic tarp to lessen the escape of abrasive material." The Secretary's environmental sampling results confirm that the tarpaulin indeed completed the enclosure of the facility. Inside the facility, the eight-hour, time-weighted-average level of total dust was 414 mg/M3. Outside the facility, specifically just outside a window, the total dust level was only 24 mg/M3. This evidence establishes that virtually all of the dust generated by the abrasive blasting operations was contained within the enclosure, thereby making it a "complete" enclosure. Finally, that the room was a "complete enclosure" within the meaning of section 1910.94(a)(1)(iv) is confirmed by the testimony of compliance officer Sweeney that the dust levels inside the enclosure were "thick enough to substantially reduce visibility" and comparable to "a snow storm or blizzard."

Keco's argument against classifying its facility as a "blast-cleaning room" is based primarily on the opinion testimony of its expert witness, Nicholas Corbo. We conclude, however, that that testimony is entitled to little weight. In expressing his opinion that Keco's facility was not a "blast-cleaning room," Mr. Corbo reasoned that it did not fall within the definition because it was not a "closed facility." He described the features of a "closed facility" as follows:

[A] closed facility would be one that would be totally contained. It would have a forced-draft air system to some extent to collect the particles and deposit them somewhere out of the room. The only source of outside air would that--from that forced draft that forced draft situation....

In essence, therefore, Mr. Corbo concluded that Keco's facility was not a "blast-cleaning room" because it did not have a forced-draft ventilation system. This is not, however, how the standard defines the term. The definition in section 1910.94(a)(1)(iv) says nothing about a forced-draft ventilation system. The standard's definition is controlling here. Moreover, adopting Mr. Corbo's definition would create an absurdity in the standard. Section 1910.94(a)(3)(i) sets forth a requirement that "[b]last-cleaning enclosures [including blast-cleaning rooms] shall be exhaust ventilated in such a way that a continuous inward flow of air will be maintained at all openings in the enclosure during the blasting operation."[[5]] Yet, this standard would be rendered inapplicable to the unventilated enclosures it forbids if we were to define "blast-cleaning enclosures" as ventilated enclosures.

Alternatively, Keco argues that sections 1910.94(a)(5)(iii) and 1910.94(a)(5)(iii)(a) expressly permitted the use of the dust-filter respirator worn Mr. Kraft. These standards provide:

ї 1910.94 Ventilation.
(a) Abrasive Blasting--
(5) Personal protective equipment.

(iii) Particulate filter respirators, commonly referred to as dust-filter respirators, properly fitted, may be used for short, intermittent, or occasional dust exposures such as cleanup, dumping of dust collectors, or unloading shipments of sand at a receiving point, when it is not feasible to control the dust by enclosure, exhaust ventilation, or other means....

(a) Dust-filter respirators may be used to protect the operator of outside abrasive-blasting operations where nonsilica abrasives are used on materials having low toxicities.

Keco's argument that these were the type of "short, intermittent, or occasional dust exposures" referred to in section 1910.94(a)(5)(iii) is based on the testimony of its plant manager, Melio Cicchiani, and of its expert witness, Mr. Corbo. Based on the plant manager's testimony, Keco asserts that its employees were exposed to abrasive blasting for no more than two and one-half hours a day. It argues, citing the testimony of its expert witness, that adequate protection is provided at this level of exposure by a dust-filter respirator. Keco acknowledges the evidence that employee Kraft worked in the blasting facility for four hours and forty minutes on the day OSHA sampled his exposure. However, it in effect urges as to disregard this evidence because employee Kraft worked that day "at the direction of" the compliance officers.

Judge Sparks rejected Keco's claims concerning the duration and extent of its abrasive blasting operations. He found that the frequency of the blasting varied. At times, blasting took place on several consecutive days. Usually, however, it occurred only two or three days a week. The judge also found that "[o]n some days the operator worked his full eight-hour shift performing abrasive-blasting operations, but it was more common for him to work six or seven hours in such work...

Keco's arguments against the judge's disposition assume that, if its operator were engaged in abrasive blasting for only two and one-half hours a day, or if the Commission thought that its operator was "adequately" protected by the dust-filter respirator he wore, the Commission could under section 1910.94(a)(5)(iii) permit Keco to dispense with the abrasive-blasting respirator required by section 1910.94(a)(5)(ii)(a). We are not convinced that this be faithful to section 1910.94(a)(5)(iii). That section permits the use of dust-filter respirators instead of abrasive-blasting respirators in only limited circumstances--"for short, intermittent, or occasional dust exposures such as [those during] cleanup, dumping of dust collectors, or unloading shipments of sand at a receiving point...." The examples given by the standard of "short, intermittent, or occasional dust exposures" indicate that dust-filter respirators are permitted only during unusual or brief activities connected with but not directly involving abrasive blasting. Though the examples given--cleanup, emptying of dust collectors and unloading of sand--are not exclusive, they do indicate the kinds of activities that the standard was intended to cover. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) ("a word is known by the company it keeps"). In addition, this record contains no evidence that, during the abrasive blasting operation, it was not "feasible to control the dust by enclosure, exhaust ventilation, or other means..." within the meaning of section 1910.94(a)(5)(iii).

In any event, we find no basis to overturn the judge's finding that the abrasive blasting performed by Keco's employee resulted in exposures that were not "short, intermittent, or occasional dust exposures...." Judge Sparks specifically rejected Keco's claim that its blasting operations never exceeded two and one-half hours. He concluded that this contention was "directly refuted" by the Secretary's evidence that operator Kraft engaged in abrasive blasting over a 280-minute sampling period on November 26. Citing this evidence, as well as the testimony of abrasive blasting operator Glenn Upshaw, the judge found as follows:

Although [Keco] contends an operator would not spend more than two and a half hours abrasive blasting a chassis, I find that on occasion much more time was spent in such operations in a day....

We conclude that the judge's findings are supported by the record and that Keco has provided no grounds for setting them aside. We therefore adopt the judge's findings as our own. Specifically, the judge's findings are supported by the testimony of blasting operator Upshaw that he sometimes had engaged in blasting more or less continuously for a full week. Despite Keco's challenge to that testimony, the judge found that it was "consistent and believable."[[6]] We find no basis in this record for overturning the judge's credibility determination. See, e.g., Inland Steel Co., 86 OSAHRC, 12 BNA OSHC 1968, 1978, 1982, 1986 CCH OSHD І 27,647, pp. 36,005 & 36,009 (No. 79-3286, 1986) (Commission normally accepts judge's credibility evaluations).

Contrary to Keco's arguments on review, Mr. Upshaw's testimony was not "rebutted by the clear testimony" of plant manager Cicchiani. The plant manager testified only that it was possible to complete the abrasive blasting of a single chassis in two or two and one-half hours ("It could be done"). He gave no testimony that abrasive blasting was in fact limited to two and one-half hours per day.[[7]] On the contrary, he testified that "sometimes they are out there three or four hours, but they aren't sandblasting the whole time." Moreover, Mr. Cicchiani corroborated Mr. Upshaw's testimony that the blasting operators sometimes blasted two chassis in a single day and that they blasted smaller items, e.g., connectors and rings, in addition to the chassis. Using Mr.Cicchiani's own calculations, it appears that an operator could not blast two chassis in less than four to five hours.

