PETER COOPER CORPORATIONS

OSHRC Docket No. 76-596

Occupational Safety and Health Review Commission

November 23, 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 in 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

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Robert E. Gladden, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David H. Harris is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), [*2] of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Secretary of Labor ("Secretary") issued two citations to Respondent, Peter Cooper Corporations, for alleged serious violations of the Act. In citation 1 the Secretary alleged a violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), n1 the general duty clause, based on Respondent's failure to inoculate its employees against anthrax. n2 Citation 2 alleged noncompliance with 29 C.F.R. 1910.132(a) n3 for Respondent's failure to require employees to wear protective clothing and respirators. n4 The Secretary proposed penalties of $700 for each citation. The judge vacated citation 1, affirmed citation 2, and assessed a $500 penalty. Commissioner Cleary granted the Secretary's petition for review, particularly directing the Commission to consider these issues:

(1) Whether the Administrative Law Judge erred in vacating the alleged violation of section 5(a)(1) of the Act because the suggested method of compliance was infeasible; and

(2) Whether citations alleging a violation of section 5(a)(1) of the Act and noncompliance with the standard at 29 C.F.R. 1910.132(a) are improper under the [*3] circumstances of this case.

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n1 Section 5(a)(1) provides:

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n2 The citation, in pertinent part, alleged that:

Employer did not provide for the immunization of employees against anthrax in those areas where anthrax suspect bone is stored, handled and processed.

The Secretary's 5(a)(1) citation also originally included allegations that Respondent did not adequately disinfect areas containing raw bones suspect of anthrax contamination and did not decontaminate plastic fiber bags containing raw bones. The Secretary later withdrew these items.

n3 29 C.F.R. 1910.132(a) provides:

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.

n4 The citation, in pertinent part, alleged that:

The employer failed to provide employees with a safe and healthful workplace in that the following personal protective equipment was not provided and/or used where it is necessary by reasons of hazards of process or environment such as produced in the warehouse and other areas where anthrax suspect bone is handled and processed:

(a) Protective clothing such as dust impervious coveralls and gloves were not provided and used by employees.

(b) Employees exposed to raw bone dust were not wearing respirators.

[*4]

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I

A.

Anthrax is a disease caused by bacillus anthracis bacteria. It primarily infects animals such as goats, sheep, and cattle, but it can be transmitted from animals to humans. State health departments are required to report the occurrence of this disease to the Department of Health and Human Services' Center for Disease Control ("CDC"). In the period 1965-1975, there were approximately 30 reported cases of anthrax contracted by humans in the United States.

There are two types of this disease: cutaneous anthrax and inhalation anthrax. About 95% of the human anthrax cases in the United States have been in the former category. Cutaneous anthrax develops when a bacterial organism from infected animal tissue becomes deposited under the skin. n5 The incubation period for cutaneous anthrax is from one to seven days. When a patient does not receive an effective antibiotic, the mortality rate for cutaneous anthrax is 10-20%. With treatment, the mortality rate falls to less than 1%.

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n5 When a patient contracts cutaneous anthrax, he develops a small elevated lesion on his skin which becomes a skin ulcer, frequently surrounded by swelling or edema. The lymph gland near the lesion may also swell from the infection. If the lesion occurs on the neck or on or about the eye, it may cause complications.

[*5]

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Inhalation anthrax develops when the bacterial organism is inhaled into the lungs. A progressive infection follows. Since inhalation anthrax is usually not diagnosed in time for treatment, the mortality rate in the United States is 90-100%.

B.

Respondent operates eight plants in the United States and two in Canada with sales aggregating $30 million annually. Its Camden plant, which employs 83 persons, produces gelatin products from animal bone for the photographic, pharmaceutical, and food industries. Respondent also produces dicalcium phosphate ("dical"), a by-product used in animal feed.

Gelatin production at Respondent's plant involves a forty-day process beginning at the loading platform outside Respondent's warehouse, where animal bones arrive. n6 The bones are delivered in bags, unloaded by forklift, opened, and emptied onto a conveyor belt. The bones then are transported to an adjacent warehouse until needed. Opening and emptying the bone-filled bags creates dust. Movement on the conveyor belt also stirs up bone dust. Inside the plant buildings a negative air pressure dust collection [*6] system extracts the dust and deposits it in drums outside the warehouse.

