Docket No. 83-1073

SECRETARY OF LABOR, Complainant,
v. THERMAL REDUCTION CORPORATION, Respondent.

OSHRC Docket No. 83-1073

ORDER

On December 4, 1990, the Commission issued to Thermal Reduction Corporation an order to show cause within ten (10) days why its notice of contest should not be dismissed due to its continuing failure to respond to Commission orders requiring it to file the statement of corporate ownership required by former Commission Rule 91(h), 29 C.F.R. 2200.91(h), (republished as Commission Rule 36(c), 29 C.F.R. 2200.36(c)), and its failure to file with the Commission the name, current address and telephone number of its representative as required by Commission Rule 6, 29 CFR 2200.6.

Thermal Reduction Corporation has failed to respond to the show cause order. Accordingly, the Direction for Review is VACATED. The judge's decision is the final order of the Commission.

Edwin G.Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G.Wiseman
Commissioner

Dated: January 11, 1991

SECRETARY OF LABOR, Complainant,
v. THERMAL REDUCTION CORPORATION, Respondent.

OSHRC Docket No. 83-1073

APPEARANCES:

HOWARD K. AGRAN, ESQUIRE JANINE G. GISMONDI, ESQUIRE U.S. Department of Labor Philadelphia, PA
For the Complainant
ROBERT D. MORAN, ESQUIRE Vorys, Sater, Seymour & Pease Washington, D.C.
For the Respondent

DECISION AND ORDER

SOMMER, JUDGE:
On October 12, 1983, Respondent was issued Serious Citation No. 1 alleging five violations, Willful Citation No. 2 alleging five violations and Other Than Serious Citation No. 3 alleging seven violations, with a total proposed penalty of $43,050. Hearings were held in Philadelphia, Pennsylvania. Both parties were represented by counsel who filed post-hearing briefs. Respondent challenges both (1) the OSHA inspection and asks for suppression of the evidence obtained, and (2) the validity of the lead standard as applied herein. He furthermore avers that the Secretary has not met his burden of proof as to the presence of the hazards alleged.[[1]]

No jurisdictional issues are in dispute.

I. Background

Thermal Reduction Corporation (Talco), and its successors operate a foundry at 5201 Unruh Avenue in Philadelphia, Pennsylvania. Commencing in August or September 1982 Talco conducted a cable stripping operation at said location across the street from its main operations location. This consisted of stripping cables for the recovery of both copper and lead which were then further processed or shipped out.

Upon receipt of a written complaint on April 5, 1983, of health and safety violations in the plant area where the cable stripping operations were conducted, OSHA attempted to make an inspection, but was refused voluntary admittance. Accordingly, application was made for an administrative search warrant to Magistrate William F. Hall, who found probable cause existed for the issuance thereof. A warrant was issued which limited the inspection and investigation to the following conditions as related in the complaint:

Employees are exposed to lead from cable stripping and bricking operations; employees have experienced elevated blood levels and symptoms of lead poisoning. Employees with elevated blood levels are not removed from further exposure. No local exhaust ventilation is provided at either operation. The loading dock is "falling apart". Floors are loaded beyond capacity.

II. Scope of the warrant

This motion was denied, on May 11, 1984, for reasons therein stated which will not be reiterated. A similar motion is now made after trial which is denied on the additional grounds that a review of the testimony confirms that the hazards alleged in the complaint were those within the "plain view" of the compliance officers, Ackerman Enterprises, Inc., 10 BNA OSHC 1709, 1712, 1982 CCH OSHD ś 26,090, and bore "an appropriate relationship to the violations alleged in the complaint". Marshall v. North American Can Co., 626 F.2d 320 (3rd Cir. 1980).

III. The Lead Standard

In 1978 OSHA published notice of a proposed new standard for occupational exposure to lead setting the permissible exposure limit (PEL) at 50 ug/m3 and an "action level"[[2]] of 30 ug/m3. In addition, because of the toxicity of air lead contamination above the prescribed levels, and to protect employees from "material impairment of health or functional capacity," 29 U.S.C. § 665(b)(5) (1976), various other rules were promulgated under the lead standard which employers were directed to implement, i.e., written compliance programs to be established, respirator selection, usage and program, protective clothing, hygiene and housekeeping requirements, medical surveillance program, biological monitoring, medical removal program, face protection etc., 29 C.F.R. § 1910.1025. Virtually all sections of the lead standard were challenged by industry parties both as to irregularity in promulgation and substantive error. In a painstaking line by line analysis of the standard, the United States Court of Appeals for the District of Columbia Circuit in United Steelworkers of America, etc.v. Marshall, 647 F.2d 1189, upheld the OSHA standard for occupational exposure to lead. Relative to this proceeding the Court found that:

5. OSHA failed to present substantial evidence or adequate reasons to support the feasibility of the standard for the following industries: nonferrous foundries

* * *
The Court remanded the record to the Secretary for reconsideration of the feasibility of the standard for the remanded industries listed, but further adjudicated that: "For those industries listed in the previous paragraph the stay of Section 1910.1025(e)(1) of the standard, which requires compliance with the PEL by engineering and work practice controls, shall remain in effect. These industries, however, shall be immediately required to meet the PEL of 50 ug/m3 by some combination of engineering work controls and respiratory controls. All other provisions of the November 1, 1979, stay are hereby lifted."

The Respondent now attempts to re-open and re-litigate the promulgation of the lead standard and its efficacy. His brief is a litany of familiar charges of impropriety that the Court disposed of in United Steelworkers, supra, and is rejected. Thusly, the occupational lead standard applies to this Respondent, whether it falls in nonferrous industry or scrap metal collection and processor classification, other than the question still under reconsideration (feasibility of Section 1910.1025(e)(1)).

IV. Alleged Violations

Serious citation number 1 - item 1(a)

Item 1(a) alleges a violation of 29 C.F.R. § 1910.22(d)(1)[[3]] which requires that where a structure is used for business, industrial or storage purposes the loads approved shall be marked on plates securely fixed in a conspicuous place by the owner or his duly authorized agent. This allegation must fail. There is no evidence that the Respondent was the owner of the premises, or the owners duly authorized agent. Frankfort Woolen Mills, Inc., 3 OSAHRC 515, 1 BNA OSHC 1236, CCH OSHD ś 16,170 (1973); quoted with approval in Lee Way Motor Freight, Inc., 4 BNA OSHC 1968, 1970 (1977). Additionally, there is no evidence of record demonstrating that there were "loads approved" by a "building official" which were to be "marked on plates". Accordingly, Citation No. 1, item 1(a), is vacated.

Serious citation number 1 - item 1(b)

The Secretary contends that the Respondent violated the standard at 29 C.F.R. § 1910.23(c)(1) in that employees were cutting lead cable while standing atop of spools 82 inches high without guarding by standard rails. Section 1910.21(a)(4) defines a platform as: "A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment." The evidence demonstrates that at best the compliance officer noted employees working atop the spools on two occasions (May 12 & 17, 1983); thereafter the testimony reveals the cable was cut by machine at the ground level with the cable being unwound. "An elevated flat surface does not automatically become a 'working space' and a 'platform' merely because employees occasionally set foot on it while working." General Electric Co. v. OSHRC, 583 F.2d 61, 64 (2nd Cir. 1978).

Additionally, the plainly understood meaning of the word "platform" is "a horizontal flat surface usually higher than the adjoining area". [[4]] Both the definition normally accepted and the wording of the standard would not lead a reasonable man to conclude that work activity herein was being carried out on a platform. See Globe Industries, Inc., 10 BNA OSHC 1596, 1599 (1982). I find that the Secretary has not met the burden of proof that the standard applies to the cited operation. Accordingly, the Citation No. 1, item 1(b), is vacated.

Serious citation number 1 - item 2(a)

Vacated during trial on motion of Secretary.

Serious citation number 1 - item 2(b)

The Secretary alleges that the Respondent failed to comply with the standard at 29 C.F.R. § 1910.110(f)(2)(i) [[5]] in that six LP gas containers were stored in aisleway used by forklift trucks and thus were subject to being "poked or knocked over" (Tr. 788). The protection of the standard goes to those containers that are "* * * filled or partially filled * * *". The evidence does not demonstrate that the compliance officer had actual knowledge as to what if any thing was in the cylinders. She stated "some were empty and some were full * * *" (Tr. 1282), without any proof other than an obvious guess. Actually, Hesser, an employee, testified that the LP cylinders identified in government exhibit C-1, p. 36 (photographs) were placed there "when they were empty" (Tr. 248-9). It is apparent that there is some question as to whether these cylinders were filled, partially filled or empty. A violation cannot be found herein based on mere conjecture. The proof must be clear and convincing. It cannot be presumed or inferred. Ellison Electric, 1 OSAHRC 547, 1 BNA OSHC 3034, 1971-3 CCH OSHD ś 15,133 (No. 76-484, 1979). The evidence is insufficient to prove that the containers herein were in a state (filled or partially filled) required by the standard, and as such Citation No. 1, item 2(b), is vacated.

Serious citation number 1 - item 2(c)

This alleged violation similarly involves the six LP gas containers cited above, the allegation being they were stored in an aisleway used for safe exit of employees. As previously stated, since the evidence is insufficient to prove that the cylinders were filled or partially filled, the application of the standard to the state of facts shown is non-existent. Accordingly, Citation No. 1, item 2(c), is vacated.

Serious citation number 1 - item 3

The Secretary alleges that the Respondent failed to comply with the standard at 29 C.F.R. § 133(a)(1)[[6]] in that protective eye equipment was not required to be worn by Respondent's employees who were exposed to eye injuries when sorting cables and stripping lead from cables. During the inspection the compliance officer observed employees working at a stripping machine stripping cables either covered by a plastic sheathing or sheathed in lead. During the stripping operation there was a hazard presented from flying parts of plastic which broke off; additionally, during the stripping operation the cut cable leaving the machine presented a hazard as it could strike the face of the operator.