We also agree with the judge's implicit finding that Mr. Upshaw's testimony is corroborated by the evidence concerning the blasting operations on November 26, the day operator Kraft's exposure was sampled. As noted, Mr. Kraft performed work on two chassis on that date over a 280-minute period. Contrary to Keco's suggestions, there is no indication in this record that this sampling was in any way staged or lengthened by the OSHA compliance officers. In fact, it was Keco's president who selected November 26 as a typical day for blasting operations. In any event, Keco made no attempt to rebut compliance officer Sweaney's testimony that he and compliance officer Messinger asked operator Kraft to perform his work in a normal manner.

In sum, we disagree with Keco's argument that these were the type of "short, intermittent, or occasional dust exposures" referred to in section 1910.94(a)(5)(iii).[[8]]

We also reject Keco's claim that this was an "outside abrasive-blasting operation" within the meaning of section 1910.94(a)(5)(iii)(a). This provision must be read in conjunction with the general rule that dust-filter respirators are permitted only for "short, intermittent or occasional dust exposures." The obvious intent of section 1910.94(a)(5)(iii), when read in the context of the standard as a whole, is to define exceptional circumstances when an employee may wear a dust-filter respirator rather than an abrasive-blasting respirator. When viewed in this context, the "outside" operations exception clearly refers to outdoor operations where the absence of an enclosure allows for dispersion of the dust created during abrasive blasting. This provision does not apply to operations inside the enclosed blasting facility at Keco's workplace, where a concentration of dust 28 times the permissible limit for total inert or nuisance dust accumulated during the sampling period.

We therefore agree with Judge Sparks that Keco was required by section 1910.94(a)(5)(ii)(a) to provide operator Kraft with an abrasive-blasting respirator. We will therefore affirm item 2 of citation 2 on that ground. Ordinarily, it would be unnecessary to reach the question whether Keco was also obligated by section 1910.94(a)(5)(ii)(c) to provide the same abrasive-blasting respirator. However, the Secretary's argument that Keco's violation was willful is based in part on his argument that Keco violated both subsections (a) and (c) of section 1910.94(a)(5)(ii). We will therefore review the judge's finding that Keco violated subsection (c).

Abrasive-blasting respirators are required under section 1910.94(a)(5)(ii)(c) if "concentrations of toxic dust dispersed by the abrasive blasting" may exceed any of the exposure limits listed in section 1910.1000 and "the nozzle and blast are not physically separated from operator in an exhaust-ventilated enclosure." There is no dispute on this latter criterion; employee Kraft worked in the same room as the blasting, and he was not physically separated from it by an exhaust-ventilated enclosure. Judge Sparks found that the first criterion was also satisfied because samples of dust taken on and about employee Kraft showed that he was exposed to dust levels higher than those permitted by section 1910.1000. More particularly, the judge found the dust levels dispersed by the abrasive blasting exceeded the 5 mg/M3 limit for respirable "inert or nuisance dust," a limit established by Table Z-3 of section 1910.1000. On review, Keco disputes this finding.

We find no error in the judge's findings on the level and duration of operator exposure to abrasive blasting dust. We nevertheless cannot conclude that Keco violated section 1910.94(a)(5)(ii)(c), for the Secretary failed to prove that the dust was a "toxic dust" within the meaning of the standard.

The Secretary did establish, at least generally, the composition of the abrasive blasting dust. Compliance officer Sweeney described the material used in Keco's blasting operations as "Black Beauty abrasive blasting grit, a slag material." An OSHA lab analysis of some of the dust samples revealed "large quantities" of iron and calcium, "substantial quantities" of aluminum and "some" lead. The compliance officer also listed six other metals that the lab did not test for but that are usually found in the type of abrasive grit used by Keco.

However, the record contains no evidence that the dust was "toxic".[[9]] No witness testified, and no documentary evidence states, that the dust is "toxic." Nor is there any evidence from which we could reach that conclusion. The record is simply silent on the question of what effect, if any, exposure to the dust would have on a person who breathed the dust. We also note that the Secretary's allegations in this case may be internally inconsistent. Specifically, we question whether an "inert or nuisance dust" within the meaning of Table Z-3 can ever be classified as a "toxic" dust. See Bunge Corp., 86 OSAHRC, 12 BNA OSHC 1785, 1986 CCH OSHD І 27,565 (No. 77-1622, 1986) (meaning of term "inert or nuisance dust"). Since section 1910.94(a)(5)(ii)(c) applies only to abrasive blasting operations that disperse "toxic dust," we cannot find that Keco violated that section.

As we stated previously, a violation of the Act is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety. Here, Judge Sparks vacated the Secretary's allegation that Keco's violation of section 1910.94(a)(5)(ii) was willful. On review, the Secretary argues that the judge erred. The Secretary relies heavily on a letter written in August 1979, slightly more than a year before the violation now at issue.

The citations now on review were issued as a result of an inspection that began in November 1980 and ended in January 1981. Before this, however, OSHA had also inspected Keco's workplace in August 1979. At that time, no abrasive blasting was being performed at the workplace. Following the inspection, on August 28, 1979, OSHA's Acting Area Director Frank Memmott wrote a letter to Keco's President George Andrews, which stated in part:

During an inspection of Keco Industries, Incorporated conducted on August 13-15, 1979, the following conditions were observed: Abrasive blasting is conducted in an unventilated hut outside of building A by an employee who wears a half-face dust respirator, a face shield, canvass gloves and a heavy canvass coat. Since the unventilated enclosure would tend to contain dust generated during the operation, the operator should as a minimum be provided with an abrasive blasting operation respirator when working in this type of enclosure....The abrasive blasting operation cannot be considered as an outside operation because the area the operator works in is a confined area. There are specific requirements for the quality of the breathing air supplied to abrasive blasting respirators set forth in ANSI Z9.2-1960.

The abrasive blasting operation was last performed in mid July of 1979. It was not observed at the time of the inspection and exposure conditions could not be adequately reconstructed at the time of the inspection. The abrasive blasting standard 1910.94(a) should be carefully reviewed for compliance with the standard prior to the next blasting operation. We may contact you in the future to observe the abrasive blasting operation. Please indicate to us in a letter the corrective actions planned in the abrasive blasting room.

The Secretary argues that this letter gave Keco notice that the standard applied to its blasting operations. In addition, the Secretary continues, the letter specifically informed Keco that it did not fall within the standard's "outside...operations" exception and therefore that a dust-filter respirator would not be adequate protection for the abrasive blasting operator. The Secretary further notes that it is undisputed that the blasting operations described in the August 1979 letter were the same operations later cited in the citation that is now before us.

In response, Keco contends that its violation of the standard was not willful because it did not ignore the requirements of the standard. Instead, it disagreed in good faith the Secretary's interpretation of the standard. Keco argues that it believed that its operations were governed by the provisions that allow use of a dust-filter rather than the provisions that require use of an abrasive-blasting respirator. Accordingly, Keco concludes, the violation was not willful because it complied with those provisions of the abrasive blasting standard that it believed to be applicable to its operations.