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n6 Sixty per cent of the bone used by Respondent is imported, while domestic bone accounts for the remaining 40% supply. According to the Secretary's expert witness, there have been no known cases of anthrax associated with domestic bone.

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When Respondent needs the imported bone chips to make gelatin, it transports them by conveyor belt to a caustic scrubbing bath. There they are cleaned pursuant to Department of Agriculture ("USDA") regulations to rid them of possible anthrax contamination. n7 The cleaning process is called "denaturing." Respondent also manufactures dical from the exhausted liquors used in denaturing. The finished dical is stored in tanks until it is bagged. The dical bagging area is located about ten feet from an overhead conveyor that transports undenatured bone chips from the warehouse to the caustic bath.

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n7 USDA provisions regulating the importation of animal bones for the purpose of preventing the spread of anthrax and other diseases are published at 9 C.F.R. 95.12(a)-(c). Respondent's predecessor was authorized by USDA to handle restricted imported materials in an agreement executed on July 2, 1974.

[*7]

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The work of unloading the bone trucks, opening the bags, and emptying the bone onto the conveyor for transport into the warehouse is done by workers described by Respondent's representatives as "casual employees," -- employees hired to unload a specific shipment. This crew comprises from five to seven employees; one or two of the crew unload the truck, two or three open the bags and empty them onto the conveyor, and one or two dispose of the emptied bags. It takes an average of three days to unload one delivery of bones, and a shipment arrives an average of once every ten days. The casual employees, who are paid an hourly wage rate, do not receive medical benefits, paid vacation, or holiday leave. Junior Thomas, a so-called casual employee who had worked at the plant since 1943, recruited, trained, and supervised other casual employees. n8

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n8 Another employee told a CDC representative during the inspection that he had worked eight and one-half years in Respondent's "bone department."

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C.

In October 1975, Thomas was hospitalized with a disease diagnosed as anthrax. Later that month, inspectors from various federal and state agencies -- including CDC, the United States Food and Drug Administration ("FDA"), and the Occupational Safety and Health Administration ("OSHA") -- inspected Respondent's plant.

William Deckert, Jr., an investigator for FDA, testified that his primary purpose in inspecting Respondent's plant was to ascertain whether Respondent's final products contained anthrax contamination. He scrutinized the plant for cross-contamination between possible sources of anthrax and the finished products, and he collected dical samples from the finished product bags and gave them to CDC for testing.

Charlotte Patton, chief of the Bacterial Zoonosis Laboratory Section of CDC, and Dr. John Boyce, a physician with the Epidemic Intelligence Service, Bacterial Zoonosis Branch of CDC, sampled air and dust from the bone warehouse and the dical bagging area. Patton testified that test results of nine of twenty bone chips collected from the warehouse were positive for anthrax, as were two of four dust samples [*9] from the drums outside the warehouse and one of five environmental swab samples from near the dical bagging area. Additionally, three of the fifty-four samples Deckert collected from the dical bags were positive for anthrax. Patton stated that she did not find evidence of the anthrax bacteria in any of the blood samples Boyce drew from thirteen of Respondent's employees. n9

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n9 Anthrax bacteria were also found in one of the two blood samples of Junior Thomas that the New Jersey State Department of Health submitted to CDC.

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Patton was primarily interested in collecting particles of five microns or less because they can cause inhalation anthrax, which often causes death before the disease is diagnosed. She indicated that any size particle can cause cutaneous anthrax. Patton also stated that a sample must contain at least 100 organisms per gram to be considered positive. Therefore, some of the specimens classified as negative may actually have contained anthrax organisms.

Boyce, in his testimony and in his report [*10] prepared for the New Jersey State Health Department, concluded that various sections of Respondent's plant contained anthrax bacteria. Thomas most likely acquired his infection at the worksite -- probably in the bone warehouse, an area Boyce characterized as "high-risk." He also characterized as high risk the dock loading area and the area where dust was transmitted from the collection system and deposited in barrels for removal outside the building. n10

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n10 Boyce characterized the dical bagging area a "moderate risk" area. In his report, Boyce concluded that the presence of anthrax in the dical samples may be attributed to a failure of the manufacturing process to kill spores present in raw materials, cross-contamination of dical before or during bagging, or contamination of the sampling paper bags prior to their being filled with dical samples.