It was incumbent upon the Secretary to either prove that the Respondent had actual knowledge of the existence of a hazard which required the use of personal protected equipment, or that a reasonable man familiar with the factual circumstances then and there existing, knew the general practice of the industry was to require such use.

S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1250, 1979 CCH OSHD ś 23,480, p. 28,436 (No. 15855), rev'd 659 F.2d 1273 (5th Cir. 1981). Other than the compliance officer's concern that flying plastic parts could become lodged in an employee's eye or that the cable coming through the machine could strike the employee's eye and face, there was no evidence presented that Respondent had "specific, confirmed knowledge that there was a hazard presented which necessitated the use of personal protective equipment for the eye and face. Cotter & Co., 598 F.2d 914 (7 BNA OSHC 1513), or that industry practice recognized the presence of a hazard warranting the use of protective equipment. The Secretary has failed to sustain his burden of proof by a preponderance of the evidence that a violation of the Act occurred, and the citation alleging a violation of 29 C. F. R. § 1910.133(a)(1) is vacated.

Serious citation number 1 - item 4

The Respondent was cited for a violation of 29 C.F.R.§ 1910.212(a)(3)(ii) for failing to guard the points of operation of two alligator shears. The alligator shear machines were being used to cut cable being fed into it the blade uses a chop motion (up & down) cutting the cable which is removed by a worker on the opposite side of the feeder. The hazard alleged is that the hands and fingers of the employee feeding the machine can come into contact with the point of operation (as the chop blade descends on the cable) causing possible loss of fingers and severe hand injuries. The compliance officer observed that one of the machines on a previous day had been equipped with a guard that insulated and protected the employee operating the machine, but on subsequent days no such guards were used (May 10, 1983, May 31, 1983, and June 1, 1983). Both the observations of the compliance officer and the photographs introduced vividly portrayed the hazard presented to employees operating the machines (Tr. 798-806; Exh. C-1, pp. 19, 20, 21, 22, 25, 26, 27 & 37). Their hands and fingers while feeding the machine can be severely cut and mangled by the chopping action of the blade if unguarded. Where as here, there is a hazard present, "the employer must guard the machine in such a way as to prevent employees from having any part of their bodies in the danger zone during the operating cycle, thus the standard clearly places employers on notice of the performance it requires." Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1963, n. 4. The Respondent was aware of the requirements of the standard and knew of the hazard present; not only had a guard been used on prior occasions but a supervisor was noted to be present while the operation was going on at which time the machines were in use with the required guard. Moreover, the compliance officer specifically called to the attention of Schorsch, a management official, the hazard present and the absence of a guard on the machines (Tr. 1289-1290). Counsel's contention that since the guard was "provided" there is no violation is without merit; the citation alleged a violation because employees were subject to a hazard at the point of operation of the machine; the standard requires that where there is exposure to injury the machine "shall be guarded". This was not the fact herein. The machine was operated without the guard.

Accordingly, I affirm the violation alleged herein for failure to comply with the standard at 29 C.F.R. § 1910.212(a)(3)(ii). I further conclude that under Section 17(j) of the Act, 29 U.S.C. § 661(i), a penalty of $150 is appropriate.

Serious citation number 1 - item 5

The standard at 29 C.F.R. § 1910.303(g)(2)(i) requires that "* * *live parts of electric equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, * * *" or means listed. The compliance officer observed that the cover of the panel box containing the wires and circuits providing electricity to both a stripper and bricking machine using 110 or 230 volts had been damaged causing all the wires etc. to be exposed and presenting a hazard to the employees operating the machines in the immediate area; employees could come in contact with live exposed electrical parts by tripping, or otherwise when they went to the box to trip the circuits (Tr. 806-808, Exh. C-1, p. 15). The evidence fully establishes the presence of a hazard and the exposure thereto of employees engaged in their usual work activity. This condition was fully visible to management and was allowed to exist despite the hazards presented. Accordingly, the citation for violation of 29 C.F.R. § 1910.303(g)(2)(i) is affirmed. I further conclude that under Section 17(j) of the Act, 29 U.S.C. § 661(i), a penalty of $200 is appropriate.

Willful Citation No. 2

Citation No. 2 consists of 45 alleged violations of the standard addressing airborne lead exposure in the workplace.

Willful citation number 2 - item 1(a)

The Secretary alleges that the Respondent violated 29 C.F.R. § 1910.1025(c)(1) [[7]] in that employees at both the lead stripping and lead bricking operation were exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50ug/m3) averaged over an 8-hour period.

The exposure levels were determined by Compliance Officers Komis and Johnston on the following days, May 10, May 12, May 17, May 31, and June 1, 1983. Inasmuch as Respondent refused to cooperate in any way with the compliance officers during the investigation, and the employees under the circumstances therein also refused to cooperate (management by its own refusal to cooperate and its direct and indirect actions suggested and or hinted that there be no cooperation), the compliance officers were unable to attach the personal sampling pumps to the employees while they were working as is usually done; instead the compliance officers were forced to place the pumps as close as possible to the employees' breathing zones and work zones so as to establish the airborne concentration of lead. Thusly, the sampling pumps were placed in various places on the bricker and stripper machines. Prior to placing the sampling pumps with filter cassettes attached on the machines, the compliance officers pre-calibrated the pumps, checked them for adequate voltage, checked the air flow rate, etc. After the sampling pump had collected the air samples with the time each pump had operated being recorded at its various locations, the cassettes were forwarded to the OSHA analytical laboratory in Salt Lake City to be analyzed for lead by the inductively coupled plasma (ICP) method. The laboratory results, which were returned to the compliance officers, were used to calculate the 8-hour time-weighted average (TWA) of exposure to air borne lead dust. The sampling was largely carried out by Compliance Officer Komis assisted by Johnston. Both gave the distinct impression of a full and complete knowledge of sampling techniques with prior experience and education in the chemical and biological fields. Both compliance officers testified in a straightforward, frank and convincing manner and appeared to be truthful and honest.

The findings of the air sampling done both on the bricker and stripper machines demonstrated the following results:

The evidence fully demonstrates that the Respondent's employees while carrying out their regular duties operating both the stripper and bricker machine were exposed to lead in excess of the limits set forth in Section 1910.1025(c)(1). There was no evidence presented by the Respondent that the Secretary's airborne lead findings demonstrating overexposure of employees to lead was incorrect or not typical of the workplace. The Respondent offered no evidence at all consisting of measurements he had carried out.

Respondent disputes the findings of employee overexposure alleging that Section 1910.1025(c)(1) should be interpreted to include exposure findings with respirator usage, and furthermore the Secretary failed to demonstrate either that the Respondent knew of the hazard presence or that there was a hazard present. There is no merit to these contentions. Section 1910.1025(c)(1) sets a permissible exposure limit of 50 ug/m3 as an 8-hour TWA. The standard by its plain terms informs the employer of the highest level of airborne lead an employee may permissibly be exposed, and directs that "the employer shall assure" no exposure to greater combinations; immediate compliance is the obligation of the employer whether by a combination of engineering controls, work practices (including administrative controls), or respirators. Thusly, the section is violated by a failure to meet the PEL irrespective of the methodology, if any, actually used by the employer to reduce airborne lead exposure. Furthermore, Respondent's contention that the exposure testing requires the findings resulting with use of respirators is not worthy of comment and totally irrelevant under the existing facts and circumstances. Since the Respondent by its action and non-cooperation in the investigation fostered similar responses from its employees, the compliance officers were forced to place the testing pumps on the machinery, not on the employees where they usually are. Thusly, whether the employees wore respirators during the testing is immaterial and would not change the findings.

Similarly, Respondent's allegation that there is no proof that it was aware of the presence of a hazard, or that its employees were exposed thereto is without foundation. "An employer has the duty to exercise reasonable diligence to discover conditions that violate the Act and the standards promulgated pursuant thereto. If an employer knows that a regulated air contaminant is present in its facility, reasonable diligence requires that it measure the amount of the contaminant to determine whether it is present in an excessive amount." General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD ś 25,345 (No. 13732, 1981). The Respondent knew that the lead recovery operations conducted created airborne lead contamination, and that there were OSHA regulations regulating such lead. In 1981 during an OSHA investigation the Respondent was informed of the presence of lead arising out of its operations, and in a letter dated September 1, 1981, was told "it is strongly recommended that these areas be evaluated for employee exposure to lead" (Exh. R-7). The compliance officer who was part of the 1981 investigation personally told a Respondent official of the OSHA lead standard requirement (Tr. 1374). Prior to the investigation which is involved herein the Respondent was made aware of the lead related illness of a number of their employees. Dr. McGraw, the physician at the Exide Industrial Hygiene Laboratory, who performed blood sampling of Respondent's employees for lead exposure, testified in a deposition that he advised the Respondent early in 1983 to have the plant surveyed in order to determine what needs be done "to control lead in air levels". In short, the Respondent was fully aware that its lead operation was a source of lead contamination, that there is a danger of lead poisoning to employees working in such areas, and that there were specific OSHA regulations concerning occupational airborne lead. They did not exercise normal diligence and care required of an employer with knowledge as aforesaid. They did not monitor nor in any way measure the lead contamination present in the workplace though knowledgeable thereof.

Further, the allegation that there was no hazard to employees demonstrated or as counsel in his brief calls "employee endangerment" is ludicrous. As the Court stated in United Steelworkers of America v. Marshall, supra, "We do know that in the United States today, where industry consumes annually over one million tons of lead, at least 800,000 workers, representing 120 occupations in over 40 industries, are exposed to airborne lead on the job and thereby face the dangers of lead poisoning." The record amply demonstrates the significant hazards of toxic lead poisoning faced by Respondent's employees working at the bricker and stripper machines because of the presence of higher airborne lead contamination. The Court in United Steelworkers of America, supra emphasized that, "In creating the new lead standard, OSHA has clearly met the Section 3(8) threshold test of proving 'significant harm' * * *." It is concluded that the Respondent violated 29 C.F.R. § 1025(c)(1).