A willful charge is not justified if an employer has made a good faith effort to comply with a standard or to eliminate a hazard even though the employer's efforts are not entirely effective or complete. E.g., Asbestos Textile Co., 84 OSAHRC, 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD І 27,101, p. 34,948 (No. 79-3831, 1984). In addition, a good faith, reasonable belief by an employer that its conduct conformed to the law negates a finding of willfulness. E.g., RSR Corp., 83 OSAHRC 6/A2, 11 BNA OSHC 1163, 1172, 1983-84 CCH OSHD І 26,429, pp. 35,550-551 (No. 79-3813, 1983), aff'd, 764 F.2d 355 (5th Cir. 1985).

We agree with the judge that Keco's violation of section 1910.94(a)(5)(ii)(a) was not willful. Keco did not ignore the requirements of the abrasive blasting standard. Nor was it indifferent to the safety and health of its abrasive blasting operators. It supplied its the safety and health of its abrasive blasting operators. It supplied its abrasive blasting operators with both a blasting hood or helmet and a dust-filter respirator, which provided considerable protection against the dust created during the blasting operations.[[10]]
In doing so, Keco complied with the provisions of the abrasive blasting standard that it believed to be applicable to its blasting operations.

Although we have concluded that this belief was erroneous, we cannot conclude that it was unreasonable and held in bad faith. Keco interpreted the critical term "complete enclosure" as being inapplicable to its blasting facility because its facility had an open side covered only by a plastic tarpaulin and it also had one or more windows in three walls. Keco also disagreed with the view expressed in OSHA's letter that its operation was not an "outside" blasting operation because it was in "a confined area." The letter from OSHA's acting area director to Keco's president does not make clear which provision of the abrasive blasting standard the OSHA official was relying upon as the basis of his opinion or even if the official was basing his opinion on the standard's terms. Significantly, the letter does not use the term "blast-cleaning room" and it does not discuss whether Keco's facility fell within the definition of that term. In view of this incomplete and ambiguous explanation of the Secretary's position, we cannot conclude that Keco acted unreasonably in disagreeing with it. Moreover, although we have in effect adopted OSHA's interpretation of the standard and rejected Keco's, the standard is not so clearly written as to render Keco's position indefensible or implausible. In fact, Keco's interpretation was supported by the testimony of its expert witness, a professional consulting engineer.

Accordingly, we agree with Judge Sparks that Keco's violation of section 1910.94(a)(5)(ii)(a) was not willful. We also agree with the judge that the violation cannot be classified as "serious" because there was no allegation by the Secretary that the violation was serious and because the issue was not tried by the parties. We therefore affirm the judge's order classifying the violation as nonserious and assessing a $250 penalty.

Citation 1, Item 2: Section 1910.178(m)(12)(i),
Lack of Elevating Safety Platform
Item 2 of citation 1 alleged a serious violation of section 1910.178(m)(12)(i), which provides:

ї 1910.178 Powered industrial trucks.
(m) Truck operations.

(12) Whenever a truck is equipped with vertical only, or vertical and horizontal controls elevatable with the lifting carriage or forks for lifting personnel, the following additional precautions shall be taken for the protection of personnel being elevated.

(i) Use of a safety platform firmly secured to the lifting carriage and/or forks.

Judge Sparks affirmed this citation item, held that the violation was nonserious rather than serious, and assessed a $100 penalty.

It is undisputed that the two OSHA compliance officers observed a violation of this standard on the second day of the inspection, that is, the day they returned to conduct environmental and noise sampling of the abrasive blasting operations. The question here is whether the Secretary proved that Keco had actual or constructive knowledge of the violative conditions. See, e.g., A. Amorello & Sons Inc., 86 OSAHRC, 12 BNA OSHC 1641, 1986 CCH OSHD І 27,483 (No. 79-4703, 1986). There is no evidence that any of Keco's supervisors had actual knowledge of the particular incident that resulted in the citation. We therefore inquire whether Keco had constructive knowledge. Constructive knowledge exists where the employer could have known of the violative conditions if it had exercised reasonable diligence. Id.

At approximately 1:00 p.m. on the second inspection day, the compliance officers were returning to the abrasive blasting facility to resume noise and dust sampling, following a lunch break. Keco's employees were removing the chassis that had been blasted in the morning and replacing it with a second chassis that would be blasted during the afternoon. This required that the plastic tarpaulin covering the entrance be lifted onto the roof.

As the compliance officers approached the abrasive blasting facility, they saw blasting operator Kraft standing on the forks of a forklift about seven feet in the air. He was lifting the plastic tarpaulin up from the entrance of the facility and placing it onto the roof. According to compliance officer Sweeney, the two compliance officers were from 30 to 35 feet away from the facility when they first observed operator Kraft. The employee was already seven feet in the air at that time.

Judge Sparks found that "[a] common way to attain the height necessary to handle the plastic [tarpaulin] was for an employee to stand on the forks...." He further found that Keco's supervisors, specifically its welding department foremen, not only were aware of this practice but also participated in it.[[11]] In addition he found that, while Keco had a safety platform for use in lifting personnel, "[t]he existence of the platform was not known by employees and it was not used...until after the date of the inspection." In entering these findings, the judge relied principally upon the testimony of blasting operator Upshaw, which he expressly found to be "consistent and believable." Mr. Upshaw testified to the effect that the most common way for the abrasive blasting operators to fold the plastic tarpaulin up on top of the roof was for them to be elevated to the roof level on the forks of the forklift. He explained that, from this position, they could easily perform the task that, while the task could be, and sometimes was, performed while standing on sawhorses or ladders, the forklift method was the easiest.[[12]] On the basis of findings, including stated above, Judge Sparks concluded that Keco had violated section 1910.178(m)(12)(i).

Keco argues that the judge's finding are contradicted by the testimony of plant manager Cicchiani, who stated that Keco had had a safety platform "for a long time," that it was used for lifting both workers and material, that "the personnel in the plant that operate the forklift" had been instructed not to lift other employees without using the safety platform, and that "in November 1979 (sic)" it would not have been "permissible" for forklift operator to lift blasting operator Kraft on the forks of the forklift operator to lift blasting operator Kraft on the forks of the forklift without using a platform. According to Keco, this testimony establishes that the incident observed by the compliance officers was "an isolated incident of employee misconduct."

We conclude that Keco had constructive knowledge of the violated section 1910.178(m)(12)(i). The judge expressly found blasting operator Upshaw to be a credible witness, and we accept his evaluation of Mr. Upshaw's credibility. See Inland Steel Co., 12 BNA OSHC at 1978, 1986 CCH OSHD at p. 36,005. Mr. Upshaw's testimony establishes that it was a common practice for abrasive blasting operators to be lifted on the forks of the forklift, without using the safety platform, and that at least some of Keco's supervisors knew of this practice. Mr. Cicchiani's testimony that Keco had a safety platform and that forklift operators were instructed to use it does not negate our finding of constructive knowledge because the record establishes that these instructions were routinely disregarded. See Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 2018-19, 1981 CCH OSHD І 25,551 at p. 31,858 (No. 13390, 1981).

