Docket No. 76-1053

LUKENS STEEL COMPANY

OSHRC Docket No. 76-1053

Occupational Safety and Health Review Commission

October 27, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners. *

* Chairman Rowland took no part in the decision of this case.Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion). See § 12(f) of the Act, 29 U.S.C. § 661(e). Commissioners Cleary and Cottine reached agreement on the disposition of this case prior to the assumption of office by Chairman Rowland. Participation by Chairman Rowland would therefore have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Laurance E. Baccini, for the employer

Mr. Benjamin Pilotti, President and Mr. Ernest C. Wills, Safety and Health Chairman, Local 1165, United Steel Workers of America, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative [*2] Law Judge David G. Oringer is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge Oringer found Respondent, Lukens Steel Company, in willful violation of the Act for failing to comply with the personal protective equipment standard at 29 C.F.R. § 1910.132(a). n1 He assessed a $10,000 penalty. Former Commissioner Barnako directed review of the issues raised by Respondent's petition for discretionary review, including the principal issues of whether Respondent failed to comply with section 1910.132(a) and, if so, whether its violation of the Act was willful. For the reasons that follow, we affirm the judge's decision.

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n1 The standard provides:

§ 1910.132 General Requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[*3]

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Respondent operates a steel-producing facility in Coatesville, Pennsylvania. At one stage of the steel-production process, molten steel, heated to 2900 degrees Fahrenheit, is poured from crane-transported ladles into ingot molds on pouring platforms in the plant's electric melt shop. On January 19, 1976, during the pouring of the fifth mold on the "C" low-pouring platform, several tons of molten steel erupted from the ingot. The steel showered and seriously burned four pouring platform employees: John Galbary, platform supervisor; Joseph Knapish, pit observer; Roberto Martinez, pit helper; and Wasyl Melnick, ladleman. Galbary and Melnick subsequently died from their injuries.

Following the accident, Occupational Safety and Health Administration ("OSHA") compliance officer Bernard Dillon inspected Respondent's Coatesville plant. As a result of the inspection, the Secretary of Labor ("the Secretary") issued to Respondent a citation for a willful violation of the Act based on alleged noncompliance with section 1910.132(a). This citation specifically charged that Respondent "did willfully expose [*4] his employees to the hazard of burns from molten steel" because Respondent "failed to furnish [adequate] protective clothing to his employees, and/or did not effectively enforce the wearing of such [adequate] protective clothing" on the "C" low-pouring platform in the electric melt shop. n2 The Secretary ordered immediate abatement and proposed a $10,000 penalty for the alleged willful violation. Respondent timely contested the citation.

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n2 In his complaint, the Secretary amended the original wording of the citation by adding the term "adequate" to modify "protective clothing" because, he alleged, "any protective clothing that was furnished and/or used was not adequate to protect employees from the hazard of burns." Respondent does not challenge this amendment on review.

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At the hearing before Judge Oringer, pit observer Knapish, a survivor of the steel eruption, described the duties of the four pouring platform employees and their usual distances from molten steel during the pouring operation. At times, according [*5] to Knapish, each of the four employees came as close as 5 feet from the "stream of heat." Supervisor Galbary worked 5 to 20 feet from the ladle as he directed the pouring of "heat." Ladleman Melnick, who poured "heat" where instructed, stood 6 to 8 feet from the ladle. Pit helper Martinez removed steel from the ladle for analysis and worked 5 to 30 feet from the ladle. Knapish said that he ordinarily stood 10 to 15 feet from the ladle, although on cross-examination he explained that he was about 30 feet from the ingot when it erupted. He also testified that he had worked within 5 feet of the "stream" of molten metal.

Under Respondent's safety rules as described by Knapish, n3 employees on the platform were required to wear hard hats, aluminized coats, and safety shoes. Only ladlemen, he added, were required to wear face shields and protective leggings. When the steel erupted, each employee was wearing some protective equipment, including safety shoes, safety glasses and hard hats. n4 At least three employees were dressed in aluminized coats with hoods. n5 Three employees wore gloves of leather or asbestos. However, Knapish was not wearing gloves as he made notes on the pour. [*6] In addition, the three employees other than the ladleman were not wearing either protective leggings for their lower legs or face shields. n6 The only evidence concerning whether the employees were wearing flame retardant trousers at the time of the eruption is Knapish's testimony that he was wearing that particular item.

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n3 There is no evidence that Respondent had a written safety rule delineating the personal protective equipment to be worn by pouring platform employees. The record does contain references to a written rule on personal protective equipment, floor area safety rule 306. However, Respondent argues and the record establishes that that rule did not apply to the employees at issue. Accordingly, the only evidence about what pouring platform employees were "required" to wear is contained in the testimony of the witnesses.

n4 The evidence on whether Galbary and Melnick were wearing certain items of protective clothing at the time of the eruption is inconclusive because the molten steel destroyed much of the clothing the employees were wearing. An employee who came to the aid of the pouring platform workers, crane operator George Harris, testified that supervisor Galbary's pants had been completely burned away and only parts of a shirt and cloth coat remained on his upper body. Harris also said that ladleman Melnick "did not have a stitch of clothing on anywhere. Nothing."

n5 The evidence regarding whether the fourth employee, supervisor Galbary, wore an aluminized coat is contradictory. Harris said Galbary had on a short cloth coat "rather than . . . [a] metallic or asbestos" coat. Martinez testified, however, that Galbary wore an aluminized coat with a hood over two other coats. Another witness, George Munson, initially said that all four employees wore aluminum coats with hoods, but he admitted on cross-examination that he could not see one employee. In addition, there is conflicting testimony as to whether ladleman Melnick was wearing the hood on his coat.

n6 The evidence is inconclusive on whether ladleman Melnick was wearing a face shield and leggings at the time of the mishap. For example, both Knapish and Harris said none of the pouring platform employees wore face shields. However, Munson said one employee had on a face shield. In addition, Martinez testified that Melnick was wearing both a face shield and protective leggings.