Willful citation number 2 - item 1(b)

The Respondent was cited for violating 29 C.F.R. § 1910.1025(e)(1) and/or 29 C.F.R. § 1910.1000(e)(1)[[8]] in that it failed to implement engineering and work practice or administrative controls to reduce excessive levels of airborne lead to which employees were exposed. Since the evidence is unclear whether Respondent is engaged in secondary lead melting (which the Court stated feasibility of the lead standard was demonstrated) or either in the nonferrous or collecting and processing scrap lead industry (where feasibility not established and remanded for further consideration) the alleged violation of Section 1910.1000(e) will be considered instead of Section 1910.1025(e)(1). This section applies to lead contamination as alleged herein. On May 10, 1983, the compliance officer found contaminated lead air levels at the bricker and small stripper measuring over 200 ug/m³, specifically 268 ug/m³, 355 ug/m³, and 812 ug/m³. The testing was carried out and the results time weighted for an 8-hour period. Considering the high level airborne lead found in the short testing period, it is reasonable to conclude that over an actual 8-hour period of monitoring (the normal workday), it could reach even higher limits of contamination. The compliance officer observed no engineering and administrative or work controls in effect. She stated that feasible methods for reducing the lead exposure levels included institution of more effective work practices such as wet methods to reduce airborne dust, use of a dust collecting system (duct work to remove contaminants via air movement through appropriate fans). She said these methods were successfully in use elsewhere. The testimony of Charles H. Stevens, a professional engineer with experience in industrial hygiene ventilation systems and dust and fume control, established there are feasible methods for effectively reducing the excessive airborne levels of lead at the Respondent's workplace to acceptable limits.

Specifically, he testified that engineering controls such as a cable processing system, a brushing machine system, and a local exhaust ventilation using hooded enclosures could be put into operation. Good housekeeping practices utilizing a central vacuum cleaning system, as well as a daily routine of good housekeeping would also reduce airborne lead levels. Mr. Steven's testimony which was entirely credible was unrebutted. The Respondent produced no evidence to demonstrate the unreliability of the expert's testimony or that it was financially detrimental. The evidence substantiates a violation of 29 C.F.R.§ 1910.1000(e)(1).

Willful citation number 2 - item 1(c) through 1(k)

These items allege non-compliance with various respirator standards.[[9]]

Item 1(c) alleges that respirators required under the section were not selected from Table II as required. Specifically, an employee operating the bricker on May 10 was using a half-mask, air purifying respirator not equipped with a high efficiency filter. The evidence shows that said employee while working the bricker was exposed to airborne lead time weighted of 812 ug/m³ averaged 8 hours. Since the standard requires the use under those circumstances of a full facepiece, air-purifying respirator with high efficiency filters, the standard was violated. The Respondent's contentions are again that (1) Respondent did not know of air contamination in excess of permissible limits; (2) no employee was connected with the hazard on May 10; and (3) that Respondent was under no obligation to instruct or implement engineering or work practice controls, and furthermore no employee had requested a respirator, are all rejected. As previously stated Respondent knew or should have known of the dangers inherent in working with lead. Moreover, his previous knowledge of the presence of lead in the workplace, the illness attributed to lead toxicity of some employees, the warnings and information given to him by both Dr. McGraw and the health investigator from the City of Philadelphia, all called attention to the serious airborne lead contamination present, and that the contamination was at a level exceeding permissible limits. In short the totality of the evidence demonstrates knowledge of the non-complying conditions. Furthermore, the testing carried out by the compliance officer on May 10 near the bricker fully showed that an employee working there was exposed to 812 ug/m³ on a TWA of 8 hours. Under the United Steelworkers case, the Respondent (assuming it belonged to a remand industry) was required "to meet the PEL of 50 ug/m³ by some combination of engineering, work practice and respirator controls". The preponderance of the evidence sustains a violation of 29 C.F.R. § 1910.1025(f)(2)(i), and it is affirmed.

Item 1(d) alleges a violation of 29 C.F.R. § 1910.1025(f)(3)(ii) in that the respirators issued to employees were not properly fitted. The evidence demonstrates that the respirators were assigned by supervisors to employees with no fitting of any sort. They were given instruction data which came with the respirators and left on their own; this reliance on an employee to read the instructions and then wear the respirator is not in compliance with the standard. The responsibility is on the employer to see that fit tests are made. He cannot delegate it to the employees. All the employees who testified affirmed no fitting of the masks were carried out by the Respondent. Accordingly, the Respondent violated 29 C.F.R. § 1910.1025(f)(3)(ii).

Item 1(e) alleges a violation of 29 C.F.R. § 1910.1025(f)(4)(i) in that no respiratory protection program was established. Without going once again over the total lack of response of the Respondent to his responsibilities under the lead standard, the evidence fully demonstrates from both the testimony of the compliance officer and the employees that a "minimal acceptable program" for respiratory protection was not carried out. Among others there were no written standard operating procedures for use and selection of respirators; no selection of respirators on the basis of hazard exposure; no instructions in proper use by the employees; nor were they informed of respiratory limitations, surveillance of work conditions, and degree of employee exposure was lacking, etc. In short, the evidence fully shows that the Respondent failed to comply with the requirements set forth in Section 1910.134(b) dealing with a minimally acceptable program. The Respondent's failure to respond to a subpoena requiring the production of evidence concerning a training program, etc. raises an inference that none was in existence and further re-affirms the total evidence that there was a failure to comply with Section 1910.1025(f)(4)(i).

Accordingly, the item is affirmed.

Items 1(f), 1(g), 1(h), 1(i), and 1(j) all relate to a failure to comply with the standard at Section 1910.134(b) which requires a "minimally acceptable program" for respiratory protection. Under Section 1910.134(b) written standard operating procedures governing the selection and use of respirators must be established. The compliance officer testified that none were in existence, which was affirmed by the employees. The Respondent produced no evidence that any such program of written procedures was in existence other than receiving the respirators with written manufacturer's instructions which came with the box. Employees were not instructed and trained in respirator use and told of their limitations as required by Section 1910.134(b)(3). Section 1910.134(b)(5) requires regular cleaning and disinfecting of respirators. The compliance officer learned from the employees that for periods of time there was no hot water to clean the respirators with, she observed no disinfectant, and was told by some employees the respirators were taken home and just "rinsed." Under Section 1910.134(b)(6) respirators are required to be stored in a "convenient, clean and sanitary location." This was lacking herein. The compliance officer testified that employees interviewed had stated there was no separate locker provided for work clothing (contaminated) and street clothing and thus the respirators were stored in a contaminated locker. She saw no separate area to store respirators after cleaning. Under Section 1910.134(b)(7) respirators used routinely should be inspected during cleaning. Again employees testified no such program was carried out. All these Sections of 1910.134(b) relating to a respirator use, cleaning inspection program were not adhered to by the Respondent. Both the testimony of the compliance officer and the employees and the failure of the Respondent to demonstrate the program existence (it failed to respond to administrative subpoenas setting forth its program) attests to its violation of the respirator standards. Accordingly, violations of the respirator standards in Section 1910.134(b)(1), (3), (5), (6), and (7) as charged are affirmed.

Item 1(k) alleges a violation of 29 C.F.R. § 1910.134(e)(5)(i) in that employees wearing the respirator had beards which prevented a good seal causing leakage. The compliance officer testified she observed employees with beards wearing respirators. The standard specifically faults such practice stating "respirators shall not be worn when conditions prevent a good seal," and one such condition is a growth of beard. Accordingly, this item is affirmed.

Willful citation number 2 - item 1(1)

This item alleges a violation of Section 1910.1025(h)(1) in that surfaces were not maintained as free as practicable of accumulations of lead. Wipe samples taken by the compliance officers demonstrate the presence of lead dust accumulation on surfaces such as the strippers, brickers, lunch table and card table in lunchroom, etc. Since the Respondent had no program whatsoever whether by engineering controls, administrative controls including work practices or housekeeping to control lead dust accumulation in its entire working or eating areas it was therefore doing absolutely nothing to maintain as free as practicable the accumulation of lead. Accordingly, the item is affirmed.

Willful citation number 2 - item 1(m)

Item 1(m) alleges a violation of Section 1910.1025(h)(2)(ii) in that shoveling, sweeping or brushing methods were used to remove lead accumulation where vacuuming or other equally effective methods were available and feasible. The evidence through the testimony of the employees reveals that a dry broom was used to shovel and sweep the accumulated dust and trash. The testimony of the compliance officer affirmed that this was improper and that a vacuuming system could have been used or a wet system of collecting lead dust which was entirely feasible under the existing circumstances. The testimony of Stevens, the industrial hygiene engineer, verified that such methods were feasible, among others. Accordingly, the citation is affirmed.

Willful citation number 2 - item 1(n)

This item alleges a violation of Section 1910.1025(i)(1) in that employees were exposed to lead in excess of PEL without regard to use of respirators where tobacco products were present. Lead sampling conducted by the compliance officer on May 12, 1983, at the small stripper revealed a PEL of 254 ug/m³, 110 ug/m³ at the large stripper, and on May 17, 1983, there was a PEL of 116 ug/m³ and 56.6 ug/m³ at the large stripper, all above the permissible exposure limit. The compliance officer observed an employee removing a cigarette from his jacket which was hanging in this contaminated area where he was working, and thereafter smoking it.