We will therefore affirm the judge's holding that Keco violated section 1910.178(m)(12)(i). We also affirm the classification of the violation as nonserious and the assessment of a $100 penalty.

Accordingly, the Commission modifies item 2 of citations by vacating the allegation that Keco violated section 1910.94(a)(5)(ii)(c). With this exception, the judge's order affirming items 1 and 2 of citation 2 and item 2 of citation 1, and assessing penalties of $200, $250, and $100, respectively, is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: March 27, 1987

SECRETARY OF LABOR,
Complainant,

KECO INDUSTRIES, INC.,
Respondent,

and

INTERNATIONAL ASSOCIATION OF
MACHINES AND AEROSPACE
WORKERS, AFL-CIO, LOCAL
LODGE NO. 162, DISTRICT
LODGE NO. 34

Authorized Employee
Representative.

OSHRC Docket No. 81-0263

APPEARANCES:

Gary A. Boncella, Esquire, Office of the Solicitor, U.S.
Department of Labor, Cleveland, Ohio, for the complainant.

Robert G. Adair, General Counsel, Keco Industries, Inc.,
Cincinnati, Ohio, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge: Following an inspection conducted pursuant to a complaint, three citations were issued on January 14, 1981, charging Keco Industries with "serious," "willful" and "other" violations of the Occupational Safety and Health Act of 1970 (the "Act").

Keco is engaged in producing equipment for military and aerospace systems at plants in California and Cincinnati, Ohio. This case involves abrasive-blasting operations primarily on air conditioning units produced for the U.S. Navy at the Cincinnati plant. Abrasive blasting is similar to sandblasting but used metallic grit rather than sand.

Complainant charges that employees were subjected to excessive levels of noise and respirable dust, a proper respirator was not worn, a protective blasting hood was not maintained in proper repair and employees were permitted to use an industrial truck as a raised platform. In addition, respondent is charged with failing to make and keep certain required records, failing to produce other records when requested and other violations.

ISSUES

Amendments granted at the hearing leave the following issues for decision (Tr. 26-33):

1. Whether the evidence establishes serious violations of 29 C.F.R.ї 1910.95(b)(3) caused by excessive noise levels.

2. Whether respondent's employees used an industrial truck to lift personnel without a firmly secured safety platform under conditions constituting a serious violation of 29 C.F.R. ї 1910.178(m)(12)(i).

3. Whether there were willful violations of 29 C.F.R. ї 1904.7 caused by a failure to make available the log and summary of occupational injuries and illnesses, and of 29 C.F.R. ї 1910.94(a)(5)(ii)(a) and (c) because employees were not wearing abrasive blasting respirators and were exposed to airborne respirable dust in excess of permissible limits.

4. Whether the evidence establishes an "other than serious" violation of 29 C.F.R. ї 1904.2(a) in that the record of occupational injuries and illnesses failed to contain two recordable injuries and other violations.

5. Whether respondent has established any affirmative defenses.

6. The appropriate penalties to be assessed if violations are found.

7. The appropriate abatements dates if violations are found.

After consideration of the evidence in the record, the following facts have been established:

FINDINGS OF FACT

1. Respondent employed approximately 220 to 250 employees at the time of the inspection (Tr. 200, 454).

2. The abrasive-blasting task which was performed most often was of a chassis of a 300-ton air conditioner, but similar work was done on other items (Tr. 40, 437, 443).

3. Abrasive blasting was not performed every day and was often performed less than a full day (Tr. 40, 437).

4. The frequency of sandblasting varied, at times it was performed several days consecutively but usually two or three days a week (Ex. C-8; Tr. 55-58, 439).

5. On some days the operator worked his full eight-hour shift performing abrasive-blasting operations, but it was more common for him to work six or seven hours in such work (Ex. C-8; Tr. 58, 102).

6. Although respondent contends an operator would not spend more than two and half hours abrasive blasting a chassis, I find that on occasion much more time was spent in such operations in a day (Ex. C-1, C-2; Tr. 58, 102, 439, 454).

7. At the time of the OSHA walkaround inspection, there was available to the abrasive-blast operators a hood with plastic shield. The helmet had a rip in it which reduced the level of protection. At the time the sampling took place on November 26, 1980, it had been replaced by a new hood (Ex. C-13, C-14; Tr. 39, 41-42, 58-60, 158-165, 284, 457).

8. When first employed in blasting operations at Keco in May 1980, Glenn Upshaw was not furnished a respirator. He began using paper masks of the type used by painters with the helmet and later furnished his own respirator. After the walkaround inspection by OSHA, the company supplied a respirator (Tr. 37-43, 64-65, 445-447).

9. The abrasive-blasting operator complained about the condition of his face shield and temporary repairs were made, but his supervisors were not responsive to his request for repair or replacement of protective equipment (Tr. 60, 61-63).

10. On the date noise and dust samples were taken, the operator was wearing a hood which did not supply its own air, designated as Model BH-5 manufactured by the Empire Blasting Company. It was not the type required for abrasive-blasting operations described in regulations at 29 C.F.R. ї 1910.94 (Tr. 147-148, 284, 303, 381, 385-386, 406).

11. Abrasive-blasting respirators are commonly available for sale (Ex. C-10, C-11, C-12; Tr. 149-152).

12. The abrasive blasting was done in a building similar to a garage or carport with three sides and a roof. Two of the sides had windows. The front of the building was open but could be enclosed by unrolling a plastic sheet which was attached over the opening. The opening was necessary to permit bringing in the items to be sandblasted (Ex. R-2, R-3; Tr. 43-44, 96, 233-235, 250-251, 303).

13. The plastic sheeting used to cover the entrance to the sandblasting building was attached to the building above the opening with the bottom end pulled up over the roof of the building. To lower or raise the plastic, it was necessary for two men to use ladders or some other means to reach the plastic and lower it over the enclosure, or lift up the plastic before removing the part which had been blasted. A common way to attain the height necessary to handle the plastic was for an employee to stand on the forks of an industrial truck and be lifted up to the height necessary to reach the tarp (Ex. R-2, R-3; Tr. 44-45, 67-69, 73-75, 169-172, 233-235, 250-253, 256-260).

14. A safety platform was available on the yard for use with the industrial truck. Employees could stand in the platform which was picked up by the industrial truck and be lifted to the desired height. Instructions for use of the safety platform were posted on the forklift. The existence of the platform was not known by employees and it was not used, however, until after the date of the inspection (Tr. 70-71, 80, 434-436).

15. The foreman of the welding department usually participated in using the forklift to lift workers to the height necessary to move the plastic sheeting (Tr. 44-45).

16. James J. Sweeney, an industrial hygienist for the Occupational Safety and Health Administration for four years, conducted the samplings for noise and dust in the case. Mr. Sweeney obtained a bachelor's degree in chemistry in 1975 and received additional training after being employed by OSHA. He has passed the examination for industrial hygienists given by the American Board of Industrial Hygiene Corps (Tr. 86-90).