[*7]

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According to Knapish, Respondent required face shields for ladlemen. In addition, employees other than ladlemen were to wear this face protection if they were "running stopper," if there was a "danger of excessive splashing steel," or if the employees were working within 5 feet of a "stream of heat." Although Respondent had issued a face shield to Knapish, he never wore it during the pouring operation, even when within 5 feet of the "stream." Knapish explained that Respondent did not require face shields before the accident and Respondent's supervisors did nothing if employees did not wear face shields. Martinez testified that he was never provided a face shield and that supervisor Galbary saw him without a face mask "[a]ll the time" during the twenty-five years they worked together.

Similarly, Respondent required only ladlemen to wear protective leggings, which are thick, flame retardant coverings worn over flame retardant trousers to protect the lower leg from the shoe top to the knee, which is the bottom level of the aluminized coat. Both Knapish and Martinez testified that they never wore leggings [*8] and that Respondent never issued leggings to them or required their use before the accident. Knapish explained that his worst burns were on his lower legs, where he was protected only by flame retardant trousers. As with face masks, Knapish said Respondent's supervisors did nothing when employees other than ladlemen worked without leggings.

When the steel erupted, pit observer Knapish was not wearing gloves, although he had a pair of cotton gloves in his pocket. Knapish said that he could not wear gloves during the pouring of "heat" because he had to make notes, but he usually wore them when checking pits. He wore only cotton gloves before the accident and, even though several pairs had ignited and burned his hands, Respondent had issued to him only cotton, never leather or asbestos, gloves. In addition, supervisor Galbary never warned Knapish not to wear cotton gloves near the ladle, according to Martinez. In testifying generally about Respondent's glove policy, union safety committeeman Frank Di Oblida said that he had suffered hand burns when his cotton gloves ignited on about three occasions before Respondent finally issued asbestos gloves to him. Despite such evidence [*9] of hand burns, Di Oblida explained, Respondent did not issue asbestos gloves to all employees.

Di Oblida also testified that the failure of pouring platform employees to wear flame retardant trousers was a "regular practice" before the accident. n7 Respondent did not require the use of flame retardant pants on the pouring platform and employees often worked there during the pouring operations in "regular street clothing," according to Di Oblida. He added that supervisors did nothing when they saw employees in ordinary clothes. On cross-examination, he explained that he saw employees "many times," indeed "more than ten times," without flame retardant pants on the "C" low-pouring platform in the presence of supervisors.

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n7 At the time of the accident, Di Oblida worked at furnaces about 125 feet from the "C" low-pouring platform. However, he had worked on that platform as a pouring helper on occasions before the accident.

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Moreover, crane operator Harris testified, without contradiction, that prior to the eruption [*10] supervisor Galbary had worked on the pouring platform on several occasions without an aluminized coat. As indicated previously, this type of coat was considered to be required protective clothing for pouring platform employees.

OSHA senior compliance officer John Molovich, a veteran of over fifty inspections of steel-producing facilities, testified about steel industry custom concerning the use of personal protective equipment.For example, Molovich stated that, because flame retardant pants alone would not resist molten steel, "[l]eggings have been a generally accepted practice throughout the industry for people working with or around the pouring operations, both in the steel and foundry industries." He added that the close proximity of pouring platform employees to the ladle and pouring area usually would justify the use of leggings to protect these workers' lower legs and ankles from burns if there were metal spills or splashes. Thus, Molovich noted, heat observers like Knapist normally wear leggings during the pouring process. n8 Molovich also testified that face shields are generally used by pouring platform employees to protect them from any molten steel splash. He emphasized [*11] that it is "very, very dangerous" for an employer to permit employees to work on a pouring platform without face shields. Molovich also examined the cotton gloves that Respondent had issued to Knapish and testified that they "afford very little or no protection at all from molten metal" because molten material could burn through them in seconds. n9 He noted that asbestos or aluminized gloves are generally available to provide necessary protection. Molovich also commented specifically that, without a face shield or leggings, the clothing that Knapish described as that worn at the time of the eruption was "totally inadequate" to protect from the hazards of pouring molten steel.

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n8 According to Molovich, leggings would have prevented "in most cases" the burns Knapish suffered to his lower legs during the eruption.

n9 According to Molovich, Knapish did not need to be on the platform during the pouring operation. To avoid the danger of hand burns, Molovich suggested, Knapish could make notes before the pour.

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In addition [*12] to the testimony set forth above, the Secretary introduced other evidence of Respondent's protective equipment history:

Previous citations. On December 26, 1972, the Secretary issued to Respondent a citation alleging noncompliance with section 1910.132(a) because Respondent failed to enforce the wearing of flame retardant clothing by employees in the area of the electric melt furnaces "where a fire hazard exists." The electric melt furnaces are about 125 feet from the "C" low-pouring platform involved in this case. The citation resulted from the Secretary's investigation of an employee's death. Respondent did not contest the citation and it became a final order of the Commission.

After a three-month inspection of Respondent's Coatesville facility in late 1975, the Secretary issued on January 12, 1976, a citation for a repeated violation of the Act for failure to comply with the same standard in areas outside the electric melt shop. The citation alleged that (1) an employee in the scrap storage area was not wearing a hard hat, and (2) employees using corrosive chemicals in the boiler house were not wearing protective clothing. The Secretary based the repeated characterization [*13] of this alleged violation on the 1972 citation. In accordance with the terms of a subsequent settlement stipulation approved by Judge Oringer in another Commission proceeding, the hard hat allegation was vacated and the boiler house allegation was affirmed.

Previous incidents. The Secretary submitted evidence of several mishaps that occurred before the steel eruption at issue:

(1) A December 5, 1972 fatality report prepared by Respondent revealed that flames ignited the clothing of the victim, who was the first helper in the "C" furnace crew. n10 Under the heading "remedial action," the report noted that the melting department would establish a mandatory program requiring first, second and third helpers and also melters and ladlemen to wear shirts, trousers, and jackets of flame retardant material. In a letter to the OSHA area director, dated January 3, 1973, Respondent's safety supervisor wrote that Respondent had initiated a protective equipment program as suggested in the 1972 fatality report. n11

(2) An accident report prepared by Respondent, dated June 7, 1973, revealed that an employee in the melt department at the "C" furnace-tapping platform suffered second- and third-degree [*14] facial burns from molten metal while using a lance pipe to open the furnace tap hole. The report noted that the injured employee "was not wearing the prescribed" flame retardant coat and further stated that the employee violated floor-area safety rule 306, which requires employees to wear face shields, aluminized coats and aluminized gloves "when tapping furnaces."