The cigarettes were thereby exposed to lead contamination and a hazard to employees. Since the compliance officer was prevented from placing the sampling pumps on the employees as is usual, the test findings were without regard to the use of respirators and perfectly acceptable under the standard. Accordingly, item 1(n) is affirmed.

Willful citation number 2 - item 1(o)

Item 1(o) alleges a violation of Section 1910.1025(i)(2)(i) in that clean change rooms were not provided for employees exposed to lead above the PEL without regard to use of respirators. Hereto the compliance officer took wipe samples which demonstrated lead contamination in the locker room. There were contaminated soiled clothing and the water fountain was contaminated with lead findings above the permissible PEL.

Accordingly, item 1(o) is affirmed.

Willful citation number 2 - item 1(p)

Item 1(p) alleges a violation in that change rooms were not equipped with separate facilities for work and street clothes to prevent contamination. The testimony of both the compliance officer and the employees verifies that at best each employee had one locker wherein both street clothes and contaminated work clothes were stored. No provision was made for separate facilities. This item is affirmed.

Willful citation number 2 - item 1(q)

This item alleges no shower facilities were provided for employees exposed to excessive lead. The compliance officer saw no such shower facilities, and the employee testimony amply reveals there were none in the annex building wherein they worked. Additionally, none reported taking a shower at the workplace nor were shower facilities provided. This item is affirmed.

Willful citation number 2 - item 1(r)

Item 1(r) alleges this Respondent failed to provide lunchroom facilities that had temperature controlled, positive pressure and filtered air supply for its employees working in the lead operation. The evidence demonstrates the lunchroom was a converted former supervisor's office which contained a plywood table with a top of cardboard and a refrigerator. The compliance officer found the room "very, very unsanitary and very dirty." The room did not have the required controls. Accordingly, this item is affirmed.

Willful citation number 2 - item 1(s)

This item alleges a violation of Section 1910.1025(i)(4)(iii) in that employees exposed to excess lead were not required to wash their hands and face prior to eating, drinking, smoking, etc. The standard states that the "employer shall assure. . . " that exposed employees wash their hands and face prior to eating, etc. To assure means to "make certain".[[10]] Although the Respondent had a flyer dated April 11, 1983, which stated among others that " 4. Employees must wash hands and face before eating and drinking anything", the compliance officer observed an employee eating and drinking on May 10 without washing beforehand. This occurrence was also witnessed by a management official. Thusly, management was aware of the hazard and employee exposure and allowed it to continue. The compliance officer further noted she had seen similar acts performed after May 10. The evidence demonstrates a violation of this standard. The violation is affirmed.

Willful citation number 2 - items 2(a)-2(e)

These items alleges violations of the standard dealing with the protective work clothing and equipment.[[11]] Item 2(a) alleges a violation of 29 C.F.R. § 1910.1025(g)(2)(i) in that daily changes of clothing were not provided to employees whose lead exposure was above the PEL. The compliance officers' air sampling revealed that on May 10 and 12, 1983, both at the stripping and bricking operations, there was lead contamination above the PEL (in excess of 200 ug/m³). The evidence reveals that changes of work clothes were provided only two or three times a week. Accordingly, the violation is affirmed. Once again the Respondent alleges that the statute is violated only if the employee is exposed without regard to use of respirators. He alleges the respirator protection factor must be counted.

However, since the Respondent prevented the investigator from properly sampling the contamination present, he is in no position to allege deficiencies. Moreover, the provisions do not call for the use of respirators.

Item 2(b) alleges a violation of 29 C.F.R. § 1910.1025(g)(2)(ii) in that the Respondent did not provide cleaning, laundering or disposal of the protective clothing required by paragraph (g)(1). As stated previously, such clothing was not provided daily as required, and thereby under the standard would require daily cleaning. Here it was provided two or three times weekly, but only cleaned once a week, a violation of the spirit and intent of the standard which requires and looks for the utmost cleanliness and freedom from lead dust to protect employees. By failing to provide daily clean clothing employees were forced to work with lead contaminated clothing (if they took it home to clean as some did then the contamination was passed into the home), and were exposed to airborne lead contamination. The Respondent who furnished the clothing and cleaning services knew or with diligence should have known of the hazards present in not supplying the necessary changes of clothing and daily cleaning, laundering, etc. This violation is affirmed.

Item 2(c) alleges a violation of 29 C.F.R. § 1910.1025(g)(2)(iv) in that protective clothing was not required to be removed in the change room provided at the completion of the workshift. The standard states that "The employer shall assure that all protective clothing is removed at the completion of a work shift only in change rooms prescribed for that purpose. . . . " To "assure" [[12]] means to make sure or certain. The evidence shows that a number of employees took contaminated work clothes home which was both a hazard to employees and could cause household contamination causing family contamination. This was directly what the standard means to protect against. The obligation placed on the Respondent was definite and unequivocable. It failed to carry out its responsibilities. It knew or should have known that the violation was being carried out. Supervisors who were present at the end of the work-shift observed employees leaving wearing contaminated work clothes, and who apparently did nothing. This citation is affirmed.

Item 2(d) alleges a violation of 29 C.F.R. § 1910.1025(g)(2)(v) in that contaminated protective clothing to be cleaned, laundered, or disposed of was not placed in a closed container, while item 2(e) requires such containers to be labeled with a cautionary message spelled out. The compliance officer observed a container with soiled protective clothing which was not closed and did not have the cautionary label required. The Respondent, therefore, was in direct violation of the specific direction of the standard. This was in open view of employees and supervisors. The Respondent, therefore, had ample notice thereof. Items 2(d) and 2(e) are affirmed.

Willful citation number 2 - items 3(a) through 3(g)

Items 3(a) through 3(g) allege a violation of the standard dealing with medical surveillance (29 C.F.R. § 1910.1025(5)). [[13]] The Respondent alleges that the effective date of Section 1910.1025(5) is June 29, 1981, the date when the U.S. Supreme Court denied certiorari in the United Steelworkers case. This is manifestly wrong. The stay was lifted in the Circuit Court except for 29 C.F.R. § 1910.1025(e)(1) (only as to certain listed industries). The effective date of Section 1910.1025(5) is March 1, 1979, (certain paragraphs have slightly later dates).

The Respondent is charged with failure to institute a medical surveillance program pursuant to Sections 1910.1025(j)(1)(i), 1910.1025(j)(2)(i), 1910.1025(j)(2)(ii), 1910.1025(j)(2)(iv), 1910.1025(j)(3)(i)(A), 1910.1025(j)(3)(i)(B), and 1910.1025(j)(3)(i)(C). The Respondent was required to institute the program where employees are or may be (underlying added) exposed above the action level for more than 30 days per year. Thus, where the circumstances showed a possibility of such overexposure, the surveillance program was required. The Respondent knew or should have known there was lead contamination in his workplace and a reasonable man would have measured the airborne lead to determine what employee exposure was. The lead standard requirements were called to management's attention previously. The compliance officer found the airborne lead contamination was over the action level on many days both at the bricker and stripper (May 10, May 12, May 17, May 31, and June 1, 1983). The compliance officer found no medical surveillance program in effect during the course of her investigation, and the Respondent's employees confirmed no such program was in existence. Respondent's allegation that there must be proof of such contamination for more than 30 days is rejected. The program is required where there is a reasonable expectation of exposure for over 30 days; here one could expect the bricking and stripping operations (a major activity) to continue for over 30 days with continuing airborne contamination as found. Absent the required medical surveillance program as required, the violation is affirmed.

Under item 3(b) Respondent is charged with violating Section 1910.1025(j)(2)(i) which requires biological monitoring in the form of blood sampling and analysis for lead and zinc protoporphyrin levels. The standard is specific as to the test required. The evidence demonstrates that there was no blood sampling and analysis carried out for zinc protoporphyrin levels. While some limited blood tests were performed for lead levels (which was discontinued rapidly), the failure to perform the above listed test is a violation of the standard per se and a violation of Section 1910.1025(j)(2)(i) is affirmed.

Item 3(c) alleges a violation of Section 29 C.F.R. § 1910.1025(j)(2)(ii) in that a follow-up blood sampling test was not provided within two weeks after an employee's initial blood lead level test revealed it was in excess of the numerical criterion for medical removal under paragraph (k)(1)(i). Under this paragraph such follow-up test must be carried out where the blood lead level is at or above 60 ug/100 g of whole blood. (This is the level required beginning with the third year following the effective date of the standard which was March 1, 1979.) The evidence demonstrates that on March 9, 1983, the Respondent had blood testing done on its employees by Exide Industrial Hygiene Laboratory, and the results were reported on March 11, 1983. The analysis demonstrates that at least three employees had a test level at or above 60 ug/100g (Mottershead, Perillo, and Alfredson). The evidence shows that no blood lead level testing was carried out on these three employees within the required two-week period although they had levels above the criteria set. Accordingly, the Respondent violated Section 1910.1025(j)(2)(ii) of the standard, and it is affirmed.

Item 3(d) alleges a violation of 29 C.F.R. § 1910.1025(j)(2)(iv) in that employees whose blood lead levels exceeded 40 ug/100 g were not notified in writing thereof, and were not told that the standard requires temporary medical removal with MRP benefits where the blood lead level exceeds the criterion set in the standard. The evidence demonstrates that the first blood level tests were available to the Respondent from the Exide Laboratory on March 12, 1983, and under the standard those employees exceeding 40 ug/100 g should have been notified in writing within 5 days. The testimony of both the compliance officer and a number of employees substantiates that no such notification was made. The Respondent failed to respond to an administrative subpoena demonstrating the presence of such documents. It provided Exhibit C-11 which lists no names therein to identify the employees. Another document submitted (Exh. C 2) has an N symbol next to a number of employees and not their numerical blood lead level as required. From hearing the testimony of the compliance officer and the employees who were believable and appeared truthful together with no evidence of compliance by this Respondent, it is apparent that no such required testing was given to employees; and furthermore, the testimony reveals that no employee was given information regarding the MRP program. Accordingly, the violation is affirmed.