17. At an opening conference with officials of the company, Mr. Sweeney informed them that the complaint concerned the abrasive-blasting area and requested that he be informed when usual or normal blasting activities would be performed so monitoring for noise and dust could be done on that day. The company president specified a date and the monitoring was done on November 26, 1980, on employee Richard Kraft. At the time the sampling was made, Kraft was wearing a non-air-supplied helmet and hood and cartridge-type respirator. He was also wearing earmuffs over a knit cap (Tr. 96-97, 100-101).

18. Three dust samples were obtained. A respirable dust sample showed the concentration level of respirable dust inside the blasting hood worn by the employee. The total personal dust sample reflected the concentration level of total dust just outside the blasting hood. The area total dust sample recorded the concentration level of dust just outside the blasting enclosure (Tr. 98, 100).

19. The eight-hour time weighted average for respirable dust inside the hood was 7.74 mg/M3 (Ex. C-1, C-4, C-5; Tr. 120-121, 135-136, 287-289, 372). The eight-hour item weighted average for total dust from the sample taken just outside the hood was 414 mg/M3 (Ex. C-2, C-4, C-6; Tr. 121, 122).

20. Limiting employee exposure to dust to two and a half hours per day would probably be sufficient to comply with the permissible exposure limits (Tr. 295, 421-424).

21. The eight-hour time weighted average for area dust taken by the sample outside the sandblasting building was 24 mg/M3 (Ex. C-3, C-4, C-7; Tr. 121).

22. The abrasive-blasting operator was exposed to dust levels in excess of those permitted by OSHA regulations (Ex. C-4; Tr. 401-402).

23. Noise levels were monitored by two instruments, a DuPont audiodecimeter which gives a readout expressed in terms of a percentage of the permissible limit and a sound level meter which measures the noise level which exists at any point in space and any moment in time (Tr. 136, 299-301).

24. The DuPont audiodecimeter was placed on the employee performing abrasive blasting with the microphone attached to clothing near his ear. The monitoring began shortly after 7:30 a.m. and continued until lunch. It was resumed after lunch and remained until 1:11 p.m. when sandblasting was completed for the day. Fight readings were made of the area near the employee at various times during the day (Ex. C-8; C-9; Tr. 138-139, 145-146).

25. The readings of the decimeter show noise levels 154% of permissible level (Ex. C-8, C-9; Tr. 145-146, 351).

26. Respondent's employee, Richard Kraft, was exposed to noise levels in excess of those permitted by the OSHA regulations (Ex. C-8, C-9; Tr. 145-146, 353, 362, 394-396). Readings from the sound level meter show noise levels ranging between 111 dba and 114 dba near the operator's ear to between 87 dba and 91 dba at 12 feet from the window (Ex. C-8, C-9; Tr. 146).

27. Noise levels could be administratively reduced by limiting time any employee is engaged in abrasive-blasting operations. Rotation of operators would also reduce the exposure to respirable dust (Tr. 153-155, 197-198, 350-353).

28. The average noise exposure level was 97.3 dba. An employee may be exposed to that level for 2.9 hours so long as he is exposed to noise levels below 90 dba during the remaining hours of his work day (Tr. 155-157, 262-264).

29. The noise level readings did not record the level of noise heard by the operator as they do not give effect to earmuffs worn by the operator (Tr. 370).

30. A person wearing a properly fitted earmuff which reduced the noise level by 21% or 26% would not hear noises in excess of 90 dba (Tr. 274, 366-370, 378, 380).

31. The operator was wearing a knitted cap over his head and between his ears and the earmuffs which could prevent a tight seal around the ears (Tr. 264, 275, 399-401).

32. After specific and repeated requests, respondent refused to permit, OSHA compliance officers to inspect required forms OSHA 200, which are records of injuries and illness, for the years 1976 through 1980. It is the policy of OSHA to review such records for the five years preceding the inspection (Tr. 172-175, 188-196).

33. Respondent refused to produce the records on the grounds they were in storage and it would be expensive to retrieve them. The company offered to consider the request if it was put in writing and reasons given for the request (Tr. 203-204, 281).

34. Keco was issued a citation on August 28, 1979, for an "other than serious" violation of 29 C.F.R. ї 1904.7 for failing to make forms OSHA 100, 101 and 102 available for inspection or copying at the time of the inspection. There was no notice of contest filed as to that item and it became a final order of the Commission (Ex. C-15, C-16; Tr. 175-178, 196).

35. In support of their continuing efforts to obtain copies of records of injuries and illnesses, respondent was furnished copies of publications and regulations setting forth the requirements for keeping and producing records (Ex. C-17, C-18; Tr. 182-183, 196-197).

36. Industrial Hygienist Messinger, who participated in the instant inspection, had been provided with the records for 1978 and possibly 1979 during an inspection in 1979 (Tr. 211-215, 316-317, 319, 327-328).

37. The focus of the inspection in the current inspection, i.e., the abrasive blasting area, was a different emphasis from previous inspections (Tr. 243, 246).

38. Keco maintains a record of "recordable" injuries and also maintains a book entitled "Nonrecordable Injuries" in which injuries are logged which are not considered to be recordable injuries (Tr. 309).

39. The determination whether an injury is logged in the book of non-recordable injuries or is placed in the recorded injuries is based on several factors including the information required by form C-3 which is a medical report to the Ohio Industrial Commission (Tr. 310-313, 320-325).

40. The determination of whether an injury was recordable was based upon an initial evaluation of the injury and was not changed after the full medical report was received, which was sometimes several weeks after the event (Tr. 313-315, 325, 329-330).

41. Injuries to R. Bedinghous, Dominic Sweeney, Jeff Broz and Andrew Brock were considered by OSHA to have been logged incorrectly as non-recordable injuries (Tr. 209, 313, 315, 325).

42. Mr. N. J. Corbo, an experienced mechanical engineer, testified as an expert witness on behalf of respondent (Tr. 333-336, 339-347).

43. It was Mr. Corbo's opinion that respondent's sandblasting facility was not a "closed blasting cleaning room" within the meaning of the "General Industry Standards" published by OSHA. He based his opinion on the grounds that a closed facility would be one totally contained with a forced-draft system to collect and deposit dust outside the room (Tr. 336-337, 383-385, 409-413, 417).

44. The noise level readings contained in exhibits C-8 and C-9 were confirmed by tests Mr. Corbo made shortly before the hearing using a general radio octave band analyzer (Ex. R-5; Tr. 354-358).

45. Mr. Corbo was of the opinion that the respirator used at Keco provided adequate protection from respirable dust for a limited period of time up to 2 hours and 57.3 minutes (Tr. 374-375, 414-415).

46. The record contains no evidence to support respondent's allegations of harassment or improper conduct by the complainant or his agents in this case (Tr. 463-474).

47. Respondent's facility was a blast-cleaning room within the meaning of 29 C.F.R. ї 1910.94(a)(1)(iv).

48. At the time of the inspection, respondent did not have written standard operating procedures in effect governing the selection and use of respirators (Tr. 166).

49. Although the respirator was seen lying in the blasting room, respondent had a proper storage locker inside the boiler room.

50. Proper training, fitting, and testing of the respirator were not accomplished.

51. Earmuffs worn by the operator effectively reduced the noise level heard by the operator to below 90 dba (Tr. 367-368).