(3) Respondent's October 14, 1974 report on a superintendent's hearing on disabling injuries describes burns suffered by two melt shop workers when an explosion in the furnace showered them with hot brick. n12 The report mentions that the failure of one employee "to wear the prescribed flame retardant trousers . . . increased the severity of his injuries." When Di Oblida referred to this accident in his testimony, he opined that, although flame retardant clothes might not have prevented the burns, they might have reduced their severity. n13

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n10 This incident led to the December 1972 citation referred to above. The report noted that the victim was injured by flame and slag that was forced from the furnace door during a scrap cave-in.

n11 The record does not establish whether the four employees on the pouring platform were included within this mandatory program.

n12 This accident also occurred in the electric melt shop. The report noted that the explosion was probably caused by an undetected sealed container or gas cylinder in the furnace. The victims were "mudding the spout" when the explosion occurred.

n13 In addition, employee Benjamin Pilotti testified, in connection with another alleged violation not before us on review, that other explosions had occurred in Respondent's electric melt shop.

[*15]

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Employee activity. The Secretary also introduced evidence of union activity concerning protective equipment, including minutes from safety committee meetings. The minutes of a February 12, 1973 management-union safety committee meeting indicate that an employee asked about the possibility of obtaining flame retardant clothing for the first and second pit helpers. According to the report, Respondent indicated that "positions with a significant degree of exposure to hot metal are provided this equipment." The report also noted that those employees who were not provided clothing could "readily purchase it at company cost." In addition, the March 6, 1974 minutes of another management-union safety committee meeting report "the official union viewpoint that flame retardant clothing be furnished to all personnel exposed to open flames or welding areas."

Union safety chairman Ernest Wills testified that Respondent provided two or three employees in the electric melt shop with flame retardant clothing, but refused it to other employees, primarily maintenance workers. He did not explain which employees [*16] were issued protective equipment. Although the union never formally complained about Respondent's failure to enforce the wearing of protective equipment, Wills had requested clothing for some employees who believed they were exposed to a burn hazard even though they were not near molten steel every day. He also explained that, under Respondent's policy, any employee could purchase flame retardant clothing through Respondent and, in some cases, it would be available at a discounted price.

Respondent also presented testimony on its general protective equipment policy. Denny Howell, Respondent's supervisor for plant and personnel protection, testified that employees usually could get protective equipment from Respondent unless the equipment was designed for a hazard outside an employee's area. Howell also noted that Respondent holds bimonthly safety meetings. According to James Zazo, Respondent's loss control engineer in charge of personal protective equipment, ladlemen were required to wear face shields and leggings because they worked in what Respondent considered a "high risk area."

In affirming the citation, Judge Oringer found that Respondent's employees at the "C" low-pouring [*17] platform were not wearing sufficient protective equipment at the time of the eruption in question and on occasions prior to that incident. n14 The judge credited testimony that supervisors who had observed employees working without face shields or leggings "neither disciplined nor required anyone to wear such equipment." According to the judge, Respondent knew that employees were not sufficiently protected. He concluded that "[t]he overwhelming evidence reveals that this respondent failed to enforce the wearing of protective clothing in areas where men were exposed to heat and to molten steel in a manner which was hazardous when not wearing such protective clothing." n15

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n14 In reaching his decision, the judge made the following findings of fact on equipment worn by employees at the "C" low-pouring platform:

5. The late Mr. Galbary, a supervisory-employee on the platform, did not wear an aluminum coat while working there on the day in question and prior thereto . . . .

6. Men, who were exposed to possible splashing molten steel, worked in, on or around the pouring platform without face shields at times when they should have been worn . . . .

7. On the day of the accident complained of herein and prior thereto, men worked in, on and about the pouring platform without wearing leggings . . . .

8. Prior to the accident, men worked on the "C" low-pouring platform without wearing no-mex or other flame retardant trousers and the foreman observed such men and did not enforce the wearing of such trousers . . . .

9. Men working in proximity to flame and to heat were working with cotton gloves and were not mandated to wear flame retardant gloves of asbestos or leather and the company was aware thereof because Mr. Di Oblida, who did not work at the "C" pouring platform but at the furnaces, reported it . . . .

10. Mr. Knapish, who worked on the pouring platform, had burns on his hands and worked without gloves on the "C" pouring platform . . . .

11. There were feasible means of compliance with the standard which uses are presently being enforced, to wit, wearing of flame retardant clothing, no-mex clothing, leggings, shields, helmets, asbestos gloves, aluminum coat with the hood on it, buttoned up. In addition thereto, another feasible means presently used is a jumper-type undergarment of aluminum going down the employee's legs, worn by some employees who are close to heat . . . .

n15 This observable failure to enforce, the judge reasoned, contributed to the injuries and deaths caused by the molten steel eruption. He concluded that the Secretary established the violation was serious because, in the event of an accident, death or serious physical harm "could and . . . did occur." See § 17(k) of the Act, 29 U.S.C. § 666(j).