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During his inspection of Respondent's plant, Boyce observed four to six employees unloading bone chips in the loading platform area. Some employees wore respirators, others [*11] had respirators around their necks that were not being used, and others did not have respirators.

OSHA compliance officer Julius Stephenczes' inspection coincided with the inspections of Boyce and Patton of CDC and Deckert of FDA. Stephenczes relied upon the other federal experts and did not determine himself whether anthrax was present. During his inspection, Stephenczes observed four employees on the unloading platform who were cutting open bags and dumping their contents on the platform. These employees wore casual clothes and their respirators were hanging around their necks. As Stephenczes approached, these employees put their respirators on their face. An employee identified by Respondent's representative as foreman of the group did not have a respirator.

Respondent's plant general manager, Thomas Downey, thought it likely that Deckert's samples were inaccurate. Downey stated that Deckert had told him that the dical bag exteriors were not sterilized when they were opened to extract samples. Airborne dust could have contaminated the sample, Downey postulated.

Kenneth Allen, a health technician for the USDA who testified for Respondent, had inspected the plant at least [*12] once a month since gelatin production was started in 1975. Allen did not know of any previous case of anthrax at this facility. He stated that eighty samples taken by USDA in the dical bagging area, on dates after the sampling by CDC and FDA, tested negative for anthrax.

D.

Boyce testified for the Secretary about past incidences of anthrax in this country. Most cases have occurred in textile and tannery mills where animal by-products, such as goat hair and animal hides, are used. There have been several cases of anthrax in the felt industry, among manufacturers of interlining materials, in slaughterhouses, and in industries that use imported bones. Boyce stated that a paper published in the 1950's in Lancet Medical Journal, a British medical journal, discussed anthrax contamination present in animal bones imported from Syria and Pakistan. Also introduced into evidence was a study that recommended vaccination against anthrax for several occupational groups, including persons who handled imported bone meal. Brachman, Gold, Plotkin, Fekety, Werrin & Ingraham, "Field Evaluation of a Human Anthrax Vaccine," 52 Am. J. Pub. Health 632 (1962).

Boyce also testified that, [*13] prior to Thomas, two other employees had contracted anthrax at the same plant. n11 These anthrax cases had occurred in 1965 and in 1969 when the plant was under different ownership. n12

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n11 The same premises were used to manufacture gelatin products by the Kind-Knox Gelatin Company (Kind-Knox) until 1967, and by the Lipton Tea Company until 1970. Respondent's predecessor corporation, which had the same name as Respondent, acquired the plant in 1974 and rehabilitated the facility, which had not been in use since 1970. The alleged violations in this case occurred when the predecessor corporation operated the plant. Respondent concedes that when it acquired the manufacturing facilities it had knowledge of the inspections and citations, and it does not deny responsibility for the alleged violations on the basis that they occurred under the ownership of the predecessor. Further, the Secretary asserts that the management remained the same after the change in ownership.

n12 Additionally, Boyce of CDC and Allen of USDA testified that another case of anthrax occurred at this plant in January 1976 (after the inspection in this case). The January 1976 anthrax case is not mentioned in the citation or the pleadings.

[*14]

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Downey, the general manager of Respondent's plant, had been employed at the same plant from 1952-1967 when it was owned and operated by Kind-Knox. Downey testified that he knew about the 1965 incidence of anthrax at the plant, but he did not recall advising Respondent about it. Downey stated that he knew, when Respondent hired him as plant manager in 1974, that Respondent used imported bone and that imported bone is susceptible to carrying anthrax.

E.

In order to protect employees from anthrax contamination at Respondent's plant, Boyce recommended the immunization of employees working in the areas he deemed "high-risk." This immunization process would require three separate injections given at two-week intervals followed by a fourth injection six months after the first one. Boyce in his report stated that it may be impractical to vaccinate short-term employees since it takes four injections over a six-month period to adequately vaccinate the employees.

Boyce testified that anthrax vaccine has been available since 1962, available from CDC since 1967, and that it was licensed in 1972. Before the [*15] licensing in 1972 the vaccine was an "investigational new drug" and was distributed on request. At least ten textile mills used the vaccine during that pre-licensing period.

Boyce also recommended that each employee working near contaminated bone chips wear personal protective equipment consisting of a respirator mask and a long sleeve garment with a collar. n13 Boyce further recommended that employees not directly involved in processing raw bone should be excluded from high risk areas, particularly if such employees are not vaccinated. n14

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n13 Both Boyce and Patton of CDC during their inspection of Respondent's plant used personal protective equipment even though they had been vaccinated against anthrax. Patton testified that, despite the vaccine, personal protective equipment was necessary to prevent excessive inhalation of the anthrax organism or skin contamination.

n14 Boyce's report contains the following recommendation:

To prevent further cases of human anthrax and facilitate the early diagnosis and treatment of any cases that might occur, the Peter Cooper Corporation should institute the following preventive measures. Employees who work with raw unprocessed bone should be immunized with adsorbed anthrax vaccine (available at CDC from Dr. Robert J. Ellis, Immunobiologics Activity 404-633-3311, Ext. 3356). Since primary immunization consists of at least 4 doses given over a 6-month period, vaccination is not practical for employees who will spend a few weeks or months in high risk areas.

Persons working with raw bone and those directly exposed to bone chip dust should wear protective clothing (with long sleeves and collars) and respirator masks. It would be advisable for persons employed in high risk areas to change their clothes before leaving the plant; such employees should ideally have separate lockers for their work and casual clothes. The areas of the plant where unprocessed bone is handled should be "off limits" for employees not directly responsible for handling the bone.

Boyce's report also recommends that Respondent educate its employees about possible anthrax infection. The report further recommends that Respondent clean and disinfect areas where imported bone is present.

[*16]

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Downey testified that he was unaware of the existence of the anthrax vaccine until after Thomas became ill. Further, Downey stated that whenever he spoke with Boyce about the vaccine the latter was uncommunicative. n15 Downey testified that Respondent instituted a vaccination program on January 16, 1976. This was three months after Thomas contracted anthrax and two months before Respondent received the CDC report from the New Jersey Department of Health that included the recommendation that employees working in high risk areas receive anthrax vaccination.

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n15 At the hearing, Boyce explained that CDC policy is to report to a state health department rather than directly to the particular employer. Boyce indicated that this CDC policy was followed in this case.

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Downey also testified that no disciplinary action effectively insured employee use of respirators. Even if an employee was discharged for failure to use a respirator, the problem [*17] was not solved because the replacement inevitably demonstrated the same resistance.

II

In his decision, Judge Harris found that Respondent's general manager Downey was aware of the hazard of anthrax contamination resulting from the handling of imported bone or being in the proximity of dust from imported bone. Citing Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD P21,191 (No. 12136, 1976), the judge imputed Downey's knowledge to Respondent.

However, the judge vacated the 5(a)(1) citation on the basis that the glue and gelatin manufacture industry was not aware of the existence of a human anthrax vaccine. He noted that most record evidence concerning industry awareness of the vaccine involved the textile, tanning, and hatting industries. He found that there was insufficient evidence of industry practice in the glue and gelatin industry to demonstrate that Respondent should have protected its employees with anthrax immunization. n16

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n16 The judge also found that Respondent did not have knowledge of CDC's investigation and recommendations which occurred when the plant was operated by Kind-Knox. Additionally, the judge noted that no evidence was offered concerning whether the Kind-Knox employee who previously was infected with anthrax was a casual employee.

[*18]

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The judge further found that the six-month vaccination program recommended by Boyce was impractical and not feasible. In reaching this conclusion, the judge considered it significant that employees in the bone warehouse and by the unloading areas were casual employees.

The judge in his decision also indicated that the Secretary's section 1910.132(a) citation precluded the Secretary from citing Respondent for a section 5(a)(1) violation. Referring to Boyce's report, the judge apparently concluded that the combined use of personal protective equipment and vaccine was not necessary to protect against anthrax infection.

The judge affirmed the section 1910.132(a) citation, finding that the Secretary proved the presence of anthrax, the need for personal protective equipment, and Respondent's noncompliance with the cited standard. He concluded that the violation was serious within the meaning of section 17(k) of the Act. n17 The judge rejected Respondent's defense based on the workers' reluctance to wear protective equipment. Citing Weatherhead Co., 76 OSAHRC 61/E7, 4 BNA OSHD 1296, 1976-77 CCH OSHD [*19] P20,784 (No. 8862, 1976) and other cases, he concluded that Respondent's efforts to enforce employee use of respirators were insufficient. The judge assessed a $500 penalty for this violation.

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n17 Section 17(k) provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

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III

The Secretary argues on review that the judge erroneously interpreted the requirements of section 5(a)(1) of the Act, and, as a result, improperly vacated the citation. According to the Secretary, the judge erred in requiring proof that the industry in which Respondent is engaged recognized the need to take specified [*20] precautions against anthrax infection. The Secretary contends that he need only prove that elimination or reduction of a recognized hazard is feasible.

The Secretary further argues that, if the correct test is applied, he has established a violation of section 5(a)(1). He points to the judge's findings that Respondent recognized the hazard of anthrax contamination n18 and that there was a substantial probability that death or serious physical harm to employees could result from the cited condition.

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n18 The Secretary refers to case law establishing that recognition of a hazard under 5(a)(1) may be established by proof that the employer had actual knowledge of the hazard. The Secretary argues that there also is proof of industry recognition of the cited hazard. In making this argument, the Secretary contends that the judge improperly defined Respondent's industry as the manufacture of gelatin and glue. In the Secretary's view, the relevant industry or activity is employers engaged in working with imported animal matter.

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The Secretary also contends that Boyce's testimony and other evidence establishes that vaccination of Respondent's employees is a feasible means of protecting against anthrax. While the vaccine would not fully protect employees who work for Respondent for less than six months, the Secretary points out that at least one employee, Thomas, had worked for Respondent for over six months. Since inoculation was feasible at least for Thomas, the Secretary argues that the judge's finding that vaccination was infeasible should be reversed. Finally, the Secretary contends that the judge erred in concluding that personal protective equipment by itself would be sufficient to protect Respondent's employees against anthrax. In the Secretary's view, the evidence establishes that both inoculation and personal protective equipment are necessary to protect against anthrax infection.

Respondent contends that the section 5(a)(1) citation should be vacated because the Secretary did not prove that immunization was a practical method that Respondent could have used to protect its employees against anthrax. Respondent argues in support of the judge's finding that at the time of the inspection [*22] Respondent did not have actual knowledge of the vaccine's availability. Respondent also contends that the vaccine's availability was not known in Respondent's industry; rather, the Secretary's evidence of recognition applied only to the textile industry. Respondent further points out that it began an immunization program as soon as it learned of the vaccine's availability, and it argues that the citation should be vacated because the Secretary did not allege when an immunization program should have been started by Respondent. In Respondent's view, it should not be held in violation of the Act because of its failure to adopt "an unrealistic or unknown solution."

Respondent also contends that the judge correctly ruled that anthrax vaccination was not feasible for casual employees, including Thomas, who were not continuously employed by Respondent. Finally, Respondent argues that the judge did not err in finding that the wearing of personal protective equipment would obviate the need to vaccinate Respondent's employees.

IV

In order to establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized, [*23] the occurrence of an incident is reasonably foreseeable, and the likely consequence in the event of an incident is death or serious physical harm to its employees. Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC 45/A2, 9 BNA 1681, 1691, 1981 CCH OSHD P25,363 at p. 31,547 (No. 76-450, 1981). The Secretary also must demonstrate that there were feasible means available to the employer to abate the hazard. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973).

A recognized hazard is not defined in terms of the absence of appropriate abatement measures. Rather, a recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); see Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (1981). In this case, the judge correctly identified the hazard as the exposure of workers who handled imported bones to possible anthrax infection. The judge, however, erroneously [*24] required the Secretary to prove not only recognition of this hazard but also recognition by Respondent or its industry of anthrax vaccination as the appropriate means of abatement. Although hazard recognition is established by reference to general industry or actual employer knowledge, an appropriate means of abatement is determined by proof of its Feasibility. Williams Enterprises, Inc., 79 OSAHRC 24/A2, 7 BNA OSHC 1247, 1979 CCH OSHD P23,478 (No. 4533, 1979), aff'd, No. 79-1559 (D.C. Cir. June 9, 1980); Continental Oil Co., 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (No. 1829, 1978), aff'd, 630 F.2d 446 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (1981); see also, General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

The judge determined, and we agree, that Respondent's general manager was aware that imported bone presents a hazard of transmitting anthrax to those who work with it and that the general manager's knowledge is imputable to Respondent. When the Secretary proves that the cited employer has actual knowledge of a particular hazard, the recognition element of a section 5(a)(1) [*25] violation is satisfied and industry recognition need not be shown. Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); Beaird-Poulan, a Division of Emerson Electric Co., supra. We thus conclude that the hazard of anthrax infection was recognized by Respondent. n19

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n19 Since the Secretary established the "recognition" element of section 5(a)(1) through proof of Respondent's actual knowledge, it is not necessary for us to decide whether the judge correctly characterized Respondent's industry as the glue and gelatin manufacturing industry.

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The judge did not make a finding as to whether it was reasonably foreseeable that anthrax infection could occur at Respondent's plant. However, the record demonstrates that anthrax infection among workers who handle imported animal products is not an unlikely occurrence. Moreover, there were several incidences of anthrax infection at the same [*26] facility prior to Thomas' affliction. Respondent's general manager was aware of at least one of these cases. Therefore, the occurrence of anthrax infection is found to be reasonably foreseeable. n20

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n20 Commissioner Cleary finds that it is inappropriate to inquire into whether an incident is reasonably foreseeable in determining whether an employer violated 5(a)(1). Bomac Drilling, supra (Cleary, concurring). See also Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981). He would find a violation of 5(a)(1) of the Act in this case without recourse to whether an incident is reasonably foreseeable. However, Commissioner Cleary agrees to follow the precedent in Bomac Drilling for the purpose of deciding this case.

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We also conclude that the hazard of anthrax infection was likely to cause death or serious harm to Respondent's employees. The evidence establishes that the mortality rate for inhalation anthrax is 90-100% and the mortality rate for cutaneous anthrax, [*27] if the patient does not receive an effective antibiotic, is 10 to 20%. The investigation conducted by CDC establishes that anthrax bacteria was present at Respondent's workplace and supports Boyce's conclusion that, at several locations at the workplace, Respondent's employees were exposed to a high risk of contracting anthrax. n21

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n21 Respondent argues that there was no competent evidence that Thomas or any other employee of Respondent ever contracted anthrax. However, while no medical records or testimony from Thomas' attending physicians were placed in evidence, the presence of anthrax bacteria in a blood sample drawn from Thomas and testimony that Thomas was hospitalized with a disease diagnosed as anthrax were sufficient to establish that he had contracted the disease. Further, proof that Thomas had contracted anthrax is not necessary to establish a violation of 5(a)(1). Rather, employee exposure to the hazard of anthrax infection is established through evidence that anthrax bacteria were present in dust, bone, and dical samples collected at Respondent's worksite.

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The final element of a section 5(a)(1) case concerns feasible abatement. The judge concluded that the Secretary's proposed method of abatement, inoculation, "is impractical and therefore not feasible." In considering feasibility, the judge imposed on the Secretary the burden of proving that Respondent's industry recognized vaccination as the appropriate method of abatement. However, as discussed above, the requirement of recognition applies only to the hazard. The proper standard is whether safety or health experts recognize the proposed abatement method as feasible. General Dynamics Corp., Quincy Shipbuilding Division, 599 F.2d at 404; National Realty & Construction Co., supra. Boyce stated that the anthrax vaccination was in use as early as 1962 and was available from CDC since 1967. Further, he testified that textile mills using imported animal products used the vaccine before its licensing in 1972. Moreover, he testified that in 1965 CDC recommended to Kind-Knox that it vaccinate its employees. Therefore, we conclude that health experts consider vaccination to be a feasible means to protect against [*29] the hazard of anthrax infection. n22

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n22 Respondent argues that the Secretary did not allege when an immunization program by Respondent would have been feasible. However, the citation and complaint both referred to the dates when the compliance officer conducted his inspection. It is clear, therefore, that the Secretary was citing Respondent for failure to immunize its employees at the time of the inspection. For the reasons given above, we find that it was feasible for Respondent to immunize at least some of its employees at that particular time.

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The judge also concluded that inoculation of Respondent's employees was not feasible for "casual employees" since such employees would not benefit from the inoculation process, which takes six months. However, the employee who contracted anthrax, Thomas -- although classified a "casual employee" -- worked at the facility since 1943. Thus, Respondent's characterization of its employees' status is not determinative of their job tenure. We find that, at least as to Thomas, [*30] vaccination was feasible. n23

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n23 We further conclude that Judge Harris erred in requiring the Secretary to prove the nature of employment of a Kind-Knox employee who was previously infected with anthrax. Whether the previously infected employee at the time of his infection was a casual or permanent employee is irrelevant. Rather, the crucial inquiry, which is satisfied here, is whether an employee or employees working for Respondent at the time of the alleged violation could have been vaccinated against anthrax.

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Our conclusion that Respondent violated section 1910.132(a) does not preclude a conclusion that Respondent violated section 5(a)(1) of the Act as well. Citation under section 5(a)(1) is inappropriate when a specific standard applies to the facts. However, when no specific standard entirely protects against the hazard alleged, citation under section 5(a)(1) is proper. Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD P25,551 (No. 13390, 1981).

The judge, referring only to Boyce's [*31] report, indicated that use of protective clothing and respirators alone would be sufficient to prevent anthrax infection without the need for immunization. However, this conclusion is not supported by the language of Boyce's report. Boyce's report first recommends that employees be vaccinated. Only after mentioning that vaccination "is not practical for employees who will spend a few weeks or months in high risk areas" does Boyce's report recommend the use of protective clothing and respirators. Further, in recommending that employees not directly involved in processing raw bones be excluded from high-risk areas, Boyce testified that "[it] would be particularly important [to exclude them from such areas] if they were not vaccinated against anthrax." Therefore, the correct inference to be drawn from Boyce's report is that both vaccination and use of personal protective equipment should be implemented by Respondent.

Additionally, we note that vaccination will provide some protection to an employee against anthrax infection in the event that he neglects to wear personal protective equipment. Since the anthrax vaccination process takes six months, it is also clear that vaccination [*32] alone is not sufficient to protect workers before inoculation is completed or to protect those workers who are in Respondent's employ for less than six months. Therefore, we conclude that the two citations issued to Respondent are not duplicative since compliance with the requirements stated in both is necessary to protect Respondent's employees against anthrax infection. n24

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n24 In reaching this conclusion, we note that there is no specific standard that applies to anthrax infection. Rather, 1910.132(a) is a broad standard that applies to a wide range of protective equipment and covers many types of hazards. Therefore, this is not a situation where an employer reasonably could believe that compliance with a specific standard by itself would be sufficient to free its worksite of a recognized hazard.

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Accordingly, we conclude that the Secretary carried his burden of proving a violation of section 5(a)(1) and that the judge erred in vacating the citation. We find that a penalty of $100 is appropriate for this violation. [*33] In assessing this amount, we consider it significant that Respondent initiated an anthrax vaccination program shortly after it learned of the availability of an anthrax vaccine.

Neither party on review takes exception to the judge's finding that Respondent failed to comply with the standard at 29 C.F.R. 1910.132(a) or with the judge's assessment of a $500 penalty for that violation. Consequently, we also affirm the citation alleging a violation of that standard and we assess a $500 penalty. See Commission Rule 92, 29 C.F.R. 2200.92.

V

Accordingly, we affirm the citation alleging a violation of 29 C.F.R. 1910.132(a) and we assess a penalty of $500 for that violation. We reverse the judge and affirm the citation alleging a violation of section 5(a)(1) of the Act. A penalty of $100 is assessed for the section 5(a)(1) violation.

SO ORDERED.