III

DISCUSSION

A. Serious Citation 1, Item 1(a), alleges a violation of 29 C.F.R. ї 1910.95(b)(1) on the grounds that the noise levels exceeded those shown in Table G-16 of subpart G and feasible administrative and engineering controls were not utilized to reduce the sound levels. Respondent contends that employees did not spend more than two and a half hours of any shift in sandblasting operations and, therefore, the sound levels recorded by the compliance officers did not show a violation of the regulations. Respondent further contends the earmuffs worn by employees reduced the noise actually heard by employees to a level far below the maximum permitted by the regulations (Resp. brief pp. 2-3).

The evidence establishes that the abrasive-blasting operator was exposed to noise far in excess of the maximum. On the day the sampling was made, the noise readings were taken from 7:43 a.m. to 10:50 a.m. before lunch and from 11:48 a.m. to 1:11 p.m. after lunch. During the 280 minutes (4 hours, 40 minutes) the sample was taken, the noise level above 90 dba was 154% of that allowed for a full eight-hour day (Ex. C-8, C-9; Tr. 145-416). Respondent's contention that operators did not engage in abrasive blasting for longer than two and a half hours on any day is directly refuted by the documentation of the noise sample and the testimony of Compliance Officer Sweeney. In any event, it is clear that noise conditions were of a level to exceed the maximum allowed for a full eight-hour shift. Protective earmuffs worn by operators would reduce the level of noise reaching their ears up to 25 dba (Tr. 367-368). That the earmuffs may have reduced the sound level reaching the employees' ears below 90 dba does not, however, accomplish compliance with the regulations because the Review Commission has ruled that personal protective equipment (earmuffs) can be used to control noise only if it cannot be done by means of feasible engineering and administrative controls. Turner Co., 76 OSHARC 108/A2, 5 BNA OSHC 1790, 1976-77 CCH OSHD І 21,023 (No. 3635, 1976). [Reversed and remanded on issue of economic feasibility, 1977-78 CCH OSHD І 22,105.]

In Turner the Commission stated as follows (1976-1977 CCH OSHD at p. 25,274):

The standard itself is clear and unambiguous. It requires that engineering or administrative controls first be used to reduce noise levels to the extent that controls are feasible under the circumstances. Personal protective equipment must then be used to supplement the engineering and administrative controls if the use of such controls do not reduce noise levels to the prescribed limits.

The excessive noise levels could be abated by means of administrative controls. The average noise level of 97.3 dba is permissible for 2.9 hours. If respondent had, in fact, restricted its abrasive-blasting operations to not more than two and a half hours in any day, the sound level would not have been exceeded (Tr. 438--440, Resp. brief p. 2). The testimony of Manager Cicchiani indicated such scheduling to be practicable.

The evidence does not show conditions which would likely result in death or serious bodily injury. Under such circumstances, modification of the citation to "other than serious" is appropriate.

B. Serious Citation 1, Item 2, charges that an industrial truck was used to lift personnel without a safety platform in violation of 29 C.F.R. ї 1910.178(m)(12)(i).

The compliance officers observed an employee standing on the forks of an industrial truck and being raised up to a height of about seven feet which permitted him to remove the plastic tarp which covered one end of the abrasive-blasting building (Tr. 168-169). An employee confirmed that the tarp was often moved by an employee standing on the truck (Tr. 68-69). The testimony is consistent and believable.

Respondent contends the worker who testified was a dissident and hostile employee, but no reason is given to disbelieve his testimony (Resp. brief p. 4). Respondent claims there was a safety platform on the yard, but the evidence indicates that its existence and use was not known to employees until after the inspection (Tr. 71, 80).

A fall of up to seven feet to the hardened surface from the forks of an industrial truck could result in serious injury, but a fall from that height is unlikely to have so severe a result. An "other than serious" violation is established.

C. Willful Citation 2, Item 1, alleges that OSHA form 200 and predecessor forms 100 and 102 for the years 1976 through 1979 were not made available for inspection and copying.

The regulation states that, "Each employer shall provide, upon request, records ... for inspection and copying by any representative or the Secretary of Labor for the purpose of carrying out the provisions of the Act...." 29 C.F.R. ї 1904.7.

Section 1904.2 requires that a log and summary of all recordable occupational injuries and illnesses be kept. The compliance officers made several clear requests for the records, but the requests were rebuffed. Respondent refused to produce the records without a written request and an explanation as to why they were needed. Records for 1976 and into 1979 had been examined during a previous inspection and were in storage (Tr. 280-281). Respondent contends it did not refuse to provide the records but "...simply prescribed a reasonable and businesslike condition" (Resp. brief pp. 5-6). Complainant asserts a review of the records was necessary to see if there had been injuries or illnesses associated with the abrasive-blasting operations or if amendments had been made on the records (Tr. 212, 242-244, 246).

As it was entitled to do, respondent had required that the Secretary obtain a warrant before conducting the inspection (Tr. 94-95). After having lost its motion to quash the warrant, respondent was not entitled to prescribe the conditions under which the inspection could be conducted so long as it complied with the Act and the conditions of the warrant. Respondent was not entitled to impose what it considered to be "a businesslike condition." It certainly could ask that its needs be considered but could not refuse the request for records which are required to be kept and produced for inspection and copying.

Complainant alleges the refusal constituted a willful violation which has been defined as conduct committed "with either an intentional disregard of or plain indifference to the Act's requirements." Mel Jarvis Construction Co., 81 OSHARC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD І 25,713 (No. 77-2100, 1981). The record fully supports complainant's description of the violation as willful. Several direct and unequivocal requests for the records were made and copies of the standards and the OSHA handbook on recordkeeping were furnished Keco (Ex. C-17, C-18; Tr. 180-192). The continued refusal to produce the records was an intentional disregard of the requirements of the regulations and was a willful violation of the Act.

D. Willful Citation 2, Item 2, was amended to charge a violation of 29 C.F.R. ї 1910.94(a)(5)(ii)(a) and (c) because of a failure to provide an abrasive-blasting respirator in the following respects:

An abrasive blasting respirator was not being worn by all abrasive blasting operators exposed to dusts in excess of the limits set in 1910.1000 while performing abrasive blasting in an abrasive blasting room:

On November 26, 1980, an abrasive blasting respirator (i.e., a continuous flow airline respirator constructed so that it will cover the wearer's head, neck and shoulders, was not being worn by the abrasive blasting operator who was exposed to excessive levels of dust as described below:

The abrasive blasting operator was exposed to an airborne respirable dust level of 7.74 mg/M3 of air on an 8-hour time weighted average basis inside the hood which he was wearing. This level exceeds the OSHA standard of 5.00 mg/M3 for respirable dust. This operator worked in a totally enclosed abrasive blasting enclosure.

The sections cited require that an abrasive-blasting respirator be worn by operators when working inside a blast-cleaning room or where concentrations of toxic dust dispersed by the abrasive blasting may exceed the limits set in ї 1910.1000 and the nozzle and blast are not physically separated from the operation in an exhaust-ventilated enclosure. Respondent did not furnish an abrasive-blasting respirator which is defined as a continuos flow air-line respirator constructed so that it will cover the wearer's head, neck and shoulders. ї 1910.94(a)(ii). Clearly, the respirator used at Keco's facility was not a continuous flow air-line respirator as it did not have any air supply.