Item 3(e) was vacated at the trial.

Item 3(f) alleges Respondent violated 29 C.F.R. § 1910.1025(j)(3)(ii)(B) in that it did not provide employees a medical examination and consultation prior to assignment to an area where the airborne lead concentration was at or above the action level. The compliance officer testified that she found no evidence of employee medical examination or consultations prior to working in the lead contaminated areas, and this is verified by those employees who testified. The record amply shows there were no such medical examinations given as required. The Respondent violated Section 1910.1025(j)(3)(ii)(B) as alleged.

Item 3(g) alleges a violation of 29 C.F.R. § 1910.1025(j)(3)(i)(C) in that medical examinations and consultations were not made available as soon as possible to employees covered under paragraph (j)(1)(i) upon notification by an employee that he has developed signs and symptoms associated with lead intoxication, etc. The evidence shows that at least two employees (Celmer and Switz) developed symptomology associated with lead intoxication (Celmer being hospitalized therefor), and reported it to their supervisor. However, Respondent did not at any time make medical examinations or consultations available as required. The Respondent failed to follow a direct obligation imposed by the standard. Accordingly, this item is affirmed.

Willful citation number 2 - items 4(a) through 4(c)

These items allege violations of the standard dealing with medical removal protection (MRP). [[14]] The Respondent was cited for violating 29 C.F.R. § 1910.1025(k)(1)(i)(c) for failure to remove employees exposed to lead above the action level whose blood lead level was at least 60 ug/100 g. The record fully proves that at least nine employees were exposed to lead at a level above the statutory allowance, yet the Respondent failed to carry out as "unequivocable obligation" to both inform the employees of their MRP rights and to remove them from exposure to the lead (Exh. C-12). Accordingly, the violation of 29 C.F.R. § 1910.1025(k)(1)(i)(C) is affirmed.

The Respondent was cited for violating 29 C.F.R. § 1910.1025(k)(2)(i) for failure to provide MRP benefits to employees removed because of exposure to lead. The Secretary alleges employees Celmer, Cosby, Switz, and Smith are entitled to such benefits. The record shows Celmer commenced work at the plant in November 1982, became ill thereafter necessitating hospitalization from March 4, 1983 - March 12, 1983, at St. Mary's Hospital; among others the diagnosis was lead poisoning and it was recommended he be removed from the source of the lead contamination (C-21, C-51). On August 23, 1983, he was notified by the Respondent to report for work on August 29, 1983, where he would be working in a lead-free area in the main plant. Celmer testified he went to the plant a few days earlier "to sign for my check", and "I went to see the no leaded area." He saw boxes of lead in the walkway to the offices and on the load platform, and pointed these out to a company employee with him at the time saying, "I'm leaving, sorry." His testimony reveals that he did not know where he would be working. Apparently because of his concern about lead and the problems it had caused him, he abruptly left. The evidence does not demonstrate that the Respondent was not going to assign him to a non-lead area job; he merely presumed this to be so. His unilateral decision to leave based on a lead phobia, while reasonable to Mr. Celmer, can not form the basis for a violation of the MRP provisions against Respondent. Accordingly, at most the Respondent was liable for MRP benefits through August 29, 1983, the date it acknowledged it was prepared to give him a lead free job.

Cosby commenced work in September 1982 and became ill some months thereafter; blood lead level testing on March 9 and March 24, 1983, showed levels of 101 and 103 respectively (C 12). On April 10, 1983, his doctor reported a blood lead level of 99 ug/100 g and was told he could not work around lead. He was hospitalized from April 19 - April 26, 1983, with a final diagnosis of lead toxicity. He informed the Respondent of his illness and treatment and the need for a lead-free job which was not forthcoming being been told that "there was no lead free jobs there" (Tr. 1726). The evidence is persuasive that Respondent did not offer Cosby any lead-free jobs nor advise him of any of his MRP rights. The Respondent as stated had no medical surveillance program as found under Section 1910.1025(k). His removal from a lead-free job by his physician accordingly would constitute a "final medical determination," since no other mechanism under the medical surveillance provisions were instituted. Under the standard his MRP rights must continue for a period of up to 18 months. Having failed to provide such benefits to Cosby, Respondent violated Section 1910.1025(k)(2)(i).

Smith, an employee since September 1982, had two elevated blood level tests in March 1983, and was hospitalized with lead poisoning from April 21 - April 28, 1983. Upon discharge his doctor informed him he could not work around lead, and upon discussing this with Respondent's foreman was advised, "that was definitely out of the question." The evidence demonstrates that this employee suffered from lead poisoning, had two or more blood lead levels which showed lead toxicity, and hereto no medical surveillance program being in effect was given no advice, treatment or examination by Respondent as required. Under the standard he was entitled to MRP benefits; and accordingly, the Respondent violated Section 1910.1025(k)(2)(i).

Switz, an employee since May 19, 1983, had elevated blood lead level both on May 26, 1983, (66 ug/100 g) and on June 1, 1983, while hospitalized (66 ug/100 g). He was hospitalized from June 1 to June 3, 1983, with a final diagnosis of lead intoxication (C-36). Upon discharge he was advised by his physician not to be around lead, which he relayed to Respondent's foreman who said, "we don't have a lead free atmosphere available". He did not work for the Respondent thereafter, and thinks he was terminated, "but he didn't come out and tell me". Under the standard Switz was entitled to MRP benefits because of his removal from exposure to lead, and failing to do so, the Respondent violated Section 1910.1025(k)(2)(i).

The Secretary is directed to submit adjusted computations of MRP benefits due from Respondent to employees Joe Celmer, Warren Cosby, Abb Smith and Robert Switz. Such interest, if applicable (in all cases except Celmer whose entitlement extends only to August 29, 1983), should be brought up to date of decision.

The Respondent was cited for violating 29 C.F.R. § 1910.1025(k)(2)(iv) for failing to provide MRP benefits pending disposition of a claim from workers' compensation payments. The evidence shows that not only were no MRP benefits paid pending the workers' compensation claims filed by the above former employees, but no MRP benefits were ever paid. Accordingly, the Respondent violated the standard at Section 1910.1025(k)(2)(i). Respondent's allegation that Cosby or any other employees were not "removed" is rejected. The spirit and intent of the lead standard is to see that employees subject to lead toxicity be removed from such environment. Where, as here Respondent fails to carry out any of the lead standards, employees in danger and advised by physicians to seek a non-lead atmosphere or suffer peril to their health are "removed" under the standards and entitled to whatever benefits conferred thereby.

Willful citation number 2 - item 5(a)

The Respondent was cited for an alleged violation of 29 C.F.R. § 1910.1025(d)(2) [[15]] in that it did not monitor whether any of its employees were exposed to lead at or above the action level. There is no need to repeat the previous findings that Respondent knew or should have known of the lead hazard present in its operation. The record shows it did not monitor the airborne lead present, nor in any way measure what exposure, if any, its employees were subjected to. The compliance officers' tests demonstrating toxic airborne lead above the action level were in no way demonstrated to be an error. The Respondent violated this standard and it is affirmed.

Willful citation number 2 - item 5(b)

This item alleges a violation of 29 C.F.R. § 1910.1025(e)(3)(i) in that a written compliance program to reduce lead exposure solely by means of engineering and work practice controls was not established and implemented.[[16]] Since the Court in the United Steelworkers case remanded for further consideration the feasibility of engineering and work controls for certain industries of which Respondent may be one, he was not under an obligation to have a written compliance program while the reconsideration was pending. Accordingly, this item is vacated. Willful citation number 2 - items 5(c) - 5(f)

These items alleges that the Respondent failed to provide employees with the information and training (including training materials) required by 29 C.F.R. § 1910.1025(l)(1)(i), (l)(1)(ii), (l)(1)(iii), and (1)(2)(i).[[17]]

The testimony of both the compliance officer and the Respondent's employees established conclusively that the Respondent utterly failed in his responsibility to supply training and information to his employees regarding the health hazards associated with lead exposure, did not inform them of content of the lead standard and its appendices, purpose of the medical surveillance and medical prevention program, nor did he make any copies or knowledge of the lead standard available to them. In short, the Respondent did not carry out any of the specific obligations the standards at 29 C.F.R. §1910.1025(l)(1)(i), (l)(1)(iii), and (l)(2)(i) require, and all violations are affirmed. The usual Respondent allegations that he had no notice of a harzard, that the effective date of the standard precludes any findings of a violation, that the standard does not apply to here, etc. are without merit.

Willful citation number 2 - item 5(h) through 5(k)

These items allege violations of the recordkeeping requirements under the lead standard [[19]] (paragraph n). "The standard at 'n' requires employers .... the keep detailed records on environmental monitoring in the workplace and on biological monitoring and medical surveillance of individual workers..." United Steelworker case, supra , at p. 1206. It suffices to say that the Respondent utterly failed to keep records required by the standard regarding the exposure monitoring of his employees, nor any records pertaining to medical surveillance. He was required to carry these out inasmuch as his employees were "subject" [[20]] to illness from lead toxicity under their work circumstances. His response that if he had no medical monitoring or surveillance program he need keep no records is without merit and farcical.

The evidence of both the compliance officer and Respondent's employees demonstrates the recordkeeping of the Respondent was almostnil, and failed to comply with the requirement of 29 C.F.R. § §1910.1025(n)(2)(i0, 1910.1025(n)(2)(iii) and 1910.1025(n)(3)(i). Accordingly, the violations as charged are affirmed.

V. Alleged Willfulness

The Secretary has characterized citation number 2 which alleges violation of various parts of the lead standard (29 C.F.R. § 1910.1025) as willful.

To establish that a violation was willful, the Secretary must prove that it was committed with an intentional disregard of or a plain indifference to the requirements of the Act. Asbestos Textile Co., Inc., 84 OSAHRC, 12 BNA OSHC 1062, 1984 CCH OSHD ś 27,101 (No. 79-3831, 1984); Duquesne Light Co., 84 OSAHRC 23/02, 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ś 26,959, p. 34,603 (No. 79-1682, 1984);
The Ensign-Bickford v. OSAHRC, 717 F.2d 1419 (11 OSHC 1657) (D.C. Cir. 1983).

The record sustains the conclusion that the lead standard violations committed by the Respondent demonstrate "plain indifference to" and an intentional disregard of the standard.

The Respondent had actual and constructive knowledge of the lead standard and his duties and responsibilities thereunder, the hazards associated with airborne lead contamination, and that employees were becoming ill as a result of lead toxicity. Despite this knowledge, Respondent totally disregarded his duty under the standard, showing a callous indifference to employee safety and health and a blatant disregard of the requirements of the standard.

The record shows that in a 1981 inspection by OSHA at its foundry site (opposite the area involved herein) the Respondent was informed by letter that while no airborne exposure to lead was revealed, wipe samples did show lead contamination in a number of locations; it was "strongly recommended that these areas be evaluated for employee exposure to airborne lead, and that "Based upon the results of sampling the appropriate provisions of the lead standard (1910.1025) must be complied with". Furthermore, Compliance Officer Johnston orally told Nicholas Schorsch, an officer of Respondent of "some aspects of the lead standard so that they were aware of what the possible ramifications would be in terms of employee exposure". The Compliance Officer stated that he recalled talking of "the various requirements in terms of monitoring, medical surveillance and training, of the need for hygiene facilities in lunch rooms .... I recall basically it was a summary of the lead standard ...." Further knowledge by the Respondent of the lead standard and/or air level lead problems is indicated by the testimony of Charles H. Stevens, an industrial engineer, who related that in 1982 one of his employees had been asked to visit the Respondent's plant and "give some advice as to what they could do to improve air and lead levels". The individual consulting with the Stevens' employee was Nicholas Schorsch. There was undisputed evidence that "Fedderman," "Thalheimer," and "Vucin" knew or were told of employee illness from lead toxicity arising out of overexposure to lead contamination while working at the lead cable stripping operation. Nevertheless, these supervisors continued to require the employees to work where there was overexposure to airborne lead; although knowing of the presence of air lead contamination, the supervisors did not take steps to measure the airborne lead to determine whether employees were overexposed or not, and even after they were ill took no steps to monitor their exposure, see that they had information required as to hazards of overexposure to lead, the need for medical examinations, etc. Despite all this knowledge, the supervisors consistently made no efforts to take the steps needed to protect the employees. Their conduct and inaction established a careless, deliberate disregard of the safety of Respondent's employees which was willful in nature and is imputed to the Respondent.

Furthermore, management was apprised that the work area posed lead contamination problems at various times and continued to pursue a policy of not providing the medical surveillance, monitoring, medical removal. etc. all required. Specifically, in early 1983 employee Celmer was hospitalized for lead poisoning; employee Goss similarly was stricken. The Respondent was informed of these happenings by either the employee or his physician, yet made no effort to test and record the airborne lead levels, nor any other of the many requirements under the lead standard. Dr. McGraw of the Exide Laboratory discussed the significance of the blood lead levels obtained from the employees and the need for Respondent to survey the lead operation with respect to the OSHA lead standards. Respondent knew or with diligence should have known of the serious lead contamination present and that the health and safety of its employees were being seriously compromised; their failure to act in a responsible manner demonstrated callous and plain indifference towards the health and safety of their employees. The circumstances herein are more than sufficient to support a finding of willfulness.

The Secretary proposed a penalty of $40,000 for the willful violations of various section of 29 C.F.R. § 1910.1025. Under Section 17(J) of the Act, the Commission must give "due consideration" to various factors in determining an appropriate penalty such as the gravity of the violation, size of the business involved, good faith of the employer, and history of previous violations. The gravity of the violation was severe. At least four employees became ill due to airborne lead poisoning. The Respondent never made any attempt to determine what, if any, was the level of airborne lead present. They at no time, although knowledgeable of the standard and its requirements, called the attention of employees to the hazards of working with lead, and what if anything, they should be aware of. No attempt of any kind was made to make employees aware of the health hazard, nor to provide them with medical surveillance, medical assistance, certain monitoring, etc. The penalty of $40,000 is deemed appropriate under all the existing facts and circumstances herein.

Other Than Serious Citation Number 3 - item 1

The Secretary alleges that the Respondent violated 29 C.F.R. § 1910.20(e)(3)(ii) [[21]] by failing to post a written access order and accompanying letter served thereon for at least 15 working days. The evidence of record demonstrates that the compliance officer served the access order and accompanying letter on the Respondent on May 17, 1983, (Exh. C-10). Both on May 31 and June 1 the compliance officer looked for and did not observe that the order and letter were posted as required; furthermore, an inquiry of employees indicated it had not been served (Tr. 810). The evidence fully demonstrates that the Respondent failed to comply with the definite requirement that posting must be carried out for "at least fifteen (15) working days." Accordingly, the citation for violation of 29 C.F.R. § 1910.20(e)(3)(ii) is affirmed.

Other than serious citation number 3 - item 2

The Secretary alleges the Respondent violated 29 C.F.R. § 1910.23(d)(1)(ii)[[22]] in that a flight of stairs at the annex platform containing 4 risers, less than 44 inches wide with one side open, did not have a standard stair railing. "Riser" is defined in 29 C.F.R. § 1910.21(a)(7) as "The upright member of a step situated at the back of a lower tread and near the leading edge of the next higher tread." "Tread" is defined in 29 C.F.R. § 1910.21(a)(9) as "The horizontal member of a step." Reviewing the photograph in Exhibit C-1, p. 10, demonstrates the presence of only three risers. It is to be noted the area between the ground and the first step is not a riser by definition. There being only three risers herein it is apparent that Section 1910.23(d) does not apply. The citation for violation of 29 C.F.R. 1910.23(d)(1)(ii) is vacated.

Other than serious citation number 2 - item 3

The Secretary alleges a violation of 29 C.F.R. § 1910.37(f)(1)[[23]] because exits near bricker and strippers were blocked with paper and scrap metal. This section speaks to the general design, location and arrangement of exits in a building, and not to impediments or obstructions man made. The Respondent was charged with violating the wrong section; the violation, if any, should have been that of 29 C.F.R. § 1910.37(k)(2). The section charged being improper, the citation for violation of 29 C.F.R. § 1910.37(f)(1) is vacated.

Other than serious citation number 3 - item 4

The Respondent was cited for failing to use safety cans to transfer flammable or combustible liquids (gasoline) in violation of 29 C.F.R. § 1910.106(e)(2)(iv)(d).[[24]] The evidence fully demonstrates that the Respondent was using gasoline as a fuel to operate the saws cutting the lead cable; the gasoline was not dispensed from a safety can as required by the standard ("safety can shall mean an approved container, of not more than 5 gallon capacity, having a spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure" Section 1910.106(a)(29)) (Tr. 818-820). Respondent's allegation that Section 1910.106(d).Container and portable tank storage applies here and not the section alleged is without merit. The violation alleged is not improper storage but that safety cans were not used to transfer the flammable liquid (gasoline), the storage merely being incidental to its improper use. Accordingly, the citation for violation of 29 C.F.R. § 1910.106(e)(2)(iv)(d) is affirmed.

Other than serious citation number 3 - item 5

The standard at issue 29 C.F.R. § 1910.178(m)(4) prohibits "arms or legs from being placed between the uprights of the mast or outside the running lines of the truck." The compliance officer found a violation here when she observed an employee standing on a forklift forcing wire into an adjacent truck. She stated the vehicle was running and he was in danger of being struck by the forks if "something went wrong." The crux of the violation was (1) "he was standing on this platform that wasn't secure. . . " and (2) "he was very close to the raised forks" which was not safe (Tr. 821-826; Exh. C-1, p. 11). The testimony and the photographs admitted into evidence do not demonstrate a violation of the standard. The standard prohibits "arms or legs from being placed between the uprights of the mast or outside the running lines of the truck." The evidence does not demonstrate the presence of these conditions. Accordingly, the citation for violation of 29 C.F.R. § 1910.178(m)(4) is vacated.

Other than serious citation number 3 - items 6a through 6d

These items deal with alleged violations of 29 C.F.R. § 1910.157 [[25]] Portable fire extinguishers. Specifically a violation of Section 1910.157(e)(2) [[26]] is alleged in that fire extinguishers were not visibly checked at least monthly ; a violation of Section 1910.157(e)(3) [[27]] is alleged in that an annual maintenance check was not made on the fire extinguishers; a violation of Section 1910.157(g)(2) [[28]] is alleged in that no educational program was provided to familiarize employees with the general principles of fire extinguisher use and hazards involved with improper fire fighting, and Section 1910.157(g)(4) [[29]] was allegedly violated in that training in the use of the equipment was not provided upon initial assignment and annually thereafter to the designated employees assigned to use same.

The compliance officer examined a number of fire extinguishers and observed a number throughout the annex where the men were working at the bricker and strippers, none of which showed monthly inspection notification as required. The tags affixed showed the last inspection recorded was in February 1981. Similarly, the requirement of an annual maintenance check was not carried out, the last being as reported in February 1981. The testimony of the employees and the compliance officer fully establishes that there was no training or education done by management to familiarize them with fire hazards and the safety procedures to be carried out in case of fire or other emergencies (Tr. 98, 99, 324, 325, 373, 838-844).

The Respondent contends that Section 1910.157 applies only where fire extinguishers are "provided for the use of employees." The employer herein supplied fire extinguishers and these here being in various parts of the annex. It is reasonable to presume that they were therein placed for the use of the employees while engaged in work activity for their protection in case of fire, and I so find. It is apparent the standard was promulgated to carry out the Congressional goal of protecting employees from potential dangers in the workplace. Fire is a significant hazard. Other than providing the fire extinguishers he did nothing more - no monthly or annual maintenance check, no training or education of his employees to prevent a disaster from possible fire. Accordingly, it is concluded that the Respondent violated 29 C.F.R. §§ 1910.157(e)(2), 1910.157(e)(3), 1910.157(g)(2), and 1910.157(g)(4) as alleged.

Other than serious citation number 3 - item 7

The Secretary alleges the Respondent violated 29 C.F.R. § 1910.303(f)[[30]] in that the disconnecting means for the electrical panel box in the annex building was not legibly marked to indicate its purpose, nor located and arranged so the purpose was evident.

The compliance officer observed an electrical panel box which powered the machines that had no "markings or any information on it indicating its purpose" (Tr. 835). The employees operating the machines had access to this electrical panel box and were exposed to serious injury if the improper circuit was inadvertently used.

The Respondent argues the standard contains an alternative method of compliance in that the circuits, etc. must be marked "unless located and arranged so that purpose is evident," and that the Secretary must prove the absence of both to establish a violation. This argument is without merit. The standard dictates a violation is present where the required parts are not marked to indicate their purpose, with the exception that this is not required if the parts are so arranged that their purpose is evident. The burden is on the Respondent to prove he meets the exception, if the Secretary as here proves the presence of the violation. Since the Respondent presented no evidence whatsoever, he did not meet his burden.

Moreover, the testimony of the compliance officer fully met the entire standard for she established that there were no markings or indication of the purpose of the electrical parts. Accordingly, the citation for violation of 29 C.F.R. § 1910.303(f) is affirmed. I further conclude that under Section 17(J) of the Act, 29 U.S.C. ś 661(i), a penalty of $100 is appropriate.

FINDINGS OF FACT

The findings of fact contained in this opinion are incorporated herein in accordance with Rule 52 of the Federal Rules of Civil Procedure. [[31]]

CONCLUSIONS OF LAW

1. Respondent at all times material to this proceeding was engaged in a business within the meaning of Section 3(5) of the Act.

2. Respondent at all times material to this proceeding was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.

3. Respondent committed serious violations as follows:

CITATION No. 1

THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THIS FORMAT. PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE, 202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: lwhitsett@oshrc.gov

4. Respondent committed willful violations as follows:

CITATION No. 2

THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THIS FORMAT. PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE, 202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: lwhitsett@oshrc.gov

5. Respondent committed other than serious violations as follows:

CITATION NO. 3

6. Respondent did not violate the following:

CITATION NO. 1

Item 1a, 1b, 2a, 2b, 2c, and 3

CITATION NO. 3

Item 2, 3, and 5

7. Consistent with Section 17(J) of the Act the following penalties are reasonable and appropriate:

A. Serious Citation No. 1

Item 4 - $150
Item 5 - $200.

B. Willful Citation No. 2

Items 1a - ls - $9000
Items 2a - 2e - $9000
Items 3a - 3g - $9000
Items 4a - 4c - $9000
Items 5a - 5k - $4000.

8. A reasonable and appropriate abatement date is 60 days after decision becomes final.

ORDER

1. The allegation of serious violation by this Respondent of the standard set forth at 29 C.F.R. §1910.212(a)(3)(iii) and 29 C.F.R. §1910.303(g)(2)(i) are both FFIRMED and penalty of $40,000.00 is ASSESSED therefor:

THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THIS FORMAT. PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE, 202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: lwhitsett@oshrc.gov

3. The allegation of than serious violations of the standards as set forth below is AFFIRMED and a penalty ofo zero dollars is ASSESSED therefor:

4. A total aggregate penalty of $40,350.00 is ASSESSED herein.

SO ORDERED

IRVING SOMMER
Judge, OSHRC

Dated: April 14, 1986
Washington, D.C.

SECRETARY OF LABOR, Complainant, v. THERMAL REDUCTION CORPORATION, Respondent.

OSHRC Docket No. 83-1073

ORDER

In the DECISION AN ORDER dated March 24, 1986 the finding that a penalty of $100.00 in appropriate for an other than serious violation of 29 C.F.R. § 1910.303(f) (Citation No. 3, item 7) was inadvertently omitted from the Conclusions of Law and Order. Additionally, the section was erroneously cited as Section 1910.303(f)(3), and should be Section 1910.303(f).

Accordingly, under Rule 60 of the Federal Rules of Civil Procedure said DECISION AND ORDER is corrected as follows:

1. Page 51, under paragraph 5 - Citation No. 3, item 7. should read: 29 C.F.R. § 1910.303(f).

2. Page 52 - Add paragraph 7C - Other than Serious Citation No. 3 Item No. 7 - $100.00.

3. Page 53 - Paragraph No. 3 should read as follows:

The allegation of other than serious violations of the standards as set forth below is AFFIRMED and a penalty of $100.00 is ASSESSED therefor.

Furthermore, Item 7 should read: 29 C.F.R. § 1910.303(f).

Paragraph 4 should read as follows:

4. A total aggregate penalty of $40,450.00 is ASSESSED herein.

So ORDERED.
IRVING SOMMER Judge, OSHRC
Dated: APR 7 1986 Washington, D.C.

FOOTNOTES:

[[1]] The Respondent produced no evidence challenging the Secretary's case as part of its defense.

[[2]] 29 CFR § 1910.1025(b) Definitions. "Action level" means employee exposure, without regard to the use of respirators, to an airborne concentration of lead of 30 micrograms per cubic meter of air (30 ug/m³) averaged over an 8-hour period.

[[3]] 29 CFR 1910.23(d) Floor loading protection. (1) In every building or other structure, or part thereof, used for mercantile, business, industrial or storage purposes, the loads approved by the building official shall be marked on plates of approved design which shall be supplied and securely affixed by the owner of the building, or his duly authorized agent, in a conspicuous place in each space to which they relate.

[[4]] Webster's New Collegiate Dictionary, G. & C. Merriam Company Publishers, 1979 edition, p. 873.

[[5]] The text of the standard at 29 C.F.R. § 1910.110(f)(2) provides: (f) Storage of containers awaiting use or resale-(1) Application. This paragraph shall apply to the storage of portable containers * * * filled or partially filled, * * *. (2) General. (i) Containers in storage shall be located so as to minimize exposure to excessive temperature rise, physical damage, or tampering by unauthorized persons. (ii) Containers when stored inside shall not be located near exits, stairways, or in areas normally used or intended for the safe exit of people.

[[6]] 29 C.F.R. § 1910.133 provides in pertinent part: § 1910.133 Eye and face protection. (a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

[[7]] 29 C.F.R. § 1910.1025 Lead * * * * (c) Permissible exposure limit (PEL). (1) The employer shall assure that no employee is exposed to lead concentrations greater than fifty micrograms per cubic meter of air (50 ug/m³) averaged over an 8-hour period.

[[8]] Citation was amended during hearing to include Section 1910.1000(e)(1).

[[9]] The cited standards provide:
Item 1(c) 29 C.F.R. § 1910.1025(f)(2)(i): § 1910.1025 Lead.
(f) Respiratory protection.
(2) Respirator selection. (i) Where respirators are required under this section the employer shall select the appropriate respirator or combination of respirators from table II below.

Item 1(d) 29 C.F.R. § 1910.1025(f)(3)(ii):
(3) Respirator usage.
(ii) Employers shall perform either quantitative or qualitative face fit tests at the time of initial fitting and at least every six months thereafter for each employee wearing negative pressure respirators. The qualitative fit tests may be used only for testing the fit of half - mask respirators where they are permitted to be worn, and shall be conducted in accordance with Appendix D. The tests shall be used to select facepieces that provide the required protection as prescribed in table II.

Item 1(e) 29 C.F.R. § 1910.1025(f)(4)(i):

(4) Respirator program. (i) The employer shall institute a respiratory protection program in accordance with 29 CFR 1910.134(b), (d), (e) and (f).

Item 1(f) 29 C.F.R. § 1910.134(b)(1):

§ 1910.134 Respiratory protection.

(b) Requirements for a minimal acceptable program, (1) Written standard operating procedures governing the selection and use of respirators shall be established.

Item 1(g) 29 C.F.R. § 1910.134(b)(3):

(3) The user shall be instructed and trained in the proper use of respirators and their limitations.

Item 1(h) 29 C.F.R. § 1910.134(b)(5):

(5) Respirators shall be regularly cleaned and disinfected. Those used by more than one worker shall be thoroughly cleaned and disinfected after each use.

Item 1(i) 29 C. F. R. § 1910.134(b)(6):

(6) Respirators shall be stored in a convenient, clean, and sanitary location.

Item 1(j) 29 C. F. R. § 1910.134(b)(7):

(7) Respirators used routinely shall be inspected during cleaning. Worn or deteriorated parts shall be replaced.

Item 1(k) 29 C. F. R. § 1910.134(e)(5)(i):

(e) Use of respirators.

(5) (i) Every respirator wearer shall receive fitting instructions including demonstrations and practice in how the respirator should be worn, how to adjust it, and how to determine if it fits properly. Respirators shall not be worn when conditions prevent a good face seal. Such conditions may be a growth of beard, sideburns, a skull cap that projects under the facepiece, or temple pieces on glasses. Also, the absence of one or both dentures can seriously affect the fit of a facepiece. The worker's diligence in observing these factors shall be evaluated by periodic check. To assure proper protection, the facepiece fit shall be checked by the wearer each time he puts on the respirator. This may be done by following the manufacturer's facepiece fitting instructions.