[*18]

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Furthermore, the judge determined that the Secretary had presented "ample" evidence of a willful violation of the Act. In view of the previous citations, a death, an injury, and employee complaints, the judge found that Respondent failed to enforce the wearing of personal protective equipment on the "C" low-pouring platform despite "ample notice" of the requirements of the standard. n16 The judge specifically rejected Respondent's argument that the previous accidents could not be considered in this willful determination because they had not occurred at the cited location. He noted that one of the earlier accidents occurred in the electric melt shop near the platform in question. He then found that the previous accidents and employee complaints provided Respondent with notice, even without a catastrophic accident like the steel eruption in this case, that its failure to enforce the wearing of personal protective equipment by employees who worked near "molten steel and tremendous heat" in areas "as hazardous as the [pouring] platform" exposed the employees to injury or death. Therefore, the judge reasoned, [*19] Respondent was on notice that enforcement of the wearing of protective equipment on the "C" low-pouring platform was "an absolute necessity." n17 The judge emphasized Respondent's "continual failure" to enforce the standard through its supervisory personnel in the hazardous pouring platform area "despite its knowledge that a man was burning his hands, that men were working without leggings, that men were working without face shields."

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n16 The judge noted that Respondent did not contest the 1972 citation for noncompliance with section 1910.132(a), which concerned Respondent's failure to enforce the wearing of equipment to protect from a fire hazard in the electric melt furnace area. The judge found that the 1976 citation for a repeated violation in areas outside the electric melt shop provided evidence that Respondent was again "alerted to the existence of the standard."

In reaching his decision, the judge also relied on the following evidence, previously described: (1) Respondent's December 5, 1972 fatality report; (2) Respondent's January 4, 1973 letter to OSHA; (3) February 12, 1973 management-union safety committee minutes; (4) Respondent's June 7, 1973 major accident report; (5) March 6, 1974 management-union safety committee minutes; and (6) October 14, 1974 superintendent's hearing report. The judge found that these reports put Respondent on notice of the hazard from molten steel and the need for protective equipment.

n17 The judge found that Respondent had specific notice that wearing cotton gloves resulted in hand burns and concluded that, if the pit observer had to write without gloves while working, Respondent had a duty to assure that the employee was not injured while performing that task.

[*20]

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In reaching his decision, the judge found that Respondent's conduct was properly characterized as willful under the test articulated in Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1207 (3d Cir. 1974), aff'd en banc, 519 F.2d 1215 (3d Cir. 1975), aff'd on other grounds, 430 U.S. 442 (1977), because Respondent's "continual failure" to enforce the standard despite prior citations, a death and an injury, established "defiance" or at least "a reckless disregard of consequences" equivalent to a "conscious and deliberate flouting of the Act." The judge also found that this failure to enforce the standard was "knowing action in disregard of its legality" and therefore willful under Intercounty Construction Corp. v. OSHRC & Secretary of Labor, 522 F.2d 777, 780 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976). Moreover, the judge found willfulness under F.X. Messina Construction Corp. v. OSHRC & Secretary of Labor, 505 F.2d 701, 702 (1st Cir. 1974), based on the disregard of the personal protective equipment standard by supervisory personnel. According to the judge, this conduct [*21] established that Respondent made a conscious, intentional, deliberate and voluntary choice to disregard the standard. The judge concluded that Respondent's conduct manifested "an obstinate refusal to comply with the standard" and "a flouting of the Act" sufficient to warrant assessment of the maximum penalty of $10,000, as proposed by the Secretary.

III

On review, Respondent asserts generally that section 1910.132(a) is unenforceably vague because it does not specify required personal protective equipment. Furthermore, Respondent denies that it failed to comply with the standard. According to Respondent, it "required" employees to use equipment of which it was aware. Contrary to the judge's findings, Respondent urges that it cannot be charged with awareness of a hazard that required the use of specific items of equipment such as face shields, leggings and protective gloves for all pouring platform employees, particularly in the absence of any specific regulation or any prior instructions from the Secretary to furnish such equipment. Respondent urges that it only learned of the necessity of particular items at the hearing. Furthermore, in Respondent's view, no testimony by [*22] a competent expert demonstrates that the personal protective equipment worn by the pouring platform employees was inadequate to protect from ordinary hazards. In addition, Respondent argues that it cannot be charged with "inadequate enforcement" of the wearing of personal protective equipment because there is no objective standard by which to judge its enforcement. In the absence of such an evidentiary standard, Respondent maintains, a few instances of "isolated misconduct" do not establish failure to adequately enforce the requirements of the standard. Respondent also contends that the Secretary failed to establish that employees working within 10 feet of the ladle were in a "hazardous zone" requiring all employees in that zone to use protective equipment such as the face shield and leggings used by the ladleman.

Further, Respondent challenges the judge's finding of its "stubborn, obstinate refusal" to comply with the standard and his conclusion that Respondent willfully violated the Act. It essentially reiterates the contentions set forth above as defenses to the willful allegation. In particular, Respondent notes that it never before had been cited for a violation concerning [*23] the equipment worn by pouring platform employees and the Secretary never had given it specific instructions on what equipment was necessary. Indeed, Respondent urges that the judge exaggerated evidence of its knowledge of the requirements of the standard, particularly in view of the Secretary's failure to cite any violations in the melt shop after a three-month inspection completed shortly before the accident. Rather only two "minor" instances of noncompliance with section 1910.132(a) at other locations were alleged in the January 1976 citation. It emphasizes that at the time of the eruption all employees on the pouring platform were wearing the equipment required in view of the previous citations and the prior incidents: aluminized coats and hoods, hard hats, flame retardant shirts and pants, leather gloves (except Knapish), safety glasses and shoes. In addition, the ladleman wore a face shield and leggings. In Respondent's view, the Secretary failed to prove that a face shield and leggings were necessary for employees other than the ladleman.

Respondent also advances a policy argument based on the premise that personal protective equipment would not have protected the pouring [*24] platform employees from the injuries they suffered. According to Respondent, the judge's decision contravenes the Act by implying "that no matter how unforeseen the accident or how useless the personal protective equipment would have been, an employer is strictly liable for the consequences of its failure to provide every conceivable type and kind of personal protective equipment."

Moreover, in its reply brief, Respondent specifically challenges four bases of the willful characterization noted in the Secretary's brief: (1) Respondent's failure to contest the 1972 citation; (2) the 1976 citation; n18 (3) evidence that the union had requested the Respondent to issue flame retardant trousers to all employees exposed to flame; and (4) evidence that an employee suffered facial burns in 1973. According to Respondent, this evidence relied on by the Secretary does not support the finding of a willful violation.