The failure to provide a respirator is a violation if other circumstances described in the regulations are met. Respondent contends that respondent's abrasive-blasting building is an open, outside facility and is not a blast-cleaning enclosure (Tr. 383, 419-420). Respondent also contends the Secretary erroneously assumed that blasting was performed eight hours a day and employees were exposed for that period of time (Resp. brief pp. 6-7).

Actually, the Secretary does not contend that blasting operations were conducted eight hours a day, but the evidence does establish a dust level so high that it substantially exceeds the maximum permitted for an eight-hour time weighted average.

The abrasive-blasting respirator is required under either of three conditions, two of which the Secretary claims are met in this case. First, when the operator is working inside of blast-cleaning rooms, or secondly, where the dust levels exceed those specified in ї 1910.1000 and the nozzle and blast are not separated in an exhaust-ventilated enclosure.

Respondent's abrasive-blasting operations are performed in a building similar to an automobile garage with an opening about the size of a garage door (Ex. R-2, R-3). The entry wall can be enclosed by a sheet of plastic which is attached above the opening. The plastic is placed over the opening when blasting is being done. Respondent contends is not a blast-cleaning room and Mr. Nicholas J. Corbo, its expert witness so testified. He based his conclusion on the definition in ї 1910.94 that a forced-draft air system would be required for blast-cleaning room (Tr. 383, 419-420). Mr. Corbo's description of a blast-cleaning room is not supported by ї 1910.94(a)(1)(iv) which defines it as follows:

A complete enclosure in which blasting operations are performed and where the operator works inside of the room to operate the blasting nozzle and direct the flow of the abrasive material.

The record shows that abrasive blasting at Keco is performed in such a facility.

In addition, the circumstances of ї 1910.94(a)(5)(ii)(c) are also met. Samples of dust taken on and about the abrasive-blasting operator showed he was exposed to dust levels higher than those permitted by 29 C.F.R. ї 1910.1000. The calculations of dust concentrations show a level inside the hood of 7.74 mg/M3 time weighted average for eight hours (Ex. C-1--C-5). Respondent does not dispute the dust level (Tr. 401-402). There is no exhaust-ventilated enclosure which physically separates the operator from the blast. Neither is respondent's activity the short, intermittent or occasional activity for which a dust respirator may be worn. ї 1910.94(a)(5)(iii). Noncompliance has been established.

The evidence does not show a willful violation and as respondent did not consent to try the issue as a serious violation, the item will be affirmed as other than serious.

E. Other Citation 3, Item 1, charges that respondent failed to properly record two injuries in 1980 as required by OSHA form 200 and 29 C.F.R. ї 1904.2(a).

By referring to a log of injuries complainant discovered two injuries which should have been recorded in accordance with instructions on OSHA form 200. Respondent's personnel manager consciously attempts to accurately record the injuries, but because of oversight or incomplete information available to her failed to properly record an injury to an employee requiring sutures and one involving second degree burns on the left thumb of another employee.

F. Other Citation 3, Item 2, alleges that protective equipment was not maintained in a sanitary and reliable condition on November 18, 1980, as required by 29 C.F.R. ї 1910.132(a). The hood worn by the operator had torn places which would permit increased amounts of dust under the hood and lessen the protection afforded by it (Ex. C-14).

G. Other Citation 3, Item 3(a), charges that employees were exposed to materials in excess of the eight-hour time weighted average in violation of 29 C.F.R. ї 1910.1000(c). As previously discussed, the abrasive-blasting operator was exposed to 7.74 milligrams of dust per cubic meter of air although the maximum permissible exposure level for inert or nuisance dust is 5 mg/M3 on an eight-hour time weighted average.

H. Other Citation 3, Item 3(c), alleges a violation of 29 C.F.R. ї 1910.134(b)(1) by respondent's failure to have written standard operating procedures governing the selection and use of respirators. Respondent does not claim to have had written instructions (Tr. 166).

I. Other Citation 3, Item 3(d), contends respondent violated 29 C.F.R. ї 1910.134(b)(6) which requires that, "[r]espirators shall be stored in a convenient, clean and sanitary location." During the walkaround inspection, the compliance officer observed that the respirator was left on the piece being blasted shortly after abrasive blasting had been done and while dust was still hanging in the air. The compliance officer did not see any storage area (Tr. 166-167). There is no indication the compliance officer asked about a storage area.

Mr. Cicchiani, respondent's plant manager, testified a locker was provided for storage of the respirator which was located in the boiler room and about 15 to 20 feet from the abrasive-blasting area (Tr. 448-449). The evidence does not support complainant's allegation and it will be vacated.

J. Other Citation 3, Item 3(e), charges respondent with a violation of 29 C.F.R. ї 1910.134(e)(5) which states as follows:

For safe use of any respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.

The Government contends that training was not provided including giving employees an opportunity to handle the respirator, have it properly fitted and worn in familiarity and test periods. Respondent asserts it furnished respirators and filters and never reported any injuries or accidents (Tr. 448).

It is clear respondent did not train or fit employees in connection with the use of respirators (Tr. 42-43, 167-168).

PENALTIES

Section 17(j) provides for the Review Commission to assess penalties as provided in the Act. In determining the amount of penalty, consideration must be given to the gravity of the violation and the good faith, size and history of previous violations by the employer.

Respondent had between 220 and 250 employees and had been investigated previously although two of the prior citations had been dismissed. The evidence showed few signs that, prior to the inspection, respondent had sought to comply with the safety standards. The operator had to obtain his own mask and the blasting hood was in poor condition. There were no written safety standards and the supervision was lax.

A civil penalty of not more than $10,000 is provided for each willful violation under section 17(a) of the Act. Respondent willfully failed to produce records of injuries and illnesses, but the noncompliance did not constitute a direct threat of injury to the employees. Under such conditions, a penalty of $200 is appropriate for willful citation two, item one.

Although cited as serious violations, the following violations are reclassified to other than serious and with the designated penalties:

Citation 1, Item 1(a) 29 C.F.R. ї 1910.95(b)(1) excessive noise levels $250

Citation 1, Item 2 29 C.F.R. ї 1910.178(m)(12)(i) the use of industrial truck as a raised platform $100

Willful citation two, item two, which charges that the abrasive-blasting room was not equipped with a proper respirator as required by 29 C.F.R. ї 1910.94(a)(5)(ii)(a) and (c) was reclassified to other than serious. A penalty of $250 is appropriate.

Penalties were not proposed for other violations and none are assessed.

ABATEMENT

All items other than purchase of a proper abrasive-blasting respirator have been abated or can be abated within a short period of time. Administrative control of excessive noise and dust can be accomplished by rescheduling hours of work or rotating exposed employees. Therefore, all abatement of all violations other than citation two, item two, shall be completed within 15 days following the date of the final order, and abatement of the cited violation shall be effected within 45 days of the date of the final order.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction over the parties and the subject matter.