[[10]] The American Heritage Dictionary, Houghton Mifflin Co., 1976 edition, p. 80.

[[11]] The cited standards provide:
The standard at 29 C.F.R. § 1910.1025(g)(2)(1): Section 1025(g) Protective work clothing and equipment

(2) Cleaning and replacement. (i) The employer shall provide the protective clothing required in paragraph (g)(1) of this section in a clean and dry condition at least weekly, and daily to employees whose exposure levels without regard to a respirator are over 200 mg/m³ of lead as an 8-hour TWA.

(ii) The employer shall provide for the cleaning, laundering, or disposal of protective clothing and equipment required by paragraph (g)(1) of this section.
* * * * *
(iv) The employer shall assure that all protective clothing is removed at the completion of a work shift only in change roams provided for that purpose as prescribed in paragraph (i)(2) of this section.

(v) The employer shall assure that contaminated protective clothing which is to be cleaned, laundered, or disposed of, is placed in a closed container in the change-room which prevents dispersion of lead outside the container.
* * * * *
(vii) The employer shall assure that the containers of contaminated protective clothing and equipment required by paragraph (g)(2)(v) are labeled as follows:

CAUTION: CLOTHING CONTAMINATED WITH LEAD. DO NOT REMOVE DUST BY BLOWING OR SHAKING. DISPOSE OF LEAD CONTAMINATED WASH WATER IN ACCORDANCE WITH APPLICABLE LOCAL, STATE, OR FEDERAL REGULATIONS.

[[12]] Webster's New Collegiate Dictionary, G. & C. Merriam Company
Publishers, 1979 edition, p. 68.

[[13]] The standard provide:
29 C.F.R. § 1910.1025(5)(j) Medical surveillance - (1) General.
(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.
* * * *
(2) Biological monitoring - (i) Blood lead and ZPP level sampling
and analysis. The employer shall make available biological monitoring in the form of blood sampling and analysis for lead and zinc protoporphyrin levels to each employee covered under paragraph (j)(1)(i) of this section

(ii) Follow-up blood sampling tests. Whenever the results of a blood lead level test indicate that an employee's blood lead level exceeds the numerical criterion for medical removal under paragraph (k)(1)(i), the employer shall provide a second (follow- up) blood sampling test within two weeks after the employer receives the results of the first blood sampling test.

(iv) Employee notification. Within five working days after the receipt of biological monitoring results, the employer shall notify in writing each employee whose blood lead level exceeds 40 mg/100 g:

(A) of that employee's blood lead level and (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) of this section.

(3) Medical examinations and consultations - (i) Frequency. The employer shall make available medical examinations and consultations to each employee covered under paragraph (j)(1)(i) of this section on the following schedule:

(A) At least annually for each employee for whom a blood sampling test conducted at any time during the preceding 12 months indicated a blood lead level at or above 40 mg/100 g;

(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;

(C) As soon as possible, upon notification by employee either that the employee has developed signs or symptoms commonly associated with lead intoxication, that the employee desires medical advice concerning the effects of current or past exposure to lead on the employee's ability to procreate a healthy child, or that the employee has demonstrated difficulty in breathing during a respirator fitting test * * *

[[14]] The cited standards provide:

29 C. F. R. § 1910.1025(k)(1)(i)(C):

(k) Medical Removal Protection - (1) Temporary medical removal and return of an employee - (i)Temporary removal due to elevated blood lead levels - * * *
(C) Third year of the standard, and thereafter. Beginning with the third year following the effective date of the standard, the employer shall remove an employee from work having an exposure to lead at or above the action level on each occasion that a periodic and a follow-up blood sampling test conducted pursuant to this section indicate that the employee's blood lead level is at or above 60 mg/100 g of whole blood; and,

29 C. F. R. § 1910.1025(k)(2)(i): (k) Medical Removal Protection

(2) Medical removal protection benefits (i) Provision of medical removal-protection benefits. 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 or otherwise limited pursuant to this section.

29 C. F. R. § 1910.1025(k)(2)(iv): (k) Medical Removal Protection

(2) Medical removal protection benefits * * *

(iv) Workers' compensation claims. If a removed employee files a claim for workers' compensation payments for a lead-related disability, then the employer shall continue to provide medical removal protection benefits pending disposition of the claim. To the extent that an award is made to the employee for earnings lost during the period of removal, the employer's medical removal protection obligation shall be reduced by such amount. The employer shall receive no credit for workers' compensation payments received by the employee for treatment related expenses.

[[15]] Section 1910.1025(d) provides:
(d) Exposure monitoring - (1) General. (i) For the purposes of paragraph (d), employee exposure is that exposure which would occur if the employee were not using a respirator.
* * * *
(2) Initial determination. Each employer who has a workplace or work operation covered by this standard shall determine if any employee may be exposed to lead at or above the action level.

[[16]] Section 1910.1025(e)(3)(i) provides:
(3) Compliance program. (i) Each employer shall establish and implement a written compliance program to reduce exposures to or below the permissible exposure limit and interim levels if applicable, solely by means of engineering and work practice controls in accordance with the implementation schedule in paragraph (e)(1).

[[17]] The standards provide as follows:

29 C.F.R. § 1910.1025(l)(1)(i) provides:

(l) Employee information and training - (1) Training program. (i) Each employer who has a workplace in which there is a potential exposure to airborne lead at any level shall inform employees of the content of appendices A and B of this regulation.

29 C.F.R. § 1910.1025(l)(1)(ii) provides:

(ii) The employer shall institute a training program for and assure the participation of all employees who are subject to exposure to lead at or above the action level or for whom the possibility of skin or eye irritation exists.

29 C.F.R. § 1910.1025(l)(1)(iii) provides:

(iii) The employer shall provide initial training by 180 days from the effective date for those employees covered by paragraph (l)(1)(ii) on the standard's effective date and prior to the time of initial job assignment for those employees subsequently covered by this paragraph.

29 C.F.R. § 1910.1025(l)(2)(i) provides:

(2) Access to information and training materials. (i) The employer shall make readily available to all affected employees a copy of this standard and its appendices.

[[18]] 29 C.F.R. § 1910.1025(m)(2)(i) provides:

(m) Signs - (1) General.

(2) Signs. (i) The employer shall post the following warning signs in each work area where the PEL is exceeded:

[[19]] 29 C.F.R. § 1910.1025(n)(2)(i) provides:
(n) Record keeping
(2) Medical surveillance. (i) The employer shall establish and maintain an accurate record for each employee subject to medical surveillance as required by paragraph (j) of this section.

[[21]] The standard at 29 C.F.R. § 1910.20(e)(3)(ii) provides:
(3) OSHA access.
* * * *
(ii) Whenever OSHA seeks access to personally identifiable employee medical information by presenting to the employer a written access order pursuant to 29 CFR 1913.10(d), the employer shall prominently post a copy of the written access order and its accompanying cover letter for at least fifteen (15) working days.

[[22]] The standard at 29 C.F.R. § 1910.23(d)(1)(ii) states:
(d) Stairway railings and guards.
(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified* * *
* * * *
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on open side.

[[23]] The standard at 29 C.F.R. § 1910.37 provides:
(f) Access to exits. (1) Exits shall be so located and exit access shall be so arranged that exits are readily accessible at all times. Where exits are not immediately accessible from an open floor area, safe and continuous passageways, aisles, or corridors leading directly to every exit and so arranged as to provide convenient access for each occupant to at least two exits by separate ways of travel, except as a single exit or limited dead ends are permitted by other provisions of this subpart, shall be maintained.

[[24]] 29 C.F.R. § 1910.106(e)(2)(iv)(d) states:
1910.106 Flammable and combustible liquids.
* * * *
(e) Industrial plants
* * * *
(2) Incidental storage or use of flammable and combustible liquids
* * * *
(iv) Handling liquids at point of final use.
* * * *
(d) Flammable or combustible liquids shall be drawn from or transferred into vessels, containers, or portable tanks within a building only through a closed piping system, from safety cans, by means of a device drawing through the top, or from a container or portable tanks by gravity through an approved self-closing valve. Transferring by means of air pressure on the container or portable tanks shall be prohibited.

[[25]] Section 1910.157 Portable fire extinguishers.
(a) Scope and application. The requirements of this section apply to the placement, use, maintenance, and testing of portable fire extinguishers * * *. Where extinguishers are provided but are not intended for employee use and the employer has an emergency action plan and a fire prevention plan which meet the requirements of § 1910.38, then only the requirements of paragraphs (e) and (f) of this section apply.

[[26]] Section 1910.157(e) Inspection, maintenance and testing.
(2) Portable extinguishers or hose used in lieu thereof under paragraph (d)(3) of this section shall be visually inspected monthly.

[[27]] Section 1910.157(e)(3) states:
(3) The employer shall assure that portable fire extinguishers are subjected to an annual maintenance check. * * * *

[[28]] Section 1910.157(g) Training and education.
(2) The employer shall provide the education required in paragraph (g)(10) of this section upon initial employment and at least annually thereafter.

[[29]] Section 1910.157(g)(4) states:
(4) The employer shall provide the training required in paragraph (g)(3) of this section upon initial assignment to the designated group of employees and at least annually thereafter.

[[30]] Section 1910.303(f) provides:
(f) Identification of disconnecting means and circuits. Each disconnecting means required by this subpart for motors and appliances shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. Each service, feeder, and branch circuit, at its disconnecting means or over-current device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. These markings shall be of sufficient durability to withstand the environment involved.

[[31]] Rule 52. Findings by the Court
(a) Effect. In all actions tried upon the facts without a jury * * *, the court shall find the facts specially and state separately its conclusions of law thereon, * * *. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear thereon. (Emphasis supplied.)