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n18 Respondent notes that the parties resolved this citation with a settlement stipulation. It asserts that a settlement agreement is not an adjudication and, as a result, it cannot be considered in determining whether a subsequent violation is willful.

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In urging affirmance of the judge's decision on review, the Secretary advances the "well-settled" position that section 1910.132(a) is not impermissibly vague, citing Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), and McLean Trucking Co. v. OSHRC & Secretary of Labor, 503 F.2d 8 (4th Cir. 1974). In support of the judge's determination that Respondent failed to comply with the standard, the Secretary maintains that uncontroverted evidence established that: (1) even though it is well-established steel industry practice to require pouring platform employees to wear face shields and leggings, Respondent's employees worked within ten feet of molten steel without face shields, leggings, and leather or asbestos gloves, and (2) Respondent failed to effectively enforce the wearing of aluminized coats and flame retardant trousers. n19 The Secretary rejects Respondent's "insistence that use of such equipment by all employees on the pouring platform was not required by the standard." Because all of the employees worked near the molten steel, it is "plainly sophistical," in the Secretary's [*26] view, for Respondent to argue that face shields and leggings were unnecessary for three of the pouring platform employees in view of its recognition that the ladleman needed this equipment. Even though it did not require their use, the Secretary continues, Respondent's issuance of face shields to the pouring platform employees further belies its contentions. According to the Secretary, Respondent obviously recognized that the employees were exposed to molten steel because it required that each of them use some protective equipment, such as aluminized coats. The Secretary concludes that Respondent's "position is reduced to the absurdity that although it could foresee that an employee on the pouring platform could be struck by molten metal on the chest, it could not foresee that such employee could be struck on the face, lower legs or hands." The Secretary also argues that the judge's willfulness finding and $10,000 penalty are appropriate.

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N19 The Secretary urges that this evidence on lack of enforcement establishes Respondent's failure to comply with the standard even without drawing the inference from the evidence that some of the injured employees were not wearing that equipment at the time of the accident.

[*27]

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The broad personal protective equipment standard at section 1910.132(a) applies to the facts of a case if a reasonable person familiar with the circumstances, including facts unique to an industry, would recognize a hazardous condition requiring the use of personal protective equipment. See, e.g., Ryder Truck Lines, Inc. v. Brennan, supra; Tube-Lok Products, 81 OSAHRC , 9 BNA OSHC 1369, 1981 CCH OSHD P25,235 (No. 16200, 1981); General Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 1980 CCH OSHD P24,268 (No. 15037, 1980); Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 26, 1979). This objective "reasonable person" test satisfies the due process requirement that a law must be sufficiently clear to give persons of ordinary intelligence a reasonable opportunity to know what is prohibited or demanded so that they may act accordingly. See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1263 n.11, 1979 CCH OSHD P23,480 at p. 28,436 n.11 (No. [*28] 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979), citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). To determine whether the standard provides fair notice, the Commission considers the standard in light of the specific facts of the case. It does not look exclusively at the text of the standard. See Brennan v. OSHRC & Santa Fe Trail Transportation Co., 505 F.2d 869 (10th Cir. 1974); Lombard Brothers, Inc., 77 OSAHRC 155/B2, 5 BNA OSHC 1716, 1977-78 CCH OSHD P22,051 (No. 13164, 1977). If the "reasonable person" test is satisfied on the facts, the standard is not impermissibly vague despite its broad wording. For the reasons that follow, we reject Respondent's argument to the effect that the cited standard is unenforceably vague.

Although not necessarily dispositive, evidence of industry custom and practice will aid in determining whether a reasonable person, familiar with the circumstances and facts peculiar to the industry, would perceive a hazard requiring the use of protective equipment. E.g., General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979); Owens Corning Fiberglas [*29] Corp., supra. In addition, the Commission will examine an employer's own understanding of the alleged hazard. Indeed, an employer's practices may demonstrate that the employer perceived a hazard of a magnitude to warrant the use of safety equipment. See, e.g., Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD P22,889 (No. 14484, 1977); Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977-78 CCH OSHD P22,041 (No. 13030, 1977). The "reasonable person" analysis under section 1910.132(a) focuses on recognition of a hazard, not on the recognition of a need for particular equipment.X-Tyal International Corp., 81 OSAHRC , 9 BNA OSHC 1633, 1981 CCH OSHD P25,326 (No. 78-0729, 1981).

In our view, the most compelling evidence in this record relevant to the application of the reasonable person test is the uncontradicted testimony of senior compliance officer Molovich, a veteran of more than fifty inspections of steel-producing facilities. According to Molovich, the use of face shields, leggings and protective gloves by all pouring platform employees is a well-established steel-industry practice. He particularly emphasized [*30] the dangers of work near molten steel without these items of protective equipment. In view of his experience, Molovich's testimony on industry practice is probative. See, e.g., M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979) (judge properly relied on compliance officer's opinion testimony regarding a trench in view of compliance officer's background of about fifty inspections of trenches or excavations). Indeed, Respondent did not rebut this evidence on industry practice. Accordingly, we credit Molovich's testimony and conclude that a reasonable person familiar with the conditions on the pouring platform would recognize a hazard from the molten metal requiring the use of protective equipment, including face shields, leggings, aluminized coats, flame retardant clothing, and leather or asbestos gloves. n20

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n20 Under § 1910.132(a), "the extent of precautions to take against a known hazard is that which a conscientious safety expert would take." General Dynamics Corp. v. OSHRC, supra, 599 F.2d at 464. Applying this test to the record before us, we conclude that a conscientious safety expert would require the use of the equipment specified above to protect the employees in question.

[*31]

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Respondent argues in effect that it complied with the standard because all the pouring platform employees were provided with and required to wear aluminum coats, hard hats, safety glasses, safety shoes and flame retardant trousers. n21 In addition, Respondent argues that it required that the ladleman wear a face shield and leggings. The record clearly establishes that platform employees other than the ladleman were not required to wear a face shield or leggings on the pouring platform. Yet, at times, these employees worked as close to the molten metal as did the ladleman. n22 Respondent presented no evidence in support of this disparity in required equipment for the affected employees other than the testimony of its loss control engineer who said the ladleman worked in a "high risk area." Nonetheless, other employees worked in this same "high risk area." Accordingly, we conclude that Respondent's requirement of face shields and leggings for the ladleman demonstrates its recognition of a hazard requiring the same equipment for all pouring platform employees. n23 Indeed, Respondent's provision of some [*32] protective equipment to all employees on the pouring platform demonstrates its recognition that all of the employees were exposed to the hazards of splashing or spilling molten metal. Its issuance and asserted requiring of aluminum coats, for example, attests to Respondent's awareness that employees could be struck in the torso by splashing metal. Consequently, it is illogical, as the Secretary argues, for Respondent to contend that it did not foresee that these same employees also could be hit in the face, hands and lower legs. Moreover, Respondent's issuance of a face shield to pit observer Knapish belies its argument to the effect that only the ladleman was exposed to the danger of facial burns from molten metal.

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n21 There is no evidence of record to support Respondent's assertion that it required employees on the pouring platform to wear flame retardant clothing. On the contrary, the record establishes that employees frequently wore regular street clothing.

n22 According to the unrebutted testimony of employee Knapish, the ladleman usually worked 6 to 8 feet from the molten metal and, at times, the supervisor and pit helper were within 5 feet of it. Knapish said he had worked within 5 feet of the "stream of heat" without a face shield.

n23 We reject Respondent's contention to the effect that the Secretary's citation cannot be sustained because the Secretary never instructed it to provide face shields, leggings, and leather or asbestos gloves on the pouring platform. We conclude on this record that Respondent recognized a hazard requiring employee use of these particular types of personal protective equipment.

[*33]

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Despite its recognition of a hazard, Respondent failed to enforce the wearing of the equipment it did require. n24 Under the terms of section 1910.132(a), Respondent must assure that personal protective equipment is "provided" and "used." To simply provide equipment falls short of fulfilling this duty. See Pratt & Whitney Aircraft, 81 OSAHRC , 9 BNA OSHC 1653, 1667, 1981 CCH OSHD P25,359 at p. 31,514 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2d Cir. August 3, 1981) (section 1910.132(a), including use requirement, valid), citing General Motors Corp., GM Parts Division, 81 OSAHRC , 9 BNA OSHC 1331, 1981 CCH OSHD P25,202 (No. 79-4478, 1981), appeal filed, No. 81-3194 (6th Cir. Apr. 6, 1981). Furthermore, Respondent failed to require the wearing by all four of the exposed employees of personal protective equipment that was adequate to protect the employees against the hazard to which they were exposed. See note 20 supra. This failure to provide adequate protective equipment in itself constitutes noncompliance with the cited standard. Astra Pharmaceutical Products, [*34] Inc., 81 OSAHRC , 9 BNA OSHC 2126, 1981 CCH OSHD P25,578 (No. 78-6247, 1981).

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n24 Respondent takes exception to several of Judge Oringer's findings of fact, including his findings concerning the personal protective equipment worn by employees at the "C" low-pouring platform, supra at note 14. Respondent argues that various findings are not supported by a preponderance of the evidence, are supported only by testimony that is entitled to no weight because of the lack of qualifications of the witnesses, and/or are irrelevant to the violation alleged in the citation. We conclude that some of Respondent's exceptions have merit. Accordingly, we do not rely on Findings of Fact 5, 11 and 20 to the extent indicated in the following discussion.

The judge found that supervisor Galbary was not wearing an aluminized coat at the time of the eruption and "prior thereto." (FOF 5). On review Respondent contends, among other things, that this finding is not supported by the preponderance of the evidence. We conclude that the evidence is inconclusive as to whether Galbary was wearing an aluminized coat at the time of the eruption and, accordingly, we do not rely on that part of the judge's finding. Nevertheless, the judge's finding that Galbary failed to wear an aluminized coat on occasions prior to the eruption is supported by the unrebutted testimony of crane operator Harris and it is accordingly affirmed.

The judge also found that several types of protective clothing were "feasible means of compliance with the standard." (FOF 11). Among the articles included is "a jumper-type undergarment of aluminum going down the employee's legs." We agree with Respondent's contention that the record does not establish the feasibility of the jumper-type undergarment and accordingly do not rely upon that part of the judge's finding. The remainder of the finding is supported by the preponderance of the evidence and it is affirmed.

In addition, the judge found that the "entire record concerning this violation reflects that safety rule 306 was not enforced and was more enforced by breach rather than observance." (FOF 20). Respondent contends that this finding is not supported by the record because the Secretary showed only one violation of rule 306, described in the accident report dated June 7, 1973. Respondent further argues that rule 306 applied only to employees tapping furnaces and not to the four employees on the pouring platform. For the reasons stated by Respondent, we vacate Finding of Fact 20.

Respondent's remaining exceptions to the judge's findings are rejected. The findings are supported by the preponderance of the probative evidence and are relevant to either or both of the issues raised by the citation, i.e., whether Respondent failed to provide and require the use of adequate personal protective equipment and whether Respondent's violation of the Act, if any, was willful.

[*35]

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Respondent contends in effect that it instituted a safety program for the protection of employees and the Secretary merely established isolated incidents of failure to wear appropriate equipment. An adequately enforced program includes supervision designed to detect violations of Respondent's work rules and the use of disciplinary measures sufficient to discourage noncompliant conduct. See, e.g., Stuttgart Machine Works, Inc., 81 OSAHRC , 9 BNA OSHC 1366, 1981 CCH OSHD P25,216 (No. 77-3021, 1981). Despite evidence that it provided some safety equipment and that it held bimonthly safety meetings, we find that Respondent did not demonstrate the existence of a comprehensive safety program. Indeed, Respondent offered no evidence of specific safety rules governing the use of personal protective equipment by the pouring platform employees. Aside from the lack of a specific safety rule, the record is replete with instances of Respondent's failure to assure that employees wore proper equipment. For example, the union safety committeeman testified that employees in the melt shop building, [*36] including those on the pouring platform, often worked in "regular street clothing." In addition, Respondent's safety program was not adequately enforced. Unrebutted employee testimony establishes that Respondent's supervisory personnel did not discipline employees who failed to wear protective equipment. n25 Accordingly, regardless of the catastrophic nature of the accident, Respondent's failure to assure that employees wore appropriate personal protective equipment while working on the pouring platform under ordinary circumstances establishes Respondent's noncompliance with the standard. n26

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n25 Respondent's arguments, at times, are couched in terms of the unpreventable employee misconduct defense. This defense will be sustained only if the employer shows that an employee's conduct was a departure from a uniformly and effectively enforced work rule. See e.g., B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). Respondent failed to show that instances of employee noncompliance with its policy were departures from an effectively enforced work rule. Indeed, Respondent presented no evidence of a specific work rule governing protective equipment for the pouring platform employees. Thus, to the extent Respondent's arguments raise the unpreventable employee misconduct defense, it cannot be sustained by the record.

n26 In view of the tremendous heat of the molten steel on the pouring platform, the record establishes a substantial likelihood of death or serious injury if an accident occurs in the ordinary course of events. In previous accidents at other locations where employees were exposed to molten metal, one employee was killed and others suffered second- and third-degree burns. Furthermore, the record indicates at least one explosion in the pouring building before the accident in question. Finally, Respondent had actual knowledge of the violative conditions. For these reasons, the judge properly found that the violation was serious under section 17(k) of the Act.

[*37]

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Respondent alternatively contends that, even if the Secretary's evidence does establish noncompliance with section 1910.132(a), it does not support a willful violation of the Act. A violation is properly characterized as willful if it was committed "with either an intentional disregard of, or plain indifference to, the Act's requirements." n27 Mel Jarvis Construction Co., Docket No. 77-2100, slip op. at 4 (RC, Sept. 30, 1981) ("Mel Jarvis"), quoting St. Joe Mineral Corp. d/b/a St. Joe Lead Co., Smelting Division v. OSHRC & Marshall, 647 F.2d 840, 846 & n.12 (8th Cir. 1981).

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n27 Among its arguments on review, Respondent contends that the Secretary did not establish a willful violation because he failed to show "an obstinate refusal to comply, defiance, or reckless disregard of the consequences" under Frank Irey, Jr., Inc. v. OSHRC, supra. We have rejected consistently this test for willfulness. E.g., Tri-City Constr. Co., 80 OSAHRC 62/C5, 8 BNA OSHC 1567, 1980 CCH OSHD P24,557 (No. 77-3668, 1980). Moreover, the United States Court of Appeals for the Third Circuit discussed its Irey decision in Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir. 1980). The court observed that a conflict had developed concerning its definition of "willful" conduct because several courts had read into the Irey definition "a requirement that an employer act with 'bad purpose'" and thus had refused to follow Irey. Id. at 1167. The court concluded, however, that "there is little, if any, difference between our [willfulness] approach and that taken by . . . other courts." Id. Assuming there is any significant difference in the Third Circuit's approach, we further note that Judge Oringer expressly concluded that the violation was willful even under the Irey test.

[*38]

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Respondent contends that it cannot be found in willful violation of the "vague" protective equipment standard because the provision does not specifically enumerate items of required equipment. We recognize that a more concrete evidentiary showing is required to prove willfulness under a broadly-worded provision, such as section 1910.132(a), than under a more specific standard. See St. Joe Minerals Corp. d/b/a St. Joe Lead Co., Smelting Div. v. OSHRC & Marshall, supra. Nonetheless, willful violations have been found under generally-worded provisions. For example, in Empire-Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378 (6th Cir. 1978), the court affirmed a willful violation of the general duty clause, section 5(a)(1) of the Act, because the cited employer failed to remedy a hazardous condition despite an earlier fatality and an OSHA citation. See also Ford Motor Co., 77 OSAHRC 167/A2, 5 BNA OSHC 1765, 1977-78 CCH OSHD P22,106 (No. 13682, 1977) (general duty clause violation willful). Indeed, in Constructors Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC [*39] 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978), the Commission found that a foreman's conduct, in permitting employees to be exposed to a known hazard, established a willful violation. The citation alleged noncompliance with the construction industry personal protective equipment standard at section 1926.28(a). Similarly, we conclude that in the case now before us the Secretary has made a sufficiently concrete evidentiary showing to sustain the willful charge.

In view of the two previous citations for noncompliance with section 1910.132(a), we find that Respondent had actual knowledge of the requirements of the standard. See Dic-Underhill, A Joint Venture, 77 OSAHRC 45/A2, 5 BNA OSHC 1251, 1977-78 CCH OSHD P21,722 (No. 13019, 1977). Indeed, the 1972 citation concerned Respondent's failure to provide flame retardant clothing for an employee who died from burns he suffered at a melt furnace in the same building as the "C" low-pouring platform. Furthermore, the judge correctly concluded that the 1976 citation concerning hazards outside the melt building provided additional notice to Respondent of the standard's requirements despite the ultimate disposition of [*40] the citation in a settlement stipulation. See Western Waterproofing Co., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD P21,572 (No. 9225, 1977), remanded, 576 F.2d 139 (8th Cir. 1978).

Respondent argues that the 1976 citation, issued just one week before the pouring platform accident, is exculpatory because the Secretary did not allege a failure to comply with the standard at the pouring platform despite a three-month inspection that preceded issuance of the citation. According to Respondent, this failure to issue a citation directed at the use of protective equipment on the pouring platform supports the inference that the employees wore appropriate equipment. We disagree. The Commission's function is to decide the cases before it, not to rule on the propriety of the Secretary's actions in other cases. Fleming Foods of Nebraska, Inc., supra. Accordingly, we will not speculate on the Secretary's determinations in an earlier inspection. Further, because compliance with the Act is a continuing obligation, an employer cannot deny the existence of or its knowledge of a cited hazard by relying on the Secretary's earlier failure to cite the condition. GAF [*41] Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451, 1981 CCH OSHD P25,281 (No. 77-1811, 1981), appeal filed, No. 81-4091 (2d Cir. June 1, 1981). Consequently, the Secretary's failure to cite conditions on the pouring platform during the earlier inspection does not "exculpate" the Respondent or preclude a finding that the violation now before us was willful. n28

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n28 We emphasize that the cited facility is physically large with several buildings and a population of 3,000 to 5,000 employees. Under these circumstances, we cannot assume that the Secretary reviewed and condoned the personal protective equipment practices of the four employees on the pouring platform.

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We further find that Respondent had actual knowledge of the hazard created by its noncompliance. This conclusion is compelled by the record of previous injuries and a death in the electric melt shop building and employee requests for protective equipment, combined with Respondent's perception of the hazard existing on the pouring platform, as indicated particularly [*42] by the personal protective equipment requirements established for the ladleman.Respondent denies that the earlier incidents are relevant because they occurred at locations other than the "C" low-pouring platform. Yet, in each instance, employees were exposed to the hazard of molten metal and fire in the same building as the pouring platform. For example, in the accident that prompted the 1972 citation, an employee without proper flame retardant equipment was burned to death at a furnace about 125 feet from the pouring platform at issue in this case.See Georgia Electric Co. v. Marshall & OSHRC, 595 F.2d 309 (5th Cir. 1979). Although this situation is not identical, the earlier accident, as well as the other incidents revealed in the record, certainly put Respondent on notice of the necessity to assure employee use of adequate personal protective equipment when employees are exposed to molten metal. In addition, the employee requests for particular equipment provided further notice to Respondent. Finally, as discussed above, we conclude that the record establishes Respondent's recognition of the need for pouring platform employees to use particular equipment such as face [*43] shields, leggings, and flame resistant gloves.

Despite Respondent's knowledge of the standard and of the hazard, the record demonstrates its continual failure to provide appropriate equipment and to develop an adequate safety program governing pouring platform employees. Through its supervisors, Respondent knew that employees were not wearing proper protective equipment, including items such as flame retardant clothing, which Respondent contends it "required." n29 Respondent did not enforce safety equipment work rules through disciplinary action. Indeed, Respondent presented no evidence of specific work rules or safety instructions governing pouring platform employees. Instead, Respondent permitted employees to work near molten steel in "regular street clothing." Despite evidence that cotton gloves ignited near molten metal, burning the hands of employees, Respondent continued to issue cotton gloves. These examples from the record demonstrate Respondent's apparent willingness to subject its inadequately protected employees to danger and establish Respondent's intentional disregard of or plain indifference to the requirements of the cited standard, thereby fully supporting the [*44] willful characterization of the violation. Mel Jarvis, supra. Moreover, Respondent's continuing failure to assure the use of proper safety equipment, despite its receipt of two prior citations, is further evidence of its intentional disregard or plain indifference.

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n29 Indeed, Galbary on several occasions worked on the pouring platform without an aluminized coat even though this equipment was assertedly required and Galbary was himself a supervisor.

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Respondent asserts that it should not be found in willful violation of the Act because it complied with the requirements of which it was aware. A violation is not willful "if the employer had a good faith opinion that the violative conditions conformed to the requirement of the cited standard." Mel Jarvis, supra, slip op. at 4, quoting C.N. Flagg & Co. d/b/a Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD P19,251 (No. 1409, 1975). In assessing willfulness, the Commission applies an objective test to determine [*45] employer good faith: was the employer's belief concerning a factual matter or the interpretation of a standard reasonable under the circumstances. Mel Jarvis, supra, slip op. at 5. In view of Respondent's knowledge of the standard and of the hazard, combined with its failure to enforce the use even of that equipment it assertedly required and its failure to take the elementary step of establishing a work rule, we conclude that Respondent's stated belief that it complied with the standard could not have been held in good faith. See, e.g., Morrison-Knudsen & Associates, 80 OSAHRC 108/A2, 8 BNA OSHC 2231, 1980 CCH OSHD P24,953 (No. 76-1992, 1980).

Finally, we reject Respondent's view that the judge's finding of a willful violation is tantamount to holding it strictly liable under the Act.Instead, the judge found Respondent in violation of the Act only to the extent it knew of the hazardous condition. Respondent's practices before the accident are properly at issue because the Secretary cited Respondent's failure to enforce the use of adequate protective equipment and also because the Secretary alleged that the violation was willful. Respondent willfully failed [*46] to comply with the standard in view of the molten metal hazard to which all of the pouring platform employees were exposed in the ordinary course of events.Thus, the record demonstrates Respondent's intentional disregard of or plain indifference to the requirements of the Act and supports the willful characterization of the citation.

Judge Oringer assessed a $10,000 penalty for this willful violation, the maximum amount allowable under section 17(a) of the Act. We must consider the propriety of this amount. When the Secretary issued the citation, Respondent employed 3,000 to 5,000 employees at its Coatesville facility.It has an extensive history of violations, including two earlier citations for noncompliance with section 1910.132(a).We find that the gravity of the violation is extremely high in view of Respondent's history of mishaps, the number of exposed employees, the continuing nature of their exposure, and the severity of injuries caused by contact with molten metal. Despite evidence of an employee safety committee, regular safety meetings, and Respondent's provision of some protective equipment, Respondent's conduct as a whole demonstrated a lack of concern for employee [*47] safety that precludes any reduction in the penalty amount based on good faith. n30 Respondent's failure to undertake a comprehensive safety program to ensure employee use of appropriate personal protective equipment was particularly egregious. Consequently, we conclude that the proposed penalty is reasonable and appropriate in light of the statutory penalty criteria at section 17(j) of the Act, 29 U.S.C. § 666(i).

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n30 In view of its conduct, Respondent's immediate abatement of the violative condition does not require a finding of good faith. See Dic Underhill, A Joint Venture, supra.

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Accordingly, we affirm the citation for a willful violation of the Act and assess a $10,000 penalty. SO ORDERED.