2. Respondent failed to comply with 29 C.F.R. ї 1904.7 under conditions which constituted a willful violation of the Act. A penalty of $200 is appropriate.

3. Respondent failed to comply with the following regulations under conditions which constituted other than serious violations of the Act, with appropriate penalties set opposite thereto:

a.	29 C.F.R. ї 1910.95(b)(1)	$250
b.	29 C.F.R. ї 1910.178(m)(12)(i)	$100
c.	29 C.F.R. ї 1910.94(a)(5)(ii)(a) and (c)	$250
d.	29 C.F.R. ї 1904.2(a)	0
e.	29 C.F.R. ї 1910.132(a)	0
f.	29 C. F. R. ї 1910.1000(c)	0
g.	29 C. F. R. ї 1910.134(b)(1)	0
h.	29 C.F.R. ї 1910.134(e)(5)	0

ORDER

1. It is ordered as follows:

Serious Citation 1
a. Item 1(a) is reclassified to other than serious and is affirmed.
b. Item 1(b) is vacated by agreement.
c. Item 2 is reclassified to other than serious and affirmed.

Willful Citation 2
a. Item 1 is affirmed.
b. Item 2 is reclassified to other than serious and is affirmed.

Other Citation 3
a. Item 1 is affirmed.
b. Item 2 is affirmed.
c. Item 3(a) is affirmed.
d. Item 3(b) is vacated.
e. Item 3(c) is affirmed.
f. Item 3(d) is vacated.
g. Item 3(e) is affirmed.

2. Penalties of $800 are assessed.

Dated this 6th day of May, 1982.
JOE D. SPARKS
Judge

FOOTNOTES:

[[1]] Abrasive blasting is similar to sandblasting, except that a metallic grit is used as the blasting agent instead of sand. Despite the frequent use of the term "sandblasting" throughout the record, it is undisputed that this case involves an abrasive blasting operation.

[[2]] A fourth item is also referred to in the directions for review. However, the parties subsequently entered into a partial settlement agreement amicably disposing of that item. The Commission has already entered an order granting this partial settlement.

[[3]] The first chassis was removed from the facility and replaced by the second at approximately 1:00 p.m., following the lunch break. The alleged violation discussed in the last part of this decision, involving the use of the forks of the forklift to elevate operator Kraft, occurred at that time.

[[4]] Table Z-3 of 29 C.F.R. ї 1910.1000 establishes the following limits for "inert or nuisance dust":

Respirable fraction ............. 5 mg/M3
Total dust ........................... 15 mg/M3

[[5]] The definitions set forth at ї 1910.94(a)(1) suggest that there are at least four types of "blast-cleaning enclosures" within the meaning of ї 1910.94(a)(3)(i)--"blast cleaning barrels," "blast cleaning rooms," "blasting cabinets," and "rotary blast cleaning tables." See її 1910.94(a)(1)(iii), (iv), (v) & (xi). This is consistent with paragraph 4.1 of ANSI Z9.4-1968, American National Standard Ventilation and Safe Practices of Abrasive Blasting Operations, which states:

Blast Cleaning Enclosures. These include rotary blast cleaning tables, blast cleaning barrels and drums, abrasive blasting cabinets, blast cleaning rooms, abrasive separators, and similar enclosures.

ANSI Z9.4-1968 was the source of 29 C.F.R. ї 1910.94(a). See ї 1910.99. It is therefore appropriate to refer to the ANSI standard in interpreting the OSHA standard. Finally, the reference in ї 1910.94(a)(3)(i)(e)(2) to "blast-cleaning rooms" also confirms our conclusion that "blast-cleaning rooms" are included within the general category of "blast-cleaning enclosures."

[[6]] Mr. Upshaw had performed abrasive blasting operations for Keco as recently as a month before the hearing. He testified to the effect that abrasive blasting was performed on an irregular basis. At times, he would engage in blasting more or less continuously for a full week. On some days, more than one chassis would be brought to the facility for blasting. In addition, he blasted other smaller objects, including wheel rims, small air conditioners and other small parts. It was therefore not unusual, in his experience, to spend an entire eight-hour work shift engaged in abrasive blasting operations.

At the time of the hearing, Mr. Upshaw was not working for Keco because of his refusal to cross a picket line in a labor-management dispute. Keco accordingly suggested to the judge that the witness was biased or antagonistic toward Keco. In connection with another item also on review (citation 1, item 2), the judge expressly credited witness' testimony and rejected Keco's argument:

[Mr. Upshaw's] testimony is consistent and believable . [Keco] contends...[Mr. Upshaw] was a dissident and hostile employee, but no reason is given to disbelieve his testimony....

[[7]] A set of abrasive blasting instructions issued by Keco included the following instruction:

Sandblast operator will not perform actual blasting for more than 2 1/2 hours accumulated time in any one 8-hour period.
The evidence indicates, however, that these instructions were prepared in response to the instant OSHA inspection and issued sometime after the alleged violation. There is no evidence that similar instructions were issued orally or in writing as prior to the date of the alleged violation.

[[8]] Indeed, the record establishes that the type respirator permitted by this exception--a particulate filter respirator, commonly referred to as a dust-filter respirator--lacks the capacity to adequately protect Keco's abrasive blasting operators. This was particularly true on the day of the cited violation. Keco's expert witness testified that, at the dust levels measured on that date, the dust-filter respirator worn by Mr. Kraft would have adequately protected him for slightly less three hours. The witness's opinion that the operator was adequately protected was based on his assumption that the operator was exposed for no more than two and one-half hours. However, Mr. Kraft was in fact exposed for four hours and forty minutes.

[[9]] We are, of course, aware that lead dust is "toxic" in some concentrations. It is questionable, however, whether lead dust is covered by ї 1910.94(a)(5)(ii)(c) since the exposure limits for lead are not "limits set in ї 1910.1000" but rather are limits established by ї 1910.1025. In any event, this record provides no basis for concluding that the presence of "some" lead in the abrasive blasting dust rendered that dust "toxic."

[[10]] According to the Secretary's evidence, the "total dust" level in the room was 414 mg/M3 on an eight-hour, time weighted average basis. Yet, the respirable dust level inside the blasting hood was only 7.74 mg/M3. It is therefore obvious that most of the dust was kept out of the operator's breathing zone by the blasting hood. The dust-filter respirator worn by the operator underneath the blasting hood presumably would have further reduced the amount of dust actually breathed by the operator.

[[11]] It is undisputed that the welding department was responsible for transporting the chassis, by forklift, between the production area and the abrasive blasting facility. Plant manager Cicchiani testified that both welder foremen and welders were involved in transporting the chassis and setting them up for blasting. According to blasting operator Glenn Upshaw, it was these same welding department employees, including the supervisors, who operated the forklift when it was used to lift the blasting operators to the roof of the abrasive blasting facility.

[[12]] According to Mr. Upshaw, the ladder method involved the cooperative effort of two employees standing on separate ladders at opposite ends of the plastic tarpaulin. It is not clear whether a single employee standing on a sawhorse could fold back the tarpaulin or whether this method also required two